Citation Nr: 21074620 Decision Date: 12/15/21 Archive Date: 12/15/21 DOCKET NO. 17-66 418 DATE: December 15, 2021 REMAND Entitlement to service-connected aggravation for a preexisting right shoulder disability is remanded. Entitlement to service connection for a liver disability is remanded. Entitlement to service connection for a gastrointestinal disability is remanded. REASONS FOR REMAND The Veteran served on active duty from March 1979 to May 1981. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2015 Rating Decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Newnan, Georgia. In a July 2020 Decision, the Board remanded these claims, as well as the issue of entitlement to service connection for an acquired psychiatric disability. In a September 2021 Rating Decision, the agency of original jurisdiction (AOJ) granted the latter claim. Thus, that issue no longer is on appeal and no longer will be discussed. See Grantham v. Brown, 114 F.3d 1156, 1158 (Fed. Cir. 1997) (noting that a grant of service connection extinguishes appeals before the Board). Regarding the instant matters, the Board ordered the AOJ to afford the Veteran the opportunity to identify/submit any outstanding private treatment records and new examinations and opinions. From AprilSeptember of 2021 that development was completed. For these reasons discussed below, however, remand again is required. 1. Entitlement to service-connected aggravation for a preexisting right shoulder disability is remanded. "[I]f a preexisting disorder is noted upon entry into service, the veteran cannot bring a claim for service connection for that disorder, but the veteran may bring a claim for service-connected aggravation of that disorder." Wagner v. Principi, 370 F. 3d 1089, 1096 (Fed. Cir. 2004). A veteran will be considered to have been in sound condition when examined, accepted and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable (obvious or manifest) evidence demonstrates that an injury or disease existed prior thereto and was not aggravated by such service. Only such conditions as are recorded in examination reports are to be considered as noted; an indication of past disorder or disability by a veteran on a report of medical history is not enough to prevent the presumption of soundness from attaching. 38 U.S.C. § 1111; 38 C.F.R. § 3.304(b)(1). The July 2020 Board Decision noted that the Veteran entered service with a preexisting right shoulder disability. Indeed, the March 1979 enlistment examination noted a 1978 right shoulder separation for which he was prescribed exercises. The examiner confirmed that the Veteran had "abnormal" upper extremities. Thus, with respect to the right shoulder disability, the Veteran may bring a claim only for service-connected aggravation. See 38 U.S.C. §§ 1111, 1153; Wagner, 370 F. 3d at 1096; 38 C.F.R. § 3.304(b)(1). In a June 2017 RO hearing, the Veteran testified that the carrying of heavy equipment during service aggravated his preexisting right shoulder disability. The Board's most recent remand ordered an opinion addressing whether the Veteran's service aggravated his preexisting right shoulder disability. The AOJ secured a September 2021 opinion, and, in finding that the Veteran's disability was not aggravated by service, the examiner stated the following: I evaluated the veteran and reviewed the records 1. There is a current diagnosis as noted of right shoulder strain. Reported right shoulder separation without surgical repair when he was 15 years old 2. There is not an event that happened in the military of right shoulder strain as noted in evidence with no STR of symptoms and first evaluated again after service in 2016. 3. There is no connection between military service and the present in that the diagnosis was present on entrance and not treated or diagnosed until 29 years after service was completed. As noted, the Veteran specifically stated that his right shoulder was aggravated by heavy lifting throughout service. The opinion does not address that contention and is premised solely on the lack of documented treatment within the Veteran's service treatment records (STRs). It has long been acknowledged that an opinion premised on such a lack of evidence is not adequate. See Dalton v. Nicholson, 21 Vet. App. 23, 39 (2007). Thus, the Veteran has not been afforded substantial compliance with the Board's prior directives, requiring remand to secure an addendum opinion. See Stegall v. West, 11 Vet. App. 268, 271 (1998). 2. Entitlement to service connection for a liver disability is remanded. For the liver disability, the Board instructed the AOJ to secure an adequate medical opinion addressing direct service connection. Specifically, the Board noted that no prior medical examiner has addressed whether the Veteran's in-service complaints of right flank pain caused his current disability. The Board identified February 1981 treatment notes in the STRs for a cough and right flank and chest pain. The Veteran was referred for possible hepatitis. There was "no evidence" of hepatitis but a confirmed "viral syndrome." That examiner also confirmed that there was no signs or symptoms attributable to cirrhosis of the liver, biliary cirrhosis, or a cirrhotic phase of sclerosing cholangitis." In its directives, the Board specifically asked the examiner to "acknowledge and discuss the Veteran's treatment for possible hepatitis during service, and any reports by the Veteran of liver problems, including cirrhosis and hepatitis B, during and since his period of service." In a September 2021 opinion, the examiner provided the following opinion and rationale: I evaluated the veteran and reviewed the records 1. There is a current diagnosis as noted of hepatitis B and cirrhosis 2. There is not an event that happened in the military of hepatitis B and cirrhosis as noted in evidence with no STR of symptoms and first evaluated and diagnosed after service with biopsy in 2008 3. There is no connection between military service and the present in that the diagnosis was not present on entrance and not treated or diagnosed until 27 years after service was completed. This explanation is premised on the lack of documented treatment in service. See Dalton, 21 Vet. App. at 39. However, the Veteran was referred for possible in-service hepatitis treatment. Even though there ultimately was no diagnosis rendered at that time, this does not preclude a medical finding that hepatitis in the present could be due to those in-service symptoms. Thus, the Veteran also has not been afforded substantial compliance for this claim, and remand is required to secure an addendum opinion. See Stegall, 11 Vet. App. at 271. 3. Entitlement to service connection for a gastrointestinal disability is remanded. For the gastrointestinal issue, the Board instructed the AOJ to provide the Veteran an initial examination and secure both a direct and secondary opinion. The former stated the following: I evaluated the veteran and reviewed the records 1. There is a current diagnosis as noted of GERD 2. There is not an event that happened in the military of GERD as noted in evidence with no STR of symptoms and first evaluated after service in 2010 with no treatment ordered 3. There is no connection between military service and the present in that the diagnosis was not present on entrance and not treated or diagnosed until 29 years after service was completed. As to the first prong of secondary service connection, the examiner provided an opinion identical to her one for direct service connection. Concerning the prong of aggravation, the examiner stated that "Due to no evaluation until 2010 and no treatment prescribed at that time his symptoms do not appear aggravated beyond natural progression." For the reasons already discussed and stressed above, the direct opinion is inadequate. See Dalton, 21 Vet. App. at 39. With respect to the secondary opinion for the Veteran's gastrointestinal claim, the examiner merely duplicated her direct-service-connection opinion and provided virtually no discussion as to why it is not aggravated by any of the Veteran's service-connected conditions. Thus, the secondary opinions also are inadequate. See McCray v. Wilkie, 31 Vet. App. 243, 257 (2019) (discussing a multitude of factors to consider when evaluating whether a medical opinion is adequate); El-Amin v. Shinseki, 26 Vet. App. 136, 13941 (2013) (discussing that, to be adequate for adjudication purposes, a medical opinion addressing secondary service connection must address both causation and aggravation). The matters are REMANDED for the following action: 1. Obtain addenda to the September 2021 medical opinions based on file review. The examiner is asked to answer the following: (a.) Is it at least as likely as not (a fifty percent probability or greater) that the Veteran's preexisting right shoulder disability was aggravated beyond natural progression by his active service, to include heavy lifting? (b.) Is it at least as likely as not (a fifty percent probability or greater) that the Veteran's liver disabilities occurred in, or are the result of, his period of active duty service, to include potential treatment for hepatitis in February 1981? The examiner must discuss the Veteran's complaints of right flank pain and the in-service notes that there was no hepatitis confirmed but a viral syndrome, as well as the in-service documentation that there was no signs or symptoms attributable to cirrhosis of the liver, biliary cirrhosis, or a cirrhotic phase of sclerosing cholangitis. (c.) Is it at least as likely as not (a fifty percent probability or greater) that the Veteran's gastrointestinal disability occurred in, or is the result of, his period of active duty service? (d.) If the answer to (c.) is no, then is it at least as likely as not (a fifty percent probability or greater) that the any of the Veteran's service-connected conditions (i) proximately caused or (ii) aggravated beyond natural progression his gastrointestinal disability? Note: The term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as against it. A detailed rationale supporting the examiner's opinions is requested. The lack of documented treatment in service, while probative, cannot serve as the sole basis for a negative finding. If an opinion cannot be made without resort to speculation, the examiner should so state and provide reasoning as to why a conclusion would be so outside the norm that such an opinion is not possible. 2. Conduct any other development deemed necessary and then readjudicate the Veteran's claims. The Veteran has the right to submit additional evidence and argument on the matter that the Board has remanded. See Kutscherousky v. West, 12 Vet. App. 369, 372 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded for additional development or other appropriate action by the Board or United States Court of Appeals for Veterans Claims must be handled in an expeditious manner. 38 U.S.C. §§ 5109B, 7112. (SIGNATURE ON NEXT PAGE) LLOYD MASON CRAMP Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Trevor T. Bernard, 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.