Citation Nr: 1807783 Decision Date: 02/06/18 Archive Date: 02/14/18 DOCKET NO. 10-36 432 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Entitlement to service connection for an upper-gastrointestinal (GI) disorder. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD M. G. Perkins, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1981 to September 1982. This matter came before the Board of Veterans' Appeals (Board) from a February 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. The Veteran did not report for a Board hearing that was scheduled to be conducted at the RO in Cleveland. Because the Veteran has neither submitted good cause for failure to appear nor requested to reschedule the hearing, the request for a hearing is deemed withdrawn. See 38 C.F.R. § 20.704(d) (2017). In a May 2016 decision, the Board denied the claim. The Veteran subsequently appealed the May 2016 Board decision to the United States Court of Appeals for Veterans Claims (hereinafter, the Court). In a June 2017 order, the Court granted a joint motion for remand (JMR), which vacated the Board's decision and remanded the Veteran's appeal to the Board for readjudication. The appeal returned before the Board in March 2017 and August 2017 and remanded for further development. As discussed below, the remand was not complied with and therefore must be remanded again. See Stegall v. West, 11 Vet. App. 268 (1998). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The Veteran's claim must be remanded due to a lack of compliance with the Board's August 2017 remand. Stegall, supra. The claim was remanded to obtain a medical opinion to determine whether the Veteran's GI disorder was aggravated by medication taken for his service-connected disabilities at any time during the appeal period. The parties to December 2016 JMR agreed that it was necessary for the Board to addresses secondary aggravation. Pursuant to the Board's March 2017 remand, a VA medical opinion was obtained in April 2017, but only discussed that since 2015 the Veteran's GI disorder had stabilized and that because the Veteran was no longer taking non-steroidal anti-inflammatory drugs (NSAIDs) for his service-connected arthralgia, the issue was now resolved, and therefore, there was no aggravation. Following that opinion the claim was remanded in August 2017 for another medical opinion for the examiner to address whether there was any aggravation of the Veteran's GI disorder since the appeal period began in February 2008. Following the Board's August 2017 remand for a supplemental opinion, the VA medical opinion submitted in August 2017 is merely a duplicate copy of the April 2017 VA medical opinion. Therefore the claim is being returned to the RO for a supplemental medical opinion. Id. On remand, the RO shall obtain a supplemental medical opinion to determine whether the Veteran's GI disorder was aggravated, at any time since the appeal period began in February 2008, by medication(s) taken by the Veteran for his service-connected disabilities. The Board takes the opportunity to clarify the standard by which such aggravation is determined. Aggravation in the context of secondary service connection is demonstrated when there is "[a]ny increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease." 38 C.F.R. § 3.310(b) (2017). Where secondary aggravation is found, a veteran "shall be compensated for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation." Allen v. Brown, 7 Vet.App. 439 (1995). Accordingly, the case is REMANDED for the following action: 1. Forward the Veteran's complete file, to include a copy of this remand, to an appropriate VA examiner to obtain a medical opinion as to whether the Veteran's GI disorder, was aggravated by taking medication(s) for his service-connected disabilities. If the examiner determines that an opinion cannot be provided without an examination, then the Veteran should be scheduled for one. Based on the review of the record, the examiner should answer the following: Is it at least as likely as not that the any GI disorder was caused or aggravated by the Veteran's service-connected disabilities, to include any side-effects of taking medication for his service-connected disabilities? The examiner is informed that aggravation here is defined as any increase in disability. If aggravation is present, the clinician should indicate, to the extent possible, the approximate level of disability (baseline) before the onset of the aggravation. In answering this question, the examiner must consider any aggravation or increase in disability since February 2008, regardless whether the disability has now stabilized. Any opinion expressed by the VA examiner must be accompanied by a complete rationale. If the VA examiner is unable to offer an opinion without resorting to speculation, a thorough explanation as to why an opinion cannot be rendered should be provided. 2. Thereafter, readjudicate the claim. If any benefit sought on appeal remains denied, provide the Veteran and his representative with a supplemental statement of the case and an opportunity to respond. Then return the case 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 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). _________________________________________________ M. E. LARKIN Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (West 2014), 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).