Citation Nr: 21006502 Decision Date: 02/04/21 Archive Date: 02/04/21 DOCKET NO. 19-05 957 DATE: February 4, 2021 REMANDED Entitlement to service connection for nonspecific interstitial pneumonitis, to include as due to herbicide exposure, is remanded. Entitlement to an initial rating in excess of 20 percent for cervical strain with degenerative disc disease and degenerative arthritis of the spine and anterolisthesis (hereinafter “cervical spine disability”) is remanded. Entitlement to an initial rating in excess of 20 percent for radiculopathy of the right upper extremity is remanded. Entitlement to an initial compensable rating prior to November 1, 2018 and in excess of 10 percent thereafter for gastroesophageal reflux disease (GERD) with gastritis, hiatal hernia, status post hiatal surgery Nissen repair fundoplication with surgical scars is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from February 1964 to July 1992. His awards and decorations include the Purple Heart and Combat Infantryman Badge. 1. Entitlement to service connection for nonspecific interstitial pneumonitis, to include as due to herbicide exposure In August 1992, the Veteran requested service connection for sinusitis, rhinitis, and asthma and the claim was granted in a VA rating decision that same month. The Agency of Original Jurisdiction (AOJ) characterized the service-connected disability as chronic allergic rhinitis and sinusitis, history of asthma, and assigned a noncompensable (0 percent) disability rating effective from August 1, 1992 (the date following separation from active service). On September 11, 2014, VA received the Veteran’s correspondence in which he discussed his onset and treatment for asthma following separation from service and recent diagnosis of nonspecific interstitial pneumonitis three years prior as well as sleep apnea. The Veteran also reported being treated “for this condition” by Dr. J. P. out of Slidell Memorial Hospital in Slidell, Louisiana. In response, the AOJ scheduled a VA Disability Benefits Questionnaire (DBQ) examination for respiratory conditions in January 2015 and March 2015 to determine the current severity of the service-connected asthma disability. In April 2015, the Veteran underwent a VA DBQ examination for respiratory conditions (other than tuberculosis and sleep apnea) at which he reported the onset of increased shortness of breath three years prior and occasional wheezing. Following the clinical evaluation and review of the claims file, the VA examiner rendered diagnoses of asthma and nonspecific interstitial pneumonitis. Since then, the AOJ raised and denied the issue of entitlement to service connection for nonspecific interstitial pneumonitis in the August 2015 VA rating decision. In a statement submitted with the August 2016 notice of disagreement, the Veteran reported he was first seen/treated for nonspecific interstitial pneumonitis in 1969 following his second tour in Vietnam where in which he worked in “War Zone C where Agent Orange was employed.” Additionally, in August 2016 the Veteran submitted a private treatment record and statement by Dr. J. P. who noted the Veteran “does not have asthma and his cough (bronchitis) is secondary to his [nonspecific interstitial pneumonitis] [and] [i]t is at least as likely than not that this is the condition developed in Vietnam and . . . has only now been appropriately diagnosed.” Review of the record does not indicate that this August 2016 private medical opinion was provided after a review of the claims file. At the subsequent May 2018 DRO hearing and December 2020 Board hearing, the Veteran discussed having symptoms of pneumonitis since service and exposure to Agent Orange while in Vietnam. Additionally, the AOJ conceded the Veteran’s exposure to herbicides during his period of active service in Vietnam, as noted in the February 2019 statement of the case (SOC). See 38 C.F.R. § 3.307 (2019). The Board acknowledges that while exposure to herbicides is conceded, as in this case, nonspecific interstitial pneumonitis is not listed or contemplated among the diseases associated with certain herbicide agents under 38 C.F.R. § 3.309(e), thus consideration of service connection for this disability on appeal on a presumptive basis due to herbicide exposure is not warranted in this case. However, direct service connection remains available. Combee v. Brown, 34 F.3d 1039 (Fed Cir. 1994). After review of the evidentiary record since the April 2015 VA examination, as discussed above, additional development is needed to properly adjudicate this claim on appeal. Specifically, a VA medical opinion has not been provided and is needed to determine the etiology of the current diagnosis of nonspecific interstitial pneumonitis, to include consideration of whether the current diagnosis is separate and distinct from the service-connected chronic allergic rhinitis and sinusitis, history of asthma. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Additionally, in the absence of any attempt by VA, a remand is needed to obtain any outstanding identified private treatment records from Dr. J. P. as identified by the Veteran during the appeal period. See Sullivan v. McDonald, 815 F.3d 786, 793 (Fed. Cir. 2016) (citing 38 C.F.R. § 3.159(c)(3) (2019)). The Board further notes that the Veteran is not a Persian Gulf Veteran. Although he served on active duty during the Persian Gulf War, his service personnel records do not show he served overseas at any date since 1981. As a result, consideration of whether service connection for nonspecific interstitial pneumonitis will not be considered on a presumptive basis for a Persian Gulf Veteran. See 38 U.S.C. § 1117 (2012); 38 C.F.R. § 3.317(a)(1) (2019). 2. Entitlement to an initial rating in excess of 20 percent for cervical spine disability 3. Entitlement to an initial rating in excess of 20 percent for radiculopathy of the right upper extremity During the course of the appeal, the Veteran was afforded VA DBQ examinations for neck (cervical spine) conditions in August 2015 and January 2019 for his service-connected cervical spine and radiculopathy of the right upper extremity disabilities. Since then, the Veteran reported at the December 2020 Board hearing that he underwent surgery on his neck on May 15, 2019 for insertion of a “cage.” In December 2020, the Veteran also submitted a December 2019 private imaging results of the cervical spine from Paradigm Orthopedics. In light of these indications of worsening of the service-connected cervical spine disability, additional development is needed to properly adjudicate these issues on appeal. See 38 U.S.C. § 5103A(a) (2012); 38 C.F.R. § 3.159 (2019); Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). 4. Entitlement to an initial compensable rating prior to November 1, 2018 and in excess of 10 percent thereafter for GERD with gastritis, hiatal hernia, status post hiatal surgery Nissen repair fundoplication with surgical scars During the course of the appeal, the Veteran was afforded VA DBQ examinations for esophageal conditions (including GERD, hiatal hernia and other esophageal disorders) in August 2015 and November 2018 as well as a VA DBQ examination for stomach and duodenal conditions (not including GERD or esophageal disorders) in August 2015. Since the most recent VA examination in 2018, the Veteran reported at the December 2020 Board hearing to having worsening symptoms on a fairly constant basis to include having to watch what he eats, burning sensation in stomach, ongoing stomach pain, and pain around and up the esophagus. In light of the Veteran’s asserted worsening symptomatology of the service-connected GERD with gastritis, hiatal hernia, status post hiatal surgery Nissen repair fundoplication with surgical scars, additional development is needed to properly adjudicate this issue on appeal. See 38 U.S.C. § 5103A(a); 38 C.F.R. § 3.159; Barr, 21 Vet. App. at 312. The matters are REMANDED for the following actions: 1. Contact the Veteran and request that he identify any private treatment facilities or providers, to include (a) Dr. J. P. at Slidell Memorial Hospital in Slidell, Louisiana relevant to treatment for nonspecific interstitial pneumonitis and (b) relevant to the May 2019 operation on the service-connected cervical spine disability including from Paradigm Orthopedics. 2. Provide him with the appropriate release forms. Then, make appropriate efforts to obtain any (a) outstanding records so authorized for release from any facility identified by the Veteran and (b) any outstanding VA treatment records dated since January 2019 from any VA facility. If these records cannot be located, the AOJ must specifically document the attempts made to locate them and notify the Veteran. 3. Then, return the Veteran’s claims file to the examiner who conducted the April 2015 VA DBQ examination for respiratory conditions so a supplemental opinion may be provided. If that examiner is no longer available, provide the Veteran’s claims file to a similarly qualified clinician. The entire claims file and a copy of this remand must be made available to the examiner for review. A new examination (physical or telehealth) is only required if deemed necessary by the examiner. The examiner must provide an opinion as to the following: (a.) Whether the Veteran’s nonspecific interstitial pneumonitis is separate and distinct from his service-connected chronic allergic rhinitis and sinusitis, history of asthma. (b.) Whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s nonspecific interstitial pneumonitis (a) began during active service or (b) related to an incident of service, to include presumed in-service herbicide exposure. Note – For the purposes of this remand only, and for the limited purpose of conducting the examination and providing a medical opinion, the examiner should assume the Veteran’s in-service herbicide exposure is true, as conceded by VA in a February 2020 VA memo and the May 2020 VA rating decision. Note – It is not sufficient to provide an opinion that the Veteran’s renal cell carcinoma is not directly due to herbicide exposure merely because it is not on the list of diseases and conditions presumptively linked with herbicide exposure. The examiner must provide all findings, along with a complete rationale for his or her opinions in the examination report. If any of the above requested opinions cannot be made without resort to speculation, the examiner must state this and provide a rationale for such conclusion. 4. Schedule the Veteran for a VA examination (physical or telehealth) with an appropriate clinician to determine the current severity of his service-connected cervical spine disability and service-connected radiculopathy of the right upper extremity disability. The entire claims file and a copy of this remand must be made available to the examiner for review, and the examiner must specifically acknowledge receipt and review of these materials in any reports generated. Although an independent review of the claims file is required, the Board calls the examiner’s attention to the following: At the December 2020 Board hearing, the Veteran reported he underwent a surgical operation on the neck on May 15, 2019. The examiner must provide all findings. 5. Schedule the Veteran for an examination (physical or telehealth) with an appropriate clinician to determine the current severity of his service-connected GERD with gastritis, hiatal hernia, status post hiatal surgery Nissen repair fundoplication with surgical scars. The entire claims file and a copy of this remand must be made available to the examiner for review. Although an independent review of the claims file is required, the Board calls the examiner’s attention to the following: At the December 2020 Board hearing, the Veteran reported worsening symptoms on a fairly constant basis including having to watch what he eats, burning sensation in stomach, ongoing stomach pain, and pain around and up the esophagus. The examiner must provide all findings. 6. Then, review all examination reports and medical opinions provided to ensure that the requested information was provided. If any report or opinion is deficient in any manner, the AOJ must implement corrective procedures. 7. Then, readjudicate the claims. If the decision is adverse to the Veteran, issue a Supplemental Statement of the Case and allow the applicable time for response. Then, return the case to the Board. D. Martz Ames Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Carter, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.