Citation Nr: 21064562 Decision Date: 10/20/21 Archive Date: 10/20/21 DOCKET NO. 06-04 300 DATE: October 20, 2021 REMANDED Entitlement to service connection for a gastrointestinal disability, to include gastroesophageal reflux disease (GERD), is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from September 1967 to September 1970. During his period of service, he earned the Army Commendation Medal, National Defense Service Medal, Vietnam Service Medal, Bronze Star Medal, Vietnam Campaign Medal with 60 Device, Expert Badge (M-14), and Expert Badge (M-16). This matter has an extensive procedural history, which has been set forth in prior Board decisions; thus, the Board will not recite it in its entirety here. Most recently, this matter was before the Board in November 2020, at which time it was remanded for further development. Unfortunately, the instructions of the most recent remand were not followed, and the resulting opinion is inadequate and duplicative of the existing record. Stegall v. West, 11 Vet. App. 268 (1998). The Board sincerely regrets the additional delay but has no choice but to remand the matter again for the Agency of Original Jurisdiction (AOJ) to obtain an adequate expert opinion which complies with the Board's instructions, as the Board finds that no VA medical opinions of record are fully adequate in determining entitlement to service connection for a gastrointestinal disability, to include GERD, in this appeal. See 38 U.S.C. § 5103A(d); Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (the Board may not assert its own medical opinion in making its decisions); see also Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (the VA must provide an adequate examination whenever the VA undertakes to provide an examination). Entitlement to service connection for a gastrointestinal disability, to include GERD The Veteran contends that he is entitled to service connection for a gastrointestinal disability, to include GERD, also to include as due to in-service exposure to asbestos and/or herbicide agents. Pursuant to the November 2020 Board remand, a VA medical opinion was obtained in May 2021. The physician opined that it was less likely than not that the Veteran's GERD was incurred in or caused by service. In support of the opinion, while the physician acknowledges documentation of indigestion and the use of Maalox in the service treatment records, he notes that there is no mention of GERD. He added that GERD was not documented until 30 or 40 years later. The physician further noted the Veteran's separation examination does not mention in-service GERD. Moreover, the physician stated that there is no relationship between GERD with asbestos and/or Agent Orange exposure, as it was not supported in the literature or by VA. The physician explained that reflux is caused by low pressure in the lower esophagus and has many etiologies, including obesity, hiatal hernia, connective tissue disease, and delayed stomach emptying and is also associated with smoking, eating large and fatty meals, alcohol, coffee, and use of non-steroidal anti-inflammatory drugs (NSAIDs). The physician noted that none of these conditions appeared to be present in the Veteran. An addendum medical opinion was obtained in July 2021. The physician stated that all available records and previous exams were reviewed in providing the May 2021 opinion. The available service treatment records mentioned indigestion and contained a single mention of using prescribed Maalox in service; however, GERD symptoms were not indicated until 30 or 40 years later. Further, the Veteran's separation examination does not mention GERD. Therefore, continuity of symptomatology nor chronicity of care could be established. Unfortunately, the Board finds that this opinion does not substantially comply with the Board's November 2020 remand directives. See Stegall, supra; see also Barr, supra. In this regard, the Board finds that while the VA examiner specifically noted obesity, alcohol use, and tobacco use as risk factors for the development of GERD, he indicated none of these conditions appeared to be present in the Veteran. This finding is inconsistent with the medical evidence of record, which notes the Veteran's history of obesity, alcohol use, and tobacco use. See Reonal v. Brown, 5 Vet. App. 458, 460-61 (1993) (holding that medical opinions based on an inaccurate factual premise are not probative); see also VA Examination, dated September 1, 2012; see also C&P Exam, dated October 26, 2016. Moreover, the Veteran has reported that he experienced "stomach problems" during service which required a period of hospitalization. He contends that his symptoms continue to persist. See Correspondence, received April 1, 2010. The Board notes that the Veteran has used the term "stomach pain" to encompass gastrointestinal symptoms as it relates to his claims of entitlement to service connection for residuals of colorectal cancer and a gastrointestinal disability, to include GERD. See Id.; see also VA Form 21-0820, Report of General Information, received December 5, 2011; see also Appellate Brief, received June 29, 2016. Given the procedural background and complexity of this matter, and in order to construe his claim of entitlement to service connection for a gastrointestinal disability, to include GERD, broadly, the Board will request an opinion regarding secondary service connection as due to resection of large intestine, for which service-connection was awarded by the March 2017 Board decision. In light of the foregoing, the Veteran's claim must be remanded for a VA opinion that considers direct and secondary theories of entitlement. The matter is REMANDED for the following action: 1. Obtain a medical opinion from a gastroenterologist who has not provided a prior opinion in this case to determine the nature and etiology of the Veteran's diagnosed gastrointestinal disability, to include GERD. If a gastroenterologist is unavailable, the RO should obtain an opinion from an appropriate physician. It is up the physician to determine whether an examination is necessary in order to provide the requested opinion. (a.) The examiner must opine whether it is at least as likely as not (50 percent probability or greater) that the Veteran's gastrointestinal disability, to include GERD, (1) had its onset in service or is otherwise etiologically related to active service, to include as due to in-service exposure to Agent Orange and/or asbestos; (2) was caused by his service-connected resection of large intestine; or (3) was aggravated beyond its natural progression by his service-connected resection of large intestine. In-service exposure to Agent Orange and asbestos has been conceded. The examiner is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as against it. A. In formulating the opinion, the examiner must consider and comment on the Veteran's reports of in-service heartburn symptoms and hospitalization, along with any other relevant medical history, clinical findings, medical knowledge and literature, etc. The Veteran is competent to report his recollections of symptoms since service, and such reports must be specifically acknowledged and considered in formulating any opinion. If the examiner rejects the Veteran's reports regarding current or past symptoms, the examiner must provide a reason for doing so. B. The examiner is advised of the following: i. the lack of medical treatment records cannot serve as the sole basis for a negative finding; ii. the fact that GERD is not on the list of diseases presumed to be associated with exposure to Agent Orange should not be the basis for a negative opinion; iii. it is not sufficient to cite passages from medical literature without explaining how the medical literature is relevant in the instant case, i.e., the VA examiner must identify the medical literature relied upon and explain how the medical literature supports the underlying opinion by applying the content of the medical literature to the facts, including medical and lay evidence, in instant case. To rely exclusively on the above (i) (iii) alone, or in conjunction with each other will render the opinion inadequate for VA adjudication purposes. If an opinion cannot be expressed without resorting to speculation, the examiner should so indicate and discuss why an opinion is not possible, to include whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. 2. Thereafter, the AOJ must review the claims file to ensure that the foregoing requested development has been completed. In particular, review the requested medical opinion to ensure that it is responsive to and in compliance with the directives of this remand. If the opinion is deficient in any manner, implement corrective procedures. See Stegall v. West, 11 Vet. App. 268 (1998). A. S. CARACCIOLO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Tracy O. Joseph, 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.