Citation Nr: 21072922 Decision Date: 12/06/21 Archive Date: 12/06/21 DOCKET NO. 17-24 251 DATE: December 6, 2021 REMANDED Entitlement to service connection for a left shoulder condition is remanded. Entitlement to service connection for Hepatitis C is remanded. Entitlement to service connection for gastroesophageal reflux disease (GERD) is remanded. Entitlement to service connection for erectile dysfunction is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from March 1989 to September 1991. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2015 rating decision from a Department of Veterans Affairs (VA) Regional Office (RO). This case was previously remanded by the Board for further development in a December 2020 decision. When VA undertakes to provide an examination or opinion, it must be an adequate one. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). When there is not substantial compliance with Board remand requests, the Board errs as a matter of law when it does not ensure compliance. Stegall v. West, 11 Vet. App. 268 (1998). Left Shoulder As part of the December 2020 remand, the Board required the RO to obtain a VA examination and medical opinion regarding the etiology of the Veteran's left shoulder condition. While the RO obtained an July 2021 medical opinion for the Veteran's claimed disability, the Board finds it to be inadequate. Specifically, the examiner was required to address a June 1989 service entry which stated the Veteran had a potential neck or left upper torso injury and opine on the etiology of the Veteran's left shoulder condition. However, the examiner did not address this evidence. Further, in the September 2021 addendum opinion, when this was brought to the examiner's attention, the examiner offered an etiology opinion regarding the Veteran's current neck condition; an issue that was not even on appeal. As such, the Board finds a new medical opinion is warranted which complies with the prior Board remand and adequately addresses the required evidence before the claim can be adjudicated. Hepatitis C As part of the December 2020 remand, the Board required the RO to obtain a VA examination and medical opinion regarding the etiology of the Veteran's Hepatitis C condition. While the RO obtained an July 2021 VA examination and medical opinion for the Veteran's claimed disability, the Board finds it to be inadequate. In the first instance, the Board finds the VA examination to be self-contradictory. The examination diagnoses the Veteran with Hepatitis C, but then later indicates that the Veteran has never been diagnosed with Hepatitis C and does not note any of the Veteran's risk factors. Next, the Board notes that the December 2020 Remand instructed the examiner to discuss whether the Veteran's Hepatitis C was etiologically related to his drug use, and if so, whether his drug use was proximately due to his service-connected post-traumatic stress disorder. The examiner opined that the Veteran's Hepatitis C was more likely due to unprotected sex, but as noted above, did not list this as a risk factor experienced by the Veteran. Further, the Board notes that in an earlier September 2019 medical opinion, by the same examiner, the examiner opined that the Veteran's Hepatitis C was more likely than not caused by his drug use. However, the examiner does not indicate what led to this change in his opinion. As such, the Board finds that a new examination and medical opinion is required which complies with the prior Board remand and adequately assesses the etiology of the Veteran's Hepatitis C. GERD As part of the December 2020 remand, the Board required the RO to obtain an addendum opinion regarding the etiology of the Veteran's GERD. While the RO obtained a July 2021 medical opinion for the Veteran's claimed disability, the Board finds it to be inadequate. The VA examiner opined that the Veteran's GERD was a result of his obesity. However, the examiner did not opine on whether the Veteran's obesity was an intermediate step between his current obstructive GERD and his service-connected disabilities. See Walsh v. Wilkie, 32 Vet. App. 300, 306-07 (2020) (holding that obesity as an "intermediate step" in a causal chain for service connection can be established on either a causal or aggravation basis). Further, the Board notes that in a September 2021 addendum, the examiner opined that the Veteran's GERD was not aggravated by his service-connected conditions, to include the medications taken to treat them because the Veteran has not been taking medications. However, the Board notes that throughout the period on appeal, the Veteran's treatment records indicate that he has taken cyclobenzaprine, tramadol, Zoloft Wellbutrin, and Seroquel for the treatment of his service-connected disabilities. As the examiner failed to provide the requested opinion, the Board finds that obtaining an additional medical opinion is necessary. Erectile Dysfunction As part of the December 2020 remand, the Board required the RO to obtain an addendum opinion regarding the etiology of the Veteran's erectile dysfunction. While the RO obtained a July 2021 medical opinion for the Veteran's claimed disability, the Board finds it to be inadequate. The examiner was instructed to opine whether the Veteran's erectile dysfunction was at least as likely as not proximately due to, or aggravated by, the treatment for the Veteran's service-connected disabilities, to include the medication taken in treatment thereof. The Board notes that in a September 2021 addendum, the examiner opined that the Veteran's erectile dysfunction was not aggravated by his service-connected conditions, to include the medications taken to treat them because the Veteran has not been taking medications. However, the Board notes that throughout the period on appeal, the Veteran's treatment records indicate that he has taken cyclobenzaprine, tramadol, Zoloft Wellbutrin, and Seroquel for the treatment of his service-connected disabilities. As the examiner failed to provide the requested opinion, the Board finds that obtaining an additional medical opinion is necessary. The matters are REMANDED for the following action: 1. Obtain an addendum medical opinion, from a VA examiner who has yet to examine the Veteran, with sufficient expertise to comment on the etiology of the Veteran's left shoulder disability. All pertinent evidence of record must be made available to and reviewed by the examiner, including a copy of this remand. Any indicated studies should be performed. No additional examination is required unless the examiner deems it necessary. Following a review of the relevant records and lay statements, the examiner should state an opinion with respect to the following: whether it is at least as likely as not (a 50 percent probability or greater) that the Veteran's current left shoulder disability is etiologically related to service. In proffering this opinion, the examiner must specifically address the abovementioned June 1989 entry and whether it is at least as likely as not related to the Veteran's current disability. The examiner must provide a complete rationale for all proffered opinions. In this regard, the examiner must discuss and consider the Veteran's competent lay statements. If the examiner is unable to provide any required opinion, he or she should explain why. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation as to why this is so. If the inability to provide a more definitive opinion is the result of a need for additional information, the examiner should identify the additional information that is needed. 2. Obtain an addendum medical opinion, from a VA examiner who has yet to examine the Veteran, with sufficient expertise to comment on the etiology of the Veteran's Hepatitis C disability. All pertinent evidence of record must be made available to and reviewed by the examiner, including a copy of this remand. Any indicated studies should be performed. No additional examination is required unless the examiner deems it necessary. Following a review of the relevant records and lay statements, the examiner should state an opinion with respect to the following: - Whether it is at least as likely as not (a 50 percent probability or greater) that the Veteran's hepatitis C is etiologically related to his active-duty service, to include as due to the potential routes of infection identified by the Veteran (donating plasma, tattoo, and getting shots). - Whether it is at least as likely as not (a 50 percent probability or greater) that the Veteran's hepatitis c is proximately due to his drug use. If so, is the Veteran's drug use at least as likely as not (a 50 percent probability or greater) proximately due to his service-connected PTSD? The examiner must provide a complete rationale for all proffered opinions. In this regard, the examiner must discuss and consider the Veteran's competent lay statements. If the examiner is unable to provide any required opinion, he or she should explain why. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation as to why this is so. If the inability to provide a more definitive opinion is the result of a need for additional information, the examiner should identify the additional information that is needed. 3. Obtain an addendum medical opinion, from a VA examiner who has yet to examine the Veteran, with sufficient expertise to comment on the etiology of the Veteran's GERD disability. All pertinent evidence of record must be made available to and reviewed by the examiner, including a copy of this remand. Any indicated studies should be performed. No additional examination is required unless the examiner deems it necessary. Following a review of the relevant records and lay statements, the examiner should state an opinion with respect to the following: - Whether the Veteran's obesity was an intermediate step between his current GERD and his service-connected disabilities. The examiner should specifically state whether it is at least as likely as not (a 50 percent probability or greater) that the Veteran's service-connected disabilities, or the medications taken in treatment thereof, caused the Veteran to become obese or aggravated his obesity. - If so, the examiner must then opine whether it is at least as likely as not (a 50 percent probability or greater) that the Veteran's obesity, or the aggravation of the obesity, as a result of either the Veteran's service-connected disabilities was a substantial factor in causing the Veteran's GERD, and whether the Veteran's GERD would not have occurred but for the obesity caused or aggravated by the service-connected disabilities. The examiner must provide a complete rationale for all proffered opinions. In this regard, the examiner must discuss and consider the Veteran's competent lay statements. If the examiner is unable to provide any required opinion, he or she should explain why. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation as to why this is so. If the inability to provide a more definitive opinion is the result of a need for additional information, the examiner should identify the additional information that is needed. 4. Finally, obtain an addendum medical opinion, from a VA examiner who has yet to examine the Veteran, with sufficient expertise to comment on the etiology of the Veteran's erectile dysfunction disability. All pertinent evidence of record must be made available to and reviewed by the examiner, including a copy of this remand. Any indicated studies should be performed. No additional examination is required unless the examiner deems it necessary. Following a review of the relevant records and lay statements, the examiner should state an opinion with respect to the following: whether it is at least as likely as not (a 50 percent probability or greater) that the Veteran's erectile dysfunction is proximately due to, or aggravated by, the Veteran's service-connected disabilities, to include the medication taken in treatment thereof. The examiner must provide a complete rationale for all proffered opinions. In this regard, the examiner must discuss and consider the Veteran's competent lay statements. If the examiner is unable to provide any required opinion, he or she should explain why. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation as to why this is so. If the inability to provide a more definitive opinion is the result of a need for additional information, the examiner should identify the additional information that is needed. T. REYNOLDS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Gresham 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.