Citation Nr: 21006267 Decision Date: 02/03/21 Archive Date: 02/03/21 DOCKET NO. 07-07 057 DATE: February 3, 2021 REMANDED Entitlement to service connection for a gastrointestinal disorder, to include gastroesophageal reflux disease (GERD), and to include as secondary to service-connected major depressive disorder, for accrued benefits and substitution purposes, is remanded. REASONS FOR REMAND The Veteran served on active duty from January 1959 to March 1962. The Veteran died in October 2015. The Appellant claims as the surviving spouse of the Veteran. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from February 2010 rating decision. The Agency of Original Jurisdiction (AOJ) granted the Appellant’s request for substitution in December 2017. In a November 2010 decision, the Board denied the claim for service connection. The Veteran appealed the Board’s decision to the United States Court of Appeals for Veterans Claims (Court), which endorsed a joint motion for partial remand and vacated the Board’s decision on the issue in an April 2011 Order. The Board remanded the matter in January 2012 for additional development and denied the claim again in August 2013. The Veteran appealed to the Court, which vacated and remanded the matter for further development in a May 2014 Memorandum Decision. The Board remanded the matter in April 2015 and April 2017 and again denied the claim in an April 2018 decision. In an August 2019 Memorandum Decision, the Court vacated the Board’s April 2018 decision and remanded the claim for further development. The Board again remanded this matter again in February 2020 and August 2020 for further development. Entitlement to service connection for a gastrointestinal disorder, to include GERD, and to include as secondary to service-connected major depressive disorder, for accrued benefits and substitution purposes, is remanded. The above issue was remanded by the Board most recently in August 2020 to obtain an addendum medical opinion addressing whether the Veteran’s gastrointestinal disorder, to include GERD, was aggravated beyond its natural progression by a service-connected disability, to include from medications used to treat his depressive disorder. For the reasons discussed below, the Board finds that there was not substantial compliance with August 2020 Board remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that a remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with its remand instructions, and imposes upon VA a concomitant duty to insure compliance with the terms of the remand); see also D’Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that only substantial rather than strict compliance with the Board’s remand directives is required under Stegall). Therefore, a new medical opinion is warranted. The Board finds that the November 2020 medical opinion obtained by the AOJ is inadequate. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). The November 2020 medical opinion does not provide sufficient rationale in finding that it is not at least as likely as not that the Veteran’s GERD was aggravated beyond its natural progression by medication for his service-connected major depressive disorder. Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (“[A] medical opinion...must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions.”). The examiner stated that the Veteran was started on Zoloft (sertraline) for depression in May 2007, switched to Celexa in 2008, and began pantoprazole in 2011. The examiner indicated that there is no pathophysiological correlation between GERD and the medications sertraline and Celexa. Listing dates that the Veteran started certain medications and stating that there is no correlation between GERD and these medications does not provide the Board with an adequate basis upon which to base a denial of entitlement to service connection. See Colvin v. Derwinski, 1 Vet. App. 171 (1991). Further, the November 2020 medical opinion misstates a prior finding made in a May 2020 medical opinion. See Reonal v. Brown, 5 Vet. App. 458 (1993) (a medical opinion based on an inaccurate factual premise is not probative). Pursuant to a prior Board remand, the AOJ obtained a medical opinion in May 2020, in part, to determine the baseline and later severity of the Veteran’s gastrointestinal disorder. The May 2020 examiner stated that the Veteran’s GERD symptoms were noted in 2008 and he was treated with pantoprazole in 2012. The November 2020 medical opinion incorrectly states that the 2008 medical note advising of the origin date of the Veteran’s GERD was not available. Additionally, the August 2020 Board remand directed the AOJ to obtain a medical opinion that determines the baseline severity of the Veteran’s GERD. However, the November 2020 medical opinion provides that the examiner could not determine a baseline of severity of the Veteran’s GERD based upon medical evidence prior to aggravation. The rationale provided by the examiner also does not advise of why such a baseline cannot be established. Lastly, the August 2020 Board remand instructed the AOJ to obtain a medical opinion concerning whether the Veteran’s gastrointestinal disorder, to include GERD, was aggravated by a service-connected disability. Prior to his death, the Veteran was service-connected for major depressive disorder, residuals of rheumatic fever with myocarditis now to include coronary artery disease, status post coronary artery bypass, status post acid implantation with congestive heart failure, bilateral hearing loss, and bilateral tinnitus. The November 2020 medical opinion does not address whether his GERD was aggravated by the above service-connected disabilities. The matter is REMANDED for the following action: 1. Obtain an addendum medical opinion from an appropriate examiner regarding the etiology of the Veteran’s gastrointestinal disorder, to include GERD. The examiner must review the claims file. The examiner must: (a.) Establish the baseline severity of the Veteran’s GERD, which the May 2020 examiner provided that GERD symptoms began in 2008 and his GERD required medication beginning in September 2011. (b.) Opine whether the Veteran’s gastrointestinal disorder, to include GERD, is at least as likely as not aggravated, i.e., worsened beyond its natural progression, by a service-connected disability, including major depressive disorder, residuals of rheumatic fever with myocarditis now to include coronary artery disease, status post coronary artery bypass, status post acid implantation with congestive heart failure, bilateral hearing loss, and/or bilateral tinnitus, including any medication used to treat his major depressive disorder. In providing the above opinions, the examiner should consider: • An October 2008 private treatment record that indicates that the Veteran expressed concern about his anemia that was noted one year ago, although workup for GI source was negative and that he has mild anemia due to chronic disease given negative GI evaluation and normal ferritin. • A January 2009 private treatment record that states the Veteran has occasional episodes of fleeting chest discomfort. NOTE: The examiner is advised that a “permanent worsening” is not required to establish aggravation. Aggravation may include temporary worsening, or flare-ups, of a disability. If the examiner is unable to provide an opinion without resort to speculation, the examiner must explain why the evidence is not sufficient to render the above opinions. In this regard, the examiner should state whether there is missing information that if obtained would enable an opinion, and specify the nature of such information. If the clinician determines that the Veteran’s gastrointestinal disorder, including GERD, is less likely than aggravated by a service-connected disability or disabilities, the clinician should discuss what other factor(s) caused the disorder. The complete rationale for all opinions expressed must be set forth by the examiner. N. RIPPEL Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Sean Mussey, 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.