Citation Nr: A21017204 Decision Date: 10/25/21 Archive Date: 10/25/21 DOCKET NO. 191023-65029 DATE: October 25, 2021 ORDER Service connection for lumbar spondylosis, as secondary to the service-connected residuals of a right inguinal hernia, is granted. Service connection for varicose veins of the pelvic region, as secondary to the service-connected residuals of a right inguinal hernia, is granted. REMANDED Entitlement to service connection for reflux esophagitis, to include as secondary to the service-connected residuals of a right inguinal hernia, is remanded. FINDING OF FACT The evidence is at least in equipoise as to whether the Veteran's lumbar spondylosis and varicose veins in the pelvic region are, at least in part, secondary to his service-connected residuals of a right inguinal hernia disability. CONCLUSIONS OF LAW 1. The criteria for secondary service connection for lumbar spondylosis are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 2. The criteria for secondary service connection for varicose veins of the pelvic region are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSIONS The Veteran served on active duty from July 1973 to July 1977. This matter comes before the Board of Veterans' Appeals (Board) from a November 2018 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran filed a Notice of Disagreement in January 2019. Thereafter, the agency of original jurisdiction (AOJ) issued a Statement of the Case (SOC) in September 2019. The Veteran opted into the modernized review system and elected the Evidence Submission Lane in his timely November 2019 VA Form 10182 (Decision Review Request). Accordingly, the Board will consider the evidence of record at the time of the September 2019 SOC, and evidence submitted within 90 days of the November 25, 2019 election of the Evidence Submission lane. The Board notes that the Veteran's claim for varicose veins was characterized by the RO as "right varicose veins, pelvic region" and "left varicose veins, pelvic region." However, the Board notes that the Veteran's original claim for VA compensation benefits listed the issues as varicose veins of the "pelvic region." The medical evidence also shows that the Veteran has been diagnosed with varicose veins in the pelvic region. As such, the issue has been recharacterized as service connection for varicose veins of the pelvic region. Service Connection Laws and Regulations Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303 (a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). Only chronic diseases listed under 38 C.F.R. § 3.309 (a) are entitled to the presumptive service connection provisions of 38 C.F.R. § 3.303 (b). Walker v. Shinseki, 708 F.3d 1331 Fed. Cir. 2013). Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for a disability that is proximately due to or the result of a service-connected disability. See 38 C.F.R. § 3.310 (a). When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. See 38 C.F.R. § 3.310 (a); Harder v. Brown, 5 Vet. App. 183, 187 (1993). The controlling regulation has been interpreted to permit a grant of service connection not only for disability caused by a service-connected disability, but for the degree of disability resulting from aggravation of a non-service-connected disability by a service-connected disability. See Allen v. Brown, 7 Vet. App. 439, 448 (1995). In rendering a decision on appeal the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57(1990). Generally, the degree of probative value which may be attributed to a medical opinion issued by a VA or private treatment provider takes into account such factors as its thoroughness and degree of detail, and whether there was review of the claims file. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000). Also significant is whether the examining medical provider had a sufficiently clear and well-reasoned rationale, as well as a basis in objective supporting clinical data. See Bloom v. West, 12 Vet. App. 185, 187 (1999); Hernandez-Toyens v. West, 11 Vet. App. 379, 382(1998); see also Claiborne v. Nicholson, 19 Vet. App. 181, 186 (2005) (rejecting medical opinions that did not indicate whether the physicians actually examined the veteran, did not provide the extent of any examination, and did not provide any supporting clinical data). The Court has held that a bare conclusion, even one reached by a health care professional, is not probative without a factual predicate in the record. Miller v. West, 11 Vet. App. 345, 348 (1998). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. Lumbar Spondylosis and Varicose Veins Initially, the Board finds that the Veteran has been diagnosed with lumbar spondylosis. See August 2018 VA spine examination report. He has also been diagnosed with varicose veins of the pelvic region. See August 2018 VA examination report. Next, the Veteran has been awarded service connection for various disabilities, including post-operative right inguinal hernia residuals. The Board finds that the evidence is at least in equipoise as to whether the Veteran's lumbar spondylosis and varicose vein disorders are, at least in part, secondary to the service-connected inguinal hernia residuals. In support of his claim, the Veteran submitted a November 2019 medical opinion from Dr. Barber, an internist with training and experience in physiology, pharmacology, and experimental therapeutics. Dr. Barber indicated that the Veteran's medical records and relevant medical literature had been reviewed prior to rendering the opinion. Dr. Barber acknowledged a VA examination report in August 2018, which found that the Veteran's spine disorder was not related to his service-connected inguinal hernia disability as there was "no scientific basis for it." Dr. Barber disagreed with the VA examiner's opinion. Specifically, it was noted that symptoms of an inguinal hernia could include a direct bulge on either side of the pubic bone which disappeared on lying down and pain/discomfort in the groin area. These symptoms were exacerbated by lifting, bending, straining, or coughing. Any action that included contraction of the abdominal muscles could trigger pain and, consequently, the body would avoid using these muscles. According to Dr. Barber, this led to a faulty posture, including distance of the symmetric distribution of compressive and tensile forces acting on both sides of the body axis and emergence of harmful shear forces. The torques of antigravity muscles also changed unfavorably. This was noted to possibly lead to the development of a repetitive strain syndrome, stenosis of intervertebral foramina, compression of nerve roots, and back pain. The development of back pain was significantly affected by the performance of various work-related tasks in non-ergonomic positions. Based on these findings (and the referenced medical literature in the report), Dr. Barber opined that it was "likely" that the Veteran suffered from an altered posture leading to asymmetrical distributive load on his lower back. Repetitive altered postured in the Veteran was "most likely" the cause of his lower back pain. As it pertains to the Veteran's varicose veins, Dr. Barber noted that his varicose veins were noted by the surgeon during the Veteran's consult for the hernia repair. It was further noted that the varicosities were consistent within the area of his inguinal hernia. Dr. Barber indicated that, although varicose veins are commonly located in the legs or feet, they could also be seen in the groin. Suprapubic crossover collaterals noted in an inguinal hernia were uncommon, yet had been noted in literature. Dr. Barber therefore opined that the Veteran's varicose veins noted in the groin were as likely as not secondary to his service-connected right inguinal hernia. The Board finds that the opinion by Dr. Barber to be highly probative as to whether the Veteran's lumbar spine and varicose vein disorders were caused by his service-connected inguinal hernia. Dr. Barber reviewed the relevant medical evidence of record, cited and addressed relevant medical literature, and provided opinions supported by well-reasoned rationales. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (holding that it is the reasoning for the conclusion that contributes probative value to a medical opinion). The Board notes that VA obtained medical opinions in August 2018 pertaining to the spine and varicose vein disorders. In support of the negative nexus opinions, the examiner stated that there was "no scientific medical evidence to support the claim." The Board finds these opinions to be conclusory without sufficient rationale and, therefore, are of reduced probative value. See Miller, 11 Vet. App. 348 (holding that a bare conclusion, even one reached by a health care professional, is not probative without a factual predicate in the record). For these reasons, and resolving reasonable doubt in the Veteran's favor, the Board finds that the Veteran's lumbar spondylosis and right varicose veins are, at least in part, secondary to the service-connected inguinal hernia residuals. Service connection for lumbar spondylosis and right varicose veins is warranted under a secondary service connection theory of entitlement. See 38 U.S.C. § 5107; 38 C.F.R. § 3.310 (a). REASONS FOR REMAND Reflux Esophagitis The Board notes that one of the effects of the AMA is to narrow the set of circumstances in which the Board must remand appeals to the AOJ for further development instead of immediately deciding them directly. Nevertheless, even under the AMA, the Board still has the duty to remand issues when necessary to correct a pre-decisional duty-to-assist error. See Pub L. No. 115-55 section (2)(d); 38 C.F.R. § 20.802 (a). The Board finds that the failure of the VA to provide the Veteran with an adequate VA medical opinion amounts to a pre-decisional duty-to-assist error, as discussed in further detail below. Although the Veteran was afforded a VA examination for his reflux esophagitis in August 2018, the examiner failed to address the theory of aggravation. Moreover, the negative opinion rendered was conclusory without sufficient rationale. Therefore, a remand is required. The matter is REMANDED for the following action: Provide the Veteran with an appropriate VA examination to determine the nature and etiology of his reflux esophagitis. The electronic claims file must be made available to the examiner for review. The examiner is then asked to address the following: State whether it is at least as likely as not (50 percent or greater probability) that the Veteran's reflux esophagitis was either caused or aggravated by his service-connected residuals of an inguinal hernia. **Please note that for secondary service connection, "aggravation" need not be permanent in nature. See Ward v. Wilkie, 31 Vet. App. 233, 241-42 (2019). The VA examiner must provide separate findings and rationales relating to causation and aggravation. All opinions should be accompanied by a clear rationale. L. Chu Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. Casadei, 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.