Citation Nr: 21061284 Decision Date: 10/01/21 Archive Date: 10/01/21 DOCKET NO. 09-38 904 DATE: October 1, 2021 REMANDED Entitlement to service connection for hypertension, to include as due to a service-connected disability, is remanded. Entitlement to service connection for nausea (now claimed as gastroesophageal reflux disease), to include as due to a service-connected disability, is remanded. Entitlement to service connection for muscle tension headaches is remanded. REASONS FOR REMAND The Veteran had active service from December 1988 to December 1992. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2010 rating decision of a VA Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge at a December 2012 hearing. In October 2019, this case was remanded by the Board for compliance with earlier remand directives. In a June 2020 decision, the Board remanded the claim for service connection for muscle tension headaches. Unfortunately, the RO did not ensure the July 2020 VA medical opinion substantially complied with the June 2020 remand directives, and the claim must be remanded once more. Accordingly, an addendum opinion is necessary to ensure substantial compliance with the previous remand directives. Stegall v. West, 11 Vet. App. 268, 271 (1998). Additionally, in the June 2020 decision, the Board denied the Veteran's claims for service connection for hypertension and nausea. Subsequently, the Veteran appealed the denial of his claims to the United States Court of Appeals for Veterans Claims (Court/CAVC). In a May 2021 decision, the Court granted the parties' Joint Motion for Partial Remand (JMPR), vacated the Board's June 2020 decision, and remanded the matters to the Board for action consistent with the ruling. The claims are now once again before the Board. 1. and 2. Entitlement to service connection for hypertension and nausea/GERD, are remanded. The Veteran asserts that his current hypertension and nausea, now claimed as GERD, arose during or as a result of his active service, including as secondary to a service-connected disability. In the May 2021 JMPR, the parties agreed that the Board erred, in part, in relying on the December 2019 VA medical opinions. They stated that these opinions were inadequate and failed to comply with the Board's October 2019 remand directives. First, the examiner repeated the same opinion they offered in their December 2017 opinion, including erroneously stating that the Veteran "separated from service in 1982" when he left service in 1972. Second, despite specifically being asked to opine as to whether the Veteran's service-connected major depressive disorder (MDD) aggravated his nausea, the examiner provided an opinion that the theory was impossible to understand and had absolutely nothing to do with MDD. Therefore, as the December 2019 opinions failed to comply with the prior remand orders and are still inadequate, remand is warranted. Stegall v. West, 11 Vet. App. 268, 271 (1998). 3. Entitlement to service connection for muscle tension headaches is remanded. The Veteran asserts that his headaches began during or as a result of his active service. In the Board's June 2020 decision, the Board noted that in a December 2019 VA medical opinion, the VA examiner opined that the Veteran's headache condition clearly and unmistakably preexisted service, but they did not state whether the condition was clearly and unmistakably not aggravated by service. In the July 2020 VA medical opinion, the examiner stated that the claimed condition clearly and unmistakably preexisted service, but then stated that the condition was not aggravated by service, without mentioning whether that was clear and unmistakable. Fulfilling this second prong of the "clear and unmistakable" standard was the purpose of the prior remand. Accordingly, an addendum opinion is necessary to ensure substantial compliance with the previous remand directives. Stegall v. West, 11 Vet. App. 268, 271 (1998). The matters are REMANDED for the following action: 1. Obtain an addendum VA medical opinion from a qualified examiner. The following opinions must be provided and must be supported by a detailed rationale: (a) Is it at least as likely as not (a 50 percent or greater probability) that the Veteran's service-connected major depressive disorder aggravated his claimed upper gastrointestinal condition (nausea and gastroesophageal reflux disease)? (b) Is it at least as likely as not that the claimed hypertension is etiologically related to service, noting that the Veteran was separated from service in 1992? The Board must firmly stress that the secondary service connection opinions requested here concern aggravation, the worsening of one disorder by another disorder, and not direct causation. Additionally, the Board notes that the Veteran's service treatment records are missing; therefore, the examiner is asked to carefully consider and discuss the evidence of record, including the Veteran's lay statements, and to supply well-reasoned bases for their conclusions. In particular, the examiner is asked to consider and address the effects, if any, of the stab wound to the Veteran's liver and the subsequent exploratory surgery that occurred in July 1991. The Agency of Original Jurisdiction must review the newly obtained opinions and ensure that they conform to the Board's specifications before readjudicating these claims. 2. Obtain an addendum medical opinion from the February 2019 VA examiner (or, if unavailable, from a medical professional with appropriate expertise) regarding the Veteran's claimed muscle tension headaches. The most up-to-date Disability Benefits Questionnaire (DBQ) should be utilized. A complete rationale should be given for all opinions and conclusions expressed. Additionally, the Board notes that the Veteran's service treatment records are missing; therefore, the examiner is asked to carefully consider and discuss the evidence of record, including the Veteran's lay statements, and to supply well-reasoned bases for their conclusions. The examiner is asked to address the following questions: (a) Did the Veteran's claimed muscle tension headache condition clearly and unmistakably preexist service? (b) If so, was the Veteran's claimed muscle tension headache condition clearly and unmistakably NOT aggravated (worsened beyond its natural progression) by the Veteran's active service? (c) Is it at least as likely as not that the Veteran's claimed hypertension aggravated his claimed muscle tension headaches? The Board notes that the examiner's findings must address whether the condition clearly and unmistakably preexisted service and whether it clearly and unmistakably was not aggravated by service. Simply finding that the condition was not aggravated or was less likely than not aggravated will result in the opinion being found inadequate and the case being remanded again. A. C. MACKENZIE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Hicks, 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.