Citation Nr: 22017673 Decision Date: 03/25/22 Archive Date: 03/25/22 DOCKET NO. 16-00 313 DATE: March 25, 2022 REMANDED Entitlement to service connection for a disability manifested by pain and stiffness of the upper body joints is remanded. Entitlement to service connection for a disability of the penis including erectile dysfunction is remanded. Entitlement to service connection for a gastrointestinal disability including gastroenteritis is remanded. REASONS FOR REMAND The Veteran served on active duty with the United States Army from August 1979 to September 1992. In March 2019, the Veteran was scheduled for a hearing, but he did not appear. As such, the Veteran's hearing request is considered withdrawn. See 38 C.F.R. § 20.704(d). In a March 2020 decision by a Veterans' Law Judge not the undersigned the Board of Veterans' Appeal (Board), in part, denied the Veteran's applications to reopen claims of service connection for upper body, penis, gastrointestinal, and left eye disabilities. The Veteran appealed the March 2020 Board's decision to the United States Court of Appeals for Veterans Claims (Court). In a February 2021 order, which incorporated the parties Joint Motion for Partial Remand (JMPR), it vacated and remanded the March 2020 Board decision to the extent that it denied applications to reopen claims of service connection for upper body, penis, and gastrointestinal disabilities. In a July 2021 decision the Board granted the Veteran's applications to reopen claims of service connection for upper body, penis, and gastrointestinal disabilities and then remanded these claims for additional development. Entitlement to service connection for a disability manifested by pain and stiffness of the upper body joints, a penis disability to include erectile dysfunction, and a gastrointestinal disability including gastritis are remanded. In July 2021 the Board Remanded the appeal, in part, to associate with the record the Veteran's 1992 treatment records from the Jacksonville VA Medical Center. Moreover, the post-Remand record shows that the regional office (RO) in December 2021 specifically asked the Jacksonville VA Medical Center to provide it with these records or to tell it that no such records exist. Tellingly, to date, the Jacksonville VA Medical Center has neither provided the RO with the Veteran's 1992 treatment records nor with notice that these records do not exist. Therefore, the Board finds that it is compelled to again Remand the appeal to obtain and associate with the record the Veteran's 1992 VA treatment records from the Jacksonville VA Medical Center or to confirm that no such records exist as well as to obtain and associate with the record any outstanding contemporaneous VA and private treatment records. See 38 U.S.C. § 5103A(b); Stegall v. West, 11 Vet. App. 268 (1998); Bernard v. Brown, 4 Vet. App. 384, 393 (1993). As to the claims of service connection for a disability manifested by pain and stiffness of the upper body joints and a gastrointestinal disability including gastritis, the Veteran was provided with VA examinations and/or opinions were obtained in November 2021 and December 2021. However, the Board finds that examination reports and opinions are not adequate to adjudicate these claims. See Guerrieri v. Brown, 4 Vet. App. 467, 473 (1993) ("the probative value of medical opinion evidence is based on the medical expert's personal examination of the patient, the physician's knowledge and skill in analyzing the data, and the medical conclusion the physician reaches.... As is true with any piece of evidence, the credibility and weight to be attached to these opinions [are] within the province of the [Board as] adjudicators..."). The Board has reached this conclusion because they are not clear as to whether the Veteran had been diagnosed with either disability during the pendency of the appeal to include whether his adverse symptomatology results in functional impairment that affects earning capacity. See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007) (holding that a current disability is "satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim"); Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018) (holding that a symptom can be a disability for VA compensation purposes when it results in functional impairment that affects earning capacity); Also see Wait v. Wilkie, 33 Vet. App. 8, 17 (2020). Therefore, the Board finds while these issues are in Remand status clarifying VA opinions should be obtained. See 38 U.S.C. § 5103A(d); Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). The appeal is REMANDED for the following actions: 1. In order to comply with the earlier Remand, the RO must make another request for the Veteran's 1992 records from the Jacksonville VA Medical Center. Because these are Federal records, efforts to obtain them should be ended only if it is concluded that the records sought do not exist or that further efforts to obtain them would be futile. If the records cannot be located or no such records exist, a Memorandum of Unavailability documenting all of VA's actions to obtain the records should be prepared and associated with the claims file and the Veteran should be notified in writing that the records cannot be found. If possible, the Veteran and his representative should attempt to obtain these records. Any help would be appreciated. 2. Associate with the claims file any outstanding contemporaneous VA treatment records. 3. After obtaining all needed authorizations from the Veteran, associate with the claims file any outstanding private treatment records. If possible, the Veteran or his representative should submit and new pertinent evidence the Board/VA does not have (if any). Any help with the above would be appreciated. 4. In order to comply with the earlier Remand, schedule the Veteran for a VA examination(s) with suitably-qualified medical professional to address the claims of service connection for a disability manifested by pain and stiffness of the upper body joints and a gastrointestinal disability including gastritis. The claims folder should be made available to and reviewed by the examiner. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. Following consideration of the evidence of record (both lay and medical) and the results of the examination(s), the examiner is asked to address the following: a. Provide diagnoses for all disabilities manifested by pain and stiffness of the upper body joints and gastrointestinal disabilities including gastritis at any time during the pendency of the appeal (i.e., since December 2014). b. If the Veteran does not have a diagnosed disorder manifested by pain and stiffness of the upper body joints and/or a gastrointestinal disability, the examiner must say so. c. If the Veteran does not have a diagnosed disorder manifested by pain and stiffness of the upper body joints and/or a gastrointestinal disability, the examiner should also provide any opinion as to whether the adverse symptomatology seen in the record and at the examination(s) results in functional impairment that affects earning capacity. d. As to each diagnosed disability manifested by pain and stiffness of the upper body joints and a gastrointestinal disability including gastritis, provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that it had its onset directly during the Veteran's service or is otherwise related to any event or injury during service. In providing answers to the above questions the examiner should consider and discuss the service treatment records. In providing answers to the above question the examiner should consider and discuss the competent lay claims regarding observable symptomatology. In providing answers to the above question regarding the Veteran having a gastrointestinal disorder, the examiner should consider and discuss the following evidence cited to by the JMPR: i. the November 2012 primary care note where Appellant presented for "routine f/u appt for diabetes, GERDs ..." and which also recorded "[g]astroesophageal [r]efflux [d]isorder" as "active problems; ii. the "problem list," found at the beginning of the set of CAPRI records received by VA in August 2016 noting "[g]astroesophageal [r]eflux [d]isorder;" and iii. the July 2015 primary care note identifying omeprazole, a gastroenteritis medication, as an active prescription. In providing answers to the above questions regarding the Veteran's upper body disorder, the examiner should consider and discuss the following evidence cited to by the JMPR that noted complaints of upper body pain which pre-date the November 2012 motor vehicle accident: i. the July 2012 ophthalmology note indicating neck, elbow, and shoulder pain complaints; and ii the November 2012 mental health note discussing chronic neck and shoulder pain. In providing answers to the above question the examiner should not rely solely on negative evidence. In providing answers to the above question the examiner is advised that the term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of conclusion as it is to find against it. In answering all questions, please articulate the reasoning underpinning your conclusions. That is, (1) identify what facts and information--whether found in the record or outside the record--support your opinion, and (2) explain how that evidence justifies your opinion. (Continued on the next page) If the examiner cannot respond to an inquiry without resort to speculation as to any of the above claims he or she should so state, and must further explain why it is not feasible to provide a medical opinion, indicating whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or in the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). John J. Crowley Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N.T. Werner, 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.