Citation Nr: 21009357 Decision Date: 02/22/21 Archive Date: 02/22/21 DOCKET NO. 14-37 464 DATE: February 22, 2021 REMANDED Entitlement to service connection for coronary artery disease (CAD) is remanded. Entitlement to service connection for liver disease including hepatitis is remanded. Entitlement to compensation under the provisions of 38 U.S.C. § 1151 for stomach and esophageal abnormalities as a result of an esophagogastroduodenoscopies (EGDs) performed by the Veterans' Administration (VA) on February 4, 2008, and August 5, 2008, and/or the medication prescribed by VA to treat his many disabilities is remanded. Entitlement to an initial rating in excess of 10 percent for gastroesophageal reflux disease (GERD) is remanded. REASONS FOR REMAND The Veteran had active service in the United States Army from October 1968 to October 1971. In June 2018, a Veterans’ Law Judge other than the undersigned issued a decision that, among other things, denied the above claims. The Veteran appealed the June 2018 Board of Veterans’ Appeal (Board) decision to the United States Court of Appeals for Veterans Claims (Court). In a May 2020 decision, Judge Falvey vacated and remanded the June 2018 Board decision to the extent that it denied service connection for CAD and for hepatitis/liver disease, compensation under the provisions of 38 U.S.C. § 1151 for stomach and esophageal abnormalities, and an initial rating in excess of 10 percent for GERD. Initially, while the Board in January 2020 also remanded a claim of service connection for a back disability, this issue is no longer in appellate status and will not be addressed below because the regional office (RO) granted the claim in a July 2020 rating decision based, in part, on the development requested. See Grantham v. Brown, 114 F.3d 1156, 1159 (Fed. Cir. 1997) (holding that the RO's award of service connection for a particular disability constitutes a full award of benefits on the appeal initiated by the veteran's notice of disagreement on such issue). Entitlement to service connection for CAD is remanded. As to the claim of service connection for CAD, the May 2020 Court decision vacated and remanded the June 2018 Board decision because the November 2014 VA examination the Board relied upon in adjudicating the claim was not adequate. Specifically, the Court found the opinion inadequate because the examiner failed to address the Veteran’s previous diagnoses of arrhythmia and failed to note that he had a pacemaker implanted as well as because the examiner did not provide an opinion as to whether the medication the Veteran takes for his service-connected disabilities aggravates his CAD. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (a medical opinion based on an inaccurate factual premise is not probative); El–Amin v. Shinseki, 26 Vet. App. 136, 140-41 (2013) (holding that, when multiple theories of entitlement are at issue, the Board must ensure that the medical opinions of record directly address all theories reasonably raised by the record); 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). Therefore, a Remand to provide the Veteran with a new VA examination to obtain adequate etiology opinions is required. See 38 U.S.C.§ 5103A(d); Forcier v. Nicholson,19 Vet. App. 414, 425 (2006) (holding that the duty to ensure compliance with the Court’s order extends to the terms of the agreement struck by the parties that forms the basis of the joint motion to remand); cf. McBurney v. Shinseki, 23 Vet. App. 136, 140 (2009) (Board has a duty on remand to ensure compliance with the favorable terms stated in the joint motion for remand or explain why the terms will not be fulfilled.). In this regard the Board notes that when providing the etiology opinions, the examiner should apply the Court’s new definition of aggravation which now includes a temporary worsening of a disability. See Ward v. Wilkie, 31 Vet. App. 233 (2019). While the appeal is in remand status, any outstanding VA and private treatment records should be obtained and associated with the record on appeal. See 38 U.S.C. § 5103A(b). Entitlement to service connection for liver disease including hepatitis is remanded. As to the claim of service connection for liver disease including hepatitis, the May 2020 Court decision vacated and remanded the June 2018 Board decision because the November 2014 VA examination the Board relied upon in adjudicating the claim was not adequate. Specifically, the Court found the opinion inadequate because the examiner failed to address the November 2008 imaging studies which noted a mildly enlarged fatty and borderline cirrhotic liver before opining that the Veteran did not have a current liver disability. See Reonal, supra. Therefore, a Remand to provide the Veteran with a new VA examination to obtain an adequate opinion is also required. See 38 U.S.C.§ 5103A(d); Forcier, supra; cf. McBurney, supra; Barr, supra. Entitlement to compensation under the provisions of 38 U.S.C. § 1151 for stomach and esophageal abnormalities is remanded. As to the claim for compensation under the provisions of 38 U.S.C. § 1151 for stomach and esophageal abnormalities, the May 2020 the Court decision vacated and remanded the June 2018 Board decision because it did not address the Veteran’s contention that the medication VA gave him to treat his many disabilities caused these problems. However, the Board finds that the existing record does not contain an adequate medical opinion evidence to address this question. Therefore, the Board finds that a Remand is needed to obtain the required medical opinion. See 38 U.S.C.§5103A(d); McLendon v. Nicholson, 20 Vet. App. 79, 84-86 (2006). Entitlement to an initial rating in excess of 10 percent for GERD is remanded. As to the claim for an initial rating in excess of 10 percent for GERD, the May 2020 the Court decision vacated and remanded the June 2018 Board decision because it did not address whether the gastrointestinal bleeding and anemia noted when he was hospitalized in September 2017 met the criteria for a higher rating under Diagnostic Code 7346 when the criteria for 30 percent and 60 percent ratings both contemplate anemia and bleeding issues. See 38C.F.R. § 4.114. Tellingly, the above symptoms, when combined with the Veteran and his representative’s claims leads the Board to believe that the appellant’s service connected GERD may have undergone a worsening since he was last examined in November 2014. Therefore, a Remand to provide the Veteran with a new VA examination to obtain an updated disability picture is also required. See 38 U.S.C. § 5103A(d); Snuffer v. Gober, 10 Vet. App. 400, 403 (1997); see also VAOPGCPREC 11-95 (1995), 60 Fed. Reg. 43186 (1995). The appeal is REMANDED for the following actions: 1. Associate with the claims file any outstanding VA treatment records. 2. After obtaining all needed authorizations from the Veteran, associate with the claims file any outstanding private treatment records. If possible, the Veteran’s representative should submit any new pertinent evidence that the Board does not have. This would greatly help the Board. 3. In order to comply with the Court decision, schedule the Veteran for a VA examination with a suitably-qualified medical professional to address the etiology of his CAD. The claims file should be made available and reviewed by the examiner in conjunction with conducting the examination. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. Following consideration of the evidence of record (both lay and medical) and all evidence obtained during the examination, the examiner is asked to address the following: a. Provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that CAD is due to active duty. b. Provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s CAD was caused by any of his service-connected disabilities to include the medications he takes to treat these disabilities. c. Provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s CAD is aggravated by any of his service-connected disabilities to include the medications he takes to treat these disabilities. In order to comply with the Court decision, in providing answers to the above question the examiner should consider and discuss the Veteran’s previous diagnoses of arrhythmia and the fact that he had a pacemaker implanted. In providing answers to the above question the examiner should consider and discuss the Veteran’s competent lay claims regarding observable symptomatology. In providing answers to the above questions, the examiner is also advised that the term “at least as likely as not” does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of conclusion as it is to find against it. In providing the etiology opinion, the examiner should also be aware of the facts that the Court held in Ward, supra, that a “permanent worsening” of a non-service-connected disability is not required to establish secondary service connection on the basis of aggravation (i.e., aggravation may include temporary worsening of a disability). In answering the questions please articulate the reasoning underpinning your conclusions. That is, (1) identify what facts and information--whether found in the record or outside the record--support your opinion, and (2) explain how that evidence justifies your opinion. If the examiner cannot respond to an inquiry without resort to speculation as to any of the above claims he or she should so state, and must further explain why it is not feasible to provide a medical opinion, indicating whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or in the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). 4. In order to comply with the Court decision, schedule the Veteran for a VA examination with a suitably-qualified medical professional to address the diagnosis and etiology of any liver disease including hepatitis. The claims file should be made available and reviewed by the examiner in conjunction with conducting the examination. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. Following consideration of the evidence of record (both lay and medical) and all evidence obtained during the examination, the examiner is asked to address the following: a. Provide diagnoses for all liver diseases including hepatitis during the pendency of the appeal. If the Veteran does not currently have any liver disease including hepatitis, the examiner should say if he previously had such a disorder and when it resolved. In order to comply with the Court decision, in providing the opinion the examiner must specifically consider and discuss the November 2008 imaging studies which noted a mildly enlarged fatty and a borderline cirrhotic liver. b. Provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any liver disease including hepatitis is due to a disease or injury while on active duty. c. Provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any liver disease including hepatitis was caused by any of his service-connected disabilities to include the medications he takes to treat these disabilities. d. Provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any liver disease including hepatitis is aggravated by any of his service-connected disabilities to include the medications he takes to treat these disabilities. In providing answers to the above question the examiner should consider and discuss the Veteran’s competent lay claims regarding observable symptomatology. In providing answers to the above questions, the examiner is also advised that the term “at least as likely as not” does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of conclusion as it is to find against it. In providing the etiology opinion, the examiner should also be aware of the facts that the Court held in Ward, supra, that a “permanent worsening” of a non-service-connected disability is not required to establish secondary service connection on the basis of aggravation (i.e., aggravation may include temporary worsening of a disability). In answering the questions please articulate the reasoning underpinning your conclusions. That is, (1) identify what facts and information--whether found in the record or outside the record--support your opinion, and (2) explain how that evidence justifies your opinion. If the examiner cannot respond to an inquiry without resort to speculation as to any of the above claims he or she should so state, and must further explain why it is not feasible to provide a medical opinion, indicating whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or in the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). 5. In order to comply with the Court’s decision, schedule the Veteran for a VA examination with a suitably-qualified medical professional to address the claim for VA compensation benefits under 38 U.S.C. § 1151 for any stomach and esophageal abnormalities as a result of EGDs performed by VA on February 4, 2008, and August 5, 2008, and/or the medication prescribed by VA to treat his many disabilities. The claims file should be made available and reviewed by the examiner in conjunction with conducting the examination. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. Following consideration of the evidence of record (both lay and medical) and all evidence obtained during the examination, if needed, the examiner is asked to address the following: a. Provide diagnoses of all stomach and esophageal abnormalities. If he does not have any stomach and esophageal abnormalities the examiner must clearly say so. b. Provide an opinion as to whether the Veteran has any additional stomach and/or esophageal abnormalities due to the EGDs performed by VA on February 4, 2008, and August 5, 2008, and/or the medication prescribed by VA to treat his many disabilities. If he does not have an additional stomach and/or esophageal abnormalities, the examiner must clearly say so. c. As to each additional stomach and esophageal abnormalities due to the EGDs performed by VA on February 4, 2008, and August 5, 2008, and/or the medication prescribed by VA to treat his many disabilities, provide an opinion as to whether it is at least as likely as not that it was caused by carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA’s part in furnishing the treatment. d. As to each additional stomach and esophageal abnormalities due to the EGDs performed by VA on February 4, 2008, and August 5, 2008, and/or the medication prescribed by VA to treat his many disabilities provide an opinion as to whether it is at least as likely as not foreseeable. In providing answers to the above questions, the examiner should consider the Veteran’s competent claims regarding observable symptomatology. In providing answers to the above questions, the examiner is advised that the term “at least as likely as not” does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of conclusion as it is to find against it. In answering the questions please articulate the reasoning underpinning your conclusions. That is, (1) identify what facts and information--whether found in the record or outside the record--support your opinion, and (2) explain how that evidence justifies your opinion. If the examiner cannot respond to an inquiry without resort to speculation as to any of the above claims he or she should so state, and must further explain why it is not feasible to provide a medical opinion, indicating whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or in the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). 6. Schedule the Veteran for a VA examination with a suitably-qualified medical professional to address the severity of his GERD. The claims file should be made available and reviewed by the examiner in conjunction with conducting the examination. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. In order to comply with the Court’s decision, the examiner in providing the examination should consider and discuss all the pertinent GERD treatment records found in the claims file to include specifically discussing the gastrointestinal bleeding and anemia noted when the Veteran was hospitalized in September 2017. In providing the examination, the examiner should consider the Veteran’s competent claims regarding observable symptomatology. (Continued on the next page)   In providing the examination, please articulate the reasoning underpinning all conclusions. That is, (1) identify what facts and information--whether found in the record or outside the record--support your opinion, and (2) explain how that evidence justifies your opinion. Overall, this is a highly complex case back from the Veteran’s Court. The RO should take action to insure the above is fully address. John J. Crowley Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N.T. Werner, 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.