Citation Nr: 21008806 Decision Date: 02/18/21 Archive Date: 02/18/21 DOCKET NO. 09-15 223 DATE: February 18, 2021 REMANDED 1. Entitlement to service connection for a bilateral eye disorder is remanded. 2. Entitlement to service connection for gastric cancer, to include as due to herbicide exposure, is remanded. 3. Entitlement to service connection for a low back disorder is remanded. 4. Entitlement to service connection for a gastrointestinal disorder, claimed as Crohn’s disease, is remanded. 5. Entitlement to service connection for hypertension is remanded. REASONS FOR REMAND The Veteran served on active duty from August 1966 to October 1986. This case comes before the Board of Veterans’ Appeals (Board) on appeal from July 2007 and September 2013 rating decisions of the Department of Veteran Affairs (VA) Regional Office (RO). Initially, the Board notes that although the Veteran filed his claim for entitlement to service connection for Crohn’s disease, it has now been recharacterized as entitlement to service connection for a gastrointestinal disorder, claimed as Crohn’s disease. Although a Veteran may identify a particular disorder when he or she files a claim, the scope of the claim cannot be limited only to the disorder stated, but must be considered a claim for any disorder that may reasonably be encompassed by several factors including the description of the claim, the symptoms the claimant describes, and the information the claimant submits or that VA obtains in support of the claim. Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). The Veteran testified before the undersigned Veterans Law Judge in a November 2019 hearing. The issues of a bilateral eye disorder and a low back disorder were previously before the Board in April 2012 when the claim for service connection for a low back disorder was denied, and the claim for service connection for a bilateral eye disorder was remanded for further development. The bilateral eye disorder issue returned to the Board in August 2014, along with the Crohn’s disease, and hypertension issues, as well as claims to reopen the issues of the low back disorder and gastric cancer, and were all remanded for further development. The bilateral eye disorder was again remanded for further development in October 2017 and June 2018. Finally, in a November 2019 Board decision, the claims to reopen the low back disorder and gastric cancer were granted, and the present issues were again all remanded for further development. That development was completed, and the case has since been returned to the Board for appellate review. The Board finds there was substantial compliance with the November 2019 Board remand directives. The Board is obligated by law to ensure that the RO complies with its directives. Stegall v. West, 11 Vet. App. 268, 271 (1998). The November 2019 Board remand instructed the RO to obtain and associate with the claims file any outstanding private treatment records (PTRs), and to obtain an addendum opinion for the bilateral eye disorder claim. The RO sent a December 2019 letter to the Veteran asking that he identify and authorize for release any outstanding PTRs. The Veteran did not reply to this letter. Addendum VA medical opinions for the bilateral eye disorder were obtained in January, September, and October 2020. However, for the reasons stated below, remand is again required. 1. Entitlement to service connection for a bilateral eye disorder is remanded. 2. Entitlement to service connection for gastric cancer, to include as due to herbicide exposure, is remanded. 3. Entitlement to service connection for a low back disorder is remanded. 4. Entitlement to service connection for a gastrointestinal disorder is remanded. 5. Entitlement to service connection for hypertension is remanded. First, remand is required for addendum VA medical opinions for the bilateral eye disorder, gastric cancer, and low back disorder claims. Where VA provides the veteran with an examination in a service connection claim, the examination must be adequate. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). A medical opinion based upon an inaccurate factual premise has no probative value. Reonal v. Brown, 5 Vet. App. 458, 461 (1993). A medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008). When a Veteran has provided competent lay statements of an in-service injury, the examiner must consider and address them when developing his rationale. See Dalton v. Nicholson, 21 Vet. App. 23, 39-40 (2007) (holding that when the Veteran has provided lay testimony of an in-service injury, an examiner cannot ignore that lay evidence and base his or her opinion that there is no relationship to service on the absence of in-service corroborating medical records). Generally, a medical opinion should address the appropriate theories of entitlement. Stefl v. Nicholson, 21 Vet. App. 120, 123-24 (2007). Bilateral eye disorder Regarding the bilateral eye disorder, the RO obtained a January 2020 addendum VA medical opinion where, based on a review of the claims file, the examiner provided a negative nexus opinion. The examiner explained that there is no diagnosis of diabetes, which is the most commonly accepted condition connected to Agent Orange exposure. The examiner stated that none of the typical ocular side effects of diabetes are found in the Veteran’s medical records, nor is glaucoma listed as a condition associated with Agent Orange exposure. The examiner explained that in some cases diabetes can be an aggravating factor in the development, but without a diabetes diagnosis, a nexus cannot be established. Although the examiner’s entire opinion is based on diabetes-related glaucoma and a connection to Agent Orange, the examiner was not asked to advise on either diabetes or Agent Orange exposure. Further, the November 2019 Board remand instructed the examiner to address primary open angle glaucoma bilaterally, anterior lens pigment versus persistent pupillary membrane bilaterally, bilateral cataracts, and a refractive error. The examiner only touched on glaucoma, and failed to address these other diagnoses. The RO obtained another addendum VA medical opinion in September 2020, where the examiner provided a negative nexus opinion, but noted that they did not review the claims file. The examiner explained that a patient can have several ocular conditions, but that does not mean that every single condition is related to one condition or event. The glaucoma is highly likely related to an anterior lens pigment, which, as the pigment is released, the pressure increases. The persistent pupillary membrane is highly likely congenital and highly likely unrelated to the other conditions as it is normally benign. The cataracts are unrelated to glaucoma and a refractive error. And as for the refractive error, the examiner stated that it is highly likely unrelated to all of the aforementioned conditions. However, the examiner failed to provide any supporting rationale, and did not actually address whether these conditions might be related to service. Additionally, the examiner did not review the claims file. The RO obtained another addendum VA medical opinion in October 2020, again providing a negative nexus opinion, but this time noting that the claims file was reviewed. The examiner explained that the anterior lens pigment is a common side effect or sign of glaucoma, and in some occasions, it can be related to trauma. When pigment is released near the anterior segment of the lens, it results in increased pressure which is what defines glaucoma. The examiner explained that the persistent pupillary membrane is a condition of the eye involving remnants of a fetal membrane that persist as strands of tissue crossing the pupil which is highly likely a congenital condition unrelated to service, and highly likely unrelated to glaucoma. As for the refractive error, the examiner noted that this is also congenital, and that it is highly likely unrelated to service. The examiner explained that the Veteran has presbyopia, which is the natural aging process of the eye in which a patient needs a bifocal, has nothing to do with service, and happens to everybody. Noting the history of left eye trauma, the examiner explained that trauma can be an aggravating factor in an already developing glaucoma. If cataracts were traumatic, these would have been diagnosed shortly after the trauma in the affected eye. The examiner explained that the cataracts seem to be age related and bilateral rather than just in the eye with the history of trauma. The examiner opined that the clinical evidence tends to point to pre-existing conditions such as pupillary membrane and a genetic predisposition for glaucoma, which were highly likely aggravated by in-service events such as trauma. Finally, the examiner explained that the presbyopia and refractive errors are totally separate conditions that have nothing to do with service. The Board notes that although the nexus opinion is negative overall, the examiner did state that the pupillary membrane and glaucoma were highly likely aggravated by in-service events such as trauma; however, the examiner failed to provide any supporting rationale for this statement, which is insufficient upon which to grant service aggravation. Additionally, the Veteran’s service treatment records (STRs) contain numerous eye complaints throughout service. A February 1976 entry notes that the Veteran complained that his eyes were hurting. June 1976 records note that the eyes were burning and itching. The Veteran again complained of itchy and watery eyes in June 1980 and April 1985. August 1986 records note that the Veteran’s vision was defective. The examiner failed to address any of these records, other than a vague reference to trauma, which is presumably a reference to the left eye trauma caused by an in-service motor vehicle accident discussed in the January 2016 VA medical opinion; however, without any specific mention, it remains unclear. Accordingly, remand is required for an addendum VA medical opinion for the bilateral eye disorder. Gastric cancer Regarding the gastric cancer claim, the RO obtained a VA medical opinion in July 2009 where the examiner provided a negative nexus opinion. The examiner explained that the risk factors and causes of gastric cancer are age, gender, race, diet, helicobacter pylori infection, smoking, certain health problems such as stomach surgery, chronic gastritis, pernicious anemia, and family history. The examiner noted that the Veteran is service-connected for gastroesophageal reflux disease (GERD). The examiner explained that while GERD and chronic gastritis are sometimes confused, they are actually two entirely different disorders with different causes and symptoms. Therefore, the examiner opined that the gastric cancer is not at least as likely due to the service-connected GERD. The examiner did not address service connection on a direct basis. Additionally, the Veteran has not actually asserted that the gastric cancer is due to the service-connected GERD. In a March 2009 statement, the Veteran asserted that the cancer is due to Agent Orange exposure while in Vietnam. The Veteran’s DD-214 indicates that he has the Vietnam Service Medal and the Vietnam Campaign Medal. Other service personnel records indicate that the Veteran was stationed in Vietnam from January 1967 to January 1968 and participated in Vietnam Counter Offensive campaigns. Accordingly, the Board concedes Agent Orange exposure. At the February 2019 hearing, the Veteran stated that while in service, he received treatment for ulcers, and that those ulcers are what ultimately progressed into gastric cancer. A careful review of the claims file reveals that the Veteran complained of stomach troubles numerous times throughout service, including in entries in August 1974, October and November 1975, February and April 1976, and July 1985. On the July 1986 exit examination, the Veteran endorsed having piles or rectal disease, and having a hemorrhoid one year prior. The RO has not obtained a medical opinion since July 2009 to address the Agent Orange exposure, the asserted ulcers while in service, and their connection to the gastric cancer. Accordingly, remand is required for an addendum VA medical opinion for gastric cancer. Low back disorder Regarding the low back disorder claim, the RO obtained a December 2006 VA medical opinion where the examiner provided a negative nexus opinion. The examiner stated that the lumbar spine degenerative joint disease was not related to episodes noted in service, and explained that it is associated with the natural aging process of any individual and his own genetic predisposition. The examiner stated that there is no evidence of any incident causing any aggravation beyond natural progression, and there is no documentation of a chronic back condition. Although the examiner made a vague reference to episodes in service, they failed to specifically address June 1986 STRs where the Veteran complained of recurrent lower extremity pain, and underwent x-rays to attempt to rule out degenerative joint changes. The x-rays revealed an end plate defect of the lumbar spine up to the L-4, which is consistent with Schnorl’s nodes. Additionally, at the February 2019 Board hearing, the Veteran asserted that while at Fort Sill, he slipped on ice and fell downstairs. He stated that he went to sick bay, was put on light duty, and continued taking pain medication for recurrent back problems since service. In a July 2006 statement, the Veteran asserted that he broke his left leg while at Fort Sill, which has caused the lower back pain. These assertions should be addressed. Accordingly, remand is required for an addendum VA medical opinion for the lower back disorder. Second, remand is required for VA examinations for the gastrointestinal disorder and hypertension claims. VA has a duty to assist claimants to obtain evidence needed to substantiate a claim. 38 U.S.C. § 5103A (2012); 38 C.F.R. § 3.159 (2019). VA’s duty to assist includes providing a medical examination when is necessary to make a decision on a claim. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4). The RO did not provide the Veteran with an examination. Such development is necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim, but (1) contains competent evidence of diagnosed disability or recurrent symptoms of disability, (2) establishes that the Veteran suffered an event, injury or disease in service, or has a presumptive disease during the pertinent presumptive period, and (3) indicates that the claimed disability may be associated with the in-service event, injury, or disease, or with another service-connected disability. 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79, 83-86 (2006) (noting that the third element establishes a low threshold and requires only that the evidence “indicates” that there “may” be a nexus between the current disability or symptoms and active service, including equivocal or non-specific medical evidence or credible lay evidence of continuity of symptomatology). As for the hypertension claim, February 2020 VA treatment records include hypertension on a problem list. August 1974 STRs show blood pressure readings of 132 over 84, and February 1980 STRs show blood pressure readings of 134 over 80. At the February 2019 Board hearing, the Veteran asserted that he was told he had hypertension while at Fort Sill, and was given medication for treatment. He also stated that he currently sees a private doctor to treat the hypertension. As for the gastrointestinal disorder claim, throughout this appeal, the Veteran has asserted that he is diagnosed with Crohn’s disease. Although no medical treatment records include a diagnosis of Crohn’s disease, numerous PTRs indicate treatment for the gastrointestinal system. November 1995 records indicate gastric erosion. December 1995 records following a colonoscopy note inflammatory polyp and colonic mucosa reflecting quiescent colitis. August 1997 records show large internal hemorrhoids, patchy erythematous spots in the rectosigmoid, and discreet ulcers in the right colon. And March 2004 PTRs show small renal cortical cysts. Regarding in-service treatment, as noted above, the Veteran complained of stomach troubles numerous times throughout service, including in entries in August 1974, October and November 1975, February and April 1976, and July 1985. And finally, at the February 2019 Board hearing, the Veteran asserted that he was told he had Crohn’s disease while in the military, and that he was put on light duty and wore pads. He also indicated that he sees private providers to treat the Crohn’s disease. Because there is evidence of currently diagnosed disabilities, in-service events, and an indication that the current disabilities may be associated with the in-service events, remand for VA examinations for the hypertension and gastrointestinal disorder claims is required. Third, remand is required to obtain missing VA treatment records. VA has a duty to assist claimants to obtain evidence needed to substantiate a claim. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c). This includes making as many requests as are necessary to obtain relevant records from a Federal department or agency, including, but not limited to, military records, VA medical records, and records from facilities with which the VA has contracted. 38 C.F.R. § 3.159(c)(2). VA will end its efforts to obtain records only where it concludes that the records sought do not exist or that further efforts to obtain those records would be futile, such as where the Federal department or agency advises VA that the requested records do not exist or the custodian does not have them 38 C.F.R. § 3.159(c)(2). The November 2019 Board remand references a November 2012 VA examination for the low back disorder as new and material evidence. A careful review of the claims file does not reveal a copy of this examination. Additionally, June 2012 VA treatment records indicate that outside treatment records were uploaded to Vista imaging. The Board does not have access to Vista imaging, and these records will need to be added to the claims file separately. Accordingly, remand is required to obtain missing VA treatment records. Finally, as noted above, the November 2019 Board remand instructed the RO to obtain and associate with the claims file any outstanding PTRs. The RO sent a December 2019 letter to the Veteran asking that he identify and authorize for release these records, but the Veteran did not respond to this letter and the RO did not make any further attempts. At the February 2019 Board hearing, the Veteran asserted that he seeks private treatment for hypertension, Crohn’s disease, low back disorder, and gastric cancer. The duty to assist a claimant is not a one-way street, and in the instant case, the Veteran must cooperate by responding to the RO’s request for authorization to request records to the full extent in the development of the claim. See Wood v. Derwinski, 1 Vet. App. 406 (1991) (noting that VA’s duty to assist is a two-way street, and the Veteran cannot wait passively in those situations where their assistance to VA is necessary). As the present claims are already being remanded for further development, the Veteran should be given another opportunity to provide these medical records. The matters are REMANDED for the following action: 1. Contact the appropriate VA Medical Center and obtain and associate with the claims file all outstanding records of treatment, specifically the November 2012 back examination, and any outside treatment records uploaded to Vista imaging. If any requested records are not available, or the search for any such records otherwise yields negative results, that fact must clearly be documented in the claims file. Efforts to obtain these records must continue until it is determined that they do not exist or that further attempts to obtain them would be futile. The non-existence or unavailability of such records must be verified and this should be documented for the record. Required notice must be provided to the Veteran and his or her representative. 2. Contact the Veteran and afford him the opportunity to identify by name, address and dates of treatment or examination any relevant medical records. Make at least two attempts to contact the Veteran. Subsequently, and after securing the proper authorizations where necessary, make arrangements to obtain all the records of treatment or examination from all the sources listed by the Veteran which are not already on file. All information obtained must be made part of the file. All attempts to secure this evidence must be documented in the claims file, and if, after making reasonable efforts to obtain named records, they are not able to be secured, provide the required notice and opportunity to respond to the Veteran and his representative. 3. After any additional records are associated with the claims file, provide the Veteran with an appropriate examination to determine the etiology of his hypertension. The entire claims file must be made available to and be reviewed by the examiner. Any indicated tests and studies must be accomplished and all clinical findings must be reported in detail and correlated to a specific diagnosis. An explanation for all opinions expressed must be provided. (a) The examiner must provide an opinion regarding whether it is at least as likely as not (50 percent or greater probability) that the hypertension had onset in, or is otherwise related to, active military service. (b) The examiner must address the following: 1) the blood pressure readings found in the STRs; 2) the February 2019 Board hearing where the Veteran asserted that he was diagnosed with hypertension while in service and given medication for treatment; and 3) any other relevant records. 4. After any additional records are associated with the claims file, provide the Veteran with an appropriate examination to determine the etiology of his gastrointestinal disorder. The entire claims file must be made available to and be reviewed by the examiner. Any indicated tests and studies must be accomplished and all clinical findings must be reported in detail and correlated to a specific diagnosis. An explanation for all opinions expressed must be provided. (a) First, the examiner must determine all of the Veteran’s diagnosed gastrointestinal disorders, to include Crohn’s disease. (b) Second, for each diagnosed gastrointestinal disorder, the examiner must provide an opinion regarding whether it is at least as likely as not (50 percent or greater probability) that it had onset in, or is otherwise related to, active military service. (c) The examiner must address the following: 1) the STRs noting stomach issues; 2) the PTRs involving complaints of gastrointestinal distress; 3) the February 2019 Board hearing where the Veteran asserted that he was diagnosed with Crohn’s disease while in service, and that he was given light duty and wore pads as a result; and 4) any other relevant records. 5. After any additional records are associated with the claims file, obtain an addendum opinion regarding the etiology of the bilateral eye disorder from a VA examiner. The entire claims file must be made available to and be reviewed by the examiner. If an examination is deemed necessary, it shall be provided. An explanation for all opinions expressed must be provided. (a) The examiner must provide an opinion regarding whether it is at least as likely as not (50 percent or greater probability) that each diagnosed bilateral eye disorder had onset in, or is otherwise related to, active service. The examiner must specifically address the following diagnoses: primary open angle glaucoma bilaterally; anterior lens pigment versus persistent pupillary membrane bilaterally, bilateral cataracts, and refractive error. (b) The examiner must address the following: 1) the STRs noting eye pain, burning, itchy, watery eyes, and defective vision; 2) the July 2012, January 2016, January 2018, August 2018, January 2020, September 2020, and October 2020 VA medical opinions, including the October 2020 VA examiner’s statement that the pupillary membrane and a genetic predisposition for glaucoma were pre-existing conditions that were likely aggravated by service; and 3) any other relevant records. 6. After any additional records are associated with the claims file, obtain an addendum opinion regarding the etiology of the gastric cancer from a VA examiner. The entire claims file must be made available to and be reviewed by the examiner. If an examination is deemed necessary, it shall be provided. An explanation for all opinions expressed must be provided. (a) The examiner must provide an opinion regarding whether it is at least as likely as not (50 percent or greater probability) that the gastric cancer had onset in, or is otherwise related to, active service, to include as due to herbicide exposure while in Vietnam. While gastric cancer is not listed as a presumed disease due to herbicide exposure, a direct service connection opinion with supporting rationale is still required. (b) The examiner must specifically address the following: 1) the February 2019 Board hearing testimony where the Veteran asserted that he had ulcers while in service, which ultimately progressed to gastric cancer; 2) the March 2009 statement where the Veteran asserted the cancer is due to Agent Orange exposure while in Vietnam; 3) the July 2009 VA medical opinion; and 4) any other relevant records. 7. After any additional records are associated with the claims file, obtain an addendum opinion regarding the etiology of the low back disorder from a VA examiner. The entire claims file must be made available to and be reviewed by the examiner. If an examination is deemed necessary, it shall be provided. An explanation for all opinions expressed must be provided. (a) The examiner must provide an opinion regarding whether it is at least as likely as not (50 percent or greater probability) that the low back disorder had onset in, or is otherwise related to, active service. (b) The examiner must address the following: 1) the June 1986 STR indicating complaints of recurrent lower extremity pain, and an x-ray showing an end plate defect of the lumbar spine; 2) the Veteran’s July 2006 statement where he asserted that a broken left leg at Fort Sill is causing lower back pain; 3) the December 2006 VA medical opinion; 4) the February 2019 Board hearing where the Veteran asserted that he slipped on ice and fell down steps while at Fort Hill, and has been taking pain medication for recurrent back problems since service; and 5) any other relevant records. K. MILLIKAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Rogos 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.