Citation Nr: 21023255 Decision Date: 04/20/21 Archive Date: 04/20/21 DOCKET NO. 16-19 259 DATE: April 20, 2021 REMANDED Entitlement to service connection for an eye disorder is remanded. Entitlement to service connection for a gastrointestinal disorder, to include acid reflux and GERD, is remanded. Entitlement to service connection for depression, to include as secondary to service-connected posttraumatic stress disorder (PTSD), is remanded. REASONS FOR REMAND The Veteran served on active duty from June 1995 to June 2000 and from January 2003 to May 2004. He also served in the Army National Guard of California and as reserve of the Army from August 2001 to September 2004. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a July 2014rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). It was previously remanded by the Board for additional development in November 2018 and has since been returned to the Board for further adjudication. The Board notes that the Veteran’s claims file contains incomplete service treatment records (STRs). Where service records are destroyed or missing, VA has a heightened duty to assist a Veteran in developing his claim. O’Hare v. Derwinski, 1 Vet. App. 365 (1991). This duty includes a heightened obligation on the Board’s part to explain its findings and conclusions, and carefully consider the benefit of the doubt rule. See Cromer v. Nicholson, 19 Vet. App. 215 (2005). The Board also notes that the claims file contains notices sent to the Veteran indicating that his STRs for his “Army period of service” could not be located and that his STRs are unavailable. The claims file also contains a memorandum regarding a formal finding of the unavailability of the Veteran’s STRs for his “Army period of service.” However, the claims file does not contain any such memorandum or other evidence of a formal finding of the unavailability of the Veteran’s STRs for his Navy period of service. Based on the foregoing, on remand, additional attempts should be made to obtain the Veteran’s STRs for his period of active service while in the Navy. 1. Entitlement to service connection for an eye disorder is remanded. In the Board’s November 2018 remand, it directed the RO to “[c]ontact the appropriate VA Medical Center and obtain and associate with the claims file all outstanding records of treatment.” In the VA treatment records that are currently in the claims file, the New Mexico VA Health Care System - Albuquerque Division is listed as one of the Veteran’s treating facilities; however, records from that facility are not in the claims file and there is no indication that they have been sought and/or do not exist. Where the remand orders of the United States Court of Veterans Appeals or the Board of Veterans Appeals are not complied with, the Board itself errs in failing to ensure compliance. Stegall v. West, 11 Vet. App. 268, 269 (U.S. 1998). The Board thus finds that the appeal, including all issues, must be remanded so attempts can be made to obtain any treatment records from the New Mexico VA Health Care System - Albuquerque Division. Also, in the Board’s November 2018 remand, it directed the RO to “provide the Veteran with an appropriate examination to determine the etiology of his claimed eye disorders.” It also directed that “[t]he examiner must determine what eye disorders have been present during the appeal since January 2014. The past diagnoses of keratoconus, keratoconjunctivitis, and pellucid marginal degeneration should be addressed.” The Veteran was afforded a VA examination for his eye disorder(s) pursuant to that remand in October 2019. The examiner indicated that the Veteran had a diagnosis of keratoconus in 1995 but did not discuss (a) what other eye disorders have been present during the period on appeal (i.e., since January 14, 2014), or (b) the past diagnoses of keratoconjunctivitis and pellucid marginal degeneration. The Board finds that, pursuant to Stegall, remand of this particular issue is also necessary in order to obtain an addendum VA examination opinion discussing what other eye disorders (aside from keratoconus) have been present since January 14, 2014, including discussion of the past diagnoses of keratoconjunctivitis and pellucid marginal degeneration (and, if present during the appeal, their etiology). 2. Entitlement to service connection for a gastrointestinal disorder, to include acid reflux and GERD is remanded. Pursuant to the Board’s November 2018 remand, the Veteran was afforded a VA examination for his gastrointestinal disorder in August 2019. In a series of disability benefits questionnaires (DBQs), the examiner opined that the Veteran’s pertinent diagnoses included chronic diarrhea, which was secondary to another diagnosis of small intestinal bacteria overgrowth (SIBO) with anaerobic bacteria. However, it is not clear whether the examiner understood and considered the fact that pain causing functional loss can, for these purposes, be considered a disability, even in the absence of a diagnosed medical condition. Furthermore, when specifically asked to address “the past diagnoses of acid reflux, GERD, hiatal hernia, and chronic diarrhea,” the examiner simply replied “[n]o diagnosis of hiatal hernia.” The examiner did not specifically address whether the Veteran had a diagnosis of acid reflux, as requested, nor is it clear whether acid reflux is the same as any of the other mentioned “past diagnoses,” including GERD. Additionally, the examiner opined that “[i]t is less likely than not that the veterans [sic] chronic diarrhea secondary to small intestinal bacteria overgrowth (SIBO) with anaerobic bacteria was incurred in her [sic] caused by or otherwise related to his active military service. There is no competent medical evidence in the service treatment records of gastrointestinal symptomatology while in the service.” However, this opinion was based solely on an absence of contemporaneous medical evidence (i.e., STRs showing pertinent in-service complaints) and does not seem to take into account the Veteran’s lay statements or the buddy statements in the claims file. The Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1331 (Fed. Cir. 2006). Moreover, since many of the Veteran’s STRs are not available, so it is unsurprising that there would be no competent evidence in the STRs. Thus, this rationale is inadequate. Also, the examiner opined that PTSD did not cause GERD, but the examiner did not discuss the likelihood of PTSD causing the chronic diarrhea, SIBO with anaerobic bacteria, or any acid reflux (if different from GERD) or gastrointestinal pain causing functional impairment. Similarly, the examiner opined that PTSD did not aggravate GERD or SIBO with anaerobic bacteria, but did not discuss the likelihood of PTSD aggravating the chronic diarrhea, any acid reflux (if different from GERD), or gastrointestinal pain causing functional impairment. Further, in the rationale for the aggravation opinion, the examiner stated that “[t]here were no gastrointestinal symptoms after he was diagnosed with PTSD in 2004 for many years;” however, the DBQs that the examiner completed seem to indicate that the Veteran reported that his symptoms, including abdominal pain, nausea, and diarrhea, began in 2002 and have progressively worsened since. Again, as noted above, the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence, Buchanan, 451 F.3d 1331, and such lay evidence includes the Veteran’s statements discussing his past symptoms and when he perceived them. Thus, this rationale is also inadequate. 3. Entitlement to service connection for depression, to include as secondary to service-connected posttraumatic stress disorder (PTSD) is remanded. The Veteran’s VA treatment records also indicate that he has received psychological treatment at Vet Centers in Temecula and Corona. The record reflects that in July 2011, the RO requested records from the Temecula Vet Center, but there is no indication that records have ever been sought from the Corona Vet Center. Furthermore, it is not clear whether the Temecula Vet Center records in the claims file are a complete copy of all records from that facility to date. This claim must thus also be remanded so complete records can be sought, and, if possible, obtained, from these facilities, too. If any such additional records are obtained, an addendum opinion should be sought regarding the nature and etiology of any psychiatric disorders other than PTSD. In that event, the examiner should be asked to provide another psychiatric conditions opinion as requested in the Board’s November 2018 remand. The matters are REMANDED for the following action: 1. Obtain the Veteran’s complete service treatment records for his period of active service with the Navy. If these records cannot be obtained, and attempts to obtain them are exhausted, notify the Veteran as required under 38 C.F.R. § 3.159 and include a memorandum with a formal finding of unavailability in the record. 2. Obtain the Veteran’s updated VA treatment records and all VA treatment records from (a) the New Mexico VA Health Care System - Albuquerque Division and (b) the Vet Centers in Temecula and Corona, California. If it is determined that any such records do not exist or otherwise cannot be obtained, the required notice must be provided to the Veteran and his representative. 3. After any additional records are associated with the claims file, schedule the Veteran for an appropriate examination (or telehealth interview, or obtain an addendum opinion based on review of the record, etc., if an in-person examination is not necessary or feasible) to determine the etiology of his claimed eye disabilities other than keratoconus. The entire claims file must be made available to and 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. The examiner is specifically asked to provide an opinion on the following: (a.) What eye disabilities, other than keratoconus, have been present since January 14, 2014? The Board notes that under pertinent law, a disability, for these purposes, would include any eye symptoms that cause functional limitation. The past diagnoses of keratoconjunctivitis and pellucid marginal degeneration must be addressed; in other words, in the rationale, the examiner is asked to discuss those past diagnoses and why the evidence (including both lay and medical evidence) indicates that they have or have not been present since January 14, 2014. The examiner should address (i.e., consider and discuss in the rationale) the Veteran’s May 2015 lay statement, in which he discussed his symptomatology and his understanding of his claimed current eye disability and what he has been told about it by optometrists. (b.) Is it at least as likely as not (50 percent or greater probability) that each such eye disability other than keratoconus (if any) had onset in, or is otherwise related to, active military service? The examiner must specifically address (i.e., consider and discuss in the rationale) the Veteran’s assertions of an in-service loss of vision and in-service onset of symptoms. The examiner should also address the limited service treatment records available from 1999 and 2000 showing ophthalmological treatment. All opinions expressed must be accompanied by a rationale that is as thorough as is reasonably possible. 4. After any additional records are associated with the claims file, schedule the Veteran for an appropriate examination (or telehealth interview, or obtain an addendum opinion based on review of the record, etc., if an in-person examination is not necessary or feasible) to determine the nature and etiology of his claimed gastrointestinal disabilities. The entire claims file must be made available to and 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, if possible. The examiner is specifically asked to provide an opinion on the following: (a.) What gastrointestinal disabilities have been present since January 14, 2014? The Board notes that under pertinent law, a disability, for these purposes, would include any gastrointestinal pain or other symptoms that cause functional limitation. The past diagnoses of acid reflux, GERD, hiatal hernia, and chronic diarrhea, should be addressed; in other words, in the rationale, the examiner is asked to discuss those past diagnoses and why the evidence (including both lay and medical evidence) indicates that they have or have not been present since January 14, 2014. (b.) Is GERD the same as acid reflux? (c.) Is it at least as likely as not (50 percent or greater probability) that each diagnosed gastrointestinal disability had onset in, or is otherwise related to, active military service? The examiner should address (i.e., consider and discuss in the rationale) the November 2011 lay statement from EH indicating that she witnessed the Veteran suffer from acid reflux during service in Iraq in 2003, the November 2011 lay statement from XG indicating that the Veteran has reported “throw[ing] up in his mouth,” and the Veteran’s own lay statements. (d.) Is it at least as likely as not (50 percent or greater probability) that the each diagnosed gastrointestinal disability was caused by the service-connected PTSD? (e.) Is it at least as likely as not (50 percent or greater probability) that the each diagnosed gastrointestinal disability was aggravated by the service-connected PTSD? All opinions expressed must be accompanied by a rationale that is as thorough as is reasonably possible. 5. If, and only if, any additional medical/psychological treatment records are associated with the claims file, schedule the Veteran for an appropriate examination (or telehealth interview, or obtain an addendum opinion based on review of the record, etc., if an in-person examination is not necessary or feasible) to determine the nature and etiology of any psychiatric disability other than PTSD. The entire claims file must be made available to and 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, if possible. The examiner is specifically asked to provide an opinion on the following: (a.) Does the Veteran have a psychiatric disability other than PTSD, to include depression? (b.) Is it at least as likely as not (50 percent or greater probability) that any psychiatric disability other than PTSD had onset in, or is otherwise related to, active military service? (c.) Is it at least as likely as not (50 percent or greater probability) that any diagnosed psychiatric disability other than PTSD is caused or aggravated by the service-connected PTSD? All opinions expressed must be accompanied by a rationale that is as thorough as is reasonably possible. Tiffany Dawson Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Banks, 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.