Citation Nr: 21022649 Decision Date: 04/16/21 Archive Date: 04/16/21 DOCKET NO. 20-18 274 DATE: April 16, 2021 REMANDED Service connection for anemia. Service connection for gout. Service connection for hypertension. Service connection for diverticulitis. Service connection for acid reflux. Service connection for renal cyst. Service connection for polycythemia vera. REASONS FOR REMAND The Veteran served on active duty from October 1957 to September 1960. The case is on appeal from June 2016 and January 2019 rating decisions. The Board remanded these claims in November 2020 for additional development and consideration. 1. Service connection for anemia. 2. Service connection for gout. 3. Service connection for hypertension. 4. Service connection for diverticulitis. 5. Service connection for acid reflux. 6. Service connection for renal cyst. 7. Service connection for polycythemia vera. The Board finds that remand is warranted for all issues on appeal. In November 2020, the Board remanded all claims on appeal to afford the Veteran VA examinations and to obtain VA direct service connection nexus opinions. Specifically, the Board stated that “remand is necessary to obtain a VA opinion addressing whether the Veteran’s [disabilities on appeal] are related to his active service, including from exposure to contaminants in the water supply at Camp Lejeune.” The relevant remand directive also stated that “the examiner must provide an opinion as to whether it is at least as likely as not (a probability of 50 percent or greater) that the Veteran’s [disabilities on appeal] are related to his active duty service, to include exposure to contaminated water at Camp Lejeune.” The directive additionally stated that “[t]he examiner should note that exposure to contaminated water at Camp Lejeune has been conceded by VA. The examiner is also advised that although the Veteran is not entitled to presumptive service connection…VA regulations provide that the VA must still determine whether the Veteran is entitled to service connection on a direct basis.” The Veteran was afforded VA examinations for the disabilities on appeal in January 2021. The examiner provided, by way of a marked checkbox, the same negative opinion for all disabilities, specifically that “[t]he claimed condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed inservice injury, event, or illness.” Separate rationales were provided as to each claimed disability. The provided rationales, however, did not address, discuss, or even mention the Veteran’s exposure to contaminated water at Camp Lejeune. As noted, the November 2020 Board remand directive requested direct service connection opinions “as to whether…the Veteran’s [disabilities on appeal] are related to his active duty service, to include exposure to contaminated water at Camp Lejeune.” As the provided opinions did not discuss the Veteran’s exposure to contaminated water at Camp Lejeune, the Board finds that they did not substantially comply with the November 2020 Board remand and are not entirely sufficient. See Stegall v. West, 11 Vet. App. 268 (1998); Barr v. Nicholson, 21 Vet. App. 303 (2007). As such, the Board finds that remand is warranted for all claims on appeal to obtain an opinion specifically addressing whether the Veteran’s claimed disabilities are related to his exposure to contaminated water at Camp Lejeune during his active duty service. Also, with respect to the acid reflux opinion, the provided rationale was not entirely sufficient for additional reasons. The provided rationale stated that “[t]he [V]eteran’s records while in service 1957 to 1960 fail to demonstrate a complaint of or treatment for reflux condition while in service. The official date of the [V]eteran’s reflux diagnosis is noted as 2012” and that “[w]hile the [V]eteran has a diagnosis for gastroesophageal reflux condition, I cannot favorably opinion that is a continuation of a condition first incurred while in service.” Initially, while a date of diagnosis was noted of 2012, a February 2003 VA treatment record noted an assessment of ”[d]yspepsia, reflux” and also listed as part of the active problem list GERD. Further, the January 2021 Esophageal Conditions Disability Benefits Questionnaire (DBQ), completed by the medical professional who provided the January 2021 opinions, noted that the onset of the Veteran’s esophageal condition was 1958, noted as to the details of onset that “[t]he [V]eteran reports an acute onset of a burning substernal pain following lunch meal while in service” and also stated regarding the course of the condition since onset that it “[s]tayed the same.” Review of the rationale indicates that “it appears that the medical examiner impermissibly ignored the [Veteran’s] lay assertions” as to having the onset of symptoms during active service and that the condition stayed the same following such onset. See Dalton v. Nicholson, 21 Vet. App. 23, 39 (2007). Due to the problems outlined, the Board finds that the January 2021 VA opinion was not entirely sufficient and that a new direct service connection opinion is warranted on remand. In addition, with respect to the polycythemia vera claim, the November 2020 Board remand stated that “the claim should be remanded so that a [Decision Review Officer (DRO)] can conduct a hearing prior to recertification to the Board.” The requested hearing was not conducted prior to this appeal being returned to the Board and thus there was not substantial compliance with the November 2020 Board remand. See Stegall, 11 Vet. App. at 268. On remand, the Veteran should be afforded the requested DRO hearing as to his polycythemia vera claim. Finally, in light of the remand, outstanding VA treatment records should be obtained. The matters are REMANDED for the following action: 1. Obtain all outstanding VA treatment records from January 2021. 2. Obtain an opinion from a medical professional that addresses the Veteran’s (a) anemia, (b) gout, (c) hypertension, (d) diverticulitis, (e) acid reflux, (f) renal cyst, and (g) polycythemia vera claims. If the medical professional determines that additional examination of the Veteran is necessary to provide an adequate opinion, such examination should be scheduled. The medical professional must provide an opinion addressing the following: (a.) Whether it is at least as likely as not (a probability of 50 percent or greater) that the Veteran’s (a) anemia, (b) gout, (c) hypertension, (d) diverticulitis, (e) acid reflux, (f) renal cyst, and (g) polycythemia vera are related to his exposure to contaminated water at Camp Lejeune during his active duty service. i. The medical professional should note that exposure to contaminated water at Camp Lejeune is presumed. The medical professional is also advised that although the Veteran is not entitled to presumptive service connection because these disabilities are not diseases listed in 38 C.F.R. § 3.309(f), VA must still determine whether the Veteran is entitled to service connection on a direct basis. (b.) Whether it is at least as likely as not (i.e., probability of 50 percent or greater) that acid reflux had its onset during service, within one year of discharge from service, or is otherwise related to service. i. The medical professional’s attention is invited to the January 2021 Esophageal Conditions DBQ, which noted that the onset of the Veteran’s esophageal condition was 1958, noted as to the details of onset that “[t]he [V]eteran reports an acute onset of a burning substernal pain following lunch meal while in service” and also stated regarding the course of the condition since onset that it “[s]tayed the same.” A complete rationale for all opinions must be provided. 3. Schedule the Veteran for a hearing before a DRO at the RO to address his polycythemia vera claim. The Veteran and his attorney should be notified by letter of the date, time, and place of that hearing at the most recent, correct address of record. RYAN T. KESSEL Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Hoopengardner, 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.