Citation Nr: 21073389 Decision Date: 12/08/21 Archive Date: 12/08/21 DOCKET NO. 10-46 902 DATE: December 8, 2021 REMANDED Entitlement to service connection for hiatal hernia, as secondary to service-connected duodenal ulcer, is remanded. REASONS FOR REMAND The Veteran served on active duty from October 1968 to October 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The issues on appeal for entitlement to service connection for a cardiovascular disorder and for residuals of a stroke is part of a separate appeal stream and will be addressed in a separate Board decision. In an April 2014 decision, the Board denied the Veteran's claim for service connection for hiatal hernia. The Veteran appealed the decision to the U.S. Court of Appeals for Veterans Claims (Court). The Court issued a Joint Motion for Remand (JMR) in November 2014 and found that the Board erred when it did not provide an adequate statement of reasons or bases for finding that the Veteran's hernia condition was not aggravated by his ulcer. The Board remanded the issue in January 2015 for an addendum opinion. In a January 2016 decision, the Board, in pertinent part, denied service connection for hiatal hernia, to include as secondary to service-connected duodenal ulcer. He appealed that decision to the Court and in a July 2016 Joint Motion for Partial Remand (JMPR), the parties agreed that the Board erred again by failing to provide an adequate statement of reasons or bases as to whether the September 2015 VA medical opinion provided a sufficient rationale regarding aggravation of the hiatal hernia. The Board remanded the issue in September 2016 for an addendum medical opinion. The matter was denied by the Board, in pertinent part, for a third time in a March 2017 decision. The Veteran appealed this decision to the Court. The Court issued a May 2018 Memorandum Decision that dismissed the matter of service connection for hiatal hernia on a direct basis, vacated the portion of the March 2017 Board decision that denied service connection for hiatal hernia on a secondary basis, and remanded the matter on appeal for adjudication consistent with the instructions as stated in the Memorandum Decision. The matter was before the Board in January 2019, September 2020 and most recently in June 2021 and returns to the Board for appellate review. In the most recent Board decision from June 2021, the Board found that the evidence of record does not reflect a medical opinion which explicitly addresses the aggravation prong of secondary service connection. The Board stated the April 2021 VA examiner applied the aggravation standard applicable to the presumption of aggravation for a pre-existing condition that was noted at entrance into service, which requires a pre-existing condition be aggravated during service to warrant service connection. See 38 § C.F.R. 3.303(a). Additionally, the Board found that the April 2021 VA examiner did not address the Veteran's contention that his medications for duodenal ulcer aggravated his hiatal hernia. The September 2020 Board remand had directed the examiner to address whether the Veteran's hiatal hernia was aggravated beyond its natural progression by his service-connected duodenal ulcer and/or its medications. As such, the Board concluded that the April 2021 VA medical opinion is inadequate because it does not comply with the September 2020 Board remand. See Stegall v. West, 11 Vet. App. 268 (1998) (holding that a Board remand "confers on the veteran or other claimant, as a matter of law, the right to compliance with the remand orders"). In this regard, due to the numerous VA medical opinions that have already been obtain for this issue, the Board noted that an advisory opinion from an independent medical expert was required. See 38 § 5109; 38 C.F.R § 3.328. Furthermore, the Board indicated that in light of the Veteran's contentions, an expert opinion from a gastroenterologist or expert familiar with gastrointestinal disabilities was required. Pursuant to the June 2021 Board remand, the Veteran was afforded a VA examination in September 2021 with medical opinion. The June 2021 examination and addendum opinion were provided by a family nurse practitioner and were not obtained by a gastroenterologist or expert familiar with gastrointestinal disabilities, nor was the opinion obtained by an independent medical expert as directed by the June 2021 Board remand instructions. Therefore, in accordance with Stegall, as the directives of the June 2021 Board remand were not fulfilled, the Board finds it must return the issue of entitlement to service connection for hiatal hernia to the RO and remand is necessary as the medical addendum opinion was provided by a nurse practitioner instead of an expert with knowledge in gastroenterology. The matters are REMANDED for the following action: 1. Obtain VA treatment records from April 2021 to present. All reasonable attempts should be made to obtain these records and must be documented in the record. 2. After completion of the above, obtain an advisory medical opinion from an independent medical expert from either a gastroenterologist or expert familiar with gastrointestinal disabilities to provide an opinion on whether the Veteran's hiatal hernia is secondary to his service-connected duodenal ulcer pursuant to 38 U.S.C § 5109 and 38 C.F.R. § 3.328. The RO must follow its established procedures for requesting such an advisory opinion. The Veteran's record, to include a copy of this remand, should be made available to and reviewed by the examiner, and an opinion as follows is requested: a) Whether the Veteran's hiatal hernia is at least as likely as not (50 percent or greater probability) proximately due to his service-connected duodenal ulcer? b) Whether it is at least as likely as not (50 percent or greater probability) that the Veteran's hiatal hernia underwent an incremental increase (aggravated), regardless of permanence, by his service-connected duodenal ulcer? Secondary service connection is warranted for any incremental increase in disability. State whether there was an increase in disability regardless of permanence, but medically ascertainable. Any increase in disability should be described in terms of diagnosis, severity, and duration. The examiner is reminded that he or she must address both causation and aggravation. c) Whether the Veteran's contention that his treatment for ulcers, to include his medication use, caused or aggravated his hiatal hernia. See January 2017 VA Form 21-4138, Statement in Support of claim, to include attached medical articles. The expert is asked to discuss the contention that the Veteran's peptic "ulcer meds, causes constipation, vomiting [,] causes gastroesophageal reflux disease and [i]ncreased size of hiatal hernia." d) Are the Veteran's assertions that his hiatal hernia was caused by his duodenal ulcer or medications consistent with medical knowledge or implausible? e) Whether it is medically feasible that duodenal ulcers cause or aggravate hiatal hernia? If not, state why not and on what basis this conclusion was made. If so, state why and on what basis this conclusion was made. The examiner is reminded that the term "at least as likely as not" does not mean "within the realm of medical possibility." Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of the conclusion (e.g., etiology) as it is to find against the conclusion. In considering any lay statements of record, the examiner should note that the Veteran is competent to attest to matters of which he had first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran, the examiners should provide a fully reasoned explanation. If medical literature is relied upon in rendering this determination, the expert should identify and specifically cite each reference material utilized. The examination report must include a complete rationale for any opinion provided. If the examiner cannot provide the requested opinion without resorting to speculation, it must be so stated, and the examiner must provide the reasons why an opinion would require speculation. MARJORIE A. AUER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Kim, Associate 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.