Citation Nr: 18123762 Decision Date: 08/03/18 Archive Date: 08/02/18 DOCKET NO. 14-04 705 DATE: August 3, 2018 REMANDED The claim of entitlement to service connection for gastrointestinal disability, to include as secondary to service-connected left knee disability, is remanded. REASONS FOR REMAND The Veteran served on active duty from October 1974 to March 1975. This appeal to the Board of Veterans’ Appeals (Board) arose from a March 2010 rating decision in which the Department of Veterans Affairs (VA) Regional Office (RO) in North Little Rock, Arkansas, inter alia, denied the Veteran’s requests to reopen claims for service connection for right knee, right thumb, teeth, and gastrointestinal disabilities. In May 2010, the Veteran filed a notice of disagreement (NOD). Thereafter, the Veteran’s claims file was transferred to the jurisdiction of the RO in Waco, Texas. In December 2011, the Veteran testified during a a hearing before a Decision Review Officer (DRO) at the RO. A transcript of that hearing is of record. In a January 2014 statement of the case (SOC), the RO reopened but denied on the merits the claims for service connection for right knee, right thumb, teeth, and gastrointestinal disabilities. Later that month, the Veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans’ Appeals). In November 2015, the Veteran testified during a Board hearing before the undersigned Veterans Law Judge at the RO. A transcript of that hearing is of record. In April 2016, the Board, inter alia, reopened the claims for service connection for right knee, right thumb, teeth, and gastrointestinal disabilities; granted on the merits the claim for service connection for a right thumb disability; denied on the merits the claims for service connection for right knee and teeth disabilities; and remanded the de novo claim for service connection for a gastrointestinal disability to the agency of original jurisdiction (AOJ) for further action, to include additional development of the evidence. After accomplishing further action, the AOJ continued to deny the remaining claim on appeal (as reflected in a February 2018 supplemental SOC (SSOC)), and returned this matter to the Board. As for the matter of representation, the record reflects that the Veteran was previously represented by Disabled American Veterans (DAV), as reflected in a May 2011 VA Form 21-22 (Appointment of Veterans Service Organization as Claimant’s Representative). In January 2017, the Veteran submitted another VA Form 21-22 appointing The American Legion as her representative; and, most recently, in August 2017, she submitted another VA Form 21-22 again appointing DAV as her representative. Under these circumstances, the Board still recognizes DAV as the Veteran’s representative. See 38 C.F.R. § 20.605. As a final preliminary matter, the Board notes that the Veteran also has perfected an appeal on the issue of an increased rating for left total knee replacement, stemming from an August 2015 RO rating decision. See November 2017 VA Form 9. However, as the Veteran requested a Board hearing on this matter in her substantive appeal, and she has not yet been afforded the requested Board hearing. As such, this matter is not currently ripe for appellate review, but will be the subject of a future appellate decision. Unfortunately, the Board finds that further action on the remaining claim on appeal is warranted, even though such will, regrettably, further delay an appellate decision on this matter. A remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with the remand instructions, and imposes upon VA a concomitant duty to ensure compliance with the terms of the remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998). In the April 2016 remand, the Board found that the medical opinion of record failed to adequately address the issue of secondary service connection, and as such, directed the AOJ to arrange for the Veteran to undergo VA examination for her claimed gastrointestinal disability, by an appropriate physician. The Board instructed, among other things, that for each diagnosed gastrointestinal disability, the examiner should render an opinion as to whether it is at least as likely as not that the disability (a) was caused, OR (b) is or has been aggravated (worsened beyond the natural progression) by the Veteran’s service-connected left knee disability, to include medications taken for such disability. A review of the claims file reveals that the Veteran underwent a VA examination in December 2017. The VA examiner confirmed a diagnosis of gastroesophageal reflux disease (GERD), and opined that the Veteran’s claimed condition was less likely than not proximately due to or the result of her service-connected left knee disability. Also, the same VA examiner also provided an addendum opinion in February 2018, in which she opined that it was less likely than not that the medication used for treating the Veteran’s service-connected left knee disability (NSAIDs) was the cause of her GERD symptoms. However, while the VA examiner addressed whether there exists a direct etiological relationship between current gastrointestinal disability and service-connected left knee disability, to include medications taken for such disability, the VA examiner did not explicitly address whether the Veteran’s claimed gastrointestinal disability is or has been aggravated (worsened beyond natural progression) by her service-connected left knee disability, to include medications taken for such disability. Notably, secondary service connection involves a two-part inquiry concerning both causation and aggravation. See 38 C.F.R. § 3.310(a); Allen v. Brown, 7 Vet. App. 439, 448 (1995) (an opinion that something “is not related to” or “is not due to” does not answer the question of aggravation). The Board also notes that the December 2017 VA examination was conducted by a certified physician assistant and not a physician, as requested. As the AOJ failed to fully or substantially comply with the Board’s remand directives with respect to this claim , another remand of this matter is required. See Stegall, supra; see also D’Aries v. Peake, 22 Vet. App. 97, 105 (2008) and Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (holding that substantial, rather than strict, compliance, is required). Accordingly, on remand, the AOJ should arrange for the Veteran to undergo VA examination by an appropriate physician, to obtain a medical opinion adequately addressing secondary service connection. The Veteran is hereby notified that failure to report to any scheduled examination, without good cause, may well result in denial of her claim. See 38 C.F.R. § 3.655. Examples of good cause include, but are not limited to, the illness or hospitalization of the claimant and death of an immediate family member. Prior to undertaking action responsive to the above, to ensure that all due process requirements are met, and that the record is complete, the AOJ should undertake appropriate action to obtain and associate with the claims file all outstanding, pertinent records. As for VA records, the claims file reflects that the Veteran has been receiving treatment from the Central Texas VA Health Care System (HCS) and that records from those facilities dated through March 2018 are associated with the file; however, more recent records may exist. Therefore, the AOJ should obtain from the Central Texas VA HCS all pertinent, outstanding records of evaluation and/or treatment of the Veteran since March 2018, following the current procedures prescribed in 38 C.F.R. § 3.159(c) regarding requests for records from Federal facilities. The AOJ should also give the Veteran another opportunity to provide additional information and/or evidence pertinent to the remaining claim on appeal, explaining that she has a full one-year period to respond. See 38 U.S.C. § 5103(b)(1); but see 38 U.S.C. § 5103(b)(3) (clarifying that VA may decide a claim before the expiration of the one-year notice period). In its letter, the AOJ should specifically request that the Veteran provide, or provide appropriate authorization to obtain, any outstanding, pertinent private (non-VA) records. Thereafter, the AOJ should attempt to obtain any additional evidence for which the Veteran provides sufficient information and, if necessary, authorization, following the current procedures prescribed in 38 C.F.R. § 3.159. The actions identified herein are consistent with the duties imposed by the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C. §§ 5103, 5103A; 38 C.F.R. § 3.159. However, identification of specific actions requested on remand does not relieve the AOJ of the responsibility to ensure full compliance with the VCAA and its implementing regulations. Hence, in addition to the actions requested above, the AOJ should also undertake any other development and/or notification action deemed warranted prior to adjudicating the remaining claim on appeal. This matter is hereby REMANDED for the following action: 1. Obtain from the Central Texas VA HCS all outstanding records of evaluation and/or treatment of the Veteran, dated since March 2018. Follow the procedures of 38 C.F.R. § 3.159 regarding requesting records from Federal facilities. All records and/or responses received should be associated with the claims file. 2. Send to the Veteran and her representative a letter requesting that the Veteran provide sufficient information concerning, and, if necessary, authorization to enable VA to obtain, any additional evidence pertinent to the remaining claim on appeal that is not currently of record. Specifically request that the Veteran furnish, or furnish appropriate authorization to obtain, all outstanding, pertinent private (non-VA) records. Clearly explain to the Veteran that she has a full one-year period to respond (although VA may decide the claim within the one-year period). 3. If the Veteran responds, assist her in obtaining any additional evidence identified, following the current procedures set forth in 38 C.F.R. § 3.159. All records/responses received should be associated with the claims file. If any records sought are not obtained, notify the Veteran of the records that were not obtained, explain the efforts taken to obtain them, and describe further action to be taken. After all records and/or responses received from each contacted entity have been associated with the claims file, arrange for the Veteran to undergo VA gastrointestinal examination by an appropriate physician. The contents of the entire, electronic claims file, to include a complete copy of this REMAND, must be made available to the designated physician, and the examination report should reflect consideration of the Veteran’s documented medical history and lay assertions. All indicated tests and studies should be accomplished (with all findings made available to the physician prior to the completion of his or her report), and all clinical findings should be reported in detail. The physician should first clearly identify all gastrointestinal disability(ies)—to include GERD—currently present or present at any point pertinent to the current claim (even if now asymptomatic or resolved). Then, with respect to each such diagnosed disability, the physician should provide opinions, consistent with sound medical judgment, as to whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the disability: (a) was caused by the Veteran’s service-connected left knee disability, to include medications taken for such disability; or (b) is or has been aggravated (worsened beyond the natural progression) by the Veteran’s service-connected left knee disability, to include medications taken for such disability. Both causation and aggravation must be addressed. If aggravation is found, the physician should attempt to quantify the additional disability resulting from aggravation, to include identifying (to the extent possible), the baseline level of disability prior to the aggravation. In addressing the above, the physician must consider and discuss all pertinent medical and other objective evidence of record, as well as all lay assertions—to include, the Veteran’s assertions as to in-service events, and the nature, onset and continuity of symptoms. The examiner is advised that the Veteran is competent to report her symptoms and history, and such reports must be specifically acknowledged and considered in formulating the requested opinion. If lay assertions in any regard are discounted, the examiner should clearly so state, and explain why. All examination findings/testing results, along with complete, clearly-stated rationale for the conclusions reached, must be provided. 4. To help avoid future remand, ensure that all requested actions have been accomplished (to the extent possible) in compliance with this REMAND. If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken. See Stegall, supra. 5. After completing the requested actions, and any additional notification and/or development deemed warranted, adjudicate the remaining claim on appeal considering all pertinent evidence (to include all evidence added to the electronic claims file since the last adjudication) and legal authority. JACQUELINE E. MONROE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Rothstein, Associate Counsel