judge_norm: YVETTE R WHITE

text:
��Citation Nr: 20005000

Decision Date: 01/22/20	Archive Date: 01/22/20

DOCKET NO. 15-17 579

DATE: January 22, 2020

REMANDED

Entitlement to a disability rating in excess of 10 percent for hypertension is remanded.

Entitlement to a disability rating in excess of 10 percent for chronic lumbar strain is remanded.

REASONS FOR REMAND

The Veteran served on active duty in the United States Army from August 1989 to November 1989, and in the United States Navy from May 1991 to June 1997.

This matter comes before the Board of Veterans  Appeals (Board) from a July 2011 rating decision of a Department of Veterans Affairs (VA) Regional Office.

The Veteran testified before the undersigned Veterans Law Judge in a November 2018 video conference hearing.  A transcript of that hearing has been associated with the claims file.

1. Entitlement to a disability rating in excess of 10 percent for hypertension is remanded.

The Board regrets the delay associated with this remand.  However, based on a review of the evidence of record, the Board finds that a remand is necessary to enable the Agency of Original Jurisdiction (AOJ) to perform additional development.

First, a remand is warranted as the evidence reflects that there may be relevant VA records not associated with the claims file.  Specifically, in December 2018, the Veteran submitted excerpts from his VA records, including an excerpt dated November 2018.  However, to date, only VA records through August 2017 have only been associated with the electronic claims file.  As such, the Board finds that a remand is necessary to allow the AOJ to obtain the Veteran s complete VA records from August 2017 to present.

Second, a remand is warranted as the evidence indicates that there may be pertinent private medical records, of which VA is aware, that are not associated with the electronic claims file.  Specifically, the Veteran has submitted excerpts of medical records relating to his treatment for hypertension at Baptist Primary Care   Mandarin West.  Notably, an excerpt from December 2018 states that the Veteran was advised to keep a blood pressure log and followup in 12 weeks for reassessment.  However, no records relating to treatment after December 2018 have been associated with the claims file, nor is there any indication that such records have been requested.  As such, a remand is necessary to allow the AOJ to attempt to obtain pertinent private medical records.  See 38 U.S.C. � 4103(a)(1), (b)(1); Ivey v. Derwinski, 2 Vet. App. 320, 323 (1992).

Third, a remand is necessary to obtain clarification with regards to certain medical records.  The Veteran s self-documented blood pressure readings indicate that he may have experienced elevated blood pressure levels with diastolic readings frequently in excess of 120, beginning in July 2018.  See Home Blood Pressure Monitoring Logbooks.  However, during that same period, the Veteran s private medical records contain blood pressure readings, performed by medical professionals that are substantially different than those recorded by the Veteran for that day.  See id; Jacksonville Pain Center records.  For example, on the morning of October 23, 2018, the Veteran s private physician recorded the Veteran s blood pressure as 150/98.  October 2018, Jacksonville Pain Center.  On the same date, the Veteran recorded his morning blood pressure as 156/122, and his nighttime blood pressure as 159/129.  Home Blood Pressure Monitoring Logbooks.  As such, a remand is necessary to allow a VA examiner to address the different blood pressure readings to provide sufficient information to appropriately rate the Veteran.

Fourth, a remand is necessary to provide the Veteran with a VA examination to determine the current severity of his service-connected hypertension.  As discussed above, the Veteran s self-documented blood pressure readings indicate that he may have experienced elevated blood pressure levels beginning in July 2018.  See id.  The last such reading that is of record is from November 14, 2018, which noted readings of 160/134 and 165/133.  Id.

Further, the last blood pressure readings of record that were performed by a medical professional are from December 3, 2018, which noted readings of 156/104, 158/108, and 162/112.  December 2018, Baptist Primary Care   Mandarin West.  In other words, the medical records that have been associated with the claims file appear to suggest that a staged rating may be appropriate.  See Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119 (1999).  Based on the aforementioned, it is unclear whether the December 2018 blood pressure readings are indicative of the current level of severity, particularly as the records indicate that the Veterans blood pressure medications were adjusted on such date.  See December 2018, Baptist Primary Care   Mandarin West.  As such, a remand is necessary to provide the Veteran with a VA examination to determine the current severity of his service-connected hypertension.

In sum, the Board finds that a remand is necessary to allow the AOJ to obtain the Veteran s VA and private medical records, and to provide the Veteran with a VA examination for the purpose of clarifying certain medical records and determining the current severity of the Veteran s service-connected hypertension.

2. Entitlement to a rating in excess of 10 percent for chronic lumbar strain is remanded.

The Board has reviewed the record and finds that a remand is necessary to enable the AOJ to conduct additional development.

First, a remand is warranted as the evidence reflects that there may be relevant private medical records not associated with the claims file.  Specifically, the Veteran has submitted an excerpt from a Family Medical Leave Act (FMLA) request, in which the Veteran s healthcare provider noted that, due to flare-ups of the Veteran s lower back condition, the Veteran may need to be absent from work five times per month, one day per flare-up, from August 13, 2018, to January 7, 2019.  See August 2018 FMLA Request.  However, no records relating to treatment of the Veteran s chronic lumbar strain have been associated with the claims file since December 2018.  As a result, it is unclear whether the reported flare-ups subsided in January 2019, or if the Veteran has continued to receive treatment and experience incapacitating episodes thereafter.  As such, a remand is necessary to allow the AOJ to attempt to obtain pertinent private medical records.  See 38 U.S.C. � 4103(a)(1), (b)(1); Ivey v. Derwinski, 2 Vet. App. 320, 323 (1992).

Second, in the November 2018 Board hearing, it was asserted that the severity of the Veteran s chronic lumbar strain had worsened since his last VA examination in March 2015.  In support of this assertion, the Veteran reported that his ability to move (i.e. ROM) has worsened to the point where he is unable to participate in many activities, including going out to dinner.  See November 2018 VA Board Hearing Transcript.  Based on the Veteran s statements as to the increase in severity of his service-connected chronic lumbar strain, a new VA examination is needed to ascertain the current severity of this disability.  See Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994).

In sum, the Board finds that a remand is necessary to allow the AOJ to obtain the Veteran s private medical records and to provide the Veteran with a VA examination to determine the current severity of the Veteran s service-connected chronic lumbar strain.

The Board acknowledges that the Veteran has submitted a statement from a private physician noting that, in a May 2015 range of motion (ROM) study, the Veteran was found to have a combined ROM of 63 degrees, with forward flexion of 23 degrees, extension of 6 degrees, right lateral flexion of 9 degrees, left lateral flexion of 13 degrees, left rotation of 3 degrees, and right rotation of 9 degrees.  See May 2015, Dr. P. J. Opachich.  However, there is no indication as to whether or not the ROM study was conducted during a flare-up, whether ROM was tested following repetitive use, or whether the physician considered physical indications of pain when documenting the ROM.  See Savage v. Shinseki, 24 Vet. App. 259, 270 (2011) (holding that VA has a duty to seek clarification from private medical examiners where  the missing information is relevant, factual, and objective ).  As such, clarification of this decision is warranted.

Accordingly, the matters are REMANDED for the following action:

1. With the Veteran s assistance as appropriate, obtain and associate with the Veteran s electronic claims file all outstanding VA records from August 2017 to current, as well as all pertinent private treatment records, including records from Baptist Primary Care   Mandarin West and Jacksonville Pain Center.

Pursuant to 38 C.F.R. � 3.159(e), any efforts to secure these records MUST be documented in the electronic claims file, and the Veteran must be informed if any of these records are unable to be secured.

2. After completing the above, and any additional development warranted by the record, schedule the Veteran for a VA examination with an appropriate clinician, other than K.S. Horn, and preferably a cardiologist, to determine the current severity of his service-connected hypertension.  The entire claims file should be provided to and reviewed by the examiner.  The examination should include any diagnostic testing or evaluation deemed necessary by the examiner.

The examiner is instructed to:

(a.) Obtain the Veteran s lay history regarding symptomatology.

(b.) Determine the current severity of the Veteran s service-connected hypertension, as represented by the Veteran s currently predominate diastolic and systolic pressures.

(c.) To the extent possible, determine and discuss the Veteran s predominate diastolic and systolic pressures since November 2010.

(d.) Discuss any differences between the Veteran s self-documented blood pressure readings and blood pressure readings performed by medical professionals, including readings dated September 18, 2018 and October 23, 2018.  To the extent possible, opine as to the cause of any such differences, as well as to whether any such differences affect the competency of either recorded reading.

(e.) Identify all residuals attributable to the Veteran s service-connected hypertension.

(f.) Address any impacts the Veteran s service-connected hypertension has on his daily life and occupational activities.

Any opinion expressed by the examiner must be accompanied by a complete rationale.  If medical literature is relied upon in rendering a determination, the examiner should identify and specifically cite each reference material utilized.  If the examiner is unable to offer an opinion without resort to speculation, a thorough explanation as to why an opinion cannot be rendered should be provided.

3. Contact the Veteran and request a release to contact the Veteran s private physician, Dr. P. J. Opachich, to request clarification of whether or not the ROM study conducted in May 2015 was conducted during a flare-up, whether ROM was tested following repetitive use, or whether the physician considered physical indications of pain when documenting the ROM

4. After completing the development outlined in Section 1 above, and any additional development warranted by the record, schedule the Veteran for a VA examination with an appropriate clinician, other than K.S. Horn, to determine the current severity of his service-connected chronic lumbar strain.  The entire claims file should be provided to and reviewed by the examiner.  The examination should include any diagnostic testing or evaluation deemed necessary by the examiner.

The examiner is instructed to:

(a.) Obtain the Veteran s lay history regarding symptomatology.

(b.) Test and document the ROM for the thoracolumbar spine in active motion, passive motion, weight-bearing, and non-weight-bearing, on both an initial and after repetitive use basis.  For each ROM, the examiner is asked to explicitly identify the degree in which pain is first evidenced by the Veteran s visible behavior.  If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, a thorough explanation should be provided.

(c.) If the Veteran describes flare-ups, after documenting the frequency and duration thereof, express an opinion as to whether there would be additional functional impairment during such flare-ups.  The examiner should assess such impairment in terms of the degree of additional ROM loss.

(d.) Identify the nature and severity of all current manifestations of the Veteran s service-connected chronic lumbar strain, including any neurological manifestations.  The extent of any weakened movement, excess fatigability, and incoordination on use should be described.  Any additional impairment due to weakened movement, excess fatigability, or incoordination should be assessed in terms of the degree of additional ROM loss.

(e.) Discuss the March 2015 VA examination and May 2015 private examination.  To the extent possible, opine as to the cause of the difference in ROM findings.

Any opinion expressed by the examiner must be accompanied by a complete rationale.  If medical literature is relied upon in rendering a determination, the examiner should identify and specifically cite each reference material utilized.  If the examiner is unable to offer an opinion without resort to speculation, a thorough explanation as to why an opinion cannot be rendered should be provided.

(Continued on the next page)

5. The AOJ must review the claims file and ensure that the foregoing development action has been completed in full.  If any development action is incomplete, the appropriate corrective action must be implemented.  If any report or opinion does not include adequate responses to the specific reports or opinions requested, it must be returned to the providing examiner for corrective action.

YVETTE R. WHITE

Veterans Law Judge

Board of Veterans  Appeals

Attorney for the Board	J. T. Martin III, 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.


series: legacy

judge_norm: KRISTY L ZADORA

judge_role: Acting Veterans Law Judge

disposition: remanded

text:
��Citation Nr: 20006000

Decision Date: 01/24/20	Archive Date: 01/23/20

DOCKET NO. 19-12 101

DATE: January 24, 2020

REMANDED

Entitlement to a compensable rating for gastritis is remanded.

REASONS FOR REMAND

The Veteran served on active duty in the United States Navy from April 1979 to August 1984.

This matter comes before the Board of Veterans  Appeals (Board) on appeal from a September 2018 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO) in Baltimore, Maryland.

In October 2018, the Veteran submitted a Notice of Disagreement (NOD) with the rating decision denying a compensable rating for gastritis.  In March 2019, a Statement of the Case (SOC) was issued, but it did not address such issue.  The Veteran submitted a Substantive Appeal (VA Form 9) of all issues listed on the March 2019 SOC.  Despite the lack of an SOC addressing a compensable rating for gastritis, the appeal was improperly certified to the Board.

1. Entitlement to a compensable rating for gastritis is remanded.

Regarding the claim of entitlement to gastritis, the Veteran submitted a timely notice of disagreement with a September 2018 rating decision denying a compensable rating for gastritis, but a SOC has not yet been issued addressing such claim.  The SOC issued on March 2019 does not address the issue of a compensable rating for gastritis.  Due to an administrative error, the appeal was improperly certified to the Board.  According to VA s Veterans Appeals Control and Locator System (VACOLS), the RO has acknowledged the Veteran s October 2018 NOD with respect to the issue of entitlement to a compensable rating for gastritis.  However, the Board lacks jurisdiction to decide this appeal because no SOC has been issued regarding such issue.  Where a notice of disagreement has been filed but an SOC has not been issued addressing the claim, the Board must remand the appeal to the agency of original jurisdiction so that an SOC may be issued.  A remand is required for the AOJ to issue a statement of the case.  38 C.F.R. � 20.200; Manlincon v. West, 12 Vet. App. 238, 240-41 (1999).

Accordingly, the matter is REMANDED for the following action:

Issue an SOC as to the issue of entitlement to a compensable rating for gastritis, in response to the timely NOD that the Veteran filed in October 2018.  The SOC should undertake a full legal analysis of the merits of the claim based on all relevant evidence of record.

Send the Veteran and her representative a SOC that addresses the issue of a compensable rating for gastritis.  If the Veteran perfects an appeal by submitting a timely VA Form 9, the issue should be returned to the Board for further appellate consideration.

KRISTY L. ZADORA

Acting Veterans Law Judge

Board of Veterans  Appeals

Attorney for the Board	K. Wilson, 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.


judge_norm: MICHAEL MARTIN

judge_role: Veterans Law Judge

condition: cancer

condition: diabetes

text:
��Citation Nr: 20007000

Decision Date: 01/28/20	Archive Date: 01/28/20

DOCKET NO. 16-19 746A

DATE: January 28, 2020

REMANDED

Entitlement to service connection for prostate cancer, to include as due to herbicide agent exposure, is remanded.

Entitlement to service connection for diabetes mellitus, type II, to include as due to herbicide agent exposure, is remanded.

REASONS FOR REMAND

The Veteran had active duty service in the U.S. Navy from June 1965 to June 1968.

These matters come before the Board of Veterans  Appeals (Board) on appeal from an April 2013 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Decatur, Georgia.

The Veteran presented testimony on this issue at a July 2019 videoconference hearing held at his local RO before the undersigned Veterans Law Judge (VLJ). A transcript is of record.

This appeal has been advanced on the Board s docket pursuant to 38 C.F.R. � 20.900 (c); 38 U.S.C. � 7107 (a)(2).

Entitlement to service connection for prostate cancer, to include as due to herbicide agent exposure and entitlement to service connection for diabetes mellitus, type II, to include as due to herbicide agent exposure, is remanded.

If a Veteran is found to have been exposed to herbicide agents, the Veteran is entitled to a presumption of service connection for certain disorders, including both prostate cancer and diabetes mellitus, type II. See 38 C.F.R. � 3.309 (e).

The Veteran asserts that while stationed on the U.S.S. Mazama, AE during active duty, the ship,  operated in the Tonkin Gulf right off the coast of Vietnam  and  [w]e were close enough that we received mortar fire . See July 2019 Board Hearing Transcript. The Veteran s claim was previously denied because he did not have service on the ground in the Republic of Vietnam.

However, during the course of the Veteran s appeal, the legal standard expanded. In the recent case Procopio v. Wilkie, 913 F.3d 1371 (Fed. Cir. 2019), the Court reversed its prior precedent and held that  the Republic of Vietnam  as it relates to a determination of who served in the Republic of Vietnam was expanded from the previous definition of just the waters offshore and involving duty or visitation on the actual landmass or on the inland waterways of the Republic of Vietnam to include the 12 nautical miles of the territorial sea of that nation.

In this case, evidence such as the Veteran s DD-214 confirms that he served aboard the U.S.S. Mazama, AE. Additionally, the record confirms that such ship was in the official waters of the Republic of Vietnam from May 12, 1966 to May 25, 1966; June 13, 1966 to June 26, 1966; July 20, 1966 to July 30, 1966; August 18, 1966 to September 6, 1966; September 10, 1966 to September 13, 1966; September 23, 1966 to October 8, 1966; and October 17, 1966 to October 27, 1966. See August 2011 NPRC Response. Notably, the NPRC did not explain its definition of  official waters  of Vietnam; namely, whether such a finding indicates service within 12 nautical miles from the shores of Vietnam.

In this case, the Board cannot make a fully-informed decision on the issues of service connection for the Veteran s asserted diabetes mellitus and prostate cancer until further development occurs that will enable the Board to determine whether the Veteran meets the new qualifications of serving in the 12 nautical miles of the territorial waters of the Republic of Vietnam that qualifies him to receive the presumption of exposure to herbicide agents. See Procopio, 913 F.3d 1371.

On remand, efforts should be made to obtain copies of deck logs, ship logs, or any other documents detailing the movements and operations of the U.S.S. Mazama, AE during the Veteran s service period. A formal finding as to whether in-service herbicide agent exposure is shown should thereafter be generated.

The matters are REMANDED for the following actions:

1. Contact the NARA, or any other appropriate repository of records, and request that they furnish copies of deck/ship logs, or any other documentation, detailing the movements and operations of the U.S.S. Mazama, from May 12, 1966 to May 25, 1966; June 13, 1966 to June 26, 1966; July 20, 1966 to July 30, 1966; August 18, 1966 to September 6, 1966; September 10, 1966 to September 13, 1966; September 23, 1966 to October 8, 1966; and October 17, 1966 to October 27, 1966.

(a.) A request should be sent to the Veteran and his representative to provide any other evidence they may wish to submit in association with the claim, and the expansion of the term service in the Republic of Vietnam and a reasonable period of time for his response should be provided. All notice provided, requests made, actions taken, and records and responses received must be carefully documented in the record. The Veteran should be notified of any negative results of these efforts.

2. Following the completion of step one, request the NPRC or the JSRRC to review pertinent records in the Veteran s file in an attempt to corroborate the Veteran s assertions of in-service exposure to herbicide agents such as Agent Orange while serving in the Navy aboard the U.S.S. Mazama. The AOJ should include with the request copies of all pertinent service personnel records and any deck/ship logs obtained on remand. The NPRC/JSRRC is asked to provide any information it has regarding the probability that the Veteran was exposed to Agent Orange, given his rank, military occupational specialties, and duties. Importantly, the NRPC/JSRRC is asked to explain its definition of  official waters  as it relates to service in Vietnam, to include whether a finding of service in the  official waters  of the Republic of Vietnam indicates service within 12 nautical miles of its shores.

3. Following completion of steps one and two, make a formal finding as to whether in-service herbicide agent exposure is shown.

(Continued on the next page)

4. Thereafter, readjudicate the claims. If the benefits sought on appeal remain denied, issue a supplemental statement of the case to the Veteran and his representative. Then return the appeal to the Board for further appellate review.

MICHAEL MARTIN

Veterans Law Judge

Board of Veterans  Appeals

Attorney for the Board	K. Smith, 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.


judge_norm: JOHN Z JONES

disposition: withdrawn

condition: psychiatric

text:
��Citation Nr: 20008000

Decision Date: 01/30/20	Archive Date: 01/30/20

DOCKET NO. 14-41 734

DATE: January 30, 2020

ORDER

A rating higher than 30 percent for anxiety disorder has been withdrawn.

FINDING OF FACT

In a statement dated November 2019, the Veteran withdrew the following issue from consideration: rating higher than 30 percent for anxiety disorder.

CONCLUSION OF LAW

The criteria for withdrawal by the appellant (or his or her authorized representative) have been met for the following issue: rating higher than 30 percent for anxiety disorder.  38 U.S.C. � 7105(b)(2), (d)(5); 38 C.F.R. � 20.205.

REASONS AND BASES FOR FINDING AND CONCLUSION

In May 2018, the Board issued a decision denying a rating higher than 30 percent for anxiety disorder.  In a May 2019 Order, the United States Court of Appeals for Veterans Claims (Court) endorsed a joint motion for partial remand (JMR), vacated the Board s May 2018 decision with respect to the denial of a rating higher than 30 percent for an anxiety disorder, and remanded the case for further action consistent with the terms of the joint motion.

As noted above, this matter was returned to the Board pursuant to a May 2019 JMR.   A joint motion for remand, when drafted properly, identifies &  clear instructions to the Board as to what it is required to address, and what actions it is required to take, on remand.  This increases both administrative and judicial efficiency.   Carter v. Shinseki, 26 Vet. App. 534, 541 (2014), vacated on other grounds sub nom. Carter v. McDonald, 794 F.3d 1342 (Fed. Cir. 2015).

Prior to the promulgation of a decision in this case, the Veteran submitted a November 2019 statement indicating his intent to withdraw the following issue from consideration by the Board: rating higher than 30 percent for anxiety disorder.  Therefore, a  case or controversy  involving a pending adverse determination that the Veteran has taken exception to does not currently exist with respect to this issue.  See Shoen v. Brown, 6 Vet. App. 456, 457 (1994).  Accordingly, the Board does not have jurisdiction to review the appeal for this claim, and it is dismissed.

JOHN Z. JONES

Veterans Law Judge

Board of Veterans  Appeals

Attorney for the Board	Michael Chandeck, 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.


judge_norm: DONNIE R HACHEY

text: Entitlement to service connection for the cause of the Veteran’s death is remanded.

text:
��Citation Nr: 20009000

Decision Date: 02/03/20	Archive Date: 02/03/20

DOCKET NO. 19-13 257

DATE: February 3, 2020

ORDER

New and material evidence having been received, the claim for entitlement to service connection for the cause of the Veteran s death is reopened.

REMANDED

Entitlement to service connection for the cause of the Veteran s death is remanded.

FINDINGS OF FACT

1. The appellant was denied entitlement to dependency and indemnity compensation (DIC) in an April 2012 rating decision.  She did not appeal or submit new evidence within the appeal period, rendering the April 2012 rating decision final.

2. New and material evidence has been submitted to reopen a claim for entitlement to DIC.

CONCLUSIONS OF LAW

1. The April 2012 rating decision denying entitlement to DIC is final.  38 U.S.C. � 7105; 38 C.F.R. �� 3.104, 20.302, 20.1103.

2. The additional evidence received since the April 2012 rating decision is new and material and the claim for entitlement to DIC is reopened.  38 U.S.C. � 5108; 38 C.F.R. � 3.156.

REASONS FOR REMAND

The Veteran served on active duty from March 1969 to September 1970.  He died in March 2011.  The appellant is his surviving spouse.  She appeals an April 2017 rating decision denying entitlement to DIC.

The Veteran s death certificate reflects that he died in March 2011.  The sole cause of the Veteran s death was stage 4 gastroesophageal adenocarcinoma.  The Veteran was not service connected for any disability at the time of his death.

Service treatment records show that the Veteran suffered from frequent colds during service.  During one such occurrence, the treating physician noted the Veteran had a bleeding and sore throat with ulcers.  See March 2010 service treatment record at 44.  The appellant has submitted new and material evidence in the form of medical literature suggesting esophageal cancer can increase the risk of developing esophageal ulcers.  The evidentiary record does not contain a medical opinion addressing the possible link between the Veteran s in-service ulcers and his fatal gastroesophageal adenocarcinoma.  As there is an indication that the condition which caused the Veteran s death may be related to service and there is insufficient medical evidence to make a decision on the claim, remand for a medical opinion is necessary.  See McLendon v. Nicholson, 20 Vet. App. 79 (2006).

The matter is REMANDED for the following action:

1. Obtain a medical opinion from an appropriate clinician regarding the cause of the Veteran s death.  The claim s file, including a copy of this remand, must be made available to the reviewing clinician.

The reviewing clinician is asked to provide an opinion as to whether the gastroesophageal adenocarcinoma that led to the Veteran s death was at least as likely as not related to service, to include throat ulcers noted in service.

All opinions must be supported by rationale.

If an opinion cannot be provided without resorting to mere speculation, the reviewing clinician must provide a complete explanation for why an opinion cannot be rendered.  In so doing, the reviewing clinician must 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 that particular question.

2. After the above development, and any other development deemed necessary, has been completed, readjudicate the claim.  If any benefit sought remains denied, provide the appellant and her representative with a Supplemental Statement of the Case (SSOC) and return the case to the Board.

(Continued on the next page)

(Continued on the next page.)

DONNIE R. HACHEY

Veterans Law Judge

Board of Veterans  Appeals

Attorney for the Board	Daniel Ballinger, 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.


judge_norm: SARAH B RICHMOND

condition: hip

text:
��Citation Nr: 20010000

Decision Date: 02/06/20	Archive Date: 02/06/20

DOCKET NO. 17-12 474

DATE: February 6, 2020

REMANDED

Service connection for a bilateral hip condition is remanded.

REASONS FOR REMAND

The Veteran served on active duty from March 1978 to December 1979.

This matter comes before the Board of Veterans  Appeals (Board) on appeal from an August 2013 rating decision.

The scope of the Veteran s claim for a hip disability includes any disability that reasonably may be encompassed by the claimant s description of the claim, reported symptoms, and the other information of record.  Clemons v. Shinseki, 23 Vet. App. 1 (2009).  Regardless of whether a claimant identifies a particular disorder upon filing the claim, the scope of the claim is not limited to that condition but is considered a claim for any disability that reasonably may be encompassed by several factors   including his description of the claim, the symptoms he describes, and the information he submits or that VA obtains in support of his claim.  Id.  Based on Clemons and the evidence of record, the Board has expanded the Veteran s claims to include a disability of the bilateral hip, as reflected above on the title page.

1. Service connection for a bilateral hip condition is remanded.

The Veteran contends his hip condition is related to his active service.  His entrance examination is negative for a hip condition, and his October 1976 Report of Medical Examination notes a normal clinical evaluation.  While the Veteran's service treatment records are silent for a specific hip condition or injury, there are notes regarding a tender left inguinal ligament and a left leg injury related to an in-service injury.  There is no separation examination for the Veteran.  In November 1974, the Veteran desired not to do a separation examination.

Post-service CAPRI records show complaints and treatment for bilateral chronic hip pain.  A June 2014 physical therapy note documents that the Veteran injured his right hip during active service and that he began to experience left hip pain three to four years prior to that note.  Post-service treatment records also show treatment for osteoarthritis of the hip.

The Board observes there is post-service lay evidence of record.  A statement from the Veteran's daughter notes that as long as she can remember, back to 1987, her father has complained of hip problems.  The Veteran's friend, D. P., writes that the Veteran has experienced hip pain since returning from active duty in the late 1970s.  The Veteran's wife recalls the Veteran s complaints of hip pain before they were married.  Finally, his mother submitted a statement recalling her son s complaints of hip pain in 1979 after active service.

The Veteran details his hip injury in a December 2015 statement.  He states he fell off a wall during basic training and landed on his right side, mainly on his right hip.  He states that since his accident, he has experienced pain and discomfort of the hip.  He also recalls another in-service incident where a 55-pound drum fell over and penned him between other drums.  The Veteran also notes he sought treatment after active service; however, his doctors, who he identifies in his statement, have long since passed.  As a result, he cannot obtain any medical records that could show continuity of symptomatology.

The Veteran received a VA hip examination in March 2015.  The examiner found it is less likely than not that the Veteran s in-service left leg sport muscle strain is related to any current   left leg difficulties  as claimed.   The examiner continued,  The symptoms and medical conditions of record in recent years affecting both lower extremities are related to other lumbar spine and bilateral hips mechanical issues.  There is no nexus of facts to suggest any recurrent or residual left leg muscle condition since 1978.

The Board does not find the opinion probative.  First while the examiner found there was no evidence of a chronic, ongoing condition, the examiner did not consider the Veteran s lay statements as there is no discussion of the Veteran s contentions and how they may or may not show that the Veteran s bilateral hip disability is related to his active service.  There is also no comment on the various buddy statements of record.  The Board notes that laypersons are competent to report observable symptoms of a disease or injury.  Layno v. Brown, 6 Vet. App. 465 (1994).  Furthermore, a lack of contemporaneous medical records does not, in and of itself, render lay evidence not credible.  Dalton v. Nicholson, 21 Vet. App. 23 (2007).

Secondly, no opinion for the hip has been provided.  While the examiner discussed the Veteran's bilateral hip condition within Section II of the report, no opinion was provided regarding those conditions.  Instead, the examiner provided an opinion regarding the Veteran s left leg.

While there is no objective medical evidence of record showing a hip disability within one year of completing active service, there is evidence indicating that the Veteran s hip disability is degenerative in nature and that the Veteran has experienced hip problems for many years.  For example, a February 2016 treatment note states that the Veteran has experienced left hip pain for approximately 10 years status post total right hip replacement, which his CAPRI records indicate he underwent in November 2012.  A November 2012 orthopedic surgery note indicates that his diagnosis before the total right hip replacement was post-traumatic right hip degenerative joint disease.

The Veteran has also reported his injuries and subsequent symptoms during and since active service while seeking treatment for his bilateral hip problems.  Regarding the mechanism of injury or date of onset, the Veteran reported having had a right hip injury while in the military during treatment in June 2014.  In August 2014, the Veteran reported that he has experienced hip problems for years "from moving drums in the service."  The Board finds that the Veteran's statements made during treatment are especially probative.  See Rucker v. Brown, 10 Vet. App. 67, 73 (1997) (observing that, although formal rules of evidence do not apply before the Board, recourse to the Federal Rules of Evidence may be appropriate; statements made to physicians for the purposes of diagnosis and treatment are exceptionally trustworthy because the declarant has a strong motive to tell the truth in order to receive proper care).

Accordingly, a remand is required for a VA examination and opinion that considers both the objective and lay evidence of record and provides sufficient and clear rationale for all opinions expressed.

The matters are REMANDED for the following action:

1. Any outstanding treatment records currently available should be associated with the Veteran s file.

2. Schedule the Veteran for a VA examination to determine the etiology the Veteran s right and left hip disabilities.  The claims file should be made available to and reviewed by the examiner.  All tests and studies deemed necessary should be conducted.

The examiner must opine as to the following:

Whether it is at least as likely as not (50 percent or greater probability) any right hip or left hip disability had its clinical onset during active service or is related to any incident of service to include the Veteran s contention that his injuries are due to his in-service accident playing basketball or to the incident where he was pinned between two 55-pound drums.

The examiner should also note that while the Veteran s service treatment records do not reflect treatment and complaints for right or left hip pain or a condition, they do document instances of a tender left inguinal ligament and a left leg injury related to an in-service injury.

The examiner should review and acknowledge the lay evidence of record, to include the various buddy statements and the Veteran s January 2016 statement in which he details how he has experienced hip-related symptoms since active service and that he sought treatment after active service.

The examiner should elicit from the Veteran a complete history of his symptomatology, including any in-service symptomatology and treatment; as well as his complete post-service history of symptoms and treatment.  This information must be documented within the examination report.

(Continued on the next page)

In offering any opinion, the examiner must consider the full record, to include the Veteran s lay statements and the buddy statements of record.  The examiner s opinion must reflect consideration of the Veteran s reports as to his history and symptomatology.

The examiner must provide a comprehensive report that includes a complete rationale for all opinions and conclusions reached.

Sarah B. Richmond

Acting Veterans Law Judge

Board of Veterans  Appeals

Attorney for the Board	Buck Denton

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.


judge_norm: KRISTI L GUNN

disposition: dismissed

text: The appeal is dismissed.

text:
��Citation Nr: 20011000

Decision Date: 02/11/20	Archive Date: 02/10/20

DOCKET NO. 14-24 124

DATE: February 11, 2020

ORDER

The appeal is dismissed.

FINDING OF FACT

On December 16, 2019, the Board was notified that the appellant died in December 2019.

CONCLUSION OF LAW

Due to the death of the appellant, the Board has no jurisdiction to adjudicate the merits of this appeal at this time.  38 U.S.C. � 7104(a); 38 C.F.R. � 20.1302.

REASONS AND BASES FOR FINDING AND CONCLUSION

Unfortunately, the appellant died during the pendency of the appeal.  As a matter of law, appellants  claims do not survive their deaths.  Zevalkink v. Brown, 102 F.3d 1236, 1243-44 (Fed. Cir. 1996); Smith v. Brown, 10 Vet. App. 330, 333-34 (1997); Landicho v. Brown, 7 Vet. App. 42, 47 (1994).  This appeal on the merits has become moot by virtue of the death of the appellant and must be dismissed for lack of jurisdiction.  38 U.S.C. � 7104(a); 38 C.F.R. � 20.1302.

In reaching this determination, the Board intimates no opinion as to the merits of this appeal or to any derivative claim brought by a survivor of the Veteran.  38 C.F.R. � 20.1106.

The Board s dismissal of this appeal does not affect the right of an eligible person to file a request to be substituted as the appellant for purposes of processing the claim to completion.  Such request must be filed not later than one year after the date of the appellant s death.  38 U.S.C. � 5121A; 38 C.F.R. � 3.1010(b).  A person eligible for substitution includes  a living person who would be eligible to receive accrued benefits due to the claimant under section 5121(a) of this title & .   38 U.S.C. � 5121A; 38 C.F.R. � 3.1010(a).  An eligible party seeking substitution in an appeal that has been dismissed by the Board due to the death of the claimant should file a request for substitution with the VA office from which the claim originated (listed on the first page of this decision).  38 C.F.R. � 3.1010(b).

KRISTI L. GUNN

Veterans Law Judge

Board of Veterans  Appeals

Attorney for the Board	Tahirih S. Samadani, 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.


judge_norm: M E LARKIN

disposition: granted

text:
��Citation Nr: 20012000

Decision Date: 02/12/20	Archive Date: 02/12/20

DOCKET NO. 10-42 446

DATE: February 12, 2020

ORDER

Entitlement to service connection for major depressive disorder and specific phobia is granted.

FINDING OF FACT

Major depressive disorder and specific phobia disorder began during active service.

CONCLUSION OF LAW

The criteria for service connection for major depressive disorder and specific phobia are met.  38 U.S.C. �� 1110, 1131, 5107; 38 C.F.R. �� 3.102, 3.303.

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran served on active duty from November 1967 to November 1970. including service in the Republic of Vietnam. His awards include the Bronze Star Medal awarded for meritorious service in connection with ground operations against a hostile force. His awards also include the Army Commendation Medal with  V  device. The description of the award documents that the Veteran came under enemy fire while recovering a downed combat damaged helicopter.

In a September 2017 decision, the Board of Veterans Appeals (Board) denied a claim of service connection for posttraumatic stress disorder (PTSD) and remanded the claim of service connection for an acquired psychiatric disorder other than PTSD for further development.

In an April 2018 decision, the Board denied the claim of service connection for an acquired psychiatric disorder. The Veteran appealed the decision to the United States Court of Appeals for Veterans Claims (Court). In a January 2019 Order, the Court granted a Joint Motion for Remand (JMR), vacating the Board decision and remanding the issue for readjudication.

Entitlement to service connection for major depressive disorder and specific phobia.

The Veteran contends that his depression began in the Vietnam War.

The Board concludes that the Veteran has a current disability of major depressive disorder and specific phobia that began during active service. 38 U.S.C. �� 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363 (Fed. Cir. 2009); 38 C.F.R. � 3.303(a).

The parties to the JMR agreed that an October 2010 private psychiatric assessment wherein the Veteran s doctor reported that the Veteran had a fear of storms, which connected to intrusive memories of Vietnam and that the Veteran was having nightmares about specific combat situations in Vietnam was not adequately considered in the prior Board decision.

The parties also noted that the September 2015 VA examination and October 2017 addendum opinion were inadequate. The examination was based on inaccurate and incomplete medical history; the addendum opinion did not provide an adequate rationale for its conclusion.

In a January 2020 statement, the Veteran s spouse reported that when she met the Veteran in November 1970 they used to drive around town. He always checked the locks and windows several times a night. The Veteran did not talk much. He thought that there were people in the house trying to kill him.

In a January 2010 statement, the Veteran s brother said that before the Veteran went into service he had a happy demeanor but after his return from Vietnam there was a definite change in his personality. There was noticeable depression. Later there seemed to be a steady decline and worsening depression, sometimes with incidents of short temperedness and anger.

The report of a January 2020 private psychiatric evaluation included the provider s opinion that the Veteran s primary psychiatric diagnoses were major depressive disorder, recurrent, severe with anxious distress, alcohol use disorder, in sustained remission, and specific phobia. The psychiatrist interviewed the Veteran and reviewed the Veteran s medical history, compensation and pension examination reports, ancillary information. The psychiatrist noted that the Veteran was exposed to significant combat and trauma while in Vietnam, which precipitated his first episode of major depression while on active duty and culminated in his current psychiatric disability. The psychiatrist continued to discuss the Veteran s exposures to trauma in service, his description of being a changed individual upon return to the United States, that his disability progressed over the years, and the Veteran s treatment history. Notably, the psychiatrist stated that the Veteran s psychiatric symptoms have been present for forty years, progressing over time to the current day. In addition, the evaluator identified medical literature.

Upon review of the record, the Board finds the evidence to at least be in equipoise as to whether the Veteran s current major depressive disorder and specific phobia arose in service. The Veteran was awarded medals that are sufficient to demonstrate that he engaged in combat with the enemy. The Veteran s brother has competently and credibly reported that the Veteran s behavior had changed between when he entered and exited service. Thereafter, a private psychiatrist has rendered the opinion that the Veteran s disability arose in service and had progressed to the current day.

(Continued on the next page)

Accordingly, service connection for major depressive disorder and specific phobia is warranted.  38 U.S.C. � 5107; 38 C.F.R. � 3.102.

M.E. LARKIN

Veterans Law Judge

Board of Veterans  Appeals

Attorney for the Board	Robert J. Burriesci, 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.