Citation Nr: 21067002 Decision Date: 11/03/21 Archive Date: 11/03/21 DOCKET NO. 10-26 536 DATE: November 3, 2021 REMANDED Entitlement to service connection for a cervical spine disability is remanded. Entitlement to service connection for a lumbosacral spine disability is remanded. Entitlement to service connection for a bilateral hip disability, to include trochanteric pain syndrome, is remanded. Entitlement to service connection for a gastrointestinal or gastroesophageal disability, to include gastroesophageal reflux disease (GERD), Schatzki's ring, colonic polyps, and diverticulosis, is remanded. Entitlement to service connection for a bilateral eye disability is remanded. REASONS FOR REMAND The Veteran had active duty service from February 1969 to September 1970, to include service in the Republic of Vietnam. These matters come before the Board of Veterans' Appeals (Board) on appeal from rating decisions issued by a Department of Veterans Affairs (VA) Regional Office (RO) in April 2013, April 2016, and June 2017. The Veteran testified before the undersigned Veterans Law Judge (VLJ) during a September 2014 Board hearing. A copy of the hearing transcript has been reviewed and associated with the claims file. In a December 2014 decision, the Board found that the Veteran had presented new and material evidence to reopen his claims of service connection for disabilities of the cervical and lumbosacral spine. Those matters, along with the issue of service connection for gastroesophageal reflux disease (GERD) was remanded for further development. In an October 2015 decision, the Board, in relevant part, denied service connection for GERD and disabilities of the cervical and lumbosacral spine. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In March 2017, the Court issued a memorandum decision which, in relevant part, vacated the Board's denial of service connection for disabilities of the cervical and lumbosacral spine, and GERD. The Board issued another decision in September 2019. In relevant part, the Board denied service connection for disabilities of the cervical and lumbosacral spine and remanded the issues of entitlement to service connection for GERD, bilateral hip disability, and a bilateral eye disability. The Veteran appealed the Board's denial of service connection for cervical and lumbosacral spine disabilities to the Court. In March 2021, the Court issued a memorandum decision vacating the Board's September 2019 denial of service connection for cervical and lumbosacral spine disabilities. The issues of service connection for a gastroesophageal or gastrointestinal disability (construed from the Veteran's GERD claim), bilateral eye disability, and bilateral hip disability were again before the Board in October 2020, at which time they were remanded for further development. 1. Entitlement to service connection for a cervical spine disability is remanded. 2. Entitlement to service connection for a lumbosacral spine disability is remanded. A VA medical examination or opinion that fails to address whether the claimed disability was aggravated by a service-connected disability is inadequate to inform the Board on the issue of secondary service connection. El-Amin v. Shinseki, 26 Vet. App. 136, 140 (2013). The Court's March 2021 memorandum decision vacated the Board's September 2019 denial of service connection for cervical and lumbosacral spine disabilities because the Board relied on an inadequate medical opinion. Specifically, the May 2019 VA medical opinion found that the Veteran's spine disabilities are less likely than not caused by his service-connected type 2 diabetes mellitus, but the examiner failed to address whether his diabetes aggravated his spine disabilities beyond their natural progression. See El-Amin, 26 Vet. App. at 140. Accordingly, a remand is necessary to obtain an addendum medical opinion that adequately addresses whether the Veteran's cervical and lumbosacral spine disabilities were aggravated by his service-connected type 2 diabetes mellitus. 3. Entitlement to service connection for a bilateral hip disability, to include trochanteric pain syndrome, is remanded. The Veteran has asserted entitlement to service connection for a bilateral hip disability, to include as secondary to his type 2 diabetes mellitus and/or his claimed cervical and lumbosacral spine disabilities. The Veteran underwent a VA examination in August 2021, wherein he was diagnosed with trochanteric pain syndrome of the bilateral hips. The examiner opined that his hip disability is less likely than not directly related to his service or caused or aggravated by his service-connected type 2 diabetes mellitus. The Board finds that a remand is necessary because the Veteran's claim of service connection for a bilateral hip disability is inextricably intertwined with his pending claims of service connection for disabilities of the cervical and lumbosacral spine. See Parker v. Brown, 7 Vet. App. 116 (1994); Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two issues are "inextricably intertwined" when they are so closely tied together that a final Board decision cannot be rendered unless both are adjudicated). 4. Entitlement to service connection for a gastrointestinal or gastroesophageal disability, to include gastroesophageal reflux disease (GERD), Schatzki's ring colonic polyps, and diverticulosis, is remanded. The Veteran has claimed entitlement to service connection for a gastrointestinal or gastroesophageal disability, to include GERD, Schatzki's ring, colonic polyps, and diverticulosis. He asserts that these disabilities were caused or aggravated beyond their natural progression by his service-connected diabetes. The Veteran is also service-connected for posttraumatic stress disorder (PTSD). In October 2021, he submitted articles showing an association between gastrointestinal or gastroesophageal problems, including GERD, and psychiatric problems. To date, no VA examiner has opined as to whether the Veteran's gastroesophageal or gastroesophageal disability was caused or aggravated by his service-connected PTSD. Therefore, a new VA medical opinion is warranted to address this theory of service connection. 5. Entitlement to service connection for a bilateral eye disability is remanded. The Veteran has claimed service connection for a bilateral eye disability. He has current diagnoses of exudative age-related macular degeneration of the right eye, non-exudative age-related macular degeneration of the left eye, combined forms of age-related cataract of the left eye, and presence of an intraocular lens (pseudophakia) of the right eye. He asserts that his eye disabilities are related to his active duty service, to include as caused or aggravated by his service-connected type 2 diabetes mellitus. The Board's October 2020 decision found a December 2019 VA medical opinion inadequate because the examiner had not discussed medical literature submitted by the Veteran. A new VA examination was conducted in August 2021, wherein the examiner opined that the Veteran's eye disabilities are each less likely than not caused by or the result of his service-connected type 2 diabetes mellitus. The August 2021 VA medical examination is inadequate for the purpose of addressing secondary service connection because the examiner failed to address aggravation. See El-Amin, 26 Vet. App. at 140. Therefore, an addendum medical opinion is warranted on remand. The matters are REMANDED for the following actions: 1. Obtain and associate with the claims file the Veteran's updated VA treatment records, from August 2021 to the present. 2. After completing #1, obtain medical opinions from an appropriate VA examiner, other than the examiner who issued the May 2019 spine disability opinion. The entire claims folder, including a copy of this remand, must be made available for review by the examiner, and such review should be noted in the examination report. A new VA examination is only necessary if deemed so by the examiner. The examiner is asked to respond to the following: (a.) Is it at least as likely as not (a 50 percent or greater probability) that the Veteran's cervical spine disability was aggravated (any incremental increase in disability) by his service-connected type 2 diabetes mellitus? (b.) If aggravation is found, is there medical evidence created prior to the aggravation or at any time between the time of aggravation and the current level of disability that shows a baseline for the cervical spine disability prior to aggravation? If so, please identify. (c.) Is it at least as likely as not (a 50 percent or greater probability) that the Veteran's lumbosacral spine disability was aggravated (any incremental increase in disability) by his service-connected type 2 diabetes mellitus? (d.) If aggravation is found, is there medical evidence created prior to the aggravation or at any time between the time of aggravation and the current level of disability that shows a baseline for the lumbosacral spine disability prior to aggravation? If so, please identify. (e.) If the Veteran's cervical and/or lumbosacral spine disabilities are found to have been aggravated by his type 2 diabetes mellitus, is it at least as likely as not (a 50 percent or greater probability) that his bilateral hip disability was caused or aggravated (any incremental increase in disability) by his service-connected cervical spine disability and/or lumbosacral spine disability? Both causation and aggravation must be addressed. If both the cervical and lumbosacral spine disabilities are found to have been aggravated by his type 2 diabetes, please provide a separate opinion for each disability. (f.) If aggravation is found, is there medical evidence created prior to the aggravation or at any time between the time of aggravation and the current level of disability that shows a baseline for the bilateral hip disability prior to aggravation? If so, please identify. The examiner must provide a comprehensive rationale for each proffered opinion. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports are to be considered in formulating any opinion. If any opinion cannot be given without resorting to speculation, the examiner should explain why and state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), the record (additional facts are required), or the examiner does not have the knowledge or training. As appropriate, the AOJ should conduct additional development or supplement the record. 3. After completing #1, obtain an addendum opinion from the examiner who conducted the August 2021 VA gastroesophageal and gastrointestinal disability examinations or, if he is unavailable then another similarly qualified examiner may respond instead. The entire claims folder, including a copy of this remand, must be made available for review by the examiner, and such review should be noted in the examination report. A new VA examination is only necessary if deemed so by the examiner. The examiner is asked to respond to the following: (a.) Is it at least as likely as not (a 50 percent or greater probability) that the Veteran's GERD was caused or aggravated (any incremental increase in disability) by his service-connected PTSD? Both causation and aggravation must be addressed. (b.) If aggravation is found, is there medical evidence created prior to the aggravation or at any time between the time of aggravation and the current level of disability that shows a baseline for the GERD disability prior to aggravation? If so, please identify. (c.) Is it at least as likely as not (a 50 percent or greater probability) that the Veteran's Schatzki's ring was caused or aggravated (any incremental increase in disability) by his service-connected PTSD? Both causation and aggravation must be addressed. (d.) If aggravation is found, is there medical evidence created prior to the aggravation or at any time between the time of aggravation and the current level of disability that shows a baseline for the Schatzki's ring disability prior to aggravation? If so, please identify. (e.) Is it at least as likely as not (a 50 percent or greater probability) that the Veteran's colonic polyps were caused or aggravated (any incremental increase in disability) by his service-connected PTSD? Both causation and aggravation must be addressed. (f.) If aggravation is found, is there medical evidence created prior to the aggravation or at any time between the time of aggravation and the current level of disability that shows a baseline for the colonic polyp disability prior to aggravation? If so, please identify. (g.) Is it at least as likely as not (a 50 percent or greater probability) that the Veteran's diverticulosis was caused or aggravated (any incremental increase in disability) by his service-connected PTSD? Both causation and aggravation must be addressed. (h.) If aggravation is found, is there medical evidence created prior to the aggravation or at any time between the time of aggravation and the current level of disability that shows a baseline for the diverticulosis disability prior to aggravation? If so, please identify. The examiner must provide a comprehensive rationale for each proffered opinion. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports are to be considered in formulating any opinion. If any opinion cannot be given without resorting to speculation, the examiner should explain why and state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), the record (additional facts are required), or the examiner does not have the knowledge or training. As appropriate, the AOJ should conduct additional development or supplement the record. 4. After completing #1, obtain an addendum opinion from the examiner who conducted the August 2021 VA eye disability examination or, if he is unavailable then another similarly qualified examiner may respond instead. The entire claims folder, including a copy of this remand, must be made available for review by the examiner, and such review should be noted in the examination report. A new VA examination is only necessary if deemed so by the examiner. The examiner is asked to respond to the following: (a.) Is it at least as likely as not (a 50 percent or greater probability) that the Veteran's exudative age-related macular degeneration of the right eye was aggravated (any incremental increase in disability) by his service-connected type 2 diabetes mellitus? (b.) If aggravation is found, is there medical evidence created prior to the aggravation or at any time between the time of aggravation and the current level of disability that shows a baseline for the exudative age-related macular degeneration disability prior to aggravation? If so, please identify. (c.) Is it at least as likely as not (a 50 percent or greater probability) that the Veteran's non-exudative age-related macular degeneration of the left eye was aggravated (any incremental increase in disability) by his service-connected type 2 diabetes mellitus? (d.) If aggravation is found, is there medical evidence created prior to the aggravation or at any time between the time of aggravation and the current level of disability that shows a baseline for the non-exudative age-related macular degeneration disability prior to aggravation? If so, please identify. (e.) Is it at least as likely as not (a 50 percent or greater probability) that the Veteran's left eye cataract disability was aggravated (any incremental increase in disability) by his service-connected type 2 diabetes mellitus? (f.) If aggravation is found, is there medical evidence created prior to the aggravation or at any time between the time of aggravation and the current level of disability that shows a baseline for the left eye cataract disability prior to aggravation? If so, please identify. (g.) Is it at least as likely as not (a 50 percent or greater probability) that the Veteran's pseudophakia of the right eye was aggravated (any incremental increase in disability) by his service-connected type 2 diabetes mellitus? (h.) If aggravation is found, is there medical evidence created prior to the aggravation or at any time between the time of aggravation and the current level of disability that shows a baseline for the pseudophakia disability prior to aggravation? If so, please identify. The examiner must provide a comprehensive rationale for each proffered opinion. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports are to be considered in formulating any opinion. If any opinion cannot be given without resorting to speculation, the examiner should explain why and state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), the record (additional facts are required), or the examiner does not have the knowledge or training. As appropriate, the AOJ should conduct additional development or supplement the record. Eric S. Leboff Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Pratt 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.