Citation Nr: 21008115 Decision Date: 02/11/21 Archive Date: 02/11/21 DOCKET NO. 10-29 386 DATE: February 11, 2021 REMANDED Entitlement to service connection for a digestive disorder, claimed as gastroesophageal reflux disease (GERD), to include as secondary to his service-connected disabilities, is remanded. REASONS FOR REMAND The Veteran had active service from January 1981 to November 1981. In February 2017, the Board of Veterans’ Appeals (Board) issued a decision denying this claim in February 2017. The Veteran appealed that Board decision to the United States Court of Appeals for Veterans Claims (Court). The Veteran and the Secretary of Veterans Affairs (the Parties) filed a Joint Motion for Remand (Joint Motion) with the Court in November 2017, in which they asked the Court to remand the appeal to the Board due to agreed-upon inadequacies in the August 2016 VA examination report. In December 2017, the Court issued an order (Order) granting the Parties’ Joint Motion and remanding the claim to the Board for action consistent with that Joint Motion (i.e., additional development). In the Joint Motion, the Parties indicated that they agreed that “remand [was] required because the Board erred by failing to ensure compliance with the terms of its [previous] June 14, 2016, remand [of this appeal]. See Stegall v. West, 11 Vet. App. 268, 271 (1998).” As the Parties explained, “[i]n remanding the matter [in June 2016], the Board ordered, amongst other things, that the examiner determine whether Appellant ‘has hiatal hernia and/or peptic ulcer disease that is at least as likely as not... proximately due to, or aggravated by[] his service-connected disabilities, to include [nonsteroidal anti-inflammatory drug (NSAID)]use associated with his service-connected orthopedic disabilities,’ and ‘include a complete rationale for any opinion provided.’” See Joint Motion received in December 2017. The Parties explained that in August 2016 the Veteran was afforded a VA examination after that remand, and that the examiner failed: (1) to explicitly opine on whether Appellant’s hiatal hernia s aggravated by his service connected disabilities, to include NSAID use; and (2) to provide an adequate rationale for his or her opinion that it is less likely as not that the Veteran’s hernia/GERD are proximately due to or the result of all service-connected disabilities or to the medication used to treat those conditions; or, in the alternative, (3) to identify any missing evidence that would enable the examiner to provide the aforementioned opinions if a complete rationale for any opinion could not be provided. See id. Furthermore, the Parties agreed that the examiner’s rationale “is inadequate because he did not clearly articulate why the Appellant’s depression [service-connected] and dysthymia do not aggravate his GERD.” In June 2018, the Board remanded this appeal in order to comply with the Court’s Order. In sum, the June 2018 Board remand requested a medical opinion to include the following 1) whether the Veteran’s digestive disorder(s) are at least as likely as not incurred in service, to include “straining in service;” 2) whether the Veteran’s digestive disorder(s) are proximately due to or aggravated by any service-connected disability or any treatment/medication, to include NSAID use thereof; and 3) whether the Veteran has diagnosis of peptic ulcer disease during the period on appeal. In response to the June 2018 Board directives, in an October 2020 VA medical opinion, the VA examiner noted that the Veteran’s service treatment records are negative for any complaints, diagnosis, or treatment for hiatal hernia or GERD. Thus, the VA examiner opined that it is less likely than not that the Veteran’s hiatal hernia or GERD was incurred in or caused by the Veteran’s service. Furthermore, the VA examiner opined that the Veteran’s GERD is not secondary to NSAID use. The VA examiner cited to medical literature as a basis of his opinion, which listed the recognized risk factors of GERD, and NSAID use was not one of them. The VA examiner also noted that “straining” is not a recognized risk factor for the development of hiatal hernia, by explaining the recognized risk factors of GERD. Also, the VA examiner noted that the Veteran’s post service medical records show no objective medical evidence of peptic ulcer disease during the period on appeal. Thus, the VA examiner opined that the Veteran does not have a current diagnosis of peptic ulcer disease nor was there a diagnosis during the period of appeal. However, with respect to addressing whether the Veteran’s digestive disorder is secondary to his service-connected disabilities, the VA examiner provided only one conclusory sentence. The VA examiner stated that “[n]one of the Veteran’s service-connected conditions listed above are recognized risk factors for the development of hiatal hernia.” No rationale was provided. Significantly, in the December 2017 Court Order, one of the reasons for the Court’s remand was based on a finding that the August 2016 VA examiner failed to provide a rationale as to why the Veteran’s service-connected depression and dysthymia did not aggravate his GERD. Regrettably, the October 2020 VA examiner, while opining that the Veteran’s GERD is not secondary to service-connected disabilities, did not provide any rationale as to the basis of such opinion. Given such, unfortunately, the Board finds that another remand is required to obtain an addendum that fully complies with and addresses the issues required by the Court. The matters are REMANDED for the following action: 1. With any necessary assistance from the Veteran, obtain any outstanding records relevant to the Veteran’s digestive disorder claim, to include from VA medical centers, clinics, counseling centers, hospitals, and outpatient treatment centers. See 38 C.F.R. § 3.159(c)(3) (2020). 2. Upon completion of the above to the extent possible, obtain an addendum from an appropriate clinician regarding the following: a) Whether any of the Veteran’s claimed digestive disorder(s) (INCLUDING BUT NOT LIMITED TO GERD AND HIATAL HERNIA) are at least as likely as not (a 50 percent or greater probability) incurred during, proximately due to, or otherwise related to his active military service (TO INCLUDE ANY “STRAINING DURING SERVICE”). b) Whether any of the Veteran’s claimed digestive disorder(s), to include GERD and hiatal hernia: i) were caused by any service-connected disability; ii) underwent any incremental increase in disability, regardless of its permanence, due to any of his the service-connected disabilities, to include iii) any medicine taken for his other service-connected disability, to include NSAIDs. The Veteran is service connected for coronary artery disease; dysthymia and depression; degenerative disc disease (low back); right ankle sprain with arthritis; left and right trochanteris pain syndrome; cervical spine strain; erectile dysfunction; and surgical scar. A RATIONALE MUST BE PROVIDED AS TO THE BASIS OF ANY OPINION RENDERED. FOR EXAMPLE, IF THE VA EXAMINER DETERMINES THAT NONE OF THE VETERAN’S SERVICE-CONNECTED DISABILITIES EITHER CAUSED OR AGGRAVATED THE VETERAN’S DIGESTIVE DISORDER, THE VA EXAMINER MUST PROVIDE THE BASIS OF THAT OPINION. AN OPINION WITHOUT A RATIONALE PROVIDE IS INSUFFICIENT. • The term “at least as likely as not” does not mean “within the realm of medical possibility.” Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of the conclusion (e.g., etiology) as it is to find against the conclusion. • The term “incremental increase in disability” means additional impairment of earning capacity. Objective measurement, or numerical quantification, is not required to ascertain an increase in disability. Moreover, any “incremental increase in disability” need not be permanent. 3. THE AOJ MUST REVIEW THE CLAIMS FILE AND ENSURE THAT THE FOREGOING DEVELOPMENT ACTION HAS BEEN COMPLETED IN FULL. IF ANY DEVELOPMENT IS INCOMPLETE, APPROPRIATE CORRECTIVE ACTION MUST BE IMPLEMENTED. IF ANY REPORT DOES NOT INCLUDE ADEQUATE RESPONSES TO THE SPECIFIC OPINIONS REQUESTED, IT MUST BE RETURNED TO THE PROVIDING EXAMINER FOR CORRECTIVE ACTION. YVETTE R. WHITE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Abdelbary, 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.