Citation Nr: 21005956 Decision Date: 02/03/21 Archive Date: 02/03/21 DOCKET NO. 17-16 866 DATE: February 3, 2021 ORDER Entitlement to service connection for a gastrointestinal disorder, as secondary to a heart disorder and medications taken, is denied. REMANDED Entitlement to service connection for gastroesophageal reflux disease (GERD), claimed as acid reflux, to include as secondary to a heart disorder and medications taken or as secondary to the psychiatric condition and medications taken, is remanded. Entitlement to service connection for sleep apnea, to include as secondary to a heart disorder and medications taken or as secondary to the psychiatric condition and medications taken, is remanded. Entitlement to service connection for hypertension, to include as secondary to a heart disorder and medications, or as secondary to the psychiatric condition and medications taken, or as due to exposure to herbicide agents, is remanded. FINDING OF FACT The competent and credible evidence of record shows that there is no current diagnosis of a gastrointestinal disorder and no symptoms other than the symptoms contemplated within the separate claim for service connection for GERD. CONCLUSION OF LAW The criteria for service connection for a gastrointestinal disorder have not been met. 38 U.S.C. §§ 1101, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Navy from September 1970 to June 1974. These matters come to the Board of Veterans’ Appeals (Board) on appeal from a July 2016 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). In January 2019, the Board issued a decision denying the claims for entitlement to service connection for an acquired psychiatric disorder, sleep apnea, a gastrointestinal disorder, GERD, and hypertension. The Veteran subsequently appealed that decision to the United States Court of Appeals for Veterans Claims (Court). In a February 2020 Order, the Court granted a Joint Motion of the parties and remanded the case to the Board for action consistent with the Joint Motion for Remand (JMR). Thereafter, a July 2020 Board decision remanded the claims for service connection for an acquired psychiatric condition other than PTSD; for sleep apnea; for a gastrointestinal condition; GERD; and hypertension, all as secondary to the heart condition or medication taken for the heart condition. Subsequently, the Veteran was granted service connection for an anxiety disorder as related to the service-connected disability of ischemic heart disease with a 30 percent evaluation, effective March 28, 2016, in a November 2020 rating decision. The Veteran has not appealed this determination as to the assigned rating, though he is within the one-year timeframe to do so; therefore, this issue is not in front of the Board at this time. Unfortunately, for the reasons that follow, for the GERD, hypertension, and sleep apnea claims, another remand is warranted due to noncompliance with the 2020 remand directives. The claim for an alleged gastrointestinal disorder is discussed immediately below. The Veteran has not raised any issues with the duty to notify or duty to assist in obtaining documentary evidence. Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board.”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Thus, the Board need not discuss any potential issues in this regard. The Veteran contends that he has a gastrointestinal disorder caused by his service, to include as secondary to his service-connected heart condition, or medication taken for his heart condition. Specifically, he reported that he has normal stools for a few days, then constipation, then diarrhea, cyclical about every week or two. Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. In order to prevail on the issue of service connection there must be competent evidence of a current disability; medical evidence, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and competent evidence of a nexus between an in-service injury or disease and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of the matter, the Secretary shall give the benefit of the doubt to the claimant. See 38 U.S.C. § § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Id. Upon review, the Board finds that the evidence of record does not show a current diagnosis for a gastrointestinal disorder. A review of the Veteran’s VA treatment records also reveals no treatment for or diagnosis of a gastrointestinal disorder. In the Veteran’s June 1974 separation examination, he marked “yes” to the column for stomach, liver, and intestinal trouble. However, the service treatment records (STRs) are otherwise silent as to any complaints of or treatment for or a diagnosis of a gastrointestinal disorder; rather, it was noted in February 1972 that he had liver problems due to his hepatitis (later noted as resolved). The Veteran’s post service medical records reveal that the Veteran underwent an esophagogastroduodenoscopy in 2008 and a 2014 medical treatment record showed a diagnosis of GERD. As part of this claim, the Board recognizes the statements from the Veteran regarding his history of a stomach condition since service. In this regard, while the Veteran is not competent to make a diagnosis related to a stomach disorder, as it may not be diagnosed by its unique and readily identifiable features, and thus requires a determination that is “medical in nature,” he is nonetheless competent to testify about the presence of observable symptomatology, which may provide sufficient support for a claim of service connection, if credible, regardless of the lack of contemporaneous medical evidence. Jandreau, 492 F.3d 1372, 1376; See Barr v. Nicholson, 21 Vet. App. 303, 307 (2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). Nevertheless, the Board determines that the reported history of continued symptomatology since active service, while competent, is nonetheless not persuasive in establishing continuity of symptomology. As an initial matter, his post service medical records do not reflect a treatment for a stomach condition until 34 years following service. Further, the July 2016 and October 2020 VA examiners both determined that there was no diagnosis for a gastrointestinal disorder (other than the diagnosis for GERD). Specifically, in the 2016 examination report, it was noted that the Veteran had GERD, but that there was no other chronic disability due to gastrointestinal condition identified, and, after a review of the available records, the examiner further noted that the Veteran’s medical records are also silent for any chronic gastrointestinal disorders. The October 2020 examination report mirrored this finding. The Veteran stated that he has noticed bowel habit variability which he describes as 1-2 days of ‘constipation’ followed by several days of ‘loose’ stools, sometimes starting with middle of the night diarrhea. He also describes ‘gas pains’ (belly button level or lower) on a frequent basis which are different than his GERD condition. However, the examiner, after reviewing the Veteran’s medical records and considering his contentions, stated that while “it is possible that what he is describing amounts to irritable bowel syndrome, I am unable to confirm a diagnosis of irritable bowel syndrome, in part, because his care records note ongoing alcohol usage of concern (which could be causing these same symptoms without invoking a separate diagnosis of irritable bowel syndrome) and also because Veteran is more than 12 years out from his last colonoscopy.” The examiner further noted that the Veteran himself reported that his private doctors had told him the aforementioned symptoms were “normal” for his age, which the examiner opined indicated the regular care doctors “are not suspicious of any actual colon or intestinal condition.” The examiner further discussed the 2008 colonoscopy when the Veteran had several benign polyps removed. A history of rectal bleeding was noted at the time, but the 2008 colonoscopy discussion did not document any bowel habit variability at that point and the colon otherwise looked normal. As such, the examiner stated that he was “unable to confirm any specific ‘intestinal’ diagnosis for this Veteran, who tells me he spoke with his own care providers who did NOT express any concern for any pathologic condition based on his description of symptoms.” As such, the examiner stated that there is no current diagnosis for a pathologic colon or intestinal condition. A review of the Veteran’s VA medical records also does not reveal a diagnosis for a gastrointestinal disorder or relate any alleged symptoms of stomach issues to service. Specifically, although he reported having constipation and diarrhea and belly pain, the Board notes that under 38 U.S.C. § 1110, there must be a disability due to an identified personal injury suffered or disease or injury, contracted in-service. Where pain alone results in functional impairment, even if there is no identified underlying diagnosis, it can constitute a disability. However, subjective pain in and of itself will not establish a current disability. Consideration should be given to the impact, or lack thereof, from pain, focusing on evidence of functional limitation caused by pain. Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir., 2018). Here there is no functional limitation as to the Veteran’s alleged gastrointestinal issues. Further, not all pain results in a disability, as in this case, or rises to the level of impairment of working ability. As discussed in detail above, the 2016 and 2020 examinations revealed no current disability – though the Veteran was advised to request an updated colonoscopy. Therefore, service connection is not warranted as there is no evidence of a current disability. As noted above, the existence of a current disability is the cornerstone of a claim for VA disability compensation. See 38 U.S.C. § 1110, 1131; see Degmetich v. Brown, 104 F. 3d 1328, 1332 (1997) (holding that interpretation of sections 1110 and 1131 of the statute as requiring the existence of a present disability for VA compensation purposes cannot be considered arbitrary). In the absence of proof of a current disability, there can be no valid claim. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); Brammer, 3 Vet. App. 223, 225. While the Veteran believes he has a gastrointestinal disorder, he is not competent to provide a diagnosis for this condition. The issues are medically complex, as they require specialized medical education and the ability to interpret complicated diagnostic medical testing to evaluate. Jandreau, 492 F.3d 1372, 1377. Therefore, the Board finds that the Veteran’s claim cannot be accepted as competent evidence sufficient to establish a diagnosis for a gastrointestinal disorder and gives more probative weight to the competent medical evidence discussed above. Ultimately, as there is no competent evidence in the record of a current disability for a gastrointestinal disorder, the Board finds that the criteria for service connection for this condition has not been met and the claim must be denied. Again, his diagnosed GERD is being adjudicated as a separate claim; the Board is finding there is no gastrointestinal disorder other than GERD. With no evidence of a competent current diagnosis, the Board also finds that there is no reasonable doubt to resolve in the Veteran’s favor. In reaching this conclusion, the Board finds that the preponderance of the evidence is against the claim. As such, the benefit of the doubt rule is not for application, and the claim must be denied. See 38 U.S.C. § 5107(b); Gilbert, 1 Vet. App. 49. REASONS FOR REMAND Although the Board sincerely regrets the additional delay, a remand is necessary to afford the Veteran due process of law and to ensure that there is a complete record upon which to decide the Veteran’s appeal, so that he is afforded every possible consideration. See 38 U.S.C. § 5103a; 38 C.F.R. § 3.159. As noted above, the 2020 Board remand directives were not substantially complied with in terms of the claims for sleep apnea, GERD, and hypertension. Specifically, the remand directives requested a medical opinion regarding whether the Veteran’s service-connected heart condition and/or the medication taken for the heart condition proximately caused or aggravated the Veteran’s GERD, sleep apnea, and hypertension. Although the October 2020 examiner provided a competent opinion regarding causation in relation to the heart condition, he failed to provide an opinion as to aggravation, nor did he discuss the May 2017 private doctor’s opinion and medical literature/studies citing to aggravation. The VA examiner noted there was no pre-existing condition to provide an opinion on aggravation, but the examiner is advised that the opinion regarding aggravation is not as to pre-existing service and that a “permanent” worsening or increase in severity of any currently diagnosed disorder is NOT required to demonstrate “aggravation” which is the standard for a disability pre-existing service – which is not the claim in this case. Rather, the opinion requested is whether any increase in disability of a non-service-connected condition shows aggravation. See 38 C.F.R. § 3.310(b). Further, as noted above, the Veteran is now service connected for a psychiatric condition, and the 2017 private doctor’s opinion included citing to multiple studies and medical literature that indicated a psychiatric condition with stress can aggravate and exacerbate GERD and hypertension, as well as cause weight gain/obesity which may cause/aggravate hypertension, sleep apnea and GERD. While obesity in of itself is not a disability eligible for service connection (Marcelino v. Shulkin, 29 Vet. App. 155 (2018)), obesity may act as an “intermediate step” between a service-connected disability and a current disability that may be service-connected on a secondary basis under 38 C.F.R. § 3.310(a). See VAOPGCPREC 1-2017. As the Veteran is service-connected for a psychiatric disorder and the 2017 private opinion stated that his psychiatric disorder and medication taken for the disorder caused his overeating and weight gain, obesity could be an “intermediate step” between his now service-connected psychiatric condition and his sleep apnea, GERD, and hypertension. Finally, although the 2020 examiner gave an opinion that the Veteran’s hypertension is less likely than not due to service, there was no opinion regarding his conceded exposure to herbicide agents. The Veteran has a current diagnosis of hypertension and it has already been conceded that he had exposure to Agent Orange in Vietnam. Further, hypertension was moved from the “limited or suggestive” category to the category of “sufficient” evidence of an association. Veterans and Agent Orange: Update 11 (2018). As such, an addendum opinion to take into consideration the changes in medical knowledge illustrated by the moving from the “limited or suggestive” category to the category of “sufficient” evidence of an association between hypertension and Agent Orange is required. The matters are REMANDED for the following action: 1. Request a medical opinion concerning the Veteran’s obesity. The examiner must note his or her review of the complete claims file, including this remand. Then, the examiner should opine as to the following, with full supporting rationales: Is it at least as likely as not that the service-connected heart and/or psychiatric conditions caused the Veteran to become obese? In answering this question, please discuss the role, if any, that medications for either/both these disabilities played in his obesity. Please also specifically address the Veteran’s contentions his service-connected psychiatric symptoms lead to overeating, which then led to his current obesity. Specifically, the examiner must discuss and consider the 2017 private medical opinion which noted that depression causes weight gain and obesity, and the doctor noted that between December 2014 and April 2016, the Veteran gained almost 20 pounds after being prescribed antidepressants, and cited to medical literature that antidepressant medication usage “is associated with a modest increase in weight”. Rationale must be provided for the opinions proffered. If the examiner determines that a requested opinion is not possible without resort to mere speculation, then the examiner must explain why. 2. The opinion requested above on obesity must be obtained prior to requesting the following opinions, as they will be based on that opinion. 3. Request an addendum medical opinion from the 2020 examiner (or to another VA examiner if that person is no longer available) for the Veteran’s GERD. The examiner must note his or her review of the complete claims file, including this remand. Then, the examiner should opine as to the following, with full supporting rationales: (a.) Is it at least as likely as not that the Veteran’s GERD is proximately due to his service-connected psychiatric condition? (b.) Is it at least as likely as not that GERD is aggravated beyond its natural progression by his service-connected psychiatric condition or medication taken? (c.) Is it at least as likely as not that GERD is aggravated beyond its natural progression by his service-connected heart condition or medication taken for such condition? The examiner should also specifically cite to any evidence that supports the opinion and is advised that a “permanent” worsening or increase in severity of any current GERD condition is NOT required to demonstrate “aggravation.” Rather, aggravation is shown if there is any incremental increase in disability, meaning any additional impairment of earning capacity above the degree of disability existing before the increase, in a nonservice-connected disability resulting from a service-connected disability, regardless of its permanence. (d.) If and only if the opinion obtained on the Veteran’s obesity indicates it is at least as likely as not that the service-connected heart and/or psychiatric conditions (or medications taken for these conditions) caused the Veteran to become obese, then please opine as to whether that obesity was at least as likely as not a substantial factor in causing GERD? (e.) If and only if the examiner concludes obesity related to the Veteran’s service-connected heart and/or psychiatric conditions (or medications taken for these conditions) was a substantial factor in causing GERD, then please also opine as to whether it is at least as likely as not that the GERD would NOT have occurred BUT FOR the obesity? Specifically, the examiner must discuss and consider the 2017 private medical opinion which included several medical studies indicating that stress and psychiatric conditions may exacerbate and aggravate GERD. It also was noted that the weight gain and obesity the Veteran has “is known to aggravate pre-existing GERD conditions” and cited to literature that weight gain and weight loss are associated with an increase and decrease in reflux symptoms. Rationale must be provided for the opinions proffered. If the examiner determines that a requested opinion is not possible without resort to mere speculation, then the examiner must explain why. 4. Request an addendum medical opinion from the 2020 examiner (or to another VA examiner if that person is no longer available) for the Veteran’s sleep apnea. The examiner must note his or her review of the complete claims file, including this remand. Then, the examiner should opine as to the following, with full supporting rationales: (a.) Is it at least as likely as not that the Veteran’s sleep apnea is proximately due to his service-connected psychiatric condition? (b.) Is it at least as likely as not that sleep apnea is aggravated beyond its natural progression by his service-connected psychiatric condition or medication taken to include as due to his overeating/obesity? (c.) Is it at least as likely as not that sleep apnea is aggravated beyond its natural progression by his service-connected heart condition or medication taken for such condition? The examiner should specifically cite to any evidence that supports the opinions and is advised that a “permanent” worsening or increase in severity of the currently diagnosed sleep apnea is NOT required to demonstrate “aggravation.” Rather, aggravation is shown if there is any incremental increase in disability, meaning any additional impairment of earning capacity above the degree of disability existing before the increase, in a nonservice-connected disability resulting from a service-connected disability, regardless of its permanence. (d.) If and only if the opinion obtained on the Veteran’s obesity indicates it is at least as likely as not that the service-connected heart and/or psychiatric conditions (or medications taken for these conditions) caused the Veteran to become obese, then please opine as to whether that obesity was at least as likely as not a substantial factor in causing sleep apnea? (e.) If and only if the examiner concludes obesity related to the Veteran’s service-connected heart and/or psychiatric conditions (or medications taken for these conditions) was a substantial factor in causing sleep apnea, then please also opine as to whether it is at least as likely as not that the sleep apnea would NOT have occurred BUT FOR the obesity? Specifically, the examiner must discuss and consider the 2017 private medical opinion which included several medical studies indicating that stress and psychiatric conditions, especially the medication taken, may cause or exacerbate and aggravate sleep apnea. It also was noted that sleep disturbances are due to weight gain as there is a strong association between psychiatric conditions and those with obesity and sleep apnea. Rationale must be provided for the opinions proffered. If the examiner determines that a requested opinion is not possible without resort to mere speculation, then the examiner must explain why. 5. Request an addendum medical opinion from the 2020 examiner (or to another VA examiner if that person is no longer available) for the Veteran’s hypertension. The examiner must note his or her review of the complete claims file, including this remand. Then, the examiner should opine as to the following, with full supporting rationales: (a.) Is it at least as likely as not that the current hypertension arose during service, or is otherwise related to service, to include presumed exposure to herbicide agents therein? (b.) Is it at least as likely as not that the Veteran’s hypertension is proximately due to his service-connected psychiatric condition? (c.) Is it at least as likely as not that hypertension is aggravated beyond its natural progression by his service-connected psychiatric condition or medication taken to include as due to his overeating/obesity? (d.) Is it at least as likely as not that hypertension is aggravated beyond its natural progression by his service-connected heart condition or medication taken for such condition? The examiner must provide a complete rationale for any opinion set forth and must specifically address appropriate medical literature, to include but not limited to, the findings by VA and the Institute of Medicine that there is “sufficient” evidence of a relationship between Agent Orange and hypertension. The examiner is advised that the fact that hypertension is not listed as a presumptive disease cannot be the sole rationale of an opinion, but rather the circumstances of this Veteran’s specific case should be considered. The examiner should specifically cite to any evidence that supports this opinion and is advised that a “permanent” worsening or increase in severity of hypertension is NOT required to demonstrate “aggravation.” Rather, aggravation is shown if there is any incremental increase in disability, meaning any additional impairment of earning capacity above the degree of disability existing before the increase, in a nonservice-connected disability resulting from a service-connected disability, regardless of its permanence. (e.) If and only if the opinion obtained on the Veteran’s obesity indicates it is at least as likely as not that the service-connected heart and/or psychiatric conditions (or medications taken for these conditions) caused the Veteran to become obese, then please opine as to whether that obesity was at least as likely as not a substantial factor in causing hypertension? (f.) If and only if the examiner concludes obesity related to the Veteran’s service-connected heart and/or psychiatric conditions (or medications taken for these conditions) was a substantial factor in causing hypertension, then please also opine as to whether it is at least as likely as not that the hypertension would NOT have occurred BUT FOR the obesity? Specifically, the examiner must discuss and consider the 2017 private medical opinion included several medical studies indicating that the heart condition and stress and psychiatric conditions, especially the medication taken, aggravated the Veteran’s hypertension. The doctor also opined that the hypertension was likely aggravated/caused by the heart condition, psychiatric condition, or his exposure to Agent Orange. Rationale must be provided for the opinions proffered. If the examiner determines that a requested opinion is not possible without resort to mere speculation, then the examiner must explain why. MICHELLE L. KANE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board G.Hoy, 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.