Entitlement to service connection for a neurological disability of the left lower extremity to include peripheral neuropathy is remanded.
Dr. Craig Bash has done thousands of case evaluations at the VA Hospital/regional office/BVA and court levels.
Complete list of BVA cases can be found at The Department of Veterans Affairs Website
(Search Dr. Bash, Craig N. Bash M.D., Dr. Craig Bash , Craig Bash, C.N.B.)
Citation Nr: 22005679
Decision Date: 02/02/22 Archive Date: 02/02/22
DOCKET NO. 18-04 419
DATE: February 2, 2022
REMANDED
Entitlement to service connection for a neurological disability of the left lower extremity to include peripheral neuropathy is remanded.
Entitlement to service connection for a neurological disability of the right lower extremity to include peripheral neuropathy is remanded.
Entitlement to service connection for a neurological disability of the left upper extremity to include peripheral neuropathy is remanded.
Entitlement to service connection for a neurological disability of the right upper extremity to include peripheral neuropathy is remanded.
Entitlement to service connection for paraneoplastic syndrome (also claimed as sensory ataxia and romberg sign) is remanded.
Entitlement to service connection for achalasia (also claimed as pseudoathetosis and dysphagic) is remanded.
REASONS FOR REMAND
The Veteran served on active duty with the United States Air Force (USAF) from March 1974 to September 1982.
In June 2021 the Veteran testified at a personal hearing before the undersigned and a transcript of that hearing is associated with the claims file.
In December 2021, the Veteran's representative waived agency of original jurisdiction review of the additional evidence added to the claims file since the issuance of the March 2019 supplemental statement of the case. See 38 C.F.R. § 20.1304(c).
Entitlement to service connection for neurological disabilities of the left and right lower and upper extremities as well as paraneoplastic syndrome and achalasia are remanded.
As to all the issues on appeal, the Veteran claims that his disabilities were caused by his military service in the USAF because of the following events/incidents: i. exposure to herbicides, including Agents Blue, White, and/or Orange, while stationed at Davis-Monthan USAF base in Arizona because they were used and stored at that facility; ii. exposure to contaminated water while stationed at March USAF base in California; and iii. being exposed to/having being covered with all types of chemicals, including aviation and diesel fuel, gasoline, and paint strippers, during his eight years in the USAF as a fuel specialist.
However, while the record shows that the Veteran served in the USAF for eight years with an occupational specialty of fuel specialist and while during the pendency of the appeal the appellant filed with the regional office (RO) some publicly available records in supported of his claims that herbicides were used and/or stored at Davis-Monthan USAF base and that the water at March USAF base in California was contaminated, it does not show that the RO even attempted to verify these claims from official Government sources.
Therefore, the Board finds that a Remand to undertake this development as well as to obtain a complete copy of the Veteran's service personnel records to verify his dates of service at Davis-Monthan USAF base in Arizona and March USAF base in California, is required. See 38 U.S.C. § 5103A; 38 C.F.R. § 19.9.
Next, the Board notes that in November 2017 the RO obtained VA etiology opinions as to all the above claims. However, the Board does not find these opinions adequate because they only consider one theory of entitlement (i.e., jet fuel exposure) and because they provided no medical reasoning for their conclusions except to say that the claimed disorders were not presumptively due to jet fuel exposure. See ElAmin v. Shinseki, 26 Vet. App. 136, 140-41 (2013) (holding that, when multiple theories of entitlement are at issue, the Board must ensure that the medical opinions of record directly address all theories reasonably raised by the record); Stefl v. Nicholson, 21 Vet. App. 120 (2007) (holding that the availability of presumptive service connection, as in this case, does not preclude a Veteran from establishing service connection with proof of direct causation); Bloom v. West, 13 Vet. App. 185, 187 (1999) (a medical opinion without supporting clinical data or other rationale does not provide the required degree of medical certainty).
Likewise, while in January 2018 and June 2021, the RO received opinion letters in support of the claims from a Dr. Craig N. Bash, the Board finds that these letters, standing alone, are not adequate to adjudicate the appeal. 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...").
Therefore, the Board finds that a Remand to obtain adequate etiology opinions that considers the above development as well as all theories of entitlement is required. 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); ElAmin, supra.
Additionally, the Board finds that while the appeal is in Remand status it would be helpful for the RO to obtain from Dr. Bash a statement as to his education, training, and experience as to it specifically relates to diagnosing the health effects of chemical exposure, to include, as claimed by this Veteran, exposures to herbicides, contaminated water, and other chemical to include aviation fuels, diesel fuel, gasoline, and paint strippers. See 38 U.S.C. § 5103A; 38 C.F.R. § 19.9.
Lastly, while the appeal is in Remand status any outstanding VA and private treatment records should also be obtained and associated with the claims file. See 38 U.S.C. § 5103A(b).
The appeal is REMANDED for the following actions:
1. Obtain and associate with the claims file from the appropriate Federal Agency, including the Department of Defense, all available records as to the following two claims by the Veteran: i. herbicides were used/stored/transported at Davis-Monthan USAF base and ii. the water at March USAF base in California was contaminated.
The above request should include, among other things, the dates that herbicides were present (if any) and the dates that the problem with contaminated water existed.
If possible, the herbicide types and chemicals that contaminated the water should be specifically identified (if possible).
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 himself should also submit and new pertinent evidence the Board/VA does not have (if any). This would include any recent VA treatment.
Any help with the above would be appreciated.
2. Obtain a complete copy of the Veteran's service personnel records to verify his dates of service at Davis-Monthan USAF base in Arizona and March USAF base in California. Again, the Veteran himself may provide these records.
3. Obtain and associate with the claims file any outstanding VA treatment records.
4. After obtaining all needed authorizations from the Veteran, associate with the claims file any outstanding private treatment records.
If possible, again, the Veteran himself should submit and new pertinent evidence the Board/VA does not have (if any). This would include any recent VA treatment.
Any help with the above would be appreciated.
5. Obtain from Dr. Bash a statement as to his education, training, and experience as to it specifically relates to diagnosing the health effects of chemical exposure, to include, as claimed by this Veteran, exposures to herbicides, contaminated water, and other chemical to include aviation fuels, diesel fuel, gasoline, and paint strippers.
6. After undertaking the above development to the extent possible, schedule the Veteran for a VA examination with a suitably-qualified medical professional to address his claims of service connection for neurological disabilities of the left and right lower and upper extremities as well as paraneoplastic syndrome and achalasia due to exposures to herbicides, contaminated water, and other chemical to include aviation fuels, diesel fuel, and paint strippers as a fuel specialist in the USAF for eight years.
The claims file should be made available and reviewed by the examiner in conjunction with conducting the examination. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed.
After a consideration of the evidence of record (both lay and medical) and the results of the examination, the examiner is asked to address the following:
a. Provide diagnoses of all neurological disabilities of the left and right lower and upper extremities as well as confirm the diagnoses of paraneoplastic syndrome and achalasia, if present.
b. As to all diagnosed disabilities, provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that it was caused by the Veteran's military service to include the following claims: i. exposure to herbicides, including Agents Blue, White, and/or Orange, while stationed at Davis-Monthan USAF base in Arizona; ii. exposure to contaminated water while stationed at March USAF base in California; and iii. during his eight years in the USAF as a fuel specialist being exposed to/having being covered with all types of chemical including aviation and diesel fuel, gasoline, and paint strippers.
c. Provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any of the claimed disorders manifested in the first post-service year.
Give the Veteran's occupational specialty of fuel specialist, the Board finds that in providing answers to the above questions the examiner should take into account that exposure to at least various fuels is conceded.
In providing answers to the above questions the examiner should take into account, among other things, what the above development shows regarding herbicides use at Davis-Monthan USAF base and contaminated water at March USAF base.
In providing answers to the above questions the examiner should consider and discuss the service treatment records.
In providing answers to the above questions the examiner should consider and discuss the Veteran's competent lay claims regarding observable symptomatology.
In providing answers to the above questions the examiner should consider and discuss Dr. Bash's opinions as well as the medical articles filed by the Veteran.
In providing answers to the above questions the examiner should be aware of the fact that negative evidence alone is not adequate for finding that a disability is not due to military service.
In providing answers to the above questions the examiner should be aware of the fact that the availability of presumptive service connection, as in this case, does not preclude a Veteran from establishing service connection with proof of direct causation.
In providing answers to the above questions, the examiner is also 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 the 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 any inquiry without resort to speculation 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.