Citation Nr: 21074665 Decision Date: 12/16/21 Archive Date: 12/16/21 DOCKET NO. 19-04 065 DATE: December 16, 2021 REMANDED Entitlement to service connection for cholecystitis, status post cholecystectomy with residual of bile gastritis and episodes of emesis, claimed as cyclical vomiting, is remanded. REASONS FOR REMAND The Veteran served in the United States Army from July 2004 to February 2009 and is a Veteran of the Gulf War Era. This case comes to the Board of Veterans' Appeals (Board) on the Veteran's appeal of a December 2016 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO), which is the agency of original jurisdiction (AOJ). In May 2021, the Veteran testified before the undersigned Veterans Law Judge (VLJ) at a videoconference hearing, and a transcript of that hearing is attached to the Veteran's file. The Board also notes that the Veteran's claim for entitlement to service connection for thoracic and lumbar spine degenerative disc disease, caused during an accident repairing a tracked vehicle in Iraq in 2006, was granted in a January 2019 rating decision. This constitutes a full grant of the benefit sought on appeal for this disability and the matter is no longer before the Board. Seri v. Nicholson, 21 Vet. App. 441, 447 (2007); Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997); 38 U.S.C. § 7104, 38 C.F.R. § 20.104. 1. Entitlement to service connection for a condition which causes cyclical vomiting. The Veteran asserts that his gastrointestinal condition(s) which causes him repeated vomiting episodes, stated as cyclical vomiting, was caused by or is due to his military service. The evidence of record also raises other theories of entitlement to service connection including as secondary to his service-connected PTSD, as related to the impact of an explosion while on patrol, and whether his congenital pancreas divisum was aggravated beyond its natural progression during his military service. The Veteran states that he did not have this claimed condition or repeated episodes of vomiting prior to his entering the military. He claims that while on a combat patrol, he was subjected to the blast from an improvised explosive device (IED), after which the next day he vomited blood, and thereafter, this condition continued and has gotten worse. Several of his medical service treatment records (STRs) record him complaining at times of nausea and pain in his abdomen. There does not, however, appear to be any actual in-service treatment for or diagnosis of a condition which caused his vomiting. After he separated from the military, he first sought treatment with VA medical facilities at the Iowa City, Iowa, VA Health Care System (HCS), and the VA Clinic in Quincy, Illinois, beginning March 2009. On July 7, 2009 the Veteran consulted with the VA polytrauma support clinic where he provided a history which the VA medical provider described as a mild traumatic brain injury (TBI) in the summer 2006 with immediate and short-lived post-concussive symptoms such as poor balance, nausea, and possible involvement of pulmonary structures that may have caused him to vomit blood the next morning. His then current symptoms included low motivation, headaches, lower back pain, irritability, easy startle, poor sleep (4-5 hours/night), and social isolation. Thereafter, in approximately 2013 he moved to Colorado where he treated at local VA facilities, as well as through private medical providers. He underwent surgery for a cholecystectomy (removal of his gallbladder), and he was diagnosed with chronic cholecystitis, in August 2014. It was not until March 2015 that diagnostic testing revealed the presence of pancreas divisum. Pancreas divisum is a developmental anomaly in which the pancreas is divided into two separate structures, each with its own duct. See Dorland's Illustrated Medical Dictionary 1387 (31st ed. 2007). The Veteran was given several VA examinations, including several after his diagnosis of pancreas divisum. However, there was no opinion rendered whether this condition was aggravated beyond its natural progression due to events during or the circumstances of his military service. Congenital and developmental defects are not diseases or injuries within the meaning of the applicable legislation to establish entitlement to service connection. See 38 C.F.R. §§ 3.303(c), 4.9; see also Winn v. Brown, 8 Vet. App. 510, 516 (1996). For VA purposes, a "defect" is defined as a structural or inherent abnormality or condition that is more or less stationary in nature and is generally incapable of improvement or deterioration. In contrast, a "disease" is capable of improvement or deterioration. However, service connection may be granted for a congenital or hereditary disease, as opposed to a defect, when the disease first manifested during service (incurrence), or when it preexisted service but was worsened beyond its normal progression as a result of service (aggravation). See Quirin v. Shinseki, 22 Vet. App. 390, 394 (2009) (discussing VAOPGCPREC 82-90); Monroe v. Brown, 4 Vet. App. 513, 514-15 (1993). Therefore, remand is necessary to obtain medical opinions relevant to the Veteran's condition and possible theories of entitlement and etiological causation. These theories relate to both the congenital pancreas divisum condition, as well as the possibility that the IED blast caused an injury which resulted in the development of this condition, or that the condition is secondary to one of his other service-connected disabilities, such as PTSD. The Board also notes that there are references to the Veteran obtaining medical consultation and possibly treatment with a private internist, Dr. V. Srihdar, related to his vomiting condition and that this medical provider was one of the first with whom he consulted after he left service. However, the Board did not find records from that medical provider or requests by the RO to obtain these records. Therefore, on remand, the RO is requested to make reasonable efforts to obtain records from this medical provider. It is also requested that the RO fully document its efforts to obtain these records. The matters are REMANDED for the following action: 1. Contact the Veteran and request copies of, or authorization to obtain, all outstanding records pertinent to his claim not already in evidence, including that he fully identifies and provides contact information for Dr. V. Srihdar, stated to be an internal medicine provider, as well as executed medical records release authorizations for these records. 2. The RO is to take reasonable efforts to obtain these medical records related to the Veteran's claimed condition, including those from Dr. V. Srihdar, and is to document these efforts. All documents related to this request are to be attached to the Veteran's file. 3. Thereafter, provide the Veteran with an examination and obtain medical opinions related to the Veteran's condition which results in his claimed cyclical vomiting. As theories of entitlement raised are that the condition may have been caused or aggravated by the impact from an IED explosion or may be secondary to his service-connected PTSD, the primary clinician assigned should determine whether he or she is qualified to evaluate and provide competent opinions related to this theory, and if requested/needed, a qualified second or third examiner should be assigned to conduct the evaluation related to TBI residuals, and/or PTSD. 4. The examiner(s) is to review the claims file as part of authoring the requested opinions. The examiner(s) is asked to render opinions for the following: (a.) Identify each existing diagnosed disability which is related to or could reasonably be the cause of the Veteran's cyclical vomiting condition, and for each state whether it is at least as likely as not (50 percent probability or greater) that the disability began in service or is otherwise the result of a disease or injury incurred in service, to include his stated impact from an IED. The examiner is asked to specifically address and comment on the July 7, 2009 VA polytrauma support clinic note which indicated he suffered a mild TBI with post-concussive symptoms such as poor balance, nausea, and possible involvement of pulmonary structures that may have caused him to vomit blood the next morning. (b.) Whether it is at least as likely as not (50 percent probability or greater) that the Veteran's vomiting condition is a secondary condition to his service-connected PTSD. (c.) The examiner should explain whether the Veteran's pancreas divisum is (i) acquired in nature, (ii) a congenital defect, or (iii) a congenital disease. For VA adjudication purposes, a congenital "disease" generally refers to a condition considered capable of improving or deteriorating, whereas "defect" generally refers to a condition not considered capable of improving or deteriorating. 1. If the Veteran's pancreas divisum is (i) acquired in nature or (ii) a congenital disease, is it at least as likely as not (50% or greater probability) that the condition is related to any incident of service? Did it first manifest in service? 2. If the Veteran's pancreas divisum is (i) acquired in nature or (ii) a congenital disease, did it clearly and unmistakably (i.e., undebatable or to the highest degree of medical certainty) first manifest prior to the Veteran's entry into active service? If so, was it clearly and unmistakably NOT aggravated by service? In this context, "aggravation" has occurred where there is an increase in disability beyond the natural progress of the disease. 3. If the Veteran's pancreas divisum is a congenital defect (as opposed to a congenital disease), the examiner must opine as to whether it is at least as likely as not (50% or greater probability) that there was a superimposed injury or disease during service that resulted in additional disability. If so, describe the resultant disability. (Continued on the next page) The examiner(s) is asked to explain the reasons behind any opinions expressed and conclusions reached. R. FEINBERG Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Bannach 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.