Citation Nr: 18153161 Decision Date: 11/27/18 Archive Date: 11/27/18 DOCKET NO. 16-45 267 DATE: November 27, 2018 REMANDED Entitlement to service connection for a right knee disability is remanded. Entitlement to service connection for gastroesophageal reflux disease (GERD) is remanded. REASONS FOR REMAND The Veteran had active duty service from January 3, 2000 to July 7, 2000, from October 5, 2000 to July 6, 2001, from October 1, 2001 to June 17, 2002, from November 1, 2002 to October 31, 2003, from January 3, 2011 to May 5, 2011, and from May 26, 2011 to July 3, 2012. He had active duty for training (ACDUTRA) with the Naval Reserve from January 1994 to June 1994, and other service with the Army National Guard. These matters come before the Board of Veterans’ Appeals (Board) on appeal of a February 2016 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska. The Board notes that additional VA treatment records have been received since the last statement of the case was issued, and the Veteran has not waived consideration by the agency of original jurisdiction. The records include an orthopedic consultation in November 2011. The VA physician discussed the history of the Veteran’s disability and opined that the Veteran’s patellofemoral pain could be related to patellofemoral syndrome. As such, the agency of original jurisdiction must consider the additional, relevant evidence, and readjudicate the Veteran’s claim in a supplemental statement of the case. 38 C.F.R. §§ 19.31, 19.37. The Veteran is currently represented by the National Association of County Veteran’s Service Officers. However, there is no indication that such service organization was provided with an opportunity to submit a VA Form 646, Statement of Accredited Representative in Appealed Case. On remand, the above service organization should be provided with an opportunity to submit additional evidence and argument on the Veteran’s behalf. VA may grant service connection for aggravation of a nonservice-connected disability beyond the natural progression of that disability caused by a service-connected disease or injury. However, VA may not concede the existence of aggravation unless the baseline level of severity of the nonservice-connected disability is established by medical evidence created before the onset of aggravation or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity of the nonservice-connected disease or injury. See 38 C.F.R. § 3.310 (b). Regarding the Veteran’s claim for entitlement to service connection for GERD, a VA examiner provided a medical opinion in April 2016. The examiner stated that the Veteran had risk factors for GERD, and that such factors were the most likely cause of the disability. However, he did not explain the nature of the indicated risk factors. He opined that the Veteran’s GERD was not at least as likely as not caused by the use of nonsteriodal anti-inflammatory drugs (NSAIDs) during military service, because medical literature did not suggest that NSAIDs could cause GERD. Nevertheless, the examiner also opined that the use of multiple medications over time can easily make GERD worse, that the Veteran had “longstanding” GERD, and that NSAID use and other factors “truly aggravated the underlying [gastrointestinal] issues beyond natural progression.” The examiner stated that the Veteran’s baseline would still likely be some level of GERD due to noted risk factors, despite using NSAIDS, as GERD was likely to occur, even in the absence of specifically using NSAIDs. The Board finds the April 2016 VA examiner’s opinion to be inadequate for decisional purposes. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007); Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (the probative value of a medical opinion is based on the medical expert’s knowledge and skill in analyzing the data, and the medical conclusion that the physician reaches). The examiner did not explain what risk factors he thought contributed to the Veteran’s GERD. Although he alluded to some baseline level of severity due to risk factors, the examiner did not provide any specificity in this regard, did not adequately explain the medical evidence establishing a baseline of symptomatology to the extent that VA can concede aggravation, or identify what service-connected disability treatment medications he believed aggravated the Veteran’s GERD. See 38 C.F.R. § 3.310 (b). Furthermore, the examiner did not specify what he meant by “longstanding” GERD. The Veteran denied experiencing frequent indigestion or heartburn in post-deployment health assessments in April and May 2012, and the Board notes that the first available record of treatment for GERD is in late September 2012, more than two months after the Veteran’s last period of active duty service. The examiner indicated that available medical literature does not support an etiological connection between NSAIDs and GERD, but also opined that NSAID use and “other risk factors” aggravated GERD. Such an opinion appears contradictory. Considering the foregoing, an addendum medical opinion is necessary. The Veteran currently receives VA treatment for the disabilities noted on appeal; therefore, all outstanding, relevant treatment records should be procured. The matter is REMANDED for the following action: 1. Obtain the Veteran’s VA treatment records for the period from May 2018 to the present. 2. Thereafter, obtain an addendum opinion from any suitably qualified VA examiner. The claims file, including a copy of this Remand, must be made available for review, and the examination report must reflect that such review was completed. If the examiner believes that an additional VA examination is necessary to answer the questions below, one should be scheduled. The examiner is asked to opine on the following: a) Is it at least as likely as not (50 percent probability or greater) that GERD had its onset during or is otherwise etiologically related to active duty service, to include the Veteran’s reports of taking ibuprofen during active duty service? b) Is it at least as likely as not (50 percent probability or greater) that any diagnosed GERD is due to or caused by service-connected disability, to include medication taken for treatment thereof? c) Is it as least as likely as not (50 percent probability or greater) that any diagnosed GERD is aggravated beyond its natural progression by service-connected disability, to include medication taken for treatment thereof? If so, the baseline level of GERD prior to aggravation must be explained, with identification of the supporting medical evidence of record. Aggravation is defined as a worsening beyond the natural progression of the disease. The examiner must note that an opinion to the effect that one disability “is not caused by or a result of” another disability does not answer the question of aggravation and will necessitate a further opinion. See El-Amin v. Shinseki, 26 Vet. App. 136, 140-41 (2013). The examination report must include a complete rationale for all opinions expressed. The examiner is reminded that the term “at least as likely as not,” does not mean “within the realm of medical possibility,” but rather that the evidence of record is so evenly divided that, in the examiner’s expert opinion, it is as medically sound to find in favor of the proposition as it is to find against. The examiner should reconcile his/her opinion, to the extent possible, with that of the April 2016 VA examiner. 3. Contact the Veteran’s representative, and provide them with an opportunity to submit a VA Form 646, Statement of Accredited Representative in Appealed Case. All development with respect to this directive must be documented in the claims file. 4. Thereafter, readjudicate the Veteran’s claims. If any benefit sought remains denied, furnish the Veteran and   his representative with a supplemental statement of the case. After allowing an appropriate period for response, return the appeal to the Board for review. U. R. POWELL Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD D. Reed, Associate Counsel