Citation Nr: 21068128 Decision Date: 11/09/21 Archive Date: 11/09/21 DOCKET NO. 15-44 007 DATE: November 9, 2021 REMANDED Entitlement to service connection for gallbladder removal is remanded. REASONS FOR REMAND The Veteran had honorable active duty service with the United States Navy from January 1966 to December 1968. In November 2015 the Veteran died. In November 2018 the Veteran's surviving spouse's motion for substitution was granted. In a February 2019 Board of Veterans' Appeal (Board) decision by a Veterans' Law Judge not the undersigned it, in pertinent part, denied the appellant's claims seeking service connection for residuals of an inguinal hernia, residuals of a ventral hernia, gallbladder removal, and colon resection including as secondary to the service-connected non-Hodgkin's lymphoma as well as remanded claims seeking service connection for rheumatoid arthritis and a total rating based on individual unemployability (TDIU). The appellant appealed the February 2019 Board decision to the United States Court of Appeals for Veterans Claims (Court). In a February 2020 order, which incorporated the parties Joint Motion for Partial Remand (JMPR), the Court vacated and remanded the February 2019 Board decision to the extent that it denied the appellant's claims seeking secondary service connection for residuals of an inguinal hernia, residuals of a ventral hernia, gallbladder removal, and colon resection as related to service-connected non-Hodgkin's lymphoma. In August 2020, the Board Remanded the claims of service connection for residuals of an inguinal hernia, residuals of a ventral hernia, gallbladder removal, and colon resection as related to service-connected non-Hodgkin's lymphoma. As to the claims of service connection for a TDIU, residuals of an inguinal hernia, residuals of a ventral hernia, and colon resection as related to service-connected non-Hodgkin's lymphoma, the Board finds that these issues are no longer in appellate status because they were granted by the regional office (RO). See rating decisions dated in April 2020 and June 2021. As to the claim of service connection for rheumatoid arthritis, the Board finds that this issue is no longer in appellate status because it was denied by the Board in a November 2021 decision. Entitlement to service connection for gallbladder removal is remanded. As to the claim of service connection for gallbladder removal, in order to comply with the JMPR the Board remanded the claim in August 2020 to, among other things, to obtain a medical opinion as to whether the Veteran's disability was aggravated by his service-connected non-Hodgkin's lymphoma. See 38U.S.C. § 5103A(b); Forcier v. Nicholson,19 Vet. App. 414, 425 (2006) (holding that the duty to ensure compliance with the Court's order extends to the terms of the agreement struck by the parties that forms the basis of the joint motion to remand); cf. McBurney v. Shinseki, 23 Vet. App. 136, 140 (2009) (Board has a duty on remand to ensure compliance with the favorable terms stated in the joint motion for remand or explain why the terms will not be fulfilled). However, while the Court in Ward v. Wilkie, 31 Vet. App. 233 (2019) redefined the definition of aggravation to now include temporary flare-ups, the August 2020 Remand specifically, provided the VA examiner with the old definition of aggravation (i.e., a permanent worsening beyond the natural progression of the disease or disability). Moreover, it does not appear that the May 2021, August 2021, and/or September 2021 post-Remand VA opinions applied this new definition of aggravation. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). Therefore, the Board finds that another Remand is required to obtain an adequate etiology opinion. See 38U.S.C. § 5103A(d). While this issue is in Remand status, any outstanding VA and private treatment records should also be obtained and associated with the record on appeal. See 38 U.S.C. § 5103A(b). The appeal is REMANDED for the following actions: 1. Obtain and associate with the claims file any outstanding VA treatment records pertinent to this claim. 2. After obtaining all needed authorizations from the appellant, associate with the claims file any outstanding private treatment records. If possible, the appellant herself should submit and new pertinent evidence the Board/VA does not have (if any). 3. In order to comply with the JMPR, obtain a VA opinion from a suitably-qualified medical professional to address the claim of service connection for a gallbladder removal. The claims file should be made available and reviewed by the examiner in conjunction with providing the opinions. After a consideration of the evidence of record (both lay and medical), the examiner is asked to address the following: a. Provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the need for the gallbladder removal was caused by a disease or injury while on active duty. b. Provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the need for the gallbladder removal was caused by the service-connected non-Hodgkin's lymphoma. c. Provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the need for the gallbladder removal was aggravated by the service-connected non-Hodgkin's lymphoma. In providing answers to the above question the examiner should consider and discuss the service treatment records. In providing answers to the above question the examiner should consider and discuss the competent lay claims regarding observable symptomatology the Veteran made during his lifetime and by the appellant since that time. In providing answers to the above question the examiner should not rely solely on negative evidence. In providing answers to the above question the examiner is advised that the term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of conclusion as it is to find against it. In providing answers to the above questions the examiner is advised that the Court held in Ward, supra, that a "permanent worsening" of a non-service-connected disability is not required to establish secondary service connection on the basis of aggravation (i.e., aggravation may include temporary worsening of a disability). (Continued on the next page) In answering all questions, please articulate the reasoning underpinning your conclusions. That is, (1) identify what facts and information--whether found in the record or outside the record--support your opinion, and (2) explain how that evidence justifies your opinion. If the examiner cannot respond to an inquiry without resort to speculation as to any of the above claims he or she should so state, and must further explain why it is not feasible to provide a medical opinion, indicating whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or in the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). John J. Crowley Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N.T. Werner, 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.