Citation Nr: 21008378 Decision Date: 02/16/21 Archive Date: 02/16/21 DOCKET NO. 98-14 275A DATE: February 16, 2021 REMANDED Entitlement to service connection for a gastrointestinal disability is remanded. Entitlement to service connection for a right foot disability is remanded. REASONS FOR REMAND These matters come before the Board of Veterans’ Appeals (Board) on appeal from September 2012 and September 2014 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The Veteran appeared at a hearing before the undersigned in January 2017. A transcript of the hearing is of record. In February 2018, the Board reopened the issue of service connection for a gastrointestinal disability and remanded it with the Veteran’s service connection claim for a right foot disability for further development. The Agency of Original Jurisdiction (AOJ) has now returned the matters to the Board for further appellate consideration after completing the requested development. Initially, the Board notes the Veteran’s representative has asserted there may be relevant outstanding private treatment records regarding the issues on appeal and has requested that the Board remand the issues on appeal so VA can provide assistance in obtaining such records. See January 2021 Informal Hearing Presentation. Although there is some ambiguity in the record in this regard, the Board finds further efforts should be made to obtain potentially outstanding private treatment records to ensure compliance with VA’s duty to assist. See 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c); see also Sullivan v. McDonald, 815 F.3d 786 (Fed. Cir. 2016). Additionally, since the Board’s February 2018 decision, the Court of Appeals for Veterans Claims (Court) has issued a precedential decision that impacts the analysis of the Veteran’s service connection claim for a gastrointestinal disability since he has previously raised the potentially applicability of the Gulf War presumptive provisions outlined in 38 C.F.R. § 3.317 in the context of that claim. See Stewart v. Wilkie, 30 Vet. App. 383 (2018). In Stewart, the Court addressed the definition of medically unexplained chronic multisymptom illnesses (MUCMI) for the purposes of 38 C.F.R. § 3.317 and determined a diagnosed condition does not constitute a MUCMI, as defined under 38 C.F.R. § 3.317 (a)(2)(ii), when both the etiology and the pathophysiology of the illness are at least partially understood. Previous VA opinions regarding the Veteran’s claim have been limited to providing a diagnosis and have not adequately discussed whether both the etiology and the pathophysiology of the illness are at least partially understood. Further, in a December 2020 written statement, the Veteran raised a new theory of entitlement for service connection for a gastrointestinal disability, asserting it may be the result of chronic use of pain medication for his service-connected left shoulder disability. See 38 C.F.R. § 3.310. There is some medical evidence suggesting a possible link between gastrointestinal issues and the Veteran’s use of pain medication, as treatment records note the Veteran’s periodic use of naproxen without stomach problems, suggesting providers were monitoring or at least aware that the use of this medication could lead to gastrointestinal issues; therefore, an opinion is necessary in this regard to ensure the decision on the Veteran’s claim is fully informed. Finally, the Board finds the October 2020 opinion regarding the Veteran’s service connection claim for a right foot disability is inadequate to make an informed decision on that claim because the examiner failed to provide an adequate rationale regarding aggravation in the context of secondary service connection with the examiner’s rationale for his conclusion regarding the Veteran’s claim being limited solely to terms of causation. A secondary service connection opinion is inadequate if it does not adequately address both causation and aggravation. See El-Amin v. Shinseki, 26 Vet. App. 136, 138 (2013). The matters are REMANDED for the following action: 1. Make reasonable efforts to assist the Veteran in obtaining any relevant outstanding private treatment records, to include, but not limited to, those referenced in his January 2021 informal hearing presentation. 2. Schedule the Veteran for a new examination regarding his service connection claim for a gastrointestinal disorder, preferably with an examiner other than his October 2020 VA examiner. The selected examiner must complete a Gulf War disability benefits questionnaire (DBQ), in addition to any other DBQ deemed necessary upon examination and consideration of the Veteran’s reported symptoms. The examiner must specifically address whether the Veteran’s claimed gastrointestinal symptoms are attributable to a diagnosed condition. If the symptoms are attributable to a diagnosed condition, the examiner must then discuss both the etiology and pathophysiology of the condition to which the Veteran’s reported symptoms have been attributed with emphasis on whether both the etiology and pathophysiology of the condition is understood or at least partially understood in the context of the Veteran’s unique circumstances. If the claimed symptoms are attributable to a diagnosed condition with both an etiology and pathophysiology that are at least partially understood in the context of the Veteran’s unique circumstances, the examiner must then address whether the condition is at least as likely as not (50 percent probability or greater) the result of an in-service disease or injury; or proximately due to, or aggravated by, a service-connected disability. The secondary service connection opinion must address causation and aggravation separately to be deemed adequate. A mere conclusion regarding aggravation without a separate rationale is not sufficient. The examiner must be advised aggravation means an increase in the severity of the underlying disability beyond its natural progression. If aggravation is found, the examiner should attempt to quantify the degree of additional disability resulting from the aggravation above the baseline level of disability. The secondary service connection opinion must explicitly address the Veteran’s recent assertion that chronic use of pain medication for his service-connected left shoulder disability (or any other service-connected disability) has either caused or aggravated his gastrointestinal issues. The examiner must be further advised the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinion. If the examiner rejects the Veteran’s reports, he or she must provide a reason for doing so. The examination report must include a complete rationale for all opinions provided. 3. Schedule the Veteran for a new examination regarding his service connection claim for a right foot disability, preferably with an examiner other than his October 2020 VA examiner. The selected examiner must provide an opinion addressing whether the Veteran has a right foot disability that is at least as likely as not (50 percent probability or greater) the result of an in-service disease or injury; or proximately due to, or aggravated by, his service-connected right knee disability. The secondary service connection opinion must address causation and aggravation separately to be deemed adequate. A mere conclusion regarding aggravation without a separate rationale is not sufficient. The examiner must be advised aggravation means an increase in the severity of the underlying disability beyond its natural progression. If aggravation is found, the examiner should attempt to quantify the degree of additional disability resulting from the aggravation above the baseline level of disability. (Continued on the next page)   The examiner must be further advised the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinion. If the examiner rejects the Veteran’s reports, he or she must provide a reason for doing so. The examination report must include a complete rationale for all opinions provided. M. HYLAND Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board L. S. Kyle, 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.