Citation Nr: 21030281 Decision Date: 05/18/21 Archive Date: 05/18/21 DOCKET NO. 16-36 792 DATE: May 18, 2021 REMANDED Entitlement to service connection for chronic obstructive pulmonary disease (COPD) is remanded. Entitlement to service connection for hypertension, claimed as high blood pressure, is remanded. Entitlement to service connection for anemia is remanded. Entitlement to service connection for a bilateral foot disability is remanded. Entitlement to service connection for gout is remanded. Entitlement to service connection for a right wrist disability is remanded. Entitlement to service connection for a left wrist disability is remanded. Entitlement to service connection for diabetes mellitus, type II, to include as secondary to herbicides is remanded. Entitlement to service connection for a heart disability, claimed as hypertensive vascular disease, to include as secondary to herbicides is remanded. Entitlement to service connection for a pacemaker is remanded. REASONS FOR REMAND The Veteran served on active duty from September 1973 to September 1975. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a January 2014 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge in August 2019. This case was most recently before the Board in December 2019, when the claims listed above were remanded for additional development. An additional service connection claim for depression was remanded at that time for further development. In September 2020, the RO granted service connection for a major depressive disorder. This issue is no longer in appellate status. A September 2020 supplemental statement of the case was most recently issued, and the remaining claims are once again before the Board. 1. Entitlement to service connection for COPD is remanded. 2. Entitlement to service connection for hypertension, claimed as high blood pressure, is remanded. 3. Entitlement to service connection for anemia is remanded. 4. Entitlement to service connection for a bilateral foot disability is remanded. 5. Entitlement to service connection for gout is remanded. 6. Entitlement to service connection for a right wrist disability is remanded. 7. Entitlement to service connection for a left wrist disability is remanded. 8. Entitlement to service connection for diabetes mellitus, type II, to include as secondary to herbicides is remanded. Pursuant to the December 2019 Board remand, VA examinations and opinions were obtained in February 2020. The examiner opined that the Veteran's COPD, hypertension, anemia, bilateral foot disability, gout, right wrist disability, left wrist disability, and diabetes mellitus are less likely than not (less than 50 percent probability) related to service. As rationale, however, the examiner stated only that there was no evidence of any of these conditions in the service treatment records. The Board finds the VA examiner's opinions inadequate. When VA undertakes to either provide an examination or to obtain an opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). In this regard, medical examiners may not rely on the absence of medical records to conclude no relationship exists between the claimant's current disability and their military service. Dalton v. Nicholson, 21 Vet. App. 23 (2007). The Board finds that the VA examiner's opinions are inadequate and addendum opinions are necessary. 9. Entitlement to service connection for a heart disability, claimed as hypertensive vascular disease, to include as secondary to herbicides is remanded. 10. Entitlement to service connection for a pacemaker is remanded. Additionally, with respect to the Veteran's claims for diabetes mellitus type II, and his heart disability claims, the Veteran asserts that these disabilities are related to exposure to herbicides in service. In an August 2015 statement, the Veteran reported that after basic training he was assigned to a special warfare center at Fort Bragg and his assignment was to provide remote communications for Special Ops. The Veteran stated that when they were transferred to Ft. Lewis in Washington State he was also slated to move. He reported that in 1974, while at Ft. Lewis, along with the Special Ops troopers while in training in and around the base he was exposed to Agent Orange. He reported that this exposure led to his current medical conditions and attached an explanatory document reflecting discussion of diabetes mellitus and heart disease. Development as to whether or not the Veteran was exposed to herbicides outside of Vietnam has not been completed. Additional development is required prior to adjudication of these claims. In this regard, for claims based on exposure to herbicide agents in locations other than Vietnam, Korean DMZ, or Thailand, the AOJ is to send an e-mail with the dates, location, and circumstances of claimed herbicide exposure to VA's Compensation Service and request a review of the Department of Defense's inventory of herbicide operations to determine whether herbicides were used as claimed. If the Compensation Service is unable to confirm that the herbicides were so used, then the information is to be submitted to the Joint Services Records Research Center (JSRRC) to determine whether such exposure can be verified. If the JSRRC is unable to verify the exposure, the case must be referred to the JSRRC coordinator to make a formal finding that sufficient information required to verify herbicide exposure does not exist. Additionally, the United States Court of Appeals for Veterans Claims has held that VA should, if necessary, submit multiple requests to the JSRRC covering the relevant time window in 60-day increments, given the JSRRC's 60-day requirement. Gagne v. McDonald, 27 Vet. App. 397 (2015). If exposure to herbicides is verified, additional addendum opinions regarding his heart disabilities should be completed. The matters are REMANDED for the following actions: 1. Send information regarding the Veteran's described herbicide exposure to the VA Compensation Service at VAVBAWAS/CO/211/AGENTORANGE, and request a review of the Department of Defense's (DOD's) inventory of herbicide operations to determine whether herbicides were used as described. If the Compensation Service is unable to confirm that the herbicides were used as described, then the information is to be submitted to the Joint Services Records Research Center (JSRRC) to determine whether such exposure can be verified. If the JSRRC is unable to verify the exposure, the case must be referred to the JSRRC coordinator to make a formal finding that sufficient information required to verify herbicide exposure does not exist. All requests and responses received should be associated with the claims file and a summary of the findings in this regard should be provided in a memorandum associated with the file. If such verification is not possible, it should be so certified for the record (along with a description of the extent of the verification conducted), and the Veteran should be notified of such. 2. If exposure to herbicides is confirmed: forward the Veteran's claims file to an appropriate VA clinician to provide a medical opinion regarding the nature and etiology of the Veteran's claimed heart disabilities, to include hypertensive vascular disease and a pacemaker. The entire claims file should be made available to and be reviewed by the clinician in conjunction with this request. If the clinician believes that a physical examination should be conducted in order to provide the requested opinion, one should be provided. Thereafter, the clinician should address the following: For each current or previously diagnosed heart disability found to be present at any point during the appeal period, please identify the diagnosis and state whether it is at least as likely as not (50 percent probability or more) that the disability had its onset in, was caused by, or is otherwise related to service, to include herbicide exposure. A complete rationale should be provided for any opinions expressed. 3. Forward the Veteran's claims folder to an examiner(s) for an addendum opinion regarding the Veteran's COPD, hypertension, anemia, bilateral foot disability, gout, right wrist disability, left wrist disability, and diabetes mellitus. The examiner is requested to review the claims folder, to include this remand. If further examination of the Veteran is found to be necessary, such should be arranged. Following review of the claims file the examiner should provide an opinion on the following: COPD The examiner is asked to provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran's COPD had its onset in service or is otherwise etiologically related to his active duty service. In rendering the requested opinions, the examiner should specifically consider and discuss the Veteran's contentions, the lay statements of record, the lay evidence of record, his service treatment records, and personnel records. In particular, the examiner must discuss the Veteran's lay assertions of record, including specifically his reports of shortness of breath and trouble breathing in service. Hypertension The examiner is asked to provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran's hypertension had its onset in service, within one year of service discharge, or is otherwise etiologically related to his active duty service. In rendering the requested opinions, the examiner should specifically discuss the Veteran's contentions, the lay statements of record, the lay evidence of record, his service treatment records, and personnel records. In particular, the examiner must discuss the Veteran's lay assertions of record, including specifically his reports that while in service, he had spikes of high blood pressure. Anemia The examiner is asked to provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran's anemia had its onset in service, within one year of service discharge, or is otherwise etiologically related to his active duty service. In rendering the requested opinions, the examiner should specifically discuss the Veteran's contentions, the lay statements of record, the lay evidence of record, his service treatment records, and personnel records. Bilateral Foot Disability The examiner is asked to provide an opinion as to whether it is at least as likely as not (i.e., a 50 percent or greater probability) that any bilateral foot disability had its onset during service, within one year of service separation, or is otherwise related to his active duty service. The examiner is specifically instructed to consider the lay statements of record. The examiner should set forth in detail the medical reasons for accepting or rejecting the Veteran's statements regarding his symptomatology. Gout The examiner is asked to provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran's gout had its onset in service, within one year of service discharge, or is otherwise etiologically related to his active duty service. In rendering the requested opinions, the examiner should specifically discuss the Veteran's contentions, the lay statements of record, the lay evidence of record, his service treatment records, and personnel records. In particular, the examiner must discuss the Veteran's lay assertions of record, including specifically his reports that his gout started approximately at the same time as his arthritis in service. Bilateral Wrists The examiner is asked to provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran's left or right wrist degenerative joint disease had its onset in service, within one year of service discharge, or is otherwise etiologically related to his active duty service. In rendering the requested opinions, the examiner should specifically consider and discuss the Veteran's contentions, the lay statements of record, the lay evidence of record, his service treatment records, and personnel records. In particular, the examiner must discuss the September 2018 VA medical records indicative that the Veteran's wrist disability is related to diabetic neuropathy, and the Veteran's lay assertions of record, including specifically his reports of arthritic pain since service. Diabetes Mellitus, Type 2 The examiner is asked to provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran's diabetes mellitus, type 2 had its onset in service, within one year of service discharge, or is otherwise etiologically related to his active duty service. In rendering the requested opinions, the examiner should specifically discuss the Veteran's contentions, the lay statements of record, the lay evidence of record, his service treatment records, and personnel records. In particular, the examiner must discuss the Veteran's lay assertions of record, including specifically his reports of trouble walking and the presence of diabetic lower extremity neuropathy in service and shortly after service. Caroline B. Fleming Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. M. Clark, 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.