Citation Nr: 21023870 Decision Date: 04/21/21 Archive Date: 04/21/21 DOCKET NO. 14-19 045 DATE: April 21, 2021 REMANDED Whether new and material evidence has been received to reopen a claim for entitlement to service connection for a chronic stomach condition (claimed as peptic ulcer disease) is remanded. Whether new and material evidence has been received to reopen a claim for entitlement to service connection for degenerative disc disease, to include degenerative disease of the cervical spine, is remanded. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for bilateral glaucoma is remanded. Entitlement to service connection for lung disease with chest polyps, to include sarcoidosis, is remanded. Entitlement to service connection for a prostate disorder is remanded. Entitlement to service connection for arthritis and joint pain is remanded. Entitlement to service connection for renal cancer is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Air Force from January 1975 to April 1980. These matters come to the Board of Veterans’ Appeals (Board) on appeal from a December 2013 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) Wichita, Kansas. Jurisdiction of this appeal is currently with the RO in Nashville, Tennessee. This case was most recently before the Board in September 2019, at which time the appeal was remanded to the Agency of Original Jurisdiction (AOJ) for further development. The case has now been returned to the Board for appellate action. The Board notes that the Veteran was found to be incompetent in a May 2020 rating decision and that a family member was subsequently appointed his fiduciary. As the fiduciary has not prosecuted this appeal, the Veteran remains listed as the appellant in this case. Petitions to Reopen and Service Connection Claims The Veteran seeks to reopen his previously denied claims for entitlement to service connection for a chronic stomach condition, degenerative disc disease, and bilateral glaucoma as well as entitlement to service connection for lung disease with chest polyps, prostate disorder, arthritis and joint pain, and renal cancer. Specifically, the Veteran asserts that his claims are secondary to his sarcoidosis, and that his sarcoidosis were caused by racial inflicted stress resulting in psychoimmune and autoimmune disorders, and the genetically modified foods eaten during his active service. See e.g. VA Form 9, May 22, 2014; see e.g. VA Form 21-4142 Authorization for Release of Information, December 9, 2013; see also VA Form 21-4138 Statement in Support of Claim, November 22, 2013; see e.g. Correspondence, October 31, 2013. Additionally, the Veteran asserts that his symptoms began during active service and have continued since. Id. As noted above, the petitions reopen and claims for entitlement to service connection were most recently before the Board in September 2019, when the matters were remanded to the AOJ for further development. Specifically, September 2019 Board remand directed the AOJ to afford the Veteran VA examinations for his claims. In this regard, the September 2019 Board remand found that the evidence, to include the Veteran’s service treatment records, post-service treatment records, and lay statements warranted affording the Veteran VA examinations to obtain etiology opinions. In its remand directives, the September 2019 Board remand directed the AOJ to schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of his sarcoidosis, prostate disorder, arthritis and joint pain, and renal cancer; to address the reported symptoms identified by his service treatment records, and opine as to whether it was at least as likely as not that the claimed disorders were related to an in-service injury, event, or disease. The Veteran was afforded the directed VA examinations in December 2019. At that time, the examiner opined that the claimed conditions were less likely than not incurred in or caused by the claimed in-service injury, event, or illness. Specifically, with regard to lung disease with chest polyps, to include sarcoidosis, the examiner noted that the Veteran was diagnosed with sarcoidosis in 2002, that he had no recent lung symptoms and that there were no service treatment records to show a diagnosis of sarcoidosis while on active duty. The examiner noted that the diagnosis of sarcoidosis was in 2002, many years following active service. With regard to a prostate disorder, the examiner noted that the Veteran had a history of benign prostate hypertrophy (BPH) and intermittent elevated PSAs, that he had normal biopsies in the past and that he and was currently on medication. The examiner noted there were no service treatment records for any prostate conditions. With regard to arthritis and joint pain, the examiner noted that the Veteran began having bilateral shoulder and back pain in 1985, following a motor vehicle accident, and that he had bilateral rotator cuff surgery in 2012 and 2013. The examiner noted that the Veteran currently had constant bilateral shoulder pain. The examiner noted there were no service treatment records for sarcoidosis or right shoulder injury or complaints during service. Additionally, with regard to back pain, the examiner noted that the Veteran had constant back pain and there were no service treatment records showing a back injury or complaints during active service. With regard to renal cancer, the examiner noted that the Veteran was diagnosed with renal cancer in 2010 and underwent a right nephrectomy, did not require radiation or chemotherapy, and had a diagnosis of chronic kidney disease (CKD). The examiner noted there were no service treatment records to show a diagnosis of renal cancer during active service, and that the diagnosis in 2010 was many years later. The Board finds the December 2019 opinions are incomplete to decide the claims. In this regard, the examiner did not consider the medical evidence of record, to include the evidence submitted by the Veteran, did not consider his statements and contentions regarding the onset and continuity of his symptoms. Additionally, the examiner did not address the Veteran’s personal circumstances and his contentions that racial stressors, psychoimmune disorders, autoimmune disorders, and genetically modified foods caused his claimed conditions. Furthermore, the examiner did not provide adequate rationale for the conclusions reached, and relied on incorrect facts. Namely, the examiner failed to address the Veteran’s service treatment records showing complaints of, treatment for, and diagnoses of stomach ulcers, prostate and burning in the groin, scrotal mass, coughing, chest and back pain, and prostatitis. See e.g. Service Treatment Records, February 26, 1976, April 6, 1976, July 22, 1976, October 18, 1976, and November 7, 1977. Finally, the December 2019 VA examiner failed to address the article submitted by the Veteran with respect to his sarcoidosis. See Web/HTML Documents, May 29, 2013. Given these deficiencies, the Board is unable to find that substantial compliance with the prior remand has been achieved. See D’Aries, 22 Vet. App. at 105; see also Dyment v. West, 13 Vet. App. 141, 146-47 (1999). As such, remand is again to obtain VA opinions that complies with the Board’s prior remand directives. See Stegall v. West, 11 Vet. App. at 268, 271 (1998). With regard to the Veteran’s claims to reopen the previously denied claims for entitlement to service connection for a chronic stomach condition, degenerative disc disease to include degenerative disease of the cervical spine, and bilateral glaucoma, the Board again notes that the claims must be deferred pending development of the issues remanded herein. The matters are REMANDED for the following action: 1. The Veteran should be given the opportunity to identify any outstanding private or VA treatment records relevant to the claims on appeal. After obtaining any necessary authorization from the Veteran, all outstanding records should be obtained, to include updated VA treatment records. For private treatment records, make at least two (2) attempts to obtain records from any identified sources. If any such records are unavailable, inform the Veteran and his representative and afford him an opportunity to submit any copies in his possession. For federal records, all reasonable attempts should be made to obtain such records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 2. Following the receipt of outstanding records, obtain an addendum VA opinion from the VA examiner who conducted and provided the December 2019 VA examination and opinion regarding the Veteran’s lung disease with chest polyps, to include sarcoidosis. Further physical examination is left to the discretion of the examiner. Following a review of the record, the examiner is again asked to address the following: The examiner should state whether it is at least as likely as not (50 percent or more probability) that the lung disease had its onset during or is otherwise related to the Veteran’s military service. In answering the foregoing, the examiner must consider the medical evidence of record, in addition to the evidence submitted by the Veteran. Specifically, the examiner is directed to consider the Veteran’s lay statements and contentions that his claimed condition is related to reported racial stressors, any psychoimmune and/or autoimmune disorders, and genetically modified foods. The examiner should be sure to address the Veteran’s service treatment records showing complaints of, treatment for, and diagnoses of stomach ulcers, prostate and burning in the groin, scrotal mass, coughing, chest and back pain, and prostatitis. See e.g. Service Treatment Records, February 26, 1976, April 6, 1976, July 22, 1976, October 18, 1976, and November 7, 1977. The examiner must also address the articles submitted by the Veteran. The examiner is advised that the Veteran is competent to report symptoms, treatment, and injuries, and that his reports must be considered in formulating the requested opinion. However, if there is a medical reason to doubt its veracity, the examiner should explain why the Veteran’s statements or recollection are inconsistent with the evidence in this case, medical principles relating to the onset and progress of the disease, the specific findings in the record, and/or your professional judgment. If an opinion cannot be given without resorting to speculation, the examiner should explain why and state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), the record (additional facts are required), or the examiner (does not have the knowledge or training). If the inability to provide an opinion without resorting to speculation is due to a deficiency in the record (additional facts are required), the AOJ should develop the claim to the extent it is necessary to cure any such deficiency. If the inability to provide an opinion is due to the examiner’s lack of requisite knowledge or training, then the AOJ should obtain an opinion from a medical professional who has the knowledge and training needed to render such an opinion. A CLEAR RATIONALE FOR ALL OPINIONS IS REQUIRED. 3. Following the receipt of outstanding records, obtain an addendum VA opinion from the VA examiner who conducted and provided the December 2019 VA examination and opinion regarding the Veteran’s prostate disorder. Further physical examination is left to the discretion of the examiner. Following a review of the record, the examiner is again asked to address the following: The examiner should state whether it is at least as likely as not (50 percent or more probability) that the prostate disorder had its onset during or is otherwise related to the Veteran’s military service. In answering the foregoing, the examiner must consider the medical evidence of record, in addition to the evidence submitted by the Veteran. Specifically, the examiner is directed to consider the Veteran’s lay statements and contentions that his claimed condition is related to reported racial stressors, any psychoimmune and/or autoimmune disorders, and genetically modified foods. The examiner should be sure to address the Veteran’s service treatment records showing complaints of, treatment for, and diagnoses of stomach ulcers, prostate and burning in the groin, scrotal mass, coughing, chest and back pain, and prostatitis. See e.g. Service Treatment Records, February 26, 1976, April 6, 1976, July 22, 1976, October 18, 1976, and November 7, 1977. The examiner is advised that the Veteran is competent to report symptoms, treatment, and injuries, and that his reports must be considered in formulating the requested opinion. However, if there is a medical reason to doubt its veracity, the examiner should explain why the Veteran’s statements or recollection are inconsistent with the evidence in this case, medical principles relating to the onset and progress of the disease, the specific findings in the record, and/or your professional judgment. If an opinion cannot be given without resorting to speculation, the examiner should explain why and state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), the record (additional facts are required), or the examiner (does not have the knowledge or training). If the inability to provide an opinion without resorting to speculation is due to a deficiency in the record (additional facts are required), the AOJ should develop the claim to the extent it is necessary to cure any such deficiency. If the inability to provide an opinion is due to the examiner’s lack of requisite knowledge or training, then the AOJ should obtain an opinion from a medical professional who has the knowledge and training needed to render such an opinion. A CLEAR RATIONALE FOR ALL OPINIONS IS REQUIRED. 4. Following the receipt of outstanding records, obtain an addendum VA opinion from the VA examiner who conducted and provided the December 2019 VA examination and opinion regarding the Veteran’s arthritis and joint pain. Further physical examination is left to the discretion of the examiner. Following a review of the record, the examiner is again asked to address the following: The examiner should state whether it is at least as likely as not (50 percent or more probability) that the arthritis and joint pain had its onset during or is otherwise related to the Veteran’s military service. In answering the foregoing, the examiner must consider the medical evidence of record, in addition to the evidence submitted by the Veteran. Specifically, the examiner is directed to consider the Veteran’s lay statements and contentions that his claimed condition is related to reported racial stressors, any psychoimmune and/or autoimmune disorders, and genetically modified foods. The examiner should be sure to address the Veteran’s service treatment records showing complaints of, treatment for, and diagnoses of stomach ulcers, prostate and burning in the groin, scrotal mass, coughing, chest and back pain, and prostatitis. See e.g. Service Treatment Records, February 26, 1976, April 6, 1976, July 22, 1976, October 18, 1976, and November 7, 1977. The examiner is advised that the Veteran is competent to report symptoms, treatment, and injuries, and that his reports must be considered in formulating the requested opinion. However, if there is a medical reason to doubt its veracity, the examiner should explain why the Veteran’s statements or recollection are inconsistent with the evidence in this case, medical principles relating to the onset and progress of the disease, the specific findings in the record, and/or your professional judgment. If an opinion cannot be given without resorting to speculation, the examiner should explain why and state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), the record (additional facts are required), or the examiner (does not have the knowledge or training). If the inability to provide an opinion without resorting to speculation is due to a deficiency in the record (additional facts are required), the AOJ should develop the claim to the extent it is necessary to cure any such deficiency. If the inability to provide an opinion is due to the examiner’s lack of requisite knowledge or training, then the AOJ should obtain an opinion from a medical professional who has the knowledge and training needed to render such an opinion. A CLEAR RATIONALE FOR ALL OPINIONS IS REQUIRED. 5. Following the receipt of outstanding records, obtain an addendum VA opinion from the VA examiner who conducted and provided the December 2019 VA examination and opinion regarding the Veteran’s renal cancer. Further physical examination is left to the discretion of the examiner. Following a review of the record, the examiner is again asked to address the following: The examiner should state whether it is at least as likely as not (50 percent or more probability) that renal cancer had its onset during or is otherwise related to the Veteran’s military service. In answering the foregoing, the examiner must consider the medical evidence of record, in addition to the evidence submitted by the Veteran. Specifically, the examiner is directed to consider the Veteran’s lay statements and contentions that his claimed condition is related to reported racial stressors, any psychoimmune and/or autoimmune disorders, and genetically modified foods. The examiner should be sure to address the Veteran’s service treatment records showing complaints of, treatment for, and diagnoses of stomach ulcers, prostate and burning in the groin, scrotal mass, coughing, chest and back pain, and prostatitis. See e.g. Service Treatment Records, February 26, 1976, April 6, 1976, July 22, 1976, October 18, 1976, and November 7, 1977. The examiner is advised that the Veteran is competent to report symptoms, treatment, and injuries, and that his reports must be considered in formulating the requested opinion. However, if there is a medical reason to doubt its veracity, the examiner should explain why the Veteran’s statements or recollection are inconsistent with the evidence in this case, medical principles relating to the onset and progress of the disease, the specific findings in the record, and/or your professional judgment. If an opinion cannot be given without resorting to speculation, the examiner should explain why and state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), the record (additional facts are required), or the examiner (does not have the knowledge or training). If the inability to provide an opinion without resorting to speculation is due to a deficiency in the record (additional facts are required), the AOJ should develop the claim to the extent it is necessary to cure any such deficiency. If the inability to provide an opinion is due to the examiner’s lack of requisite knowledge or training, then the AOJ should obtain an opinion from a medical professional who has the knowledge and training needed to render such an opinion. A CLEAR RATIONALE FOR ALL OPINIONS IS REQUIRED. Kristy L. Zadora Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Mariah N. Sim, 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.