Citation Nr: 1803504 Decision Date: 01/18/18 Archive Date: 01/29/18 DOCKET NO. 10-36 169 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for a liver disorder as secondary to service-connected status postoperative cholecystectomy. 2. Entitlement to service connection for a disability manifested by hemorrhoids as secondary to service-connected status postoperative cholecystectomy. 3. Entitlement to service connection for diverticulitis with right-sided abdominal pain and chronic constipation, including as secondary to service-connected status postoperative cholecystectomy. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Robert Batten, Associate Counsel INTRODUCTION The Veteran served on active duty from May 1963 to July 1965. He also served with the U.S. Navy Reserve from 1962 to 1963 with various periods of active duty for training (ACDUTRA) and inactive duty training (INACDUTRA). This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2010 rating decision, issued in June 2010 by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas, which denied the Veteran's claims for service connection. In June 2014, the Veteran testified at a hearing before the undersigned Veterans Law Judge (VLJ). A transcript of that proceeding is of record. The hearing was adequate as the undersigned VLJ and representative for the Veteran explained the issues and identified possible sources of evidence that may have been overlooked. 38 C.F.R. 3.103(c)(2) (2013); Bryant v. Shinseki, 23 Vet. App. 488 (2010). In August 2014, the Board remanded this case for further development. In August 2015, the Board denied the Veteran's claims of entitlement to service connection for a liver disorder, hemorrhoids, and diverticulitis. The Veteran appealed the August 2015 Board decision to the United States Court of Appeals for Veterans Claims (Court) and, in an May 2017 Memorandum Decision, the Court vacated the Board's decision denying the Veteran's claims, and then remanded the matter for further proceedings consistent with its decision. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND Unfortunately, a remand is required again in this case. Although the Board sincerely regrets the additional delay, it is necessary to ensure the Veteran is given every possible consideration and to comply with an order of the Court. The May 2017 Court Memorandum Decision found that the Board erred on relying on inadequate VA examinations. Where the VA has ordered a medical examination addressing direct or secondary service connection, that examination and opinion must be adequate. Barr v. Nicholson, 21Vet.App.303, 311 (2007). In September 2014, the Veteran underwent a VA examination. The examiner diagnosed the Veteran with diverticulitis. The examiner opined that it is less likely than not the Veteran's diverticulitis had its onset during service or manifested within one year of service. The Court found that in reaching the opinion the examiner relied on incorrect facts. The examiner stated that there was absence of documentation or hospitalization for acute diverticulitis. However, the Veteran's service treatment records contain several references to symptoms consistent with diverticulitis. Therefore, another VA medical opinion is required to determine if the etiology of the Veteran's diverticulitis. The Veteran underwent a VA examination in August 2013. The examiner opined that the Veteran's hemorrhoids are less likely as not related to the Veteran's cholecystectomy surgery. The examiner reasoned that cholecystectomy surgery would not be expected to cause or aggravate a hemorrhoid condition. The Court found that this is not an adequate rationale in that the examiner failed to provide any other supporting rationale other than her one sentence opinion. Therefore, the Board finds that a VA medical opinion with adequate supporting rationale is required to determine whether the Veteran's hemorrhoids condition was caused or aggravated by any of the Veteran's service-connected disabilities. The Court also found that the August 2013 examiner's opinion concerning the Veteran's liver condition was also inadequate. The examiner opined that there was evidence that the Veteran's hepatomegaly was secondary to fatty infiltration and/or hepatocellular disease and that there was no medical evidence that the hepatomegaly was a result of or aggravated by the cholecystectomy. However, the Court emphasized that the examiner did not provide any rationale or reasoning as to how she made this determination. Further, the Court found that it was unclear from the opinion whether the Veteran's fatty infiltration or hepatocellular disease may have been a result of or aggravated by the cholecystectomy. Finally, the Court noted that the Board must not only address the Veteran's claim for liver distention, but also any related liver disease raised during the development of the claim. See Clemons v. Shinseki, 23 Vet.App 1, 5 (2009) (per curiam order) (in determining the scope of a claim, the Board must consider the claimant's description of the claim, symptoms described, and the information submitted or developed in support of the claim appellant's claim is not narrowly limited to the diagnosis he puts down, but encompasses additional disabilities reasonably raised by the record). Therefore, a VA examination must address the etiology of any of the Veteran's diagnosed liver conditions. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. Schedule the Veteran for a VA examination from an appropriate examiner to determine the etiology of the Veteran's liver disease, hemorrhoids, and diverticulitis. Provide the examiner with the claims file, including a copy of this REMAND. The examiner should review the claims file and this Remand. All indicated studies and tests are to be performed. After reviewing the claims files, the examiner should provide an opinion as to the following inquiries: (a) Identify all liver disorders diagnosed during the pendency of this appeal (since 2010). (b) As to each diagnosed liver disorder including hepatomegaly, is it at least as likely as not (50 percent probability or greater) that a diagnosed liver disorder is proximately due to (or caused by), OR alternatively, aggravated by (permanently worsened beyond the natural progression of such disorder), the Veteran's service-connected status post-operative cholecystectomy. (c) If not, whether the Veteran's hepatomegaly is secondary to fatty infiltration and/or hepatocellular disease. (d) If the Veteran's hepatomegaly is secondary to fatty infiltration and/or hepatocellular disease, is it at least as likely as not that fatty infiltration and/or hepatocellular disease was caused by, OR alternatively, aggravated by (permanently worsened beyond the natural progression of such disorder), the Veteran's service-connected status post-operative cholecystectomy. (e) Is it at least as likely as not (50 percent probability or greater) that the Veteran's hemorrhoid condition is proximately due to, OR alternatively, aggravated by (permanently worsened beyond the natural progression of such disorder), the Veteran's service-connected status post-operative cholecystectomy. (f) Is it at least as likely as not (50 percent or greater probability) that diverticulitis had its onset in service or is otherwise etiologically related to the Veteran's military service. (g) Is it at least as likely as not (50 percent probability or greater) that the Veteran's diverticulitis is proximately due to, OR alternatively, aggravated by (permanently worsened beyond the natural progression of such disorder), service-connected post-operative cholecystectomy. 2. The examiner must provide a detailed rationale for all opinions and reconcile it with all pertinent evidence of record. If an opinion cannot be rendered without resorting to pure speculation, the examiner should explain why. 3. Thereafter, and after undertaking any additional development deemed necessary, readjudicate the issues on appeal. If the benefit sought on appeal remains denied, the Veteran and his representative should be provided with a Supplemental Statement of the Case and be afforded reasonable opportunity to respond. The case should then be returned to the Board for further appellate review, if otherwise in order. The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012). S. L. Kennedy Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (2012), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2017).