Citation Nr: 20054875 Decision Date: 08/19/20 Archive Date: 08/19/20 DOCKET NO. 13-15 650 DATE: August 19, 2020 REMANDED Entitlement to service connection for low back disability, to include as secondary to service-connected residuals s/p right lateral ankle reconstruction, is remanded. Entitlement to service connection for gastroesophageal reflux disease (GERD), to include as secondary to service-connected disabilities, is remanded. Entitlement to service connection for migraine headaches, to include has secondary to service-connected disabilities, is remanded. REASONS FOR REMAND The Veteran served on active duty from June 1988 to January 1992, with subsequent service in the Army National Guard. In February 2016, the Veteran testified at a videoconference Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. In June 2018, the claims on appeal were remanded for further development. Service Connection for a Low Back Disability With respect to the Veteran’s claim for service connection for a low back disability, for the reasons discussed below the Board finds another remand is warranted for further development. Here, the Veteran contends his current back disability is a result of his service. Specifically, the Veteran contends that his back disability is a result of an in-service motor vehicle accident and due to his in-service assault. He also contends that his back disability may also be secondary to his service-connected ankle disabilities. The Board notes that the Veteran’s VA medical records reflect a diagnosis of intervertebral desiccated disc disease. Thus, he has established a current disability. Also, the Veteran’s service treatment records reflect that on June 18, 1989, the Veteran was treated for trauma to the face after a motor vehicle accident; and, on August 2, 1991, he was treated for trauma after being beaten by a group of men. Thus, the Veteran has established an in-service occurrence. With respect to whether the Veteran’s low back disability is related to his active service and/or secondary to his service-connected disabilities, there are three VA medical opinions of record. In a March 2009 VA medical opinion, the VA examiner opined that the Veteran’s back condition is less likely than not related to his service-connected ankle condition. The VA examiner noted that the degree of lumbar spine disc injury and its location and distant relationship to the Veteran’s ankle condition is at best remote and must be two separate coinciding conditions. The VA examiner noted that the Veteran’s size and weight are major factors in his current back condition. The VA examiner noted that in formulating this opinion careful consideration was given to medical texts. In a March 2013 VA medical opinion, the VA examiner opined that the Veteran’s back condition was less likely than not related to the Veteran’s service. The rationale provided was that the diagnosis and treatment for an acute back injury cannot be identified in the Veteran’s service treatment records and the Veteran’s back condition is not associated with the Veteran’s motor vehicle accident or assault. No further rationale as to the basis of this negative opinion was provided. Additionally, the same VA examiner opined that the Veteran’s back condition was less likely than not secondary to the Veteran’s service-connected disabilities. The VA examiner noted that there is “no clear evidence” from review of orthopedic literature to suggest that an injury to one joint would have any significant impact on another or opposite uninjured joint or limb, unless the injury resulted in a major muscle or nerve damage causing partial or complete paralysis. Thus, the VA examiner concluded that after careful consideration of the medical records and in comparison to the cases noted in orthopedic, physical, therapy, and sports medicine texts, for chronic conditions stemming from an acute injury, it is less likely than not that the Veteran’s back condition is secondary to the Veteran’s ankle condition. In a May 2019 VA medical opinion, the VA examiner opined that the Veteran’s back disability was less likely than not related to his service. The VA examiner noted that there no reports of significant back injury related to the Veteran’s motor vehicle accident or assault during his service. The May 2019 VA examiner noted that he concurs with the March 2013 VA medical opinion that stated that there is no relationship between the Veteran’s back condition and his ankle condition. The May 2019 VA examiner repeated verbatim the March 2013 VA examiner’s rationale. The Board notes that in its June 2018 remand, the Board found that the March 2013 VA examiner’s opinion relied solely on the absence of treatment records, without considering the Veteran’s lay statements of ongoing back pain. Unfortunately, although an addendum opinion was provided in May 2019, the VA examiner again relied solely of the absence of medical records as a basis of the provided opinion. Furthermore, again the May 2019 VA examiner failed to discuss the Veteran’s lay reports of ongoing back pain, which he contends has been ongoing since his time in service, even though this was specifically requested by the Board’s June 2018 remand directives. Therefore, the Board is not satisfied with the May 2019 VA examiner’s opinion, which relies solely on the absence of medical records and that does not in any meaningful way discuss the specifics of the Veteran’s contentions. See Dalton v. Nicholson, 21 Vet. App. 23, 39-40 (2007). Furthermore, with respect to whether the Veteran’s back disability is secondary to his service-connected ankle disability, in the June 2018 Board remand, the Board noted that the March 2013 VA examiner’s opinion was based on a “no clear evidence” standard, which the Board opined is not the proper evidentiary standard. The evidence needed is “at least as likely as not.” However, the May 2019 VA examiner opinion is verbatim the March 2013 VA examiner’s opinion with respect to secondary service connection. Thus, once again, the VA examiner applied an incorrect evidentiary standard. As such, the Board finds the May 2019 VA medical opinion is inadequate. In sum, for the reasons discussed above, the Board finds a remand for an addendum opinion is warranted. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Service Connection for GERD Whether respect to the Veteran’s claim for service connection for GERD, for the reasons discussed below, regrettably the Board finds another remand is warranted for further development. In the present case, the Veteran contends that has experienced GERD since his active service. He also contends that his GERD may have been caused or aggravated by the medication that he takes for his service-connected disabilities. At the onset, the Board notes that the Veteran’s VA medical records reflect a current diagnosis of GERD and that the Veteran’s service treatment records reflect in November 1990, it is noted that the Veteran has a history of mild gastritis. Thus, the Veteran has established a current disability and an in-service occurrence. With respect to whether the Veteran’s GERD is related to his active service and/or secondary to medications for his service-connected disabilities, there are two VA medical opinions of record. In a March 2013 VA medical opinion, the VA examiner opined that the Veteran’s GERD was less likely than not incurred in or caused by the Veteran’s service. The VA examiner explained that some degree of reflux is physiologic. Physiologic reflux episodes typically occur postprandially, are short lived, asymptomatic, and rarely occur during sleep. Pathologic reflux is associated with symptoms or mucosal injury, often including nocturnal episodes. In general terms, GERD is applied to patients with symptoms suggestive of reflux or complications thereof. The risk factors include hiatal hernia, calcium channel blocker use, meperidine use, NSAID use, persistent vomiting, obesity, nitrate use, smoking, and alcohol abuse. The VA examiner noted that while the Veteran uses NSAIDs, these have not been prescribed in sufficient amount to cause chronic GERD. Also, the VA examiner pointed out that the Veteran’s esophagogastroduodenoscopy is normal, which would not be the case in NSAID induced GERD. The VA examiner noted that the Veteran’s body mass index is 42.7, which is considered morbid obesity. Also, the VA examiner noted that anxiety also is not a risk factor for GERD, however obesity is a major risk factor for GERD, which the VA examiner notes is the case for the Veteran. The VA examiner points out that the Veteran was initially diagnosed with GERD in 2005, which is coincided with his continued weight gain. Additionally, the VA examiner opined that the Veteran’s GERD was less likely than not proximately due to or the result of the Veteran’s service-connected disabilities. In a May 2019 VA medical opinion, the VA examiner opined that the Veteran’s GERD was less likely than not related to his service. The VA examiner noted that the Veteran’s service treatment records do not reflect a diagnosis of GERD. The VA examiner noted that the Veteran was not diagnosed with GERD until after discharge in 2005. The VA examiner opined that the Veteran’s GERD is less likely than not proximately due to or aggravated by the medication for the Veteran’s service-connected disabilities. Upon review of these negative nexus opinions, the Board finds that both these opinions are inadequate. Both VA examiners failed to discuss the Veteran’s in-service diagnosis of mild gastritis, as documented in a November 1990 service treatment record. Although the May 2019 VA examiner opined that there was not a diagnosis of GERD until 2005, the VA examiner did not discuss whether the Veteran’s history of mild gastritis during service is considered an early manifestation of, or otherwise related to, the subsequent diagnosis of GERD. Similarly, while the March 2013 VA examiner notes that obesity is a major risk factor for GERD, the VA examiner likewise failed to discuss the Veteran’s in-service diagnosis of gastritis and whether the Veteran’s gastritis was an early manifestation of, or otherwise related to, the Veteran’s subsequent diagnosis of GERD. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). Lastly, the Board notes that both opinions failed to discuss the Veteran’s lay statements about his ongoing stomach problems since his time in service. Consequently, the Board is not satisfied with the examiners’ opinions that do not in any meaningful way discuss the specifics of the Veteran’s contentions. See Dalton v. Nicholson, 21 Vet. App. 23, 39-40 (2007). Service Connection for Migraines With respect to the Veteran’s claim for service connection for migraines, in a June 2018 Board decision, the Board reopened the Veteran’s claim for migraines based upon receipt of new and material evidence and remanded for a medical opinion. For the reasons discussed below, regrettably, the Board finds another remand is warranted for further development. In the present case, the Veteran contends that he has suffered from migraines ever since a 1991 in-service incident, during which he was beaten with two by fours by a group of men. The Veteran’s service treatment records reflect on August 2, 1991, the Veteran was treated after being jumped by five assailants downtown, resulting in injuries to the face and torso. The Veteran was diagnosed with a nasal fracture and an infraorbital rime facture, neither that required any surgical treatment. Also, the Veteran attributes his headaches to an in-service motor vehicle accident. The Veteran’s service treatment records reflect that on June 18, 1989, the Veteran was treated for trauma to the face after a motor vehicle accident. He also contends that his migraines are secondary to his service-connected fractured orbital and residuals of nasal fracture. Here, although a VA examiner provided a new addendum opinion in May 2019 subsequent to the Board’s request, the Board finds that this opinion is not adequate. In the May 2019 VA medical opinion, the VA examiner opined that based on a service treatment record dated January 14, 1989, which noted a history of migraines prior to service and a service treatment record dated on February 2, 1989, which noted the Veteran had a seven-year history of headache disorder, the Veteran’s migraines clearly and unmistakably preexisted service. Furthermore, the VA examiner opined that the Veteran’s migraines were not clearly and unmistakably aggravated by the Veteran’s service. In support of this opinion, the VA examiner noted that subsequent to the 1991 in-service assault, a University of Nebraska Hospital record noted no neurological deficits. Also, in an August 1991 Nebraska Hospital record, it was noted that the Veteran’s symptoms resolved, and his neurological examination was normal. The VA examiner noted that there is nothing in the Veteran’s medical records to support that the Veteran’s headaches are due to in-service injuries or that the Veteran’s migraines were aggravated beyond its natural course or worsened by military service. The VA examiner noted that any increase in the Veteran’s migraine condition was clearly and unmistakably due to the natural progression of the disease. However, the VA examiner failed to discuss the 1989 motor vehicle accident and whether this accident aggravated the Veteran’s preexisting condition. Significantly, the Veteran specifically contends that his motor vehicle accident aggravated his migraine headaches. Thus, without discussion of the 1989 motor vehicle accident, the Board is unable to ascertain whether the VA examiner considered this documented in-service incident in formulating the opinion that the Veteran’s preexisting condition was not aggravated during service. As such, a remand is required in which the VA examiner is asked to discuss the 1989 motor vehicle accident and whether this incident aggravated the Veteran’s preexisting condition. Additionally, although the VA examiner opined that it is less likely than not that the Veteran’s migraines are proximately due to or aggravated beyond their natural progression by the Veteran’s service-connected residuals facture and/or left orbital fracture, the Board finds this opinion is inadequate. In providing for a negative nexus opinion, the examiner provided a single conclusory sentence, without a rationale as to the basis of that opinion. As any opinion, to be adequate, it “must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions.” Thus, the Board finds that an addendum medical opinion as to whether the Veteran’s migraine headaches are secondary to his service-connected residuals facture and/or left orbital fracture is warranted. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). The matters are REMANDED for the following action: 1. Obtain an addendum opinion from an appropriate clinician, preferably an orthopedic specialist if available, regarding whether it is at least as likely as not (50 percent probability or more) that the Veteran’s back disability began in service, was caused by service, or is otherwise related to service to include whether related to his in-service assault and/or in-service motor vehicle accident. If the above opinion is negative, then the examiner is asked to provide an opinion as to whether it is at least as likely as not (50 percent probability or more) that the Veteran’s back disability was caused or aggravated beyond its natural progression by his service-connected ankle disabilities. Aggravation is defined as a worsening beyond the natural progression of the disability. The examiner should discuss the Veteran’s lay statements regarding the history and chronicity of symptomatology, to include the Veteran’s ongoing reports of a back pain. S/he should outline that history in the report. The absence of evidence of treatment for symptoms related to the disability in the Veteran’s available service treatment records and post-service records cannot, standing alone, serve as the basis for a negative opinion. 2. Obtain an addendum opinion from an appropriate clinician, preferably a gastroenterologist if available, regarding whether it is at least as likely as not (50 percent probability or more) that the Veteran’s GERD began in service, was caused by service, or is otherwise related to his active service. The VA examiner must discuss the Veteran’s November 23, 1990 service treatment record that reflects a history of mild gastritis. Specifically, to include whether the Veteran’s history of mild gastritis was an early manifestation of, or related to, the Veteran’s current diagnosis of GERD. The examiner must discuss the Veteran’s lay statements regarding the history and chronicity of symptomatology, to include the Veteran’s ongoing reports of a stomach problems. If the above opinion is negative, then the examiner is asked to provide an opinion as to whether it is at least as likely as not (50 percent probability or more) that the Veteran’s GERD is proximately due or aggravated beyond its natural progression by the medication prescribed for the Veteran’s service-connected disabilities. Aggravation is defined as a worsening beyond the natural progression of the disability. A complete rationale must be offered for any opinion offered. 3. Obtain an addendum opinion from an appropriate clinician, preferably a neurologist if available, regarding whether the Veteran’s migraines clearly and unmistakably (undebatable) preexisted his active service. If the examiner finds the Veteran’s migraines did clearly and unmistakably preexist service, the examiner must opine as to whether the migraines were clearly and unmistakably not aggravated by service. In other words, was any increase clearly and unmistakably due to the natural progression of the disability. The VA examiner must discuss the June 18, 1989 Veteran’s service treatment record that reflects that the Veteran was treated for trauma to the face after a motor vehicle accident as well as the August 2, 1991 service treatment record with respect to the Veteran’s assault. If the examiner finds that the migraines either did not clearly and unmistakably preexist service, or were not clearly and unmistakably aggravated by service, the examiner must opine as to whether it is at least as likely as not (50 percent probability or more) that the migraines began in service, was caused by service, or is otherwise related are related to service. If it is not at least as likely as not that the Veteran’s migraines were incurred in-service, he or should render an opinion regarding whether it is at least is likely as not (50 percent probability or more) that the Veteran’s migraines are proximately due or aggravated beyond their natural progression by his service-connected residuals of nasal fracture and/or left orbital fracture. (Continued on the next page)   Aggravation is defined as a worsening beyond the natural progression of the disability. A complete rationale must be provided for any opinion offered. ROBERT C. SCHARNBERGER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Abdelbary, 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.