Citation Nr: 21009852 Decision Date: 02/23/21 Archive Date: 02/23/21 DOCKET NO. 14-29 115A DATE: February 23, 2021 REMANDED Entitlement to service connection for cerebrovascular accident (CVA), to include as due to herbicide agent exposure, is remanded. Entitlement to service connection for gastric hyperplasia, to include as due to herbicide agent exposure, is remanded. Entitlement to service connection for disability manifested by inflammatory soft tissue, to include as due to herbicide agent exposure, is remanded. Entitlement to service connection for disability manifested by chronic vomiting, to include as due to herbicide agent exposure, is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) prior to July 18, 2014, is remanded. REASONS FOR REMAND The Veteran served on active duty from November 1967 to December 1970, to include service in the Republic of Vietnam. This appeal arises from a May 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Board, inter alia, remanded the issues listed above in December 2018 and March 2020. As noted in the December 2018 Board decision, the Board found that the TDIU issue had been raised by the record as part and parcel to the Veteran’s claims for higher ratings for service-connected disabilities (posttraumatic stress disorder (PTSD), hearing loss, and acne) adjudicated in that decision. See Rice v. Shinseki, 22 Vet. App. 447 (2009) (holding that a request for a TDIU, whether expressly raised by a veteran or reasonably raised by the record, is not a separate “claim” for benefits, but rather, can be part of a claim for increased compensation). At this time, the Veteran has not properly appealed the Board’s December 2018 decision concerning these increased rating issues. Additionally, in the May 2013 rating decision, the RO denied service connection for hypertension. However, in the Board’s March 2020 decision, the Board granted service connection for hypertension, constituting a full grant of the benefit sought regarding the hypertension issue. Therefore, the hypertension issue is not currently on appeal before the Board. 1. Entitlement to service connection for CVA, to include as due to herbicide agent exposure, is remanded. 2. Entitlement to service connection for gastric hyperplasia, to include as due to herbicide agent exposure, is remanded. 3. Entitlement to service connection for disability manifested by inflammatory soft tissue, to include as due to herbicide agent exposure, is remanded. 4. Entitlement to service connection for disability manifested by chronic vomiting, to include as due to herbicide agent exposure, is remanded. The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.159, 3.326(a). Here, the duties to notify and assist the Veteran regarding VA examinations, as directed in the Board’s December 2018 and March 2020 remands, have not been met. See Stegall v. West, 11 Vet. App. 268 (1998). As discussed further below, in the December 2018 remand, the Board, in pertinent part, instructed the RO to schedule the Veteran for VA examinations for the four service connection issues listed above. However, as discussed in the Board’s March 2020 remand, “the claims file does not contain evidence that the Veteran was provided the appropriate notice” regarding the examinations, and thus, the Board found that remand was warranted to ensure compliance with the December 2018 remand directives. The Board notes that the Veteran has a duty to cooperate with VA in developing his claims. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Also, the Veteran has an obligation to assist in the adjudication of his claims by notifying VA of any change in address. See Hyson v. Brown, 5 Vet. App. 262, 265 (1993) (noting that a veteran bears the burden of keeping VA apprised of his whereabouts and that, where he does not, “there is no burden on the part of the VA to turn up heaven and earth to find him”). Nevertheless, remand is again warranted because the Veteran has not yet been afforded VA examinations as previously directed in the Board’s remands, and the record suggests, as mentioned in the March 2020 remand, that the Veteran was not notified of attempts to schedule such examinations. Moreover, the record does not show that the agency of original jurisdiction accomplished any development with respect to scheduling the Veteran for examinations since the March 2020 remand. See Stegall v. West, 11 Vet. App. 268 (1998). The record shows that the Veteran has lived outside the United States. Indeed, he submitted a statement revealing that he received the Board’s December 2018 remand when he was apparently living in the Philippines. See Correspondence received March 12, 2019. However, the Veteran’s mailing address has been updated in VA systems, to include the Veterans Benefits Management System (VBMS), to reflect that he currently lives in the United States (Hawaii); yet all communications since the December 2018 remand from VA to the Veteran have only been sent to the Veteran’s address in the Philippines. The Board notes that multiple VA examination requests were cancelled in June 2019 because VA was unable to contact the Veteran. It is unclear from the record when exactly the Veteran’s mailing address changed to Hawaii. Nevertheless, given that as of the date of the instant remand, no communications from VA have been sent to the Veteran’s Hawaii address, the Board finds that the Veteran should be scheduled for examinations with appropriate notifications recognizing his current contact information, to include his mailing address. In the December 2018 remand, the Board found that the Veteran should be afforded VA examinations with medical opinions for the four above-listed service connection issues. Regarding all these issues, the Board noted that the Veteran contends that such conditions are due to in-service herbicide agent exposure while serving in Vietnam. The Board also noted that these four conditions are not specifically listed as diseases associated with exposure to certain herbicide agents. See 38 C.F.R. § 3.309(e). Nonetheless, the Veteran’s herbicide agent exposure to Agent Orange is presumed in light of the specific circumstances of his service, and even though service connection may not be presumed given the current evidence of record, a determination should be made as to whether his presumed exposure directly caused conditions involving CVA, gastric hyperplasia, inflammatory soft tissue, and/or chronic vomiting. See Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994); see generally Polovick v. Shinseki, 23 Vet. App. 48 (2009). Specifically concerning the CVA issue, the Board found that the opinion should address an in-service head injury noted in the Veteran’s service treatment records (STRs). See August 11, 1970, STR (noting a hit on the back of head resulting in a scalp laceration and necessitating sutures). 5. Entitlement to a TDIU prior to July 18, 2014, is remanded. The Board’s December 2018 remand noted that an October 2016 rating decision granted a TDIU effective July 18, 2014, but the record reasonably raised the TDIU issue prior to this date. As noted in the Board’s December 2018 and March 2020 remands, because resolution of the Veteran’s service connection claims discussed above may impact his entitlement to a TDIU prior to July 18, 2014, the TDIU claim is inextricably intertwined with these service connection claims; thus, remand for the TDIU issue is also warranted. See Harris v. Derwinski, 1 Vet. App. 180 (1991). The matters are REMANDED for the following action: 1. Obtain any additional VA treatment records, to include VA treatment records from January 2020 to the present. 2. After outstanding records are obtained to the extent possible, ask the appropriate examiner for the conditions below to review the Veteran’s file. The necessity of an in-person examination is left to the discretion of the examiner. The Veteran should be scheduled and notified of the examinations using his current contact information. (A). CEREBROVASCULAR ACCIDENT (CVA). The examiner should opine regarding whether the Veteran has a current diagnosis related to CVA, and if so, whether it is at least as likely as not (a 50 percent or greater probability) that any such diagnosis: (a) had an onset in service or (b) is otherwise related to service, to include consideration of the head injury noted in the August 11, 1970, STR. Also, the reviewing clinician should provide an opinion as to whether it is at least as likely not (50 percent or greater probability) that any such diagnosis associated with CVA is related to his service, to include presumed herbicide agent exposure. A complete rationale, to include consideration of medical literature, the circumstances of the Veteran’s military service, any risk factors the Veteran may have for CVA, his treatment records since service, his lay statements describing any symptoms since service, and other pertinent information, should accompany any opinion provided, and all should be separately identified. The examiner is advised the Veteran’s herbicide agent exposure is presumed, and a negative opinion merely based on the fact that CVA is not a presumptive condition associated with such exposure will be deemed insufficient for adjudication purposes. Polovick, 23 Vet. App. 48. Rather, the examiner is asked to discuss the Veteran’s particular circumstances of service, his risk factors, and his relevant medical/military history in rendering an opinion. (B). GASTRIC HYPERPLASIA. The examiner should opine regarding whether the Veteran has a current diagnosis related to gastric hyperplasia, and if so, whether it is at least as likely not (50 percent or greater probability) that any such diagnosis is related to his service, to include presumed herbicide agent exposure. A complete rationale, to include consideration of medical literature, the circumstances of the Veteran’s military service, any risk factors the Veteran may have for gastric hyperplasia, his treatment records since service, his lay statements describing any symptoms since service, and other pertinent information should accompany any opinion provided, and all should be separately identified. The examiner is advised the Veteran’s herbicide agent exposure is presumed, and a negative opinion merely based on the fact that gastric hyperplasia is not a presumptive condition associated with such exposure will be deemed insufficient for adjudication purposes. Polovick, 23 Vet. App. 48. Rather, the examiner is asked to discuss the Veteran’s particular circumstances of service, his risk factors, and his relevant medical/military history in rendering an opinion. (C). INFLAMMATORY SOFT TISSUE. The examiner should opine regarding whether the Veteran has a current diagnosis related to inflammatory soft tissue, and if so, whether it is at least as likely not (50 percent or greater probability) that any such diagnosis is related to his service, to include presumed herbicide agent exposure. A complete rationale, to include consideration of medical literature, the circumstances of the Veteran’s military service, any risk factors the Veteran may have for inflammatory soft tissue, his treatment records since service, his lay statements describing any symptoms since service, and other pertinent information, should accompany any opinion provided, and all should be separately identified. The examiner is advised the Veteran’s herbicide agent exposure is presumed, and a negative opinion merely based on the fact that inflammatory soft tissue is not a presumptive condition associated with such exposure will be deemed insufficient for adjudication purposes. Polovick, 23 Vet. App. 48. Rather, the examiner is asked to discuss the Veteran’s particular circumstances of service, his risk factors, and his relevant medical/military history in rendering an opinion. (D). CHRONIC VOMITING. The examiner should opine regarding whether the Veteran has a current diagnosis related to chronic vomiting, and if so, whether it is at least as likely not (50 percent or greater probability) that any such diagnosis is related to his service, to include presumed herbicide agent exposure. A complete rationale, to include consideration of medical literature, the circumstances of the Veteran’s military service, any risk factors the Veteran may have for chronic vomiting, his treatment records since service, his lay statements describing any symptoms since service, and other pertinent information, should accompany any opinion provided, and all should be separately identified. The examiner is advised the Veteran’s herbicide agent exposure is presumed, and a negative opinion merely based on the fact that chronic vomiting is not a presumptive condition associated with such exposure will be deemed insufficient for adjudication purposes. Polovick, 23 Vet. App. 48. Rather, the examiner is asked to discuss the Veteran’s particular circumstances of service, his risk factors, and his relevant medical/military history in rendering an opinion. 3. After the above development and any other development deemed necessary is completed, readjudicate the claims, and then give the Veteran and his representative the opportunity to respond. Shereen M. Marcus Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Santiago, 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.