Citation Nr: 21041657 Decision Date: 07/09/21 Archive Date: 07/09/21 DOCKET NO. 15-42 229 DATE: July 9, 2021 REMANDED Entitlement to service connection for gastric ulcer condition, to include as due to radiation exposure, is remanded. Entitlement to service connection for an acquired psychiatric disorder is remanded. Entitlement to service connection for dementia, to include as due to radiation exposure, is remanded. Entitlement to service connection for a left ankle condition is remanded. Entitlement to service connection for sleep apnea, to include as due to radiation exposure, is remanded. REASONS FOR REMAND Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. See 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. The Veteran had active military service from January 1972 to January 1974. This matter comes before the Board of Veterans' Appeals (Board) from the March 2013 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran appeared at an October 2019 hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the record. This matter was previously before the Board in January 2020 and was remanded for the Veteran to undergo new VA examinations. 1. Entitlement to service connection for gastric ulcer condition, to include as due to radiation exposure, is remanded. The Veteran contends that his gastric ulcer condition began during his military service, to include as due to radiation exposure. The Veteran had reported that he had surgery for a stomach ulcer in 1984. The Veteran testified that the doctor that did the operation could not explain why the Veteran had ulcers at such a young age. The Veteran's service treatment records note that in September 1973 the Veteran complained of an upset stomach. The January 2020 Board remand directed the Agency of Original Jurisdiction (AOJ) to schedule the Veteran for an examination to provide an opinion as to the nature and etiology of the Veteran's gastric ulcer condition. Subsequently, in March 2020, the Veteran underwent a VA stomach and duodenal conditions examination. The examiner stated that the Veteran is diagnosed with a gastric ulcer. However, the examiner opined that this condition is less likely than not related to his military service. The examiner's rationale was that the Veteran's service treatment records do not document any diagnosis or treatment of an ulcer and that the Veteran was not diagnosed and treated until many years after service. Additionally, the examiner stated that the condition is not known to be caused by radiation exposure. The Board notes that a VA examiner must offer a full rationale for all opinions given and should not rely solely on the absence of evidence of in-service treatment or injury in the Veteran's service treatment records as a basis for any given opinion. The examiner did not discuss the service treatment note indicating an upset stomach in service and discuss whether that could represent the onset of an ulcer, and the examiner also did not address the Veteran's argument that his claim is supported by the fact that a diagnosis of an ulcer when he was still young in 1984 was indicative of an unusually early onset which in turn suggests etiology due to service. A remand by the Board confers upon the Veteran the right to compliance with the Board's remand order. Stegall v. West, 11 Vet. App. 268, 270-71 (1998). As such, in accordance with Stegall, remand for full compliance with the Board's prior remand is warranted. In addition, the Board notes that a medical opinion was submitted in May 2021 from a private doctor, M. Levin, M.D. The opinion indicates that the Veteran's gastric ulcer disease is related to radiation exposure in service while working as a nuclear weapons maintenance technician. The doctor also indicated that the ulcer is related to stress in service. The Board notes that under 38 C.F.R. 3.311(a)(4), if a claim is based on a disease that is not listed as being a radiogenic disease listed in paragraph (b)(2), VA shall nevertheless consider the claim under the provisions of this regulation provided that the claimant has cited or submitted competent scientific or medical evidence that the claimed condition is a radiogenic disease. Therefore, in light of the Veteran's submission of the private opinion indicating a link between ulcers and radiation exposure, development under 38 C.F.R. 3.311 as a radiogenic disease is required. In all claims in which it is established that a radiogenic disease first became manifest after service and was not manifest to a compensable degree within any applicable presumptive period as specified in § 3.307 or § 3.309, and it is contended the disease is a result of exposure to ionizing radiation in service, an assessment will be made as to the size and nature of the radiation dose or doses. In claims involving radiation exposure, other than atmospheric nuclear weapons testing or Hiroshima and Nagasaki occupation, the Secretary for Health will be responsible for preparation of a dose estimate, to the extent feasible, based on available methodologies and all available records concerning the veteran's exposure to radiation, normally including the Record of Occupational Exposure to Ionizing Radiation (DD Form 1141), service medical records, and other records which may contain information pertaining to the veteran's radiation dose in service. Accordingly, a remand is required to follow these evidence development procedures. 2. Entitlement to service connection for an acquired psychiatric disorder is remanded. 3. Entitlement to service connection for dementia, to include as due to radiation exposure, is remanded. The Veteran contends that his acquired psychiatric disorder and dementia are related to his military service, to include as due to radiation exposure. The March 2013 rating decision denied the Veteran's claim on the basis that the Veteran did not have an acquired psychiatric disorder diagnosis. However, a June 2013 treatment note states that the Veteran was being treated for depression. In the Board's January 2020 remand, the AOJ was directed to schedule the Veteran for a VA examination to provide an opinion as to the nature and etiology of any acquired psychiatric disorder, to include depression, and dementia/Alzheimer's disease. Subsequently, in January 2021, the Veteran underwent a VA mental disorders examination and was noted to be diagnosed with unspecified depressive disorder. Ultimately, the examiner opined that the Veteran's psychiatric disorder is less likely than not related to his military service. The examiner explained that there is no indication that the Veteran's depressive symptoms began in the military and that due to drug use, the Veteran was unable to report whether his depressive symptoms began during his military service. The examiner also cited the Veteran's March 2013 rating decision noting that the Veteran's records fail to show ionizing radiation during service and used this information as a basis for the opinion given. Additionally, an opinion regarding the Veteran's claim for dementia was given in conjunction with the Veteran's VA mental health examination. However, the examiner stated that the diagnostic measure used during the examination has no validity measures and a diagnosis of dementia of Alzheimer's disease requires cognitive testing that is beyond the scope of the examination that was administered. The examiner reported that a neuropsychological evaluation is warranted to determine whether a diagnosis of cognitive impairment is present. The Board finds the January 2021 acquired psychiatric opinion is inadequate as it does not provide an adequate rationale for whether or not any diagnosed acquired psychiatric disorder is related to the Veteran's military service. Therefore, a remand is warranted for the Veteran to undergo another examination. Additionally, regarding the Veteran's claim for Alzheimer's and/or dementia, another examination, specifically for that disability such as a neuropsychological evaluation, should be scheduled and another opinion should be obtained. 4. Entitlement to service connection for a left ankle condition is remanded. The Veteran contends that his left ankle disability is related to his military service. At the Veteran's Board hearing he testified that while in service someone dropped a small shipping container on his left foot and as a result his left ankle was twisted and he was unable to walk for two weeks. The Veteran stated that his left ankle has not been the same since that injury. Additionally, the Veteran testified that he recently developed plantar fascitis in his left foot. In the Board's January 2020 remand, the AOJ was directed to schedule the Veteran for a VA examination to provide an opinion as to the nature and etiology of his left ankle condition. Subsequently, in August 2020, the Veteran underwent a VA ankle conditions examination. The examiner opined that the Veteran's left ankle condition is less likely than not related to the Veteran's military service. The examiner stated that the Veteran was not noted to have complaints or prior history of an ankle condition on his enlistment examination and the Veteran's service treatment records are negative for any complaints or treatment for an ankle condition. The examiner stated that the Veteran has findings of pain and decreased range of motion that are suggestive of tendonitis, however, the examiner was unable to establish a chronic condition that was either incurred or caused by the Veteran's military service. The Board notes that a VA examiner must offer a full rationale for all opinions given and should not rely solely on the absence of evidence of in-service treatment or injury in the Veteran's service treatment records as a basis for any given opinion. Additionally, the examiner must consider the Veteran's lay statements. Therefore, the Board finds the August 2020 VA opinion to be inadequate and that a new examination is warranted. 5. Entitlement to service connection for sleep apnea, to include as due to radiation exposure, is remanded. The Veteran contends that his sleep apnea is related to his military service, to include as due to radiation exposure. In the Board's January 2020 remand, the Board directed the AOJ to obtain authorization to associate the Veteran's sleep study with his claims file and to undergo a VA examination. In January 2020, the VA sent the Veteran a letter with a blank authorization form to obtain his outstanding sleep study treatment records. To date, an authorization form has not been received. Subsequently, in March 2020, the Veteran underwent a VA sleep apnea examination. The examiner opined that the Veteran's sleep apnea is less likely than not related to his military service. The examiner's rationale was that the Veteran's service treatment records do not document any diagnosis or treatment of sleep apnea and that the Veteran was not diagnosed and treated until many years after service. Additionally, the examiner stated that sleep apnea is due to anatomic abnormalities of the upper airways and is not known to be caused by radiation exposure. As noted above, however, the Veteran has submitted a medical opinion relating sleep apnea to radiation exposure in service. Accordingly, (as with the claim for service connection for a gastric ulcer) the claim for service connection for sleep apnea must be referred for development as a radiogenic disease. The matters are REMANDED for the following action: 1. Request copies of the Veteran's complete service personnel records from all appropriate sources. 2. Forward all records containing information pertinent to the Veteran's in-service radiation exposure, to specifically include his complete service treatment and personnel records, and any other records which may contain information pertaining to the Veteran's radiation related duties in service, to the Under Secretary for Health for preparation of a dose estimate, to the extent feasible, based on available methodologies. If the dose estimate is above zero, the claims file should be referred to the Under Secretary for Benefits for an advisory opinion regarding whether the Veteran's gastric ulcer and sleep apnea are related to his exposure to ionizing radiation consistent with the requirements of 38 C.F.R. § 3.311. 3. If the above requested opinion regarding the gastric ulcer is not favorable, schedule the Veteran for an examination to provide an opinion as to the nature and etiology of the Veteran's gastric ulcer condition that has been present during the period on appeal. After reviewing the record, to include the Veteran's lay testimony, the examiner is asked to address the following: Is it at least as likely as not (a 50 percent probability or greater), that the Veteran's gastric ulcer condition, was caused by service, or is otherwise related to the Veteran's military service, to include any gastrointestinal complaints reported in service? The examiner should also address whether a current gastrointestinal disorder resulted from stress during service (as was indicated by Dr. Levin in the 2021 opinion). All opinions provided must be thoroughly explained and an adequate rationale for any conclusions reached must be provided. The examiner should not rely solely on the absence of evidence of in-service diagnosis in the Veteran's service treatment records as a basis for any given opinion. If any requested opinion cannot be provided without resort to speculation, the medical professional should state and explain why an opinion cannot be provided without resort to speculation. 4. Schedule the Veteran for an examination to provide an opinion as to the nature and etiology of any acquired psychiatric disorder, to include depression, and dementia/Alzheimer's disease that have been present during the period on appeal. A separate neuropsychological evaluation, or any other necessary examination, for the Veteran's cognitive impairment, to include dementia and Alzheimer's, must occur. After reviewing the record, to include the Veteran's lay testimony and September 2010 radiation analysis, the examiner is asked to address the following: a) Is it at least as likely as not (a 50 percent probability or greater), that any acquired psychiatric disorder, to include depression, was caused by service, or is otherwise related to the Veteran's military service, to include radiation exposure? b) Is it at least as likely as not (a 50 percent probability or greater), that the Veteran's dementia and/or Alzheimer's disease was caused by service, or is otherwise related to the Veteran's military service, to include radiation exposure? All opinions provided must be thoroughly explained and an adequate rationale for any conclusions reached must be provided. The examiner should not rely on the absence of evidence of in-service treatment or injury in the Veteran's service treatment records as a basis for any given opinion. If any requested opinion cannot be provided without resort to speculation, the medical professional should state and explain why an opinion cannot be provided without resort to speculation. 5. Schedule the Veteran for an examination to provide an opinion as to the nature and etiology of the Veteran's left ankle disability that has been present during the period on appeal. After reviewing the record, to include the Veteran's lay testimony, the examiner is asked to address the following: Is it at least as likely as not (a 50 percent probability or greater), that the Veteran's left ankle disability, was caused by service, or is otherwise related to the Veteran's military service? All opinions provided must be thoroughly explained and an adequate rationale for any conclusions reached must be provided. The examiner should not rely solely on the absence of evidence of in-service treatment or injury in the Veteran's service treatment records as a basis for any given opinion. If any requested opinion cannot be provided without resort to speculation, the medical professional should state and explain why an opinion cannot be provided without resort to speculation. MICHAEL MARTIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Mountford, 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.