Citation Nr: 21009819 Decision Date: 02/23/21 Archive Date: 02/23/21 DOCKET NO. 14-25 741 DATE: February 23, 2021 REMANDED 1. Entitlement to service connection for a heart disorder is remanded. 2. Entitlement to service connection for hypertension is remanded. 3. Entitlement to service connection for bilateral hearing loss is remanded. 4. Entitlement to service connection for a gastrointestinal disorder is remanded. REASONS FOR REMAND The Veteran served on active duty from August 1964 to August 1966. This case comes before the Board of Veterans’ Appeals (Board) on appeal from rating decisions of the Department of Veteran Affairs (VA) Regional Office (RO). The Veteran unfortunately passed away in August 2020. The appellant is the Veteran’s surviving spouse. Initially, the Board notes that these issues were previously before the Board in September 2020, when they were dismissed for lack of jurisdiction as they had become moot by virtue of the death of the Veteran. 38 U.S.C. § 7104(a); 38 C.F.R. § 20.1302. In October 2020, the appellant was granted eligibility for substitution as the spouse of the Veteran. The Veteran testified before the undersigned Veterans Law Judge in a September 2017 hearing. These issues were previously before the Board in July 2018, when they were remanded for further development. That development was completed, and the case has since been returned to the Board for appellate review. The Board notes that although the Veteran filed his claim for entitlement to service connection for ulcers, it has now been recharacterized as entitlement to service connection for a gastrointestinal disorder. At the September 2017 Board hearing, it became clear that the Veteran’s claim was for a series of gastrointestinal issues he asserts are due to an in-service incident. 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). 1. Entitlement to service connection for a heart disorder is remanded. 2. Entitlement to service connection for hypertension is remanded. 3. Entitlement to service connection for bilateral hearing loss is remanded. 4. Entitlement to service connection for a gastrointestinal disorder is remanded. Remand is required for substantial compliance with the July 2018 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). RO compliance with remand directives is not optional or discretionary and the Board errs as a matter of law when it fails to ensure remand compliance. Stegall, 11 Vet. App. at 271. The July 2018 Board remand instructed the RO to obtain and associate with the claims file any outstanding VA or private treatment records (PTRs), and to obtain VA medical opinions. Additional VA treatment records were successfully added to the claims file in March 2019. The Veteran submitted some PTRs in December 2018. The RO sent a March 2019 letter to the Veteran asking that he identify and authorize for release any outstanding PTRs. The Veteran replied to this letter in April 2019, and additional PTRs were successfully added to the claims file in April 2019, and September 2020. First, remand is required for addendum VA medical opinions. 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 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). A medical opinion based upon an inaccurate factual premise has no probative value. Reonal v. Brown, 5 Vet. App. 458, 461 (1993). 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). Heart disorder Regarding the heart disorder claim, the Veteran underwent a VA examination in July 2019 where the examiner provided a negative nexus opinion. On the examination, they noted diagnoses of atrial fibrillation, mitral regurgitation, aortic regurgitation, congestive heart failure, cardiomyopathy, cardiac dilatation, and left ventricular ejection fraction. However, the examiner failed to directly address any of these diagnoses in their opinion. Instead, they opined that a heart disorder was less likely than not related to active duty service because there was no documentation of heart related symptoms during service, or within one year following discharge. They also noted that the Veteran had heart issues in recent years, such as cardiomyopathy diagnosed in 2009, but that it was not etiologically related to military service. The examiner failed to provide any other supporting rationale. The July 2018 Board remand also instructed the examiner to address the Veteran’s lay statements regarding history and chronicity of the symptomatology of the heart disorder. The examiner failed to address the September 2017 Board hearing testimony where the Veteran asserted that he suffered from light-headedness during service, which was later attributed to hypertension and his heart disorder. Accordingly, remand is required for an addendum VA medical opinion. Hypertension The hypertension claim was addressed in the same July 2019 VA examination noted above, where the examiner provided a negative nexus opinion. The examiner explained that the service treatment records (STRs), separation examination, and a January 1982 note are silent for diagnoses of hypertension. The examiner noted that one record, but does not specify which, listed the diagnosis of essential hypertension, which means it is not secondary to any other medical condition; however, the examiner failed to do any evaluation of their own. The examiner stated that the Veteran reported that he was diagnosed approximately more than thirty years following separation from active duty. However, the examiner failed to provide any other supporting rationale. Additionally, as noted above, the examiner failed to address the Veteran’s lay statements as directed in the July 2018 Board remands, including the September 2017 hearing testimony regarding light-headedness during service. Also, following the examination, the Veteran submitted a statement in July 2019 asserting that the hypertension is due to the stress from driving trucks during service, and having to deal with all the noise and heat. This statement should be properly addressed by VA. Accordingly, remand is required for an addendum VA medical opinion. Gastrointestinal disorder The gastrointestinal disorder claim was also addressed during the July 2019 VA examination, where the examiner provided a negative nexus opinion. The examiner explained that the Veteran was diagnosed with pylorospasm in June 1965, which was a temporary condition, and was resolved indicated by no further mention of it upon separation, or within one year of separation from active duty. The Board notes that the pylorospasm was actually noted in January 1965. The examiner also noted that the Veteran was treated for a peptic ulcer in 1977, irritable bowel syndrome (IBS) in 1982, esophagitis in 2009, and began receiving treatment for gastrointestinal esophageal reflux disease (GERD) in the previous ten years. The examiner explained that it is less likely than not that any of these conditions incurred in or were caused by the pylorospasm. The examiner noted that the Veteran used tobacco and alcohol, which are significant factors for esophagitis and ulcers. However, the examiner failed to provide any further supporting rationale. The examiner also failed to address gastritis, which is listed in November 2009 VA treatment records on the active problem list. Additionally, the examiner failed to address the relevant lay testimony, as directed by the July 2018 Board remand directives. In a March 1982 Board hearing, the Veteran testified that he had stomach pain off and on ever since he was 18 years old, and that he was put on medication and a diet to treat the 1977 ulcer. The Veteran’s brother corroborated these claims during the hearing. The Veteran again asserted at the September 2017 Board hearing that during service he suffered regularly from stomach pains, but thought it was simply a nervous stomach. Accordingly, remand is required for an addendum VA medical opinion. Bilateral hearing loss Regarding the bilateral hearing loss claim, the Veteran underwent a new VA examination in June 2019 where the examiner provided a negative nexus opinion. The examiner noted that the Veteran served as a truck driver transporting troops to the firing range while in service. The examiner explained that the Veteran’s hearing was within normal limits bilaterally on enlistment, with mild loss at 6000 Hz bilaterally, and that hearing was shown again as within normal limits bilaterally upon separation. The examiner stated that following service, the Veteran worked as a welder for 1 year, in a factory with machines without hearing protection for 3 years, as a tool setter for 8 years, and as a jet engine parts inspector for 28 years where hearing protection was required. The examiner opined that the bilateral hearing loss was not caused by or a result of military service. The examiner failed to provide any other supporting rationale. Additionally, this opinion is very similar to the January 2016 VA medical opinion, which the July 2018 Board remand also found to lack sufficient supporting rationale. Further, the examiner failed to address the lay evidence and statements provided the Veteran. At the March 1982 Board hearing, he asserted that he was informed in 1978 by his employer that he had significant hearing loss, and was required to sign a waiver in order to be employed by them. The Veteran provided a copy of the September 1979 waiver. He also asserted that during service he was assigned to test weapons every day without the use of any hearing protection. His brother also testified that the Veteran did not have any hearing problems prior to service, but that following service he had to repeat things to his brother more than once before his brother could understand them. The Veteran repeated these assertions in August 2011, November 2018, and September 2019 statements, on the October 2019 VA Form 9, and at the September 2017 Board hearing. He also submitted a September 2017 statement from his brother, and an October 2017 statement from his sister corroborating his assertions. The Veteran also submitted an April 2012 private medical opinion which contained a positive private nexus opinion. Although that opinion provided insufficient supporting rationale upon which to grant service connection, it still should be addressed by an examiner. Accordingly, remand is required for an addendum VA medical opinion. Second, remand is required to obtain missing medical records. 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(c) (2019). 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, records from facilities with which the VA has contracted, and records from Federal agencies such as the Social Security Administration. 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). VA’s duty to assist claimants to obtain evidence needed to substantiate a claim includes making reasonable efforts to obtain relevant private medical records. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c). In June 2013, the Veteran submitted VA Form 21-4142 Authorization for Release of Information, identifying Dr. GC as a medical provider. Although some records from Dr. GC were added previously in May 2012, it does not appear that the RO made any attempts to obtain any additional records following the June 2013 release form. Additionally, at the September 2017 Board hearing, the Veteran asserted that he received other ulcer diagnoses from a Dr. M. Although the Veteran explained that Dr. M has passed away, it does not appear that the RO made any attempts to obtain these records. In September 2020, the appellant submitted VA Form 21-4142 for Dr. PC and Alabama Digestive Care. A note was added to the claims file indicating that the request was rejected because the forms were incomplete; however, it does not appear that the RO actually informed the appellant or her representative of the rejection, or provided her with another opportunity to produce these documents. Finally, several VA treatment records indicate that outside treatment records were scanned into Vista imaging. This includes entries in April and May 2011, and January and February 2019. The Board does not have access to Vista imaging, so these records will need to be added to the claims file separately. Accordingly, remand is required to obtain missing 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 any outside treatment records scanned into 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 appellant and her representative. 2. Contact the appellant and afford her the opportunity to identify by name, address and dates of treatment or examination any relevant medical records, to include Dr. GC, Alabama Digestive Care, Dr. PC, and Dr. M. 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 appellant and her representative. 3. After any additional records are associated with the claims file, obtain an addendum opinion regarding the etiology of the heart disorder from a VA examiner other than the July 2019 examiner if possible. The entire claims file must be made available to and be reviewed by the examiner. An explanation for all opinions expressed must be provided. (a) First, the examiner must determine all of the Veteran’s diagnosed heart disorders, to include atrial fibrillation, mitral regurgitation, aortic regurgitation, congestive heart failure, cardiomyopathy, cardiac dilatation, and left ventricular ejection fraction. If a diagnosis is not found during the appeal period, from July 2012 until the Veteran’s death in August 2020, the examiner should address the prior diagnoses of record. (b) Second, for each diagnosed heart 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 service. (c) The examiner must address the following: 1) the pertinent STRs, VA treatment records, and private treatment records; 2) September 2017 Board hearing testimony where the Veteran asserted that he suffered from light-headedness during service, which was later attributed to hypertension and his heart disorder; and 3) the July 2019 VA medical opinion. 4. After any additional records are associated with the claims file, obtain an addendum opinion regarding the etiology of the hypertension from a VA examiner other than the July 2019 examiner if possible. The entire claims file must be made available to and be reviewed by the examiner. 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 service. (b) The examiner must address the following: 1) the pertinent in-service treatment records, VA treatment records, and private treatment records; 2) September 2017 Board hearing testimony where the Veteran asserted that he suffered from light-headedness during service, which was later attributed to hypertension and his heart disorder; and 3) the July 2019 VA medical opinion. 5. After any additional records are associated with the claims file, obtain an addendum opinion regarding the etiology of the gastrointestinal disorder from a VA examiner other than the July 2019 examiner if possible. The entire claims file must be made available to and be reviewed by the examiner. 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 GERD, pylorospasm, IBS, esophagitis, gastritis. If a diagnosis is not found during the appeal period, from July 2012 until the Veteran’s death in August 2020, the examiner should address the prior diagnoses of record. (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 service. (c) The examiner must address the following: 1) the March 1982 Board hearing where the Veteran testified that he had stomach pain off and on ever since he was 18 years old, and that he was put on medication and a diet to treat the 1977 ulcer, and the Veteran’s brother corroborated these claims; 2) the September 2017 Board hearing where the Veteran asserted that during service he suffered regularly from stomach pains, but thought it was simply a nervous stomach; and 3) the September 2019 VA medical opinion. 6. After any additional records are associated with the claims file, obtain an addendum opinion regarding the etiology of the bilateral hearing loss from a VA examiner other than the June 2019 examiner if possible. The entire claims file must be made available to and be reviewed by the examiner. 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 bilateral hearing loss had onset in, or is otherwise related to, active service. (b) The examiner must address the following: 1) the March 1982 Board hearing, where the Veteran asserted that he was informed in 1978 by his employer that he had significant hearing loss, and was required to sign a waiver in order to be employed by them, that during service he was also assigned to test weapons every day without the use of any hearing protection, and where his brother testified that the Veteran did not have any hearing problems prior to service, but that following service he had to repeat things to his brother more than once before his brother could understand them; 2) the September 1979 waiver; 3) August 2011, September and October 2017, November 2018, and September and October 2019 statements; 4) September 2017 Board hearing; 5) April 2012 private medical opinion with a private nexus opinion; 6) the relevant STRs; 7) the September 1978 private hearing examination; 8) the November 1981 rating decision; and 9) the April 1982, January 2016, and June 2019 VA examinations. 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.