Citation Nr: 18161244 Decision Date: 12/31/18 Archive Date: 12/31/18 DOCKET NO. 14-38 087 DATE: December 31, 2018 REMANDED Entitlement to service connection for a gallbladder condition is remanded. Entitlement to service connection for hepatitis C is remanded. Entitlement to service connection for a liver disease, to include as secondary to hepatitis C, is remanded. Entitlement to service connection for a stomach disorder is remanded. INTRODUCTION The Veteran served on active duty from March 1956 to October 1957. The issue of service connection for a gallbladder condition was previously before the Board in October 2017. On that occasion, the Board acknowledged the issues of entitlement to service connection for a stomach disorder, liver disease, and hepatitis C had been perfected; nevertheless, as they had not yet been certified to the Board, the Board did not accept jurisdiction over those issues at that time. The Board, however, remanded the issue of entitlement to service connection for a gallbladder condition for further development. The issue is now again before the Board. Since the October 2017 Board remand, the record does not reflect that the appealed claims for entitlement to service connection for a stomach disorder, liver disease, and hepatitis C have been certified to the Board. Although not certified, because an appeal has been perfected for each of these claims and the Agency of Original Jurisdiction (AOJ) has not indicated that it is undergoing any further development of the claims, the Board has properly taken jurisdiction of these claims. Thus, the issues have been recharacterized accordingly on the title page to include all of the Veteran’s appealed claims. In July 2017, the Veteran testified at a video conference hearing before the undersigned Veterans Law Judge. The testimony was limited to the issue of service connection for a gallbladder condition. A transcript of the hearing is of record. REASONS FOR REMAND While the Board regrets the delay, additional development is required before the Veteran’s claims are decided. The Board notes that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). To be considered adequate, a medical examination report must contain not only clear conclusions and supporting data, but also a reasoned medical explanation connecting the two. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). In addition, a medical examiner is not free to simply ignore a veteran’s lay statements recounting symptoms or events and base his or her opinion that there is no relationship to service on the absence of in-service corroborating medical records. Dalton v. Nicholson, 21 Vet. App. 23 (2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must weigh against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. 1. Entitlement to service connection for a gallbladder condition A remand by the Board confers upon the claimant, 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 compliance with the Board’s October 2017 remand, the Veteran was afforded a VA gallbladder examination in December 2017. However, the Board finds the medical opinion provided failed to substantially comply with the Board's remand instructions. Specifically, the examiner wholly failed to address the Veteran's in-service treatment for stomach pain from April 1956 to October 1956, as well as the in-service diagnoses of irritable or nervous stomach and psychogenic abdomen. Rather, the examiner focused exclusively on the Veteran's April 18, 1957, treatment note, which shows a probable diagnosis of biliary colic. In this respect, the examiner opined that it was “less likely than not that the one entry suspecting biliary colic would be related to the gallstones note 40 plus years later, given the lack of documentation between those periods of time.” In doing so, the examiner ignored an April 20, 1957 in-service treatment note that reflects the Veteran had been experiencing a suspected biliary pain intermittently for the previous six months. Further, the examiner disregarded the Veteran’s reports of ongoing abdominal pain which date to 1956. The Board finds the December 2017 VA examiner failed to address the questions posited in the Board’s October 2017 remand, and as such, substantial compliance has not been achieved. Moreover, the examiner failed to provide an adequate rationale for the proffered opinions and apparently based his negative nexus opinion on the absence of corroborating medical records. Thus, a remand is warranted to obtain an adequate VA examination and opinion. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); see also Dalton v. Nicholson, 21 Vet. App. 23 (2007); Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). 2. Entitlement to service connection for hepatitis C The Veteran seeks service connection for hepatitis C, which he contends originated in service. Specifically, the Veteran alleges he acquired hepatitis C while eating at a restaurant during his service in the Philippines. Alternatively, he stated that he got a tattoo on his arm during service, which could also be a cause of his hepatitis C. In denying service connection, the AOJ stated that the Veteran’s Service Treatment Records (STRs) were negative for reports, treatment, or diagnosis of hepatitis C, noting that the Veteran was diagnosed with probable hepatitis C in May 1998. In this regard, the Board observes the Centers for Disease Control and Prevention (CDC) indicates the hepatitis C virus was discovered in 1989, recommendations for the prevention of hepatitis C infection and testing were issued by the CDC in 1998. See Hepatitis C: 25 Years of Discovery, Centers for Disease Control and Prevention, https://www.cdc.gov/knowmorehepatitis/timeline.htm, last visited Dec. 12, 2018). In a letter dated August 2000, a private physician stated that the Veteran had chronic hepatitis C. Based on a newspaper article about hepatitis among Vietnam Veterans, the physician opined it was possible that the Veteran could have contracted Hepatitis C during his tour of duty in Vietnam. The physician, however, did not provide a rationale for that opinion and did not express whether the newspaper article was based on scientific data or medical evidence. The Board acknowledges a February 1999 VA examiner stated that the Veteran had a history of IV drug abuse, which he opined was the presumable cause of the Veteran’s hepatitis C. The Board finds this opinion to be inadequate for adjudication purposes, as the examiner failed to provide an explanation as to how or why he came to this conclusion. Further, the Veteran reported additional in-service events and illness, as described above, which were not addressed by the February 1999 VA examiner. In light of the foregoing, the Board finds that an additional VA examination is necessary. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007); Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). 3. Entitlement to service connection for a liver disease, to include as secondary to hepatitis C Because a decision on the remanded issue of entitlement to service connection for hepatitis C could significantly impact a decision on the issue of entitlement to service connection for a liver disease, the issues are inextricably intertwined. See Harris v. Derwinski, 1 Vet. App. 180 (1991) (finding that where a decision on one issue would have a “significant impact” upon another, and that impact, in turn, could render any review of the decision on the other claim meaningless and a waste of appellate resources, the two claims are inextricably intertwined). As such, the claims for service connection for a liver disease must be remanded as well. 4. Entitlement to service connection for a stomach disorder The Veteran seeks service connection for a stomach disorder, which he contends originated in service and continues to the present. The Veteran’s STRs reflect he was treated on multiple occasions for stomach pain from April 1956 to April 1957 and was diagnosed with irritable or nervous stomach and psychogenic abdomen. The Veteran underwent a VA examination in February 1999. On that occasion, the examiner diagnosed gastroesophageal reflux disease (GERD) and noted the Veteran had a history of inguinal hernia and peritoneal tuberculosis. However, the Board finds the February 1999 examination report is inadequate for adjudication purposes, as the examiner did not opine as to whether the Veteran’s current stomach disorder was related to his active military service, notably his in-service treatment for stomach pain. Accordingly, the Board finds that an additional VA examination is required to address the nature and etiology of the Veteran’s stomach disorder. The matters are REMANDED for the following action: 1. Undertake appropriate development to obtain any outstanding records pertinent to the Veteran’s claims including any recent or additional treatment records related to the claimed disabilities. If any requested records are not available, the file should be annotated to reflect such and the Veteran notified in accordance with 38 C.F.R. § 3.159(e). 2. Then, afford the Veteran a VA examination by a clinician with sufficient expertise to diagnose and determine the nature and etiology of the Veteran’s claimed gallbladder condition, hepatitis C, and stomach disorder. All pertinent evidence of record must be made available to and reviewed by the examiner. Any required studies should be performed, and all clinical findings should be reported in detail. Based on a review of the evidence of record, lay statements, and examination results, the examiner should state an opinion with respect to: • Whether any diagnosed gallbladder condition was at least as likely as not (a 50 percent probability or greater) incurred in service, or is otherwise etiologically related to his active service, to specifically include as a result of his symptoms of stomach and biliary pain during service. o As noted in the October 2017 Board Remand, the examiner must provide a complete rationale for all proffered opinions, with consideration of the in-service treatment for abdominal pain in1956 and1957, and the diagnosis of irritable or nervous stomach and psychogenic abdomen reported in the Veteran’s STRs. • Whether the Veteran’s hepatitis C was at least as likely as not (a 50 percent probability or greater) incurred in service, or is otherwise etiologically related to his active service, to specifically include as a result of eating at a restaurant in the Philippines or being tattooed during service. o The examiner should also specifically comment on the August 2000 statement from a private physician as well as the February 1999 VA opinion. • Whether any diagnosed stomach disorder was at least as likely as not (a 50 percent probability or greater) incurred in service, or is otherwise etiologically related to his active service, to specifically include as a result of his in-service diagnoses of irritable or nervous stomach and psychogenic abdomen. For the purposes of these opinions, the examiner should note that the Veteran is competent to attest to factual matters of which he had first-hand knowledge, including events and symptoms. If there is a medical basis to support or doubt the history provided by the veteran, the examiner should provide a fully reasoned explanation. The examiner must provide a complete rationale for all proffered opinions. If the examiner cannot provide the required opinions without resorting to speculation, he or she shall provide a complete explanation as to why that is the case. Further, the examiner must state whether the inability to provide the required opinions is based on a personal limitation or on a lack of knowledge among the medical community at large. (Continued on the next page)   3. After the above development, and any additionally indicated development, has been completed, readjudicate the issues on appeal, including the inextricably intertwined issue of entitlement to service connection for a liver disease. If the benefits sought are not granted to the Veteran’s satisfaction, send the Veteran and his representative a Supplemental Statement of the Case and provide an opportunity to respond. Thereafter, if necessary, the case should be returned to the Board for further appellate action. T. REYNOLDS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD C. Martinez, Associate Counsel