Citation Nr: 20006293 Decision Date: 01/24/20 Archive Date: 01/24/20 DOCKET NO. 11-29 170 DATE: January 24, 2020 REMANDED Entitlement to service connection for a gastrointestinal disability, to include a hiatal hernia, also claimed as an over-sized stomach and gastroesophageal reflux disease (GERD), for accrued benefits purposes, is remanded. REASONS FOR REMAND The Veteran served on active duty from January 1958 to December 1959. The Veteran passed away in July 2015 and the Veteran’s son, the Appellant, was properly substituted as the claimant in the matter. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a March 2010 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). The Board notes that the March 2010 rating decision included a denial of the issues of entitlement to service connection for shortness of breath, and a claim to reopen a claim for entitlement to service connection for bilateral hearing loss. The Board denied these issues in a September 2013 Board decision. Consequently, the Board finds that the issues of entitlement to service connection for shortness of breath, and a claim to reopen a claim for entitlement to service connection for bilateral hearing loss are no longer before the Board. The Board acknowledges that the Appellant indicated in a June 2019 Correspondence that he desired to opt-in to the Rapid Appeals Modernization Program (RAMP). However, as of the present date, a completed RAMP opt-in election form has not been received. Accordingly, the Board will undertake appellate review of the case. The Board notes the Veteran was previously scheduled for a hearing with a Veterans Law Judge in May 2013 but failed to appear. Good cause has not been asserted as to the failure to appear, and, as of the present date, a request to reschedule the hearing, has not been received. As such, the request is considered withdrawn. See 38 C.F.R. § 20.704(d). Entitlement to service connection for a gastrointestinal disability, to include a hiatal hernia, also claimed as an over-sized stomach and gastroesophageal reflux disease (GERD), for accrued benefits purposes, is remanded. This matter was previously before the Board in September 2013. The Board reopened the Appellant’s claim for entitlement to service connection for a hiatal hernia, claimed as an over-sized stomach and GERD, for accrued benefits purposes, and remanded the appellant’s appeal to obtain a VA examination. See September 2013 Board Decision. The Veteran was afforded a VA examination in November 2013. However, the VA examiner determined that a second test, a barium swallow and UGI, was needed to evaluate the Veteran’s foregut anatomy and stated that once the testing was done, a final report could be made. See November 2013 VA examination. The Veteran passed away in July 2015 and the Veteran’s son, the Appellant, was properly substituted as the claimant in the matter. See June 2019 Supplemental Statement of the Case (SSOC). The Appellant indicated that the Veteran was unable to have the additional testing done due to a heart attack, dementia and Alzheimer’s. See July 2019 Correspondence. The Board finds that the November 2013 VA examination is inadequate for decision making purposes and did not substantially comply with the previous Board remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). When VA provides the veteran with an examination in a service connection claim, the examination must be adequate. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). For a medical opinion to be adequate, it must be: (1) based upon sufficient facts or data; (2) be the product of reliable principles and methods; and (3) be the result of principles and methods reliably applied to the facts. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302 (2008). The Veteran asserted that he had surgery on his hiatal hernia prior to entering service that was aggravated during service. See November 2013 VA examination. The VA examiner opined that it was more likely than not that the Veteran underwent a repair of a hiatal hernia and stated that there was no evidence of the Veteran ever having a ventral hernia. Id. However, private medical treatment records received in September 1990 show that the Veteran had a pre- and post-operative diagnosis of ventral hernia, and an operation to repair the same in February 1957, prior to entering service. Therefore, the VA examiner’s opinion is inadequate because it is not based on an accurate factual premise. Additionally, the record does not show that the Veteran was scheduled for an additional examination prior to the Veteran passing away. As of the present date, a VA examiner has not yet provided an opinion regarding the nature and etiology of any of the Veteran’s claimed stomach disorders, to include hiatal hernia, an over-sized stomach, GERD, or any stomach disorder caused by aggravation of the ventral hernia diagnosed in February 1957, as requested in the Board’s September 2013 remand directives. Accordingly, the Board finds that the matter must be remanded again for an addendum medical opinion. If the examiner cannot render an opinion, he or she should provide a detailed rationale explaining that determination. The matters are REMANDED for the following action: 1. Obtain an addendum opinion from an appropriate clinician. The claims file must be made available to and reviewed by the examiner. After a review of the claims file, the examiner should respond to the following: (a.) Provide a diagnosis for each gastrointestinal disability/stomach disorder(s) demonstrated of record during, or proximate to, the appeal. (b.) The examiner must provide an opinion as to whether it is at least as likely as not (i.e., 50 percent probability or more) that any diagnosed gastrointestinal disability/stomach disorder, to include hiatal hernia, over-sized stomach and/or GERD, had its onset in, or is otherwise related to, the Veteran’s active duty service; and, if not, (c.) The examiner must provide an opinion as to whether it is at least as likely as not (i.e., 50 percent probability or more) that any pre-existing gastrointestinal disability/stomach disorder, to include a ventral hernia, was aggravated (worsened beyond the natural progression) by the Veteran’s active service. If aggravation is found, the examiner should attempt to quantify the extent of additional disability resulting from aggravation, to include by identifying (to the extent possible), the baseline level of disability prior to aggravation. In rendering the requested opinions, the examiner must consider and discuss all relevant medical evidence, and all lay assertions as to the nature, onset, and continuity of symptoms of the claimed disabilities. The examiner should provide a detailed rationale for all 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 and state whether the inability to provide the required opinions is based on lack of knowledge among the medical community at large. 2. After completion of the above, readjudicate the claim for entitlement to service connection for a gastrointestinal disability, to include a hiatal hernia, also claimed as an over-sized stomach and GERD, for accrued benefits purposes. If the benefit sought is not granted, then the Appellant should be furnished with a Supplemental Statement of the Case and afforded an opportunity to respond before the record is returned to the Board for further review. The Appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369, 372 (1999). U. R. POWELL Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. P. Moore, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.