Citation Nr: 21070252 Decision Date: 11/23/21 Archive Date: 11/23/21 DOCKET NO. 08-29 926A DATE: November 23, 2021 REMANDED 1. Entitlement to service connection for a gastrointestinal disability, to include gastritis, helicobacter pylori (H. pylori), and gastroesophageal reflux disease (GERD), to include as secondary to the service-connected left knee disability. 2. Entitlement to VA compensation under the provisions of 38 U.S.C. § 1151 due to care provided by the VA or medications prescribed by VA for a gastrointestinal disability and/or hypertension is remanded. 3. Entitlement to an extension of a temporary total evaluation beyond December 31, 2007 based on the need for convalescence following surgery involving the service-connected left knee disability is remanded. REASONS FOR REMAND The Veteran served on active duty from March 1987 to December 1992. In June 2010, the Board remanded the issue of whether entitlement to an additional period of convalescence for the August 2007 knee surgery. In May 2012, the Board remanded service-connection claims for a gastrointestinal disability, bilateral shoulder disability, hypertension, and diabetes mellitus. In the May 2012 decision, the Board also remanded the issue of entitlement to a temporary total rating beyond November 30, 2007 based on the need for convalescence following surgery involving the service-connected left knee disability. In June 2013, the Board granted an extension through December 31, 2007 for a temporary total evaluation based on the need for convalescence following surgery involving the service-connected left knee disability and denied the service-connection claims for a gastrointestinal disability, bilateral shoulder disability, hypertension, and diabetes mellitus. The Veteran appealed the June 2013 Board decision to the U.S. Court of Appeals for Veterans Claims (Court). In a June 2014 Memorandum Decision, the Court vacated the Board's June 2013 decision, finding that the Board erred when it failed to address entitlement to compensation benefits for all his claimed disabilities pursuant to 38 U.S.C. § 1151. In January 2015, the Board remanded the aforementioned claims to comply with the Court's June 2014 Memorandum Decision. In June 2018, the Board again denied the claims an extension of a temporary total evaluation beyond December 31, 2007 based on the need for convalescence following surgery involving the service-connected left knee disability and the claims for service connection for a gastrointestinal disability, bilateral shoulder disability, diabetes mellitus, and hypertension, to include under the provisions of 38 U.S.C. § 1151. The Veteran appealed the June 2018 Board decision as to the service-connection claims for a gastrointestinal disorder and hypertension and entitlement to an extension of temporary total evaluation beyond December 31, 2007 based on the need for convalescence to the Court. In a February 2021 Memorandum Decision, the Court vacated the June 2018 Board decision as to the service-connection issue for a gastrointestinal disability, entitlement under the provisions of 38 U.S.C. § 1151, and entitlement to an extension of temporary total evaluation beyond December 31, 2007 based on the need for convalescence. The Court affirmed the Board's decision as to its denial of service connection for hypertension, to include as secondary to the left knee surgery, and thus, this issue is no longer part of the current appeal. 1. Entitlement to service connection for a gastrointestinal disability, to include gastritis, H. pylori, and GERD, to include as secondary to the service-connected left knee disability 2. Entitlement to VA compensation under the provisions of 38 U.S.C. § 1151 due to care provided by the VA or any medications prescribed by VA for hypertension and/or a gastrointestinal disability As to the service-connection claim for a gastrointestinal disability, in the February 2021 Memorandum Decision, the Court concluded that the Board relied on the June 2010 VA medical examination as negative evidence regarding the gastrointestinal disability without providing adequate reasons and bases. The Court wrote that although the June 2010 VA examiner "did not directly attribute the appellant's stomach condition to the pain medications prescribed by VA following his left knee surgery . . . the examiner provided a favorable opinion in that the examiner wrote '[the Veteran's] gastritis may have been aggravated by medications given for pain including ibuprofen.'" The Board is requesting an addendum opinion. As to the claim for entitlement to VA compensation under the provisions of 38 U.S.C. § 1151 for a gastrointestinal disability and/or hypertension, within the February 2021 Memorandum Decision, the Court noted that the February 2018 VA examiner's opinion was inadequate. The Court stated, "The February 2018 VA examiner concluded that it was less likely than not (1) the appellant's hypertension or stomach disorders were caused or became worse as a result of VA treatment; (2) the appellant's 'additional disability resulted from the attending VA personnel's failure to follow the appropriate standard of care;' and (3) there was 'failure on the part of VA to timely diagnose or properly treat the claimed disease or disability [and that that failure] allowed the disease or disability to continue to progress.'" The Court noted that in providing those opinions, the examiner failed to discuss what the appropriate standard of care would have been and whether the Veteran's conditions worsened as a result of the treatment received from VA. 3. Entitlement to an extension of temporary total evaluation beyond December 31, 2007 based on the need for convalescence following surgery involving the service-connected left knee disability is remanded. In the February 2021 Memorandum Decision, the Court concluded that the Board failed to provide an adequate statement of reasons or bases for denying an extension of temporary total evaluation beyond December 31, 2007 when it relied on the December 2007 VA treatment records, which noted that the Veteran had "rather marked atrophy of his left quadricep" without explaining how this evidence weighed against the Veteran no longer needing convalescence benefits. Temporary total evaluations for convalescence are governed by 38 C.F.R. § 4.30. Temporary total evaluations will be assigned from the date of hospital admission and continue for one, two, or three months from the first day of the month following hospital discharge when treatment of a service-connected disability results in: (1) surgery necessitating at least one month of convalescence; (2) surgery with severe postoperative residuals such as incompletely healed surgical wounds, stumps of recent amputations, therapeutic immobilization of one major joint or more, application of a body cast, or the necessity for house confinement, or the necessity for continued use of a wheelchair or crutches (regular weight-bearing prohibited); or (3) immobilization by cast, without surgery, of one major joint or more. 38 C.F.R. § 4.30(a). Total ratings for convalescence may be extended for one, two, or three months beyond the initial three months for any of the three reasons set forth above. Extensions of one or more months to as many as six months beyond the initial six-month period may be made for reasons (2) or (3) above. 38 C.F.R. § 4.30(b). Pursuant to 38 C.F.R. § 4.30, the disability requiring treatment (hospitalization, convalescence, or immobilization) must be service connected. The Board finds a remand is necessary to determine whether the marked atrophy of the left quadricep, documented in the months following December 31, 2007 caused continuous convalescence following the August 2007 left knee surgery, to include whether the atrophy of the left quadricep constitutes therapeutic immobilization of one major joint or more or the necessity for house confinement. The Board notes that the record is clear that beyond December 31, 2007 the Veteran did not have an incompletely healed surgical wound, an amputation, a body cast or other cast, or the use of a wheelchair or crutches, as December 2007 VA treatment records clearly state that the Veteran transitioned off crutches. See VBMS entry with document type, "Medical Treatment Record Government Facility," receipt date 12/07/2007. The matters are REMANDED for the following action: 1. Obtain an addendum opinion from an appropriate clinician regarding whether pain medications, including ibuprofen and hydrocodone, taken following the August 2007 left knee surgery aggravated the gastrointestinal disability. If the clinician finds that an in-person examination is warranted to provide an informed opinion, an examination should be scheduled. The agency of original jurisdiction is asked to provide the examiner with the below facts. To assist in a review of the claims file, the examiner is informed of the following facts with citations in the record, when applicable: Private treatment records from 1996 to 2001 show that the Veteran complained of heartburn in November 1996 and was taking Prevacid by 1997 through 2001 and had been diagnosed with GERD. See VBMS entry with document type, "Medical Treatment Record Non-Government Facility," receipt date 06/14/2001, pp. 2 (GERD diagnosis), 4, 6, 10, 14, 15 (November 1996 complaint of heartburn). The Veteran underwent a left knee lateral release/debridement surgery at VA in August 2007. The Veteran is service connected for the left knee disability. VA treatment records immediately following the August 2007 surgery show that the Veteran was prescribed ibuprofen and "Ranitidine HCL 150 MG." For this latter prescription, the instructions were, "Take one tablet by mouth twice a day as needed for upset stomach when taking ibuprofen." He was also prescribed hydrocodone 7.5, one every six hours. See VBMS entry with document type, "CAPRI," receipt date 04/02/2019, with "#2" in the subject field, pp. 14, 27. An August 2008 VA treatment record shows that the Veteran was seen with complaints of abdominal pain off and on for the last four weeks. He reported he had been admitted for similar pain at an outside hospital, where he had tests involving the abdomen and heart and both were normal. The examiner documented that the Veteran's complaints involved pain in the epigastric region, which worsened with food intake and worsened on lying down. There was no nausea or vomiting, but there was constipation. The Veteran reported he was taking hydrocodone for chronic pain. The examiner concluded it was most likely GERD. See VBMS entry with document type, "Medical Treatment Record Government Facility," receipt date 09/03/2009, pp. 158 -160. The above document, which is 167 pages, contains multiple entries of the Veteran complaining of upper gastrointestinal symptoms. The Veteran was seen in September 2008 (p. 154), October 2008 with positive H. pylori test (p. 151), October 2008 gastrointestinal consult with assessments of H. pylori and epigastric abdominal pain alleviated by GI cocktail (pp. 131-133), December 2008 (p. 122), June 2009 with H. pylori stool antigen was negative (p. 17). A September 2008 VA treatment record shows the Veteran reported he could not tolerate the hydrocodone, as it seemed to "mess his stomach up." The examiner encouraged the Veteran to try Tramadol with regular dosing. See VBMS entry with document type, "CAPRI," receipt date 04/02/2019, with "#2" in the subject field, p. 9. A January 2010 private treatment record shows the Veteran reported that ever since his knee surgery, he had had "stomach problems," which pain he described involved pressure at the top and center of his abdomen. This pressure was described as being worse with food, though he reported it was pretty much constant. The examiner documented the Veteran was looking to get symptom relief. The examiner entered an assessment of middle age man with persistent epigastric and mid abdominal discomfort with presumably negative workup. See VBMS entry with document type, "Medical Treatment Record Non-Government Facility," receipt date 06/20/2015, pp. 12-14. A May 2010 private upper gastrointestinal series was normal except for a hiatal hernia and large "reflux." Gastric emptying study was normal. CT scan was normal. See VBMS entry with document type, "Medical Treatment Record Non-Government Facility," receipt date 06/20/2015, p. 10. In a June 2010 medical opinion, an examiner noted that the Veteran had reported developing epigastric pain going up into his chest after the August 2007 surgery. The examiner wrote, "Physicians thought [it] was due to post op meds. [E]valuation showed H. pylori[,] which was treated with antibiotics. Symptoms have not cleared with cessation of pain medication and treatment for reflux. He continues to have postprandial discomfort." The examiner concluded that the etiology of the Veteran's symptoms were related to pylori gastritis and hiatal hernia with reflux. The examiner wrote that gastritis "may have been aggravated by medications given for pain including ibuprofen." The examiner noted that the symptoms did not resolve after stopping medication and had not responded to various treatments. See VBMS entry with document type, "VA Examination," receipt date 06/29/2010, with "Gastrointestinal," in the subject field, pp. 1-2. The Board is seeking clarification of the June 2010 examiner's statement that the Veteran's gastritis and/or gastrointestinal symptoms may have been aggravated by medications given for pain including ibuprofen. The examiner's review of the record is NOT restricted to the evidence listed above. This list is provided to assist the examiner in locating potentially relevant evidence. The examiner is asked to provide the following opinion: (a) Is it at least as likely as not (50 percent probability or greater) that the gastrointestinal disability, which was variously diagnosed, was aggravated by pain medications, including ibuprofen, taken in association with the August 2007 left knee surgery? Aggravation is different from causation in that it did not cause the disability but that it caused an increase in severity that is not due to the natural progress of the disability. The examiner is asked to provide a rationale for each opinion given, including providing the medical principles and evidence relied upon for each opinion. If the examiner is unable to provide an opinion without resorting to speculation, he or she should explain why this is so and what, if any, additional evidence would be necessary before an opinion could be rendered. (b) If the examiner finds pain medications, including ibuprofen, taken in association with the August 2007 left knee surgery aggravated the gastrointestinal disability, the examiner is asked to state whether there is 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 gastrointestinal disability prior to aggravation. If the examiner is unable to establish a baseline for the gastrointestinal disability prior to the aggravation, he or she should state such and explain why a baseline cannot be determined. 2. Obtain an addendum opinion from an appropriate clinician regarding hypertension and/or gastrointestinal disability as it relates to the Veteran's claim under 38 U.S.C. § 1151. If the clinician finds that an in-person examination is warranted to provide an informed opinion, an examination should be scheduled. The agency of original jurisdiction is asked to provide the examiner with the below facts. To assist in a review of the claims file, the examiner is informed of the following facts with citations in the record, when applicable: The Veteran is alleging he incurred additional disabilities of hypertension and a gastrointestinal disability as a result of the left knee surgery at VAMC Asheville on August 28, 2007. Private treatment records from 1996 to 2001 show that the Veteran complained of heartburn in November 1996 and was taking Prevacid by 1997 through 2001 and had been diagnosed with GERD. See VBMS entry with document type, "Medical Treatment Record Non-Government Facility," receipt date 06/14/2001, pp. 2 (GERD diagnosis), 4, 6, 10, 14, 15 (November 1996 complaint of heartburn). The Veteran underwent a left knee lateral release/debridement surgery at VA in August 2007. The Veteran is service connected for the left knee disability. VA treatment records immediately following the surgery show that the Veteran was prescribed ibuprofen and "Ranitidine HCL 150 MG." For this latter prescription, the instructions were, "Take one tablet by mouth twice a day as needed for upset stomach when taking ibuprofen." He was also prescribed hydrocodone 7.5, one every six hours. See VBMS entry with document type, "CAPRI," receipt date 04/02/2019, with "#2" in the subject field, pp. 14, 27. An August 2008 VA treatment record shows that the Veteran was seen with complaints of abdominal pain off and on for the last four weeks. He reported he had been admitted for similar pain at an outside hospital, where he had tests involving the abdomen and heart and were normal. The examiner documented that the Veteran's complaints involved pain in the epigastric region, which worsened with food intake and worsened on lying down. There was no nausea or vomiting, but there was constipation. The Veteran reported he was taking hydrocodone for chronic pain. The examiner concluded it was most likely GERD. See VBMS entry with document type, "Medical Treatment Record Government Facility," receipt date 09/03/2009, pp. 158 -160. The above document, which is 167 pages, contains multiple entries of the Veteran complaining of upper gastrointestinal symptoms. The Veteran was seen in September 2008 (p. 154), October 2008 with positive H. pylori test (p. 151), October 2008 gastrointestinal consult with assessments of H. pylori and epigastric abdominal pain alleviated by GI cocktail (pp. 131-133), December 2008 (p. 122), June 2009 with H. pylori stool antigen was negative (p. 17). A September 2008 VA treatment record shows the Veteran reported he could not tolerate the hydrocodone, as it seemed to "mess his stomach up." The examiner encouraged the Veteran to try Tramadol with regular dosing. See VBMS entry with document type, "CAPRI," receipt date 04/02/2019, with "#2" in the subject field, p. 9. A December 2008 VA treatment record shows the Veteran was documented to have a history of hypertension. This appears to be the first diagnosis of hypertension documented in the VA treatment records and is consistent with his being diagnosed with hypertension in 2008. See VBMS entry with document type, "Medical Treatment Record Government Facility," receipt date 09/03/2009, p. 121. A January 2010 private treatment record shows the Veteran reported that ever since his knee surgery, he had had "stomach problems" by which he described involved pressure at the top and center of his abdomen. This pressure was described as being worse with food, though he reported it was pretty much constant. The examiner documented the Veteran was looking to get symptom relief. The examiner entered an assessment of middle age man with persistent epigastric and mid abdominal discomfort with presumably negative workup. See VBMS entry with document type, "Medical Treatment Record Non-Government Facility," receipt date 06/20/2015, pp. 12-14. A May 2010 private upper gastrointestinal series was normal except for a hiatal hernia and large "reflux." Gastric emptying study was normal. CT scan was normal. See VBMS entry with document type, "Medical Treatment Record Non-Government Facility," receipt date 06/20/2015, p. 10. In a June 2010 opinion, an examiner noted that the Veteran had reported developing epigastric pain going up into his chest after the August 2007 surgery. The examiner wrote, "Physicians thought [it] was due to post op meds. [E]valuation showed H. pylori[,] which was treated with antibiotics. Symptoms have not cleared with cessation of pain medication and treatment for reflux. He continues to have postprandial discomfort." The examiner concluded that the etiology of the Veteran's symptoms are related to pylori gastritis and hiatal hernia with reflux. The examiner wrote that gastritis "may have been aggravated by medications given for pain including ibuprofen." The examiner noted that the symptoms did not resolve after stopping medication and had not responded to various treatments. See VBMS entry with document type, "VA Examination," receipt date 06/29/2010, with "Gastrointestinal," in the subject field, pp. 1-2. A February 2011 VA treatment record shows that the Veteran reported a positive history of hypertension for four years, which was controlled with medication. See VBMS entry with document type, "CAPRI," receipt date 06/04/2012, with "#1" in the subject field, p. 151. In a February 2018 medical opinion, an examiner concluded that it was less likely than not (1) the Veteran's hypertension or gastrointestinal disability were caused or became worse as a result of VA treatment; (2) the Veteran's additional disabilities resulted from the attending VA personnel's failure to follow the appropriate standard of care; or (3) there was failure on the part of VA to timely diagnose or properly treat the claimed disease or disability and that that failure allowed the disease or disability to continue to progress. The February 2018 examiner reasoned that the Veteran had received all "the standard of care and more," and that "all [of] the [Veteran's] conditions were diagnosed and treated properly and timely, and were not associated in any way to the knee surgery." See VBMS entry with document type, "C&P Exam," receipt date 03/15/2018. However, in providing the above opinion, the examiner did not discuss what the appropriate standard of care would have been and whether the Veteran's hypertension and/or gastrointestinal disability was/were worsened as a result of the treatment received from VA. The examiner's review of the record is NOT restricted to the evidence listed above. This list is provided to assist the examiner in locating potentially relevant evidence. The examiner is asked to provide the following opinions: (a) Is it at least as likely as not (50 percent or greater probability) that the gastrointestinal disability and/or hypertension worsened as a result of treatment the Veteran received after the August 2007 left knee surgery? Please state upon what facts, medical principles, and/or medical literature support the opinion and discuss the appropriate standard of care. (b) Is it at least as likely as not (a 50 percent or greater probability) that the gastrointestinal disability and/or hypertension is due to carelessness, negligence, lack of proper skill, error in judgment, or a similar instance of fault on the part of VA care providers? Please state upon what facts, medical principles, and/or medical literature support the opinion and discuss the appropriate standard of care. (c) Is it at least as likely as not (a 50 percent or greater probability) that the gastrointestinal disability and/or hypertension is due to an event not reasonably foreseeable? Please state upon what facts, medical principles, and/or medical literature support the opinion and discuss the appropriate standard of care. In providing each of these opinions, the examiner must discuss the appropriate standard of care and whether the gastrointestinal disability and/or hypertension worsened as a result of the treatment received at VA. 3. Obtain an addendum opinion from an appropriate clinician regarding whether the marked atrophy of the left quadricep, which is documented in the December 2007 and March 2008 VA treatment records as well as the July 2008 VA examination caused continuous convalescence, the need for therapeutic immobilization of one major joint or more, and/or required house confinement. See VBMS entries with documented type: (1) "Medical Treatment Record Government Facility," receipt date 12/07/2007; (2) "Medical Treatment Record Government Facility," receipt date 04/23/2008; and (3) "VA Examination," receipt date 07/14/2008, p. 6. If the clinician finds that an in-person examination is warranted to provide an informed opinion, an examination should be scheduled. A. P. SIMPSON Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Keninger, 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.