Citation Nr: A25035894 Decision Date: 04/18/25 Archive Date: 04/18/25 DOCKET NO. 240827-469213 DATE: April 18, 2025 REMANDED Entitlement to service connection for an eye disorder is remanded. Entitlement to service connection for headaches is remanded. Entitlement to service connection for an acquired psychiatric disorder (claimed as posttraumatic stress disorder (PTSD)) is remanded. Entitlement to service connection for a dental disorder is remanded. Entitlement to service connection for kidney stone disorder is remanded. Entitlement to service connection for a stomach disorder is remanded. Entitlement to service connection for a bilateral hand and/or thumb disorder (claimed as joint pain) is remanded. Entitlement to service connection for a bilateral hip disorder (claimed as muscle pain) is remanded. Entitlement to service connection for bilateral shoulder strain (claimed as muscle pain) is remanded. Entitlement to service connection for lumbosacral strain (claimed as muscle and joint pain) is remanded. REASONS FOR REMAND The Veteran had active military service from June 1989 to November 1989 and from December 1990 to May 1991, with additional service in the Army National Guard of Mississippi. This appeal comes to the Board of Veterans' Appeals (the Board) from two rating decisions. In April 2024, the Agency of Original Jurisdiction (AOJ) denied service connection for an eye disorder, headaches, PTSD, a tooth disorder, a kidney stone disorder, and a stomach disorder. In July 2024, the AOJ denied service connection for right and left hand disorders, right and left hip disorders, right and left shoulder strains, and lumbosacral strain. The Veteran appealed both the April 2024 and July 2024 rating decisions by filing a VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement) in August 2024. He elected the Direct Review docket. Therefore, with respect to the claims for service connection for an eye disorder, headaches, an acquired psychiatric disorder, a dental disorder, a kidney stone disorder, and a stomach disorder, consideration may only be given to the evidence of record at the time of the April 2024 rating decision on appeal. With respect to the claims for service connection for right and left hand disorders, right and left hip disorders, right and left shoulder strains, and lumbosacral strain, consideration may only be given to the evidence of record at the time of the July 2024 rating decision on appeal. 38 C.F.R. § 20.301. Any evidence submitted after the relevant AOJ decision on appeal cannot be considered by the Board. 38 C.F.R. §§ 20.300, 20.301, 20.801. However, because the Board is remanding the claims of entitlement to service connection for an eye disorder, headaches, an acquired psychiatric disorder, a dental disorder, kidney stone disorder, a stomach disorder, right and left hand disorders, right and left hip disorders, right and left shoulder strains, and lumbosacral strain, any evidence the Board could not consider will be considered by the AOJ in the adjudication of those claims. 38 C.F.R. § 3.103(c)(2)(ii). The Board interprets the Veteran's statements as reflecting an intent to have this matter reviewed in an expeditious manner, which the Board finds to be an implicit waiver of his right to change Board dockets under Williams v. McDonough, 37 Vet. App. 305 (2024). 1. Entitlement to Service Connection for an Eye Disorder 2. Entitlement to Service Connection for Headaches 3. Entitlement to Service Connection for an Acquired Psychiatric Disorder (Claimed as PTSD) 4. Entitlement to Service Connection for a Dental Disorder One of the effects of the Appeals Modernization Act (AMA) is to narrow the set of circumstances in which the Board must remand appeals to the AOJ for further development instead of immediately deciding them directly. However, the Board has the duty to remand issues when necessary to correct a pre-decisional duty to assist error where the issues cannot be granted in full. 38 U.S.C. § 5103A(f); 38 C.F.R. § 20.802(a). Remand is also permitted for the correction of AOJ errors in satisfying a regulatory or statutory duty, if the correction of such error would have a reasonable possibility of aiding in substantiating the veteran's claim. See 38 C.F.R. § 20.802(a). The Department of Veterans' Affairs (VA) has the duty to assist claimants in obtaining evidence necessary to substantiating a claim for VA benefits. 38 U.S.C. §§ 5103, 5103A. Pursuant to the duty to assist, VA must make reasonable efforts to obtain relevant private treatment records adequately identified by the claimant. 38 U.S.C. § 5103A(b)(1). In a May 2023 VA Form 21-4142a, General Release for Medical Provider Information to the Department of Veterans Affairs (VA), the Veteran indicated that he had received medical treatment from Wesley Medical, a private medical center. The record shows that the AOJ contacted Wesley Medical to obtain the Veteran's medical records in June 2023. Wesley Medical responded to the request. Upon closer inspection, however, the records sent by Wesley Medical belong to an individual other than this Veteran. They are labeled with a different name and the identification information does not match that of the Veteran. As the correct private treatment records were not obtained, VA has not complied with its duty to assist the Veteran. Remand is therefore required for the correction of this pre-decisional duty to assist error. 38 U.S.C. § 5103A(f); 38 C.F.R. § 20.802(a). 5. Entitlement to Service Connection for Kidney Stone Disorder 6. Entitlement to Service Connection for a Stomach Disorder In the Veteran's May 2023 claim, he reported that he has kidney stones that are related to exposure to fluid and drinking water during service. The Veteran further reported that his stomach disorder worsened during service due to exposures at Camp Lejeune. The Board is unclear as to whether the Veteran's reports of exposures from "drinking water" is intended to assert that exposure to contaminated water at Camp Lejeune caused his claimed kidney stone disorder. Regardless, however, the Board notes that the Veteran's military personnel records do not show service at Camp Lejeune, so he is not presumed to have been exposed to contaminated water at Camp Lejeune. Notwithstanding the foregoing, on August 10, 2022, the President of the United States signed into law the Sergeant First Class Heath Robinson Honoring our Promise to Address Comprehensive Toxins Act of 2022 (PACT Act). Under the PACT Act, VA is required to provide a disability examination and obtain a medical opinion when a Veteran submits a claim for compensation and has (1) evidence of a disability and (2) participation in a toxic exposure risk activity (TERA), but the evidence is not sufficient to establish service connection for the disability. 38 U.S.C. § 1168(a). Under 38 U.S.C. § 1710(e)(4)(C), a TERA is defined as (1) any activity that requires a corresponding entry in an exposure tracking record system for the Veteran who carried out the activity, such as the Individual Longitudinal Exposure Record (ILER) or successor system, or (2) any activity that the Secretary of Veterans Affairs determines qualifies for purposes of this subsection when taking into account what is reasonably prudent to protect the health of all veterans. The April 2024 rating decision favorably found that the Veteran has a current diagnosis of kidney stone disorder. This favorable finding is binding on the Board. 38 C.F.R. § 3.104(c). Regarding the claim for entitlement to service connection for a stomach disorder, the record does not show a currently diagnosed stomach disorder. However, VA treatment records from July 2023 show that the Veteran reported recurrent epigastric pain. He was instructed to take omeprazole for this pain. Such is probative (but not conclusive) evidence of a current disability relating to the stomach. The Veteran has also explicitly raised the theory that he has participated in a TERA. In his May 2023 claim, he asserted that he was exposed to hydraulic fluid, oil, tanks, and gun flare flashes. Though the April 2024 TERA memorandum concluded that the Veteran did not participate in a TERA, participation in a TERA can still be established on a facts found basis. Here, the Board notes that the Veteran's military occupational specialty (MOS) was tank turret repairman. Exposure to such chemicals is consistent with the duties and circumstances of the Veteran's service, to include his MOS. Thus, remand is necessary to satisfy a statutory and regulatory duty to obtain a VA medical opinion with respect to participation in a TERA, considering (1) potential exposure to hydraulic fluid, oils, and other chemicals due to his MOS as a tank turret repairman and (2) the synergistic, combined effect of all TERAs. 7. Entitlement to Service Connection for Bilateral Hand and/or Thumb Disorders The Veteran seeks service connection for right and left hand disorders. He reported that he has joint pain due to climbing up and down tanks, jumping out of five-ton troop carriers, and carrying large tools and equipment to different sites. He describes pain affecting his hands, mostly around his thumbs. The Veteran received a VA examination pertaining to his claimed hand and/or thumb disorders in June 2024. The examiner noted symptoms including tenderness, mild swelling, mild pain, trouble grasping objects, and difficulty with movement. Despite these reported symptoms, the examiner found that the Veteran did not have a right or left hand or thumb condition. The June 2024 VA examination is inadequate. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). In Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018), the United States Court of Appeals for the Federal Circuit held that "pain alone, without an accompanying diagnosis of a present disease, can qualify as a disability" if it "reaches the level of a functional impairment of earning capacity." Saunders, 886 F.3d at 1367-69. The Veteran's statements during the June 2024 VA examination suggest that his symptoms, including tenderness, swelling, and pain, may amount to the functional impairment of earning capacity. Notably, the Veteran indicated that his bilateral hand symptoms result in difficulty grasping objects and problems with movement. Such could reasonably affect the Veteran's ability to work. Though the June 2024 VA examiner noted these symptoms in the examination report, he did not determine whether they caused the functional impairment of earning capacity even in the absence of a diagnosed hand or thumb condition. As the June 2024 VA examiner did not address whether the Veteran's symptoms caused a functional impairment of earning capacity even without a current diagnosis, the June 2024 VA examination was inadequate. See Saunders, 886 F.3d at 1367-69. It was a pre-decisional duty to assist error for the AOJ to rely on the inadequate June 2024 VA examination in denying his claim for service connection for right and left hand and/or thumb disorders. Remand is therefore required to obtain a new VA examination that addresses whether the Veteran's symptoms represent functional impairment. 8. Entitlement to Service Connection for a Bilateral Hip Disorders The Veteran seeks service connection for right and left hip disorders. He reported that he has muscle pain from working on tanks, carrying heavy equipment and tools, climbing, and jumping. The Veteran received a VA examination pertaining to his claimed hip disorders in June 2024. The examiner noted symptoms including tenderness, mild aches, and limping. However, the examiner found that the Veteran did not have a right or left hip condition despite these reported symptoms. The June 2024 VA examination is inadequate. Barr, 21 Vet. App. at 311. The Veteran's statements during the June 2024 examination indicate that his right and left hip symptoms may amount to the functional impairment of earning capacity, as he experiences tenderness and aches that result in a limp. See Saunders, 886 F.3d at 1367-69. Though the June 2024 VA examiner noted these symptoms in the examination report, he did not determine whether they caused the functional impairment of earning capacity even in the absence of a diagnosed right or left hip disorder. As the June 2024 VA examiner did not address whether the Veteran's symptoms caused a functional impairment of earning capacity even without a currently diagnosed right or left hip disorder, the June 2024 VA examination was inadequate. See Saunders, 886 F.3d at 1367-69. It was a pre-decisional duty to assist error for the AOJ to rely on the inadequate June 2024 VA examination in denying his claim for service connection for right and left hip disorders. Remand is therefore required to obtain a new VA examination addressing whether the Veteran's symptoms represent functional impairment. 9. Entitlement to Service Connection for Bilateral Shoulder Strains The Veteran seeks service connection for right and left shoulder strains due to working on tanks, carrying heavy equipment and tools, climbing, and jumping during active service. The AOJ obtained a VA examination and medical opinion of the Veteran's shoulders in June 2024. During this examination, he was diagnosed with right and left shoulder strains. The examiner then opined that the Veteran's right and left shoulder strains were less likely than not incurred in or caused by his active service. The rationale for this opinion was that the examiner was unable to locate any complaint of shoulder pain or injury to the shoulders in the Veteran's service treatment records (STRs) or within a year of separation. The June 2024 VA medical opinion is inadequate. First, the examiner based the negative nexus opinion on the lack of objective evidence showing right or left shoulder problems during or immediately after service. However, an examiner may not base a negative nexus opinion solely on the lack of objective evidence in the Veteran's STRs. See Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006). The June 2024 VA examiner also failed to adequately address the Veteran's statements that his shoulder disorders are related to working on tanks, carrying heavy equipment and tools, climbing, and jumping. See Miller v. Wilkie, 32 Vet. App. 249, 257 (2020) (holding than an examiner's failure to consider a veteran's testimony when forming a medical opinion renders that opinion inadequate). Although the June 2024 examiner stated that the Veteran's shoulder disorders are not related to climbing up and down tanks, jumping out of five-ton troop carriers, and carrying large tools and equipment to different sites, he did not provide a rationale for this opinion. Because the examiner failed to explain why the Veteran's right and left shoulder strains are not related to these in-service events, the June 2024 VA examination is inadequate. Barr, 21 Vet. App. at 311. In sum, because the June 2024 VA medical opinion is inadequate, it was a pre-decisional duty to assist error for the AOJ to rely on this opinion in denying the claims for service connection for right and left shoulder strains. Remand is therefore necessary for the correction of this pre-decisional duty to assist error. 10. Entitlement to Service Connection for Lumbosacral Strain The Veteran seeks service connection for lumbosacral strain due to working on tanks, carrying heavy equipment and tools, climbing, and jumping during active service. During the June 2024 VA examination, the Veteran was diagnosed with lumbosacral strain. The examiner opined that the Veteran's lumbosacral strain was less likely than not incurred in or caused by the Veteran's active service. The examiner rationalized that he was unable to locate any complaint of lumbar pain or injury to the spine in the Veteran's STRs or within one year of separation. The June 2024 VA medical opinion is inadequate for multiple reasons. First, an examiner may not base a negative nexus opinion solely on the lack of objective evidence in the Veteran's STRs. See Buchanan, 451 F.3d at 1336. Additionally, the June 2024 VA examiner failed to adequately address the Veteran's statements that his lumbosacral strain is related to working on tanks, carrying heavy equipment and tools, climbing, and jumping during service. See Miller, 32 Vet. App. at 257. Although the June 2024 examiner concluded that the Veteran's lumbosacral strain is not related to climbing up and down tanks, jumping out of five-ton troop carriers, and carrying large tools and equipment to different sites, he did not provide a rationale for this opinion. Because the examiner failed to explain why the Veteran's lumbosacral strain is not related to these in-service events, the June 2024 VA examination is inadequate. Barr, 21 Vet. App. at 311. Thus, because the June 2024 VA medical opinion is inadequate, it was a pre-decisional duty to assist error for the AOJ to rely on this opinion in denying the claim for service connection for lumbosacral strain. Remand is necessary for the correction of this pre-decisional duty to assist error. The matters are REMANDED for the following action: 1. Request the Veteran's private treatment records from Wesley Medical. The Board notes that the Veteran already completed a VA Form 21-4142a for Wesley Medical in May 2023. Document all requests for information, as well as all responses, in the claims file. Make two requests for the authorized records from this provider unless it is clear after the first attempt that a second request would be futile. 2. After completing the development directed in (1), schedule the Veteran for a toxic exposure risk activity (TERA) examination regarding the Veteran's (1) kidney stone disorder and (2) stomach disorder in compliance with the PACT Act, considering (1) the Veteran's exposure to chemicals, including hydraulic fluid and oil, due to his MOS as tank turret repairman and (2) the synergistic, combined effects of all potential TERAs of the Veteran. 3. After completing the development directed in (1), schedule the Veteran for an examination by an appropriate clinician regarding the nature and etiology of his claimed right and left hand and/or thumb disorders. The Veteran's claims file must be made available to the examiner. After reviewing the claims file and examining the Veteran, with any necessary testing, the examiner should opine on the following: (a.) Identify/diagnose any right and left hand and/or thumb disorder that presently exists or that has existed during the appeal period. If a diagnosis cannot be provided but the Veteran's condition manifests in symptoms that cause functional impairment, then the examiner should consider them a "disability" for the purposes of providing the opinion requested below. If it is determined that the Veteran does not have a right or left hand and/or thumb disorder or functional impairment of the hands or thumbs, the examiner must reconcile this conclusion with the Veteran's reports of symptoms including tenderness, mild swelling, and mild pain resulting in an inability to grip and difficulty with movement. (b.) For any diagnosed right and left hand and/or thumb condition or functional impairment of the hands or thumbs, is it at least as likely as not (the likelihood is at least approximately balanced or nearly equal, if not higher) that the condition had its initial onset during active service or is otherwise etiologically related to the Veteran's active service? The examiner must address the Veteran's assertion that his pain is due to climbing up and down tanks, jumping out of five-ton troop carriers, and carrying large tools and equipment to different sites. 4. After completing the development directed in (1), schedule the Veteran for an examination by an appropriate clinician regarding the nature and etiology of his claimed right and left hip disorders. The Veteran's claims file must be made available to the examiner. After reviewing the claims file and examining the Veteran, with any necessary testing, the examiner should opine on the following: (a.) Identify/diagnose any right and left hip disorder that presently exists or that has existed during the appeal period. If a diagnosis cannot be provided but the Veteran's condition manifests in symptoms that cause functional impairment, then the examiner should consider them a "disability" for the purposes of providing the opinion requested below. If it is determined that the Veteran does not have a right or left hip disorder or functional impairment of the hips, the examiner must reconcile this conclusion with the Veteran's reports of symptoms including tenderness, aches, and a limp. (b.) For any diagnosed right and left hip disorder or functional impairment of the hips, is it at least as likely as not (the likelihood is at least approximately balanced or nearly equal, if not higher) that the condition had its initial onset during active service or is otherwise etiologically related to the Veteran's active service? The examiner must address the Veteran's assertion that his pain is due to working on tanks, carrying heavy equipment and tools, climbing, and jumping. 5. After completing the development directed in (1), obtain an addendum opinion from an appropriate clinician regarding the etiology of the Veteran's right and left shoulder strains. The Veteran's claims file must be made available to the examiner. After reviewing the Veteran's claims file, with any necessary examination and testing, the examiner should opine on the following: (a.) Is it at least as likely as not (the likelihood is at least approximately balanced or nearly equal, if not higher) that the Veteran's right and left shoulder strains had their initial onset during active service or are otherwise etiologically related to his active service? The examiner must address the Veteran's assertion that his right and left shoulder strains are due to working on tanks, carrying heavy equipment and tools, climbing, and jumping during service. 6. After completing the development directed in (1), obtain an addendum opinion from an appropriate clinician regarding the etiology of the Veteran's lumbosacral strain. The Veteran's claims file must be made available to the examiner. After reviewing the Veteran's claims file, with any necessary examination and testing, the examiner should opine on the following: (a.) Is it at least as likely as not (the likelihood is at least approximately balanced or nearly equal, if not higher) that the Veteran's lumbosacral strain had its initial onset during active service or is otherwise etiologically related to his active service? The examiner must address the Veteran's assertion that his right and left shoulder strains are due to working on tanks, carrying heavy equipment and tools, climbing, and jumping during service. 7. The examiners must fully explain the rationale for all opinions, with citation to supporting data/lay statements, as deemed appropriate. If the examiners cannot provide the requested opinions without resorting to speculation, they should expressly indicate this and provide a supporting rationale as to why an opinion cannot be made without resorting to speculation. MICHAEL A. HERMAN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R.M. Sachs, 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.