Citation Nr: 21009295 Decision Date: 02/22/21 Archive Date: 02/22/21 DOCKET NO. 11-06 669 DATE: February 22, 2021 REMANDED Entitlement to service connection for hiatal hernia, also diagnosed as gastroesophageal reflux disease (GERD), is remanded. Entitlement to service connection for a right knee disability, claimed as right knee retropatellar pain syndrome (RPPS), is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from August 1979 until his honorable discharge in October 1997. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a February 2010 rating decision of the Regional Office (RO) of the Department of Veterans Affairs (VA). In April 2015, the Veteran testified before the undersigned at a Travel Board Hearing. A transcript of his testimony has been associated with the claims file. In November 2016, the Board denied the Veteran’s claim. He appealed to the Court of Appeals of Veterans’ Claims (the Court), which set aside the Board’s decision and remanded the matter back to the Board for readjudication. The Court’s joint motion for remand (JMR) stated that the Board decision had relied upon an inadequate VA examination regarding aggravation of the Veteran’s right knee disability and had failed to explain how his GERD was not caused by exposure to toxins in Southwest Asia. In February 2019, the Board remanded the case to the RO for further development in line with the Court’s JMR. Specifically, the Board directed the RO to obtain an addendum opinion regarding the right knee disability concerning secondary service connection and GERD, to include an opinion on exposure to toxins in Southwest Asia. Unfortunately, there has not been substantial compliance with the Board’s previous remand directives regarding the issue of the nature and etiology of the Veteran’s right knee disability. For the reasons set forth below, additional development is required. Stegall v. West, 11 Vet. App. 268, 271 (1998). 1. Entitlement to service connection for hiatal hernia, also diagnosed as gastroesophageal reflux disease (GERD). The Veteran asserts that his GERD started in the military and that he did not have these symptoms prior to his service in the Gulf War. See April 2015 Hearing. Service connection may be warranted for Persian Gulf veterans who exhibit objective indications of a qualifying chronic disability that became manifest during the Persian Gulf War or to a degree of 10 percent or more, not later than December 31, 2021. See 38 U.S.C. § 1117(a)(1)(A); 38 C.F.R. § 3.317(a). For purposes of 38 C.F.R. § 3.317, there are three types of “qualifying chronic disabilities”: (1) an undiagnosed illness; (2) a medically unexplained chronic multi-symptom illness; and (3) a diagnosed illness that the Secretary determines warrants a presumption of service connection. An “undiagnosed illness” is defined as a condition that by history, physical examination, and laboratory tests cannot be attributed to a known clinical diagnosis. In the case of claims based on an undiagnosed illness under 38 U.S.C. § 1117 and 38 C.F.R. § 3.317, unlike those for direct service connection, there is no requirement that there be competent evidence of a nexus between the claimed illness and service. See Gutierrez v. Principi, 19 Vet. App. 1, 8-9 (2004). Further, lay persons are competent to report objective signs of illness. Id. To determine whether the undiagnosed illness is manifested to a degree of 10 percent or more, the condition must be rated by analogy to a disease or injury in which the functions affected, anatomical location, or symptomatology are similar. See 38 C.F.R. § 3.317(a)(5). Service connection may be granted for objective indications of a chronic disability resulting from an illness or combination of illnesses manifested by one or more signs or symptoms, to include, but not limited to, fatigue, signs of symptoms involving skin, headaches, muscle pain, joint pain, neurologic signs or symptoms, neuropsychologic signs or symptoms, signs or symptoms involving the respiratory system (upper or lower), sleep disturbances, gastrointestinal signs or symptoms, cardiovascular signs or symptoms, abnormal weight loss, or menstrual disorders. 38 U.S.C. § 1117; 38 C.F.R. § 3.317. The undiagnosed illness must not be attributed to any known clinical diagnosis by history, physical examination, or laboratory tests. See 38 C.F.R. § 3.317(a)(1)(i). A “chronic disability” for purposes of 38 U.S.C. § 1117 is one that has existed for six months or more, including disabilities that exhibit intermittent episodes of improvement and worsening over a six-month period. In cases where a veteran applies for service connection under 38 C.F.R. § 3.317 but is found to have a disability attributable to a known diagnosis, further consideration under the direct service connection provisions are warranted. See Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). Thus, the presumption is not the sole method for showing causation. However, as noted above, where the issue involves a question of medical diagnosis or causation, a claimant must establish the existence of a disability and a connection between the veteran’s service and that disability. Here, the Veteran has not had the benefit of an adequate VA examination regarding service connection based on § 3.317. Where VA provides the veteran with an examination in a service connection claim, the examination must be adequate. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). 2. Entitlement to service connection for a right knee disability, claimed as right knee retropatellar pain syndrome (RPPS). The Veteran asserts that he injured his right knee due to overuse during his years of service. During his hearing the Veteran also asserted that his right knee disability developed due to his service-connected left knee disability. He stated that years of overcompensating and favoring his right knee caused his current disability or made it worse. The October 2019 examiner found that there is no evidence of “altered gait or other stress of the left knee resulting from the SC left knee condition which would contribute to, or result in, the right knee disease.” The October 2019 VA examination is also inadequate. The Court of Appeals for Veterans Claims (Court) found that the meaning of the term “aggravation” in cases where service connection is sought on the basis that a pre-service disability was aggravated as a result of service is different than the definition used in cases where a Veteran with an already service-connected disability claims that such disability causes or aggravates a secondary disability. See Ward v. Wilkie, 31 Vet. App. 233, 237 (2019). The Court noted that the two analyses use different underlying law and regulations, 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.310 for secondary service connection and 38 U.S.C. § 1153 and 38 C.F.R. § 3.306(a) for service connection based on in service aggravation of a pre-existing condition. Id. The relevant regulation here is 38 C.F.R. § 3.310(b) which was updated in 2006 and states in part, “Any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease, will be service connected.” 38 C.F.R. § 3.310(b). (emphasis added). Where VA provides the veteran with an examination in a service connection claim, the examination must be adequate. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Here, the Board remanded the claim and asked, “whether the Veteran’s right knee disorder is at least as likely as not aggravated beyond its natural progression by service-connected left knee disability.” The medical provider must conclude whether there has been “any increase in severity” in the Veteran’s right knee disability due to his service-connected left knee disability. The examiner must provide an adequate rationale to support their conclusion and must also address the Veteran’s lay statements. Here, the Veteran asserts that his gait is altered due to his left knee disability and this caused or worsened his right knee disability. The examiner stated that there was no evidence of “altered gait or other stress,” but failed to address the Veteran’s contentions. The matters are REMANDED for the following action: 1. Obtain an addendum opinion from a new and appropriate clinician. Return the claims file and a copy of this remand to an appropriate examiner. The examiner must review the entire claims file and note that review in the opinion. The examiner is instructed to address the following: a. Please opine whether it is at least as likely as not (50 percent probability or more) that the Veteran’s right knee disability is caused by his service-connected left knee disability. Please opine as to whether it is at least as likely as not (50 percent probability or more) that the Veteran’s right knee disability is aggravated by his service-connected left knee disability. “Aggravation” is defined as any worsening beyond the natural progression of the disability. If aggravation is found, the examiner should also state, to the extent possible, the baseline level of disability prior to aggravation. This may be ascertained by the medical evidence of record and also by the Veteran’s statements as to the nature, severity, and frequency of observable symptoms over time. If you believe that the Veteran’s right knee disability is NOT caused or aggravated by his service-connected left knee disability, please opine as to whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran’s right knee disability had its onset during, or is otherwise related to, his active duty service. A complete rationale is required for any opinion rendered by the examiner. All opinions should be based on examination findings, historical records, and medical principles. The examiner should fully articulate a sound reasoning for all conclusions made. In doing so, the examiner should consider the Veteran’s lay statements regarding the nature and onset of his right knee disability. 2. Obtain an addendum opinion from an appropriate clinician on whether the Veteran’s GERD is at least as likely as not (50 percent probability or greater) caused by environmental exposures experienced by the Veteran during service in Southwest Asia. The examiner should specifically answer the following: a. Is the etiology of the Veteran’s GERD (1) inconclusive, (2) partially understood, or (3) fully understood? This determination must be based on the Veteran’s specific case and cannot be based on the etiology of the disease or disability population as a whole. b. Is the pathophysiology of the Veteran’s GERD (1) inconclusive, (2) partially understood, or (3) fully understood? This determination must be based on the Veteran’s specific case and cannot be based on the pathophysiology of the disease or disability population as a whole. c. If both the etiology and pathophysiology are partially understood or fully understood, then is it at least as likely as not (a 50 percent or greater probability) that the Veteran’s disability was incurred in, or is otherwise related to, his active service? A complete rationale is required for any opinions rendered by the examiner. All opinions should be based on examination findings, historical records, and medical principles. The examiner should fully articulate a sound reasoning for all conclusions made. In doing so, the examiner should consider the Veteran’s lay statements regarding the nature and onset of his GERD. (Continued on the next page)   The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded. This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the Court for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109b, 7112 (2014). M. Tenner Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. A. Johnston, 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.