Citation Nr: 21075406 Decision Date: 12/20/21 Archive Date: 12/20/21 DOCKET NO. 10-00 347 DATE: December 20, 2021 REMANDED Entitlement to service connection for residuals of an appendectomy, to include the resulting anterior trunk scar, is remanded. REASONS FOR REMAND The Veteran had active duty from March 1974 to August 1994. This matter comes before the Board of Veterans' Appeals (Board) on his appeal from a February 2009 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO), that denied him service connection for his appendectomy scar. The Board reads that finding broadly and construes that decision as denying service connection for all residuals of the Veteran's appendicitis, to include his anterior trunk scar that resulted from the Veteran's appendectomy performed in August 1999. At the onset, the Board notes that appendicitis is an inflammation of the appendix that "causes pain in . . . lower right abdomen," even though, "in most people, pain begins around the navel and then moves." https://www.mayoclinic.org/diseases-conditions/appendicitis/ symptoms-causes/syc-20369543#:~:text=Appendicitis %20is%20an%20inflammation%20of,the%20navel%20and%20then%20moves. "[I]f doctors don't remove the appendix quickly[,] . . . the organ may rupture . . . . The result is a 'perforated appendix,' . . . the appendix develops a small tear, which allows its contents to leak out into the rest of the abdomen and potentially cause other complications such as a serious blood infection [(]called septicemia[),] or peritonitis, [i.e., a] severe inflammation of the intestinal lining. Perforation is found in about 13 to 20 percent of patients who have symptoms of appendicitis." https://www.everydayhealth.com/appendicitis/guide/appendix/ruptured/. With this information in mind, the Board now turns to the evidence accrued and procedural history of this more-than-thirteen-year-long litigation that began in May 2008, when the Veteran filed VA Form 21-4138, Statement in Support of Claim, operating as his informal claim and reading, inter alia, "Gastroenteritis[. Disabilities a]djunct to[] Gastroenteritis[:] 1. Scarring from appendectomy[; and] 2. Hernia." In sum, the Veteran raised a claim for primary service connection for gastroenteritis and also raised two claims for secondary service connection, one for residuals of appendicitis, to include the resulting scar, and another for his hernia. Notably, the Veteran experienced only one type of hernia, i.e., ventral hernia, albeit he experienced it twice: once during service, and then in August 1999. The Board acknowledges that the phrase "ventral hernia" encompasses "three types of ventral hernia: [one is e]pigastric . . . hernia [that may o]ccur[] anywhere from just below the breastbone to the . . . belly button . . . , [the other one is u]mbilical . . . hernia [that o]ccurs in the area of the belly button[, and third type is i]ncisional hernia [that d]evelops at the site of a previous surgery." https://my.clevelandclinic.org/ health/diseases/16531-ventral-hernia. Here, the record shows that the Veteran's hernia experienced and operated on while in service was located at the area of his belly button (qualifying as "umbilical"), while the Veteran's post-service hernia, which was service-connected, was located at the site of the in-service surgery, thus qualifying as incisional. The Board also acknowledges that the Veteran's incisional hernia was operated on in August 1999, when the Veteran had his appendectomy. The record demonstrates that the Veteran reported to his operating and treating medical practitioners that, prior to his appendectomy, he had experienced substantial pain in the appendix area and, in addition, that he had pain in his naval area, which was later attributed to his incisional hernia. Upon completion of the Veteran's appendectomy, his treating medical practitioner described the Veteran's removed appendix as having 5 cm in the distal area, with a 1.5 cm attached mesoappendix. The treating medical practitioner also observed that the appendix was "covered with tan white fibrinopurulent exudate with congestion of the serosal blood vessels, and congestion and blood clot formation with the mesoappendix. Sections through the tip show a 0.4 cm irregular area at the tip. Sections show what appears to be a perforation of the free wall of the appendix with an overlying fibrotic and healing response within the abnormal distal 5 cm." In addition, the record shows that the Veteran's appendectomy went without complications, meaning that his appendicitis did not cause any septicemia or peritonitis, and the inflammation remained contained to the appendix, which was removed timely. Therefore, the treating medical practitioner's observations demonstrate that the Veteran's appendix was perforated, but the perforation and related inflammation occurred shortly prior to his appendectomy and coincided with the one-week-period, during which the Veteran reported pain in his appendix. Notably, the Veteran was awarded direct primary service connection for his incisional hernia and, separately, direct primary service connection for his gastroenteritis, which in May 2008 the Veteran asserted as the cause of his perforated appendix that required an appendectomy and resulted in the anterior scar. The Board acknowledges that "gastroenteritis is [an] illness triggered by the infection and inflammation of the digestive system. Symptoms [of gastroenteritis] can include abdominal cramps, diarrhe[a,] and vomiting. Some of the causes of gastroenteritis include viruses, bacteria, bacterial toxins, parasites, [various] chemicals and . . . drugs." https://www.betterhealth.vic.gov.au/health/conditions andtreatments/gastroenteritis. Moreover, not only the symptomatology of gastroenteritis mimics appendicitis, https://www.ncbi.nlm.nih.gov/pmc/articles/ PMC7650746/, these conditions are hard to distinguish, https://www.everyday health.com/gastroenteritis/flu-something-else/, since gastroenteritis affects both the small and large intestines, to include colon and, thus, appendix, https://www.mayo clinic.org/diseases-conditions/viral-gastroenteritis/symptoms-causes/syc-20378847#:~:text=The%20stomach%2C%20small%20intestine%20and,t%20the% 20same%20as%20influenza. Correspondingly, a causal relationship asserted by the Veteran between his service-connected gastroenteritis and residuals of his appendicitis cannot be ruled out. However, while such a causal relationship was asserted 13 years ago, the record is void of a medical opinion as to whether it is as likely as not that the Veteran's appendicitis was caused or aggravated by his service-connected gastroenteritis. Instead, the previous reviews, to include the Veteran's VA examinations, reflected only on direct service connection between the Veteran's appendicitis and his service and on secondary service connection between his service-connected incisional hernia and his appendicitis, as well as on a potential aggravating effect that the Veteran's incisional hernia might have had on his appendicitis. Notably, the VA examination reports of record consistently demonstrate the examiners' consensus that it was less likely than not that the Veteran's appendicitis was directly attributable to service. While the Board acknowledges the Veteran's Board hearing testimony stating his impression that the inflammation occurred in service, and the substances observed on the removed appendix were a result of prolonged inflammation and rupture that allowed the infected matter to ooze out over the years, the June 2021 VA examiner who conducted the latest review of the Veteran's medical records observed that it was "medically impossible for someone to survive with an untreated ruptured appendix for . . . years." Analogously, while the Board acknowledges the Veteran's impression that his appendicitis might have been causally connected to his incisional hernia, the Board is mindful of the June 2021 VA examiner's observation that umbilical hernia [that occurred and was operated in service, and gave rise to his currently service-connected incisional hernia that had the same location, was a "projection of the organ through the umbilical ring (belly button), which is anatomically distinct and separate from the base of the cecum (junction between small & large intestines)," meaning that "[t]he [V]eteran's statement regarding [his belief as to the possibility of having a] 'displacement of the fatty tissue' [and] 'balloon in a pinched way, [that] put a hole or perforate[d] that end of that balloon, then let it go, and the air [was] go[ing] out slowly,'" thus causing the Veteran's appendicitis did "not have [any] scientific basis." Simply put, the June 2021 VA examiner's report reflected her opinion that the Veteran's service-connected hernia could not have either caused or aggravated the Veteran's appendicitis. However, on a closer look at the record, the Board acknowledges that no medical opinion was provided as to his causal connection between or aggravating effect of the Veteran's service-connected gastroenteritis and his appendicitis. While the Board is mindful of the fact that gastroenteritis is, frequently, a short-term condition, the Board acknowledges that gastroenteritis might be experienced repeatedly and be deemed a chronic condition, https://ada.com/conditions/chronic-gastritis/#:~:text=Gastritis%20vs.-,gastroenteritis,not%20a%20symptom%20of% 20gastritis. Given that the Veteran's post-service medical treatment records reflect his numerous reports of the symptoms consistent with recurrent gastroenteritis, and the Board cannot rule out that such recurrent symptoms be they qualified as chronic or not caused or contributed to his appendicitis, the Board is constrained to remand this matter for further development as to the claim of secondary service connection between the Veteran's service-connected gastroenteritis and residuals of his appendectomy since such a claim was not only reasonably raised by the record but, in addition, sufficiently raised by the Veteran in his May 2008 application. See, e.g., Martinez-Bodon v. Wilkie, 32 Vet. App. 393, 397 (2020); Payne v. Wilkie, 31 Vet. App. 373, 386 (2019). Finally, in connection with directing the RO to provide the Veteran with an addendum VA examination, the Board finds it warranted to make two observations. First, the Board acknowledges the portion of the July 2021 VA examiner's report, reading, [The Veteran] reports getting loose stools 3-5x/day [and] "excess gas" that's worse when he eats certain foods, [as well as his observation that his] "gut stays out of balance." He [also] reports repeated episodes of "acute gastroenteritis" since 1984 [and expresses his] belie[f that] "the [Board's J]udges try to get someone to say [that there is a causal connection between the Veteran's appendicitis and his service or one of his service-connected disabilities, and the Veteran does not understand] why they won't believe [him] and keep requesting medical opinions.]" The Board, hence, takes this opportunity to point out that being an adjudicatory body, rather than a counsel representing a litigant in an adversarial litigation the Board does not have an interest in a particular outcome; rather, the paternalistic nature of VA laws obligates the Board to diligently explore every legal alternative that might yield an award for the Veteran: if such an alternative could be detected from the record or the Veteran's statements. That said, while the Veteran is surely competent to report the sensations he experiences, to include the time when he experiences pain and the location of the pain, the Veteran has not been shown to possess the expertise to opine about the etiology or pathology of his medical conditions. Layno v. Brown, 6 Vet. App. 465, 469 (1994). Thus, while the Board finds the Veteran's reports of pain competent, credible, and probative, the Board is without a basis to credit the Veteran's opinion as to whether his appendicitis was causally related to service or might have been aggravated by any of his service-connected disabilities. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). For this reason, the Board is obligated to obtain a medical opinion before adjudicating his claim, McLendon v. Nicholson, 20 Vet. App. 79 (2006) (a medical examination is required if there is an indication that the disability "may be" associated with the veteran's service), especially because the passage of many years between discharge from active service and a claimed disability is a factor that weighs against a claim for service connection, Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). The Board also finds it warranted to stress that the inquiry related to aggravation, if any, of the Veteran's appendicitis by his service-connected gastroenteritis is different from the inquiry as to a causal relation, if any, between these conditions. This is so because VA cannot concede aggravation unless the baseline level of the non-service-connected disability is established by medical evidence created before the onset of aggravation or by the earliest evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the level of aggravation raised by the claim, 38 C.F.R. § 3.310(b); Allen v. Brown, 7 Vet. App. at 448 (1995), which here means the condition of the Veteran's appendix at the time when he experienced appendicitis and underwent his appendectomy. Simply put, it is not sufficient for a medical expert to opine that "an" aggravation has taken place; rather, (s)he is required to provide an opinion as to: (a) whether it was as likely as not that the Veteran's gastroenteritis aggravated his appendicitis; and, if yes, (b) the magnitude of aggravation. In conjunction with so observing, the Board takes this opportunity to stress that the causal relation while different from aggravation does not require that the Veteran's appendicitis was shown to be caused exclusively by his gastroenteritis; rather, such a causal connection if established is the Veteran's gastroenteritis contributed to his appendicitis, albeit if the contribution was a part of the triggering source, and not an aggravating factor. The matters are REMANDED for the following action: 1. Forward the Veteran's claim file for an addendum examination by the July 2021 VA examiner or, if she is unavailable, to an appropriate VA clinician. 2. The clinician is requested to carefully review the claims file, to include this Remand order, and opine whether it is as likely as not (i.e. a 50 percent or greater probability) that the Veteran's appendicitis was either causally related to or aggravated by beyond its natural progression by the Veteran's gastroenteritis. 3. The VA clinician is requested to examine the history of the Veteran's gastroenteritis and specifically reflect on the inflammatory intestinal nature of this condition, as well as on the inflammatory nature of appendicitis as a condition affecting a pouch that projects out from the longest part of the large intestine. 4. In the event the VA clinician determines that it is as likely as not that the Veteran's gastroenteritis aggravated his appendicitis beyond its natural progression, the VA clinician is requested to opine as to the effect of aggravation and the benchmark selected to determine such an effect. 5. The VA clinician is requested to conduct the causal connection and the aggravation analyses separately. 6. All appropriate studies and consultations should be accomplished, and all clinical findings should be reported in detail. If an opinion as to any aspect of the Veteran's claim based on his appendicitis cannot be provided without resorting to speculation, the VA clinician is requested to provide an explanation as to why this is so and to clarify what additional development would permit the requested opinion to be rendered. 7. After completing the foregoing and any other development necessary, adjudicate the Veteran's claim for service connection for residuals of his appendicitis, to include the anterior trunk scar caused by his appendectomy. 8. If any benefit sought on appeal remains denied, an Supplemental Statement of the Case should be furnished to the Veteran and his representative, and he should be afforded a reasonable opportunity to respond. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). The law requires that all claims that are remanded by the Board of Veterans' Appeals for additional development must be handled in an expeditious manner. 38 U.S.C. §§ 5109B, 7112. Cynthia M. Bruce Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Anna Kapellan, 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.