Citation Nr: 21040326 Decision Date: 07/03/21 Archive Date: 07/03/21 DOCKET NO. 17-10 724 DATE: July 3, 2021 REMANDED Entitlement to service connection for gastroesophageal reflux disease (GERD) is remanded. Entitlement to service connection for a genitourinary disability, to include erectile dysfunction and a disability manifested by infertility, is remanded. Entitlement to service connection for an acquired psychiatric disability, to include posttraumatic stress disorder (PTSD), unspecified depressive disorder, and alcohol use disorder, is remanded. Entitlement to service connection for allergic rhinitis is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from August 1989 to December 1994, to include service in Southwest Asia Theater of Operations during the Persian Gulf War. He also had subsequent service of an unverified nature in the Kentucky Army National Guard from December 1994 to November 1996. This matter comes to the Board of Veterans' Appeals (Board) from a March 2015 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO) of the Veterans Benefits Administration (VBA), which is the Agency of Original Jurisdiction (AOJ). The Veteran expressed timely disagreement with this determination, and the present appeal ensued. In March 2021, the Veteran testified at a Board hearing conducted by the undersigned Veterans Law Judge (VLJ) via videoconferencing equipment. A transcript of the hearing has been associated with the file. At the hearing, the Veteran and his representative asked the undersigned VLJ to hold the record open for 60 days so that additional evidence could be submitted. This request was granted on the record, and thus, evidence received by the Board until May 2021 may be reviewed by the Board in the first instance. 1. Entitlement to service connection for allergic rhinitis is remanded. 2. Entitlement to service connection for a genitourinary disability, to include erectile dysfunction and a disability manifested by infertility, is remanded. 3. Entitlement to service connection for GERD is remanded. 4. Entitlement to service connection for an acquired psychiatric disability, to include PTSD, unspecified depressive disorder, and alcohol use disorder, is remanded. The Board observes that the Veteran's initial claims to establish service connection for allergies and infertility were denied by the AOJ as "not well-grounded" in a final February 1996 rating decision; however, the AOJ did not mention this prior final denial or the threshold matter of whether the VA has received new and material evidence sufficient to reopen either previously-denied claim during the pendency of the current appeal. Instead, the AOJ addressed these claims on the merits throughout the pendency of the current appeal and provided the Veteran VA examinations. While it would appear that the above represents a procedural misstep, there is an indication that these actions may have been appropriate. Specifically, the Veteran's service treatment and personnel records for review are incomplete, as the file is devoid of personnel records pertaining to the Veteran's period of active duty and the nature of his service in the Kentucky Army National Guard from December 1994 to November 1996. This outstanding evidence is critical for two reasons. First, diagnoses of allergies and infertility were rendered by a VA examiner in September 1995 during the Veteran's National Guard service. Noting that both disabilities are diseases, service connection may only be established if they were caused by an in-service injury or initially manifested during a period of active duty or Active Duty for Training (ACDUTRA), but not Inactive Duty Training (INACDUTRA). As such, determining the nature of the Veteran's National Guard service is essential to VA's ability to properly readjudicate the Veteran's appealed issues. Second, any service department records pertinent to these disabilities found to be extant, but not associated with the Veteran's file, at the time of the February 1996 rating decision would overcome the finality of such and give rise to the possibility of assigning an effective date based on the Veteran's initial claim, which was filed in August 1995. Accordingly, the Board concludes that remand is necessary to undertake actions necessary to ensure completeness of the record and determine the nature of the totality of the Veteran's service in the Kentucky Army National Guard. Further, the Board concludes that the January 2015 and November 2016 VA opinions addressing the nature and etiology of these disabilities are inadequate for the purpose of readjudication for several reasons. Specifically, the VA examiners who provided these opinions ruled out diagnoses of allergies and infertility without reconciling such with the earlier evidence reflecting these diagnoses. Further, it appears that these opinions were based on inaccurate factual premises, to include how many children the Veteran has fathered and whether he experienced symptoms of allergies, GERD, and an acquired psychiatric disability during and since service. Perhaps, if the VA examiners had access to the Veteran's complete file, the conclusions reached would have been manifestly different. Accordingly, after the record for review is complete, the Veteran must be provided additional VA examinations to determine the nature, dates of initial onset, and etiology of his claimed disabilities. The matters are REMANDED for the following actions: 1. The AOJ must obtain updated VA and private treatment records, with the Veteran's assistance regarding the latter. 2. The AOJ must contact the Adjutant General of the Kentucky National Guard, the Department of the Army, the National Personnel Records Center (NPRC), the Records Management Center (RMC), and any other appropriate location to obtain a complete copy of the Veteran's personnel and service treatment records for his National Guard service from December 1994 to November 1996. 3. Based on the information received from the above actions, and obtaining the Veteran's pay stubs from the and Defense Finance and Accounting Service (DFAS) if necessary, the AOJ must create a summary of all dates of ACDUTRA and INACDUTRA served by the Veteran in the Kentucky Army National Guard from December 1994 to November 1996 and associate such with the Veteran's file. *The AOJ is on notice of the importance of the creation this summary and its inclusion in the Veteran's file. A listing of the Veteran's retirement points for his National Guard service will NOT suffice to address this remand directive. 4. Thereafter, the AOJ must request that the Veteran be scheduled for an appropriate VA examination to determine the nature, dates of initial onset, and etiology of the Veteran's claimed allergic rhinitis, genitourinary disability, to include erectile dysfunction and a disability manifested by infertility, GERD, and acquired psychiatric disability. The complete electronic record must be made available to, and reviewed by, the VA examiner prior to conducting the examination, to include the AOJ's summary of all of the Veteran's periods of ACDUTRA and INACDUTRA in the Kentucky Army National Guard from December 1994 to November 1996. All necessary studies and tests should be conducted, to include all testing necessary to rule out any of the Veteran's asserted disabilities. The examiner is encouraged to transcribe all symptoms reported by the Veteran. Thereafter, the examiner must address the following: a. Confirm or rule out diagnoses regarding the following: i. Allergic rhinitis; ii. Any genitourinary disability; iii. GERD; iv. Any acquired psychiatric disability. *If the examining physician rules out diagnoses of infertility, erectile dysfunction, allergic rhinitis, seasonal allergies, GERD, or acquired psychiatric disability to include PTSD, unspecified depressive disorder, or alcohol use disorder, such a finding must be reconciled with the evidence of record reflecting prior diagnoses of these disabilities, to include a discussion of whether the prior diagnosis was in error or whether the disability subsequently resolved and if so, when. b. For each diagnosis confirmed in any subpart of part (a), provide an approximate date of the initial onset of associated manifestations (month and year). c. For each diagnosis confirmed in any subpart of part (a), provide an opinion concerning whether the disability is at least as likely as not proximately due to or the result of any instance of the Veteran's service, to include his National Guard service. d. For each subpart in part (a) where a diagnosed disability could not be confirmed, provide an approximate date of the initial onset of the Veteran's reported symptoms of such (month and year). e. For each subpart in part (a) where a diagnosed disability could not be confirmed, provide an opinion concerning whether the Veteran's reported symptoms of such are at least as likely as not signs or symptoms of an undiagnosed illness or other qualifying chronic disability under 38 C.F.R. § 3.317(a)(2). If the examiner cannot provide an opinion without resorting to mere speculation, this should be so stated along with supporting rationale. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to the particular question. 5. After undertaking any additional development deemed appropriate, and giving the Veteran full opportunity to supplement the record, adjudicate the Veteran's pending issues in light of any additional evidence added to the record. If any benefit sought on appeal remains denied, the Veteran and his representative must be furnished with a copy of the readjudication and afforded the applicable opportunity to respond. Michael J. Skaltsounis Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Scott W. Dale, 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.