Citation Nr: 21015417 Decision Date: 03/17/21 Archive Date: 03/17/21 DOCKET NO. 15-45 404 DATE: March 17, 2021 REMAND Entitlement to service connection for gastrointestinal disability is remanded. Entitlement to an increased rating in excess of 50 percent for posttraumatic stress disorder (PTSD), from August 1, 2018, is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is remanded. REASONS FOR REMAND The Veteran served on active duty in the U.S. Army from June 1969 to March 1971, including service in the Republic of Vietnam. These matters initially came to the Board of Veterans’ Appeals (Board) on appeal from September 2013 and April 2016 rating decisions. In the September 2013 rating decision, the agency of original jurisdiction (AOJ), in pertinent part, denied entitlement to a TDIU and denied entitlement to an increased rating in excess of 70 percent for PTSD. The Veteran filed a timely notice of disagreement received by VA in September 2013. In October 2015, the AOJ issued a statement of the case and a new rating decision proposing to reduce the disability rating for PTSD from 70 percent to 50 percent. The Veteran’s substantive appeal was received by VA in December 2015. In the April 2016 rating decision, the AOJ denied service connection for gastrointestinal problems. The Veteran filed a timely notice of disagreement received by VA in May 2016. In March 2017 the AOJ issued a statement of the case. The Veteran’s substantive appeal was received by VA in April 2017. In May 2018, the AOJ issued a rating decision reducing the rating for the Veteran’s PTSD from 70 percent to 50 percent, effective August 1, 2018. To date, the Veteran has not submitted a notice of disagreement with that decision. In an October 2018 decision, the Board, in pertinent part, denied entitlement to an increased rating in excess of 70 percent for PTSD prior to August 1, 2018 and remanded the issues of entitlement service connection for gastrointestinal disability, entitlement to a rating in excess of 50 percent for PTSD from August 1, 2018, and entitlement to a TDIU for further development. The Board explained that the issue of the rating reduction effectuated in the May 2018 rating decision was not before the Board because a notice of disagreement with that decision had not been submitted on a VA Form 21-0958. In July 2020, the AOJ issued a supplemental statement of the case regarding the claims of entitlement to a rating in excess of 50 percent for service-connected PTSD effective August 1, 2018, and entitlement to service connection for gastrointestinal disability. These issues were subsequently returned to the Board. The Board notes that in July 2020, the AOJ also issued a statement of the case addressing the issue of entitlement to a TDIU. To date, the Veteran has not submitted a substantive appeal with respect to this issue. Regardless, the evidence reflects that the Veteran has been retired during most of the claim period and he contends that his service-connected disabilities have contributed to his inability to continue working. Also, the claim that was interpreted by the AOJ as including a claim for an increased rating for PTSD was a formal claim for a TDIU (VA Form 21-8940), received by VA in December 2012. Entitlement to a TDIU may be an element of an increased rating claim. Rice v. Shinseki, 22 Vet. App. 447 (2009). Entitlement to a TDIU is raised where a veteran: (1) submits evidence of a medical disability; (2) makes a claim for the highest rating possible; and (3) submits evidence of unemployability. Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001); Rice v. Shinseki, 22 Vet. App. 447, 453 (2009). Given the evidence of current disability, the Veteran’s claim for the highest rating possible for his service-connected PTSD, and the evidence of unemployability, the issue of entitlement to a TDIU is properly before the Board as part and parcel of the Veteran’s claim for an increased rating for PTSD. See Harper v. Wilkie, 30 Vet. App. 345 (2018) (confirming that when the issue of entitlement to a TDIU is raised as part and parcel of a rating claim, it should be treated separately from a formal claim for TDIU in all aspects of the appeal); Rice, 22 Vet. App. at 447. 1. Entitlement to service connection for gastrointestinal disability is remanded. The Veteran contends that he developed gastrointestinal problems, including irritable bowel syndrome (IBS), gastroesophageal reflux disease (GERD), and hiatal hernia, as a result of his presumed in-service exposure to herbicide agents (including Agent Orange) in Vietnam. Specifically, he asserts that herbicide agents were in the water used to mix milk during his service in the Republic of Vietnam. See, e.g., April 2016 Statement in Support of Claim. Although the Board regrets further delay, it finds that remand is necessary to obtain an addendum medical opinion. In August 2019 the Veteran was afforded a VA examination in connection with this claim. The examiner diagnosed the Veteran as having IBS, GERD, and hiatal hernia. The Veteran reported that his IBS condition began about 20 years prior with abdominal pain, diarrhea, and cramping. The Veteran’s hiatal hernia disability began sometime in the 1970s with burning in the epigastric area. The Veteran reported that he self-treated these symptoms with over-the-counter medications. The VA examiner opined in a September 2019 opinion that the Veteran’s IBS, GERD, and hiatal hernia were less likely than not incurred in or caused by the Veteran’s in-service exposure to herbicide agents. The examiner reasoned that according to public-health literature, VA has not recognized any of these disabilities as diseases for which presumptive service connection can be granted and stated that “[t]he literature does not support herbicides as a cause of IBS, GERD,” or hiatal hernia. The September 2019 opinion is inadequate because it is unclear whether the VA examiner’s opinion relied on anything other than the fact that VA does not award presumptive service connection based on exposure to herbicide agents for IBS, GERD, or hiatal hernia. Although the VA examiner referenced “literature,” the only literature described concerned VA regulations regarding presumptive service connection. The Board notes that the availability of presumptive service connection for certain specifically enumerated diseases, however, does not preclude service connection for other disabilities based on exposure to herbicide agents by establishing actual direct causation. See Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007). Further, even if the examiner did consider more than the unavailability of presumptive service connection, the opinion was not supported by rationale explaining the other factors considered. Therefore, remand is necessary to obtain an addendum opinion with adequate supporting rationale as to whether any current gastrointestinal disability is related to service. Also, the evidence indicates that there may be outstanding relevant VA treatment records. The most recent VA treatment records in the claims file are from the Lexington Vista electronic records system and are dated to February 2021. Any VA treatment records are within VA’s constructive possession, and must be obtained regardless of their relevance as long as they are sufficiently identified. Sullivan v. McDonald, 815 F.3d 786, 793 (Fed. Cir. 2016) (VA has a duty to assist in obtaining sufficiently identified VA medical records regardless of their relevance). See also Jones v. Wilkie, 918 F.3d 922 (Fed. Cir. 2019) (confirming the holding in Sullivan). A remand is required to allow VA to obtain them. 2. Entitlement to an increased rating in excess of 50 percent for PTSD, from August 1, 2018, is remanded. Following a July 2020 supplemental statement of the case, additional evidence has been associated with the Veteran’s claims file by the AOJ that is relevant to the issue of entitlement to an increased rating for PTSD, from August 1, 2018. This evidence includes VA treatment records from the Lexington Vista electronic records system dated from July 2020 through February 2021. This relevant evidence has not been considered by the AOJ and no waiver of initial AOJ consideration of this evidence has been received. See 38 C.F.R. § 20.1305 (c). Hence, the Board is required to remand the psychiatric issue for issuance of the necessary supplemental statement of the case. Also, all outstanding VA treatment records should be secured upon remand. 3. Entitlement to a TDIU due to service-connected disabilities is remanded. Since a decision on the remanded service connection and increased rating issues could significantly impact a decision on the issue of entitlement to a TDIU, the issues are inextricably intertwined. A remand of the claim for a TDIU is required. Also, all outstanding VA treatment records should be secured upon remand. The matters are REMANDED for the following action: 1. Ask the Veteran to identify the location and name of any VA or private medical facility where he has received treatment for psychiatric disability and gastrointestinal disability, to include the dates of any such treatment. Ask the Veteran to complete a VA Form 21-4142 for all records of his treatment for psychiatric disability and gastrointestinal disability from any sufficiently identified private treatment provider from whom records have not already been obtained. Make two requests for any authorized records, unless it is clear after the first request that a second request would be futile. 2. Obtain the Veteran’s outstanding VA treatment records from the Lexington Vista electronic records system for the period since February 2021; and all such relevant records from any other sufficiently identified VA facility. 3. After all efforts have been exhausted to obtain and associate with the claims file any additional treatment records, obtain an addendum medical opinion from an appropriate clinician as to whether any current gastrointestinal disability is related to service. After reviewing the record, the clinician should provide an opinion, with supporting rationale, as to the following: Is it at least as likely as not (50 percent or greater probability) that any gastrointestinal disability experienced by the Veteran since approximately April 2016 (including, but not limited to, irritable bowel syndrome, gastroesophageal reflux disease, and hiatal hernia) (1) had its onset during the Veteran’s active service; OR (2) is otherwise causally related to a disease or injury in service, including the Veteran’s presumed exposure to herbicide agents (including Agent Orange)? The clinician must provide reasons for each opinion given. In this regard, the clinician is reminded that although presumptive service connection is not available for irritable bowel syndrome, gastroesophageal reflux disease, and hiatal hernia, service connection is nonetheless still available on a direct basis. The clinician’s opinion should not be premised solely on the fact that presumptive service connection on the basis of herbicide agent exposure is not available for the Veteran’s gastrointestinal disability under VA regulations. 4. After the above development, and any additionally indicated development, has been completed, readjudicate the issues on appeal. If any benefit sought is not granted to the Veteran’s satisfaction, send the Veteran and his representative a supplemental statement of the case that considers all additional relevant evidence received since the July 2020 supplemental statement of the case (including, but not limited to, the VA treatment records from the Lexington Vista electronic records system dated from July 2020 through February 2021), and provide an opportunity to respond. If necessary, return the case to the Board for further appellate review. Brian J. Elwood Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Hillan Sosa, Associate 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.