Citation Nr: 21009052 Decision Date: 02/18/21 Archive Date: 02/18/21 DOCKET NO. 09-13 801 DATE: February 18, 2021 REMANDED Entitlement to service connection for a gastrointestinal disorder, to include gastroesophageal reflux disease (GERD), hiatal hernia, and residuals of a hernia repair, is remanded. REASONS FOR REMAND The Veteran served on active duty from August 1979 to August 1982. This appeal comes before the Board of Veterans’ Appeals (Board) from a May 2002 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In June 2012, July 2015, May 2017 and July 2019, the Board remanded the claim for additional evidentiary development. The Board notes that additional, relevant evidence has been associated with the claims file since the most recent Supplemental Statement of the Case (SSOC) was issued in September 2020. Specifically, in October 2020, the Veteran submitted a statement in which she asserted that she was treated during service for acid reflux, her symptoms have worsened since service and she has been prescribed medicine by the VA hospital for years. The Board notes the Veteran’s substantive appeal was received in March 2009 and the Veteran has not waived consideration of this additional evidence by the Agency of Original Jurisdiction (AOJ) in the first instance. See Honoring America's Veterans and Caring for Camp Lejeune Families Act of 2012, Pub. L. No. 112-154, 126 Stat. 1165 (amending 38 U.S.C. § 7015 (e)(1) to provide an automatic waiver of initial AOJ review of evidence at the time of or subsequent to the submission of a substantive appeal, only where the substantive appeal is filed on or after February 2, 2013). However, the Board notes that a waiver is not required in this case as the AOJ will have the opportunity to consider the evidence on remand when readjudicating the claim. Entitlement to service connection for a gastrointestinal disorder is remanded. The Veteran contends that the symptoms of her current gastrointestinal disabilities first manifested during service and continued following separation from service. Unfortunately, another remand is warranted to ensure compliance with the Board’s July 2019 remand and to ensure that there is a complete record upon which to decide the appeal. A remand by the Board imposes upon the Secretary of VA a concomitant duty to ensure compliance with the terms of the remand. Where remand orders of the Board are not complied with, the Board errs in failing to ensure compliance. Stegall v. West, 11 Vet. App. 268 (1998). The Veteran underwent a VA esophageal conditions examination most recently in February 2019. The examination report shows current diagnoses of GERD, hiatal hernia, spasms of the esophagus and status post hiatal hernia repair. The Board notes that the VA examiner, in providing these gastrointestinal diagnoses, appears to have primarily relied on an upper GI radiographic study which predates the appeal period. The study was performed in January 2000 and showed a small sliding hiatal hernia, marked GERD and slight spasm of the distal third of the esophagus. By contrast, the January 2016 and August 2017 VA examination reports show the Veteran was only diagnosed with GERD. The Board therefore finds that a remand is necessary to obtain a fully adequate examination that clarifies the Veteran’s current gastrointestinal diagnoses based on updated diagnostic testing if deemed necessary. Moreover, in the most recent VA addendum medical opinion, dated in December 2019, reflects that the Veteran’s gastrointestinal disabilities, to include GERD, hiatal hernia and residuals of hernia repair were less likely than not incurred in or caused by service. In support of this conclusion, opinion referenced a service treatment record (STR) dated in September 1981, revealing treatment for a diagnosis of "nonspecific GI upset” but noted the absence of an in-service diagnosis of GERD or hiatal hernia. The opinion further noted that post-service medical records revealed diagnoses of GERD and hiatal hernia in 2000, 18 years after separation from service, without any documented complaints or treatment noted between 1981 and 2000. The opinion also acknowledged the numerous lay statements of record indicating a chronicity of symptoms, but concluded that a lay person is not qualified to ascribe symptoms to a diagnosis and, thus, the lay statements did not constitute credible medical evidence upon which a medical diagnosis could be based. The Board finds this medical opinion inadequate to decide the claim for a number of reasons. First, in formulating the opinion, the VA examiner made an improper credibility determination regarding the Veteran’s lay statements while also relying on the absence of contemporaneous medical evidence. See Dalton v. Nicholson, 21 Vet. App. 23 (2007) (holding that an examiner may not ignore lay statements of the Veteran, unless found by the Board to be not credible); see also Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006) (recognizing lay evidence as potentially competent to support the presence of disability, including during service, even where not corroborated by contemporaneous medical evidence such as service treatment records). Second, the examiner failed to fully address the Veteran’s reported gastrointestinal complaints associated with the diagnosis of “nonspecific GI upset” and in that regard, discuss whether those symptoms were the first manifestations of her subsequently diagnosed gastrointestinal disorders. Third, while the examiner stated the lay statements established a continuity of symptomatology following service separation, she did not identify which of those symptoms began during service and had continued thereafter. Fourth, the examiner did not consider whether the September 1981 assessment of “nonspecific GI upset” was attributable to any other etiologies (e.g. pregnancy, etc.). Given the aforementioned deficiencies, the Board finds that another VA examination and addendum medical opinion are warranted in this case. If VA provides a claimant with an examination in accordance with the duty to assist, the examination must be adequate. Barr v. Nicholson, 21 Vet. App. 303 at 311. In remanding this matter, the Board makes no finding, implicit or otherwise, as to the credibility of the Veteran’s assertions. Neither the Veteran’s credibility nor any lack thereof should be presumed in this remand. The matter is REMANDED for the following action: 1. Obtain all VA treatment records dated from the beginning of the appeal period in November 2001 to the Present. 2. Schedule the Veteran for an examination by an appropriate clinician, such as a gastroenterologist, to determine the etiology of all gastrointestinal disorders showing during this appeal (i.e. since November 2001). Any and all diagnostic studies, tests, and evaluations deemed necessary by the examiner should be performed. The entire claims file, to include a copy of this remand, must be made available to and reviewed by the clinician. It should be noted that an active duty separation examination is not of record and the Veteran has reported that she was not afforded such an examination at the time of her discharge from service. Based on a review of the claims file as well as an interview with the Veteran, the examiner should detail the Veteran’s gastrointestinal symptoms in service and thereafter, including the nature, onset, progression and severity of her reported symptoms. If there is any medical reason to accept or reject the proposition that her reported symptoms in service and since service represent the onset of a current GI disorder in service, this should be noted. Consider her documented complaints in September 1981 of stomach problems/epigastric discomfort (for the last 2 weeks) after eating foods she once tolerated, with the associated assessment of nonspecific gastrointestinal upset (uncertain) and treatment with Mylanta. The medical opinion should identify and explain the relevance or significance, as appropriate, of any history, clinical findings, medical knowledge or literature, etc., relied upon in reaching the conclusion(s). If another etiology is the more likely cause of the Veteran’s gastrointestinal symptoms during and following service, the examiner must provide a complete explanation of his or her reasoning. NOTE (1): An adequate medical opinion may not be predicated solely on the absence of an in-service diagnosis or documented complaints/findings. NOTE (2): The examiner is not required to accept the Veteran’s theory that her symptoms first manifested during service and persisted following separation from service if this is incongruous with the record; however, the examiner is required to fully explain why he or she disagrees with the Veteran’s theory of onset/causation. The examiner is asked to address the following: (a) Identify all diagnosed gastrointestinal disorders shown since November 2001.Consider the Veteran’s earlier VA examination reports showing diagnoses of GERD, spasms of the esophagus, hiatal hernia, and status post hiatal hernia repair. If any previously diagnosed gastrointestinal disorder is not found on examination, the examiner should address whether they were misdiagnosed or have resolved. (b) Provide an opinion as to whether any gastrointestinal disability shown during the appeal period (i.e. since November 2001), at least as likely as not (i) had its onset during active service, or (ii) is related to an in-service injury, event, or disease, to include symptoms of epigastric pain, such as indigestion and heartburn. (c) Explain how a chronic gastrointestinal disorder generally presents or develops and discuss the significance, if any, of (i) any time gap in medical treatment between the Veteran’s service separation in 1982 and the documented (private medical records) findings for hiatal hernia and GERD (around 1999 or 2000); and (ii) whether the Veteran’s in-service gastrointestinal upset was associated with her pregnancy and acute, rather than chronic. Explain. The opinion should, at a minimum, consider the following evidence: (a) The Veteran’s November 2009 testimony that, during a post-partum physical in service, around May 1982, a German doctor found she had a hiatal hernia which she believed developed as a result of giving birth; that she had complained of frequent indigestion and heartburn during service and was told to take Mylanta and Tums, and did so until she underwent surgical repair for her hernia in 1999 and was also diagnosed with GERD for which she was prescribed medication (Ranitidine). (b) A September 1981 STR showing treatment in the emergency room/outpatient clinic for complaints of epigastric discomfort (for the last 2 weeks after eating foods she once tolerated), fatigue and constipation and the assessment of “nonspecific gastrointestinal upset” (uncertain) treated with Mylanta (c) An October 1981 STR noting a positive pregnancy test and assessment from the OB-GYN clinic of an intrauterine pregnancy (IUP) at approximately 15 weeks gestation (based on date of last menses in July 1981) indicating the Veteran had been several weeks pregnant at the time she was treated for “nonspecific gastrointestinal upset” based on complaints of epigastric discomfort after eating foods she once tolerated. (d) A June 1982 STR, postpartum examination, during which the Veteran reported she had no complaints and reported she was doing fine. (e) A June 1982 STR, orthopedics clinic note, showing that the Veteran reported back pain since her pregnancy and after giving birth in April 1982 but did not report any gastrointestinal problems. (c) The Veteran’s post-service medical records associated with the claims file, showing treatment primarily for gynecological and ENT issues from the time of the Veteran’s discharge in 1982 to approximately 1991, and which are negative for any documented gastrointestinal complaints; and the private medical records dated from 1999 and 2000 showing she underwent a hiatal hernia repair and was also diagnosed with GERD. (d) The lay statements from the Veteran’s coworkers, friends and her spouse, generally noting the Veteran has had heartburn type symptoms; and a buddy statement noting that he had seen the Veteran take Mylanta in service. 4. Ensure that the VA medical opinion obtained includes a complete rationale for the conclusions reached. The medical opinion must support the conclusions reached with an analysis that is adequate for the Board to consider and weigh against other evidence of record; medical opinions must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. If an opinion cannot be expressed without resort to speculation, ensure that the clinician so indicates and discusses why an opinion is not possible, to include whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. C.A. SKOW Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Krunic, 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.