Citation Nr: 21011196 Decision Date: 03/01/21 Archive Date: 03/01/21 DOCKET NO. 14-10 645A DATE: March 1, 2021 REMANDED Entitlement to service connection for a gall bladder disability, to include as due to herbicide exposure or in the alternative, as secondary to a service-connected disability, is remanded. Entitlement to service connection for cancerous colon polyps, to include as due to herbicide exposure or in the alternative, as secondary to a service-connected disability, is remanded. Entitlement to a total disability rating based on unemployability (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty from January 1968 to December 1971, to include service in the Republic of Vietnam. He received a Purple Heart and Combat Action Ribbon in recognition of his meritorious service. The issues were previously before the Board in July 2019 when they were remanded for further development. The Board notes that the issue of entitlement to service connection for erectile dysfunction was also remanded by the Board in July 2019. However, following an August 2020 Supplemental Statement of the Case, the Veteran submitted a VA Form 20-0995 (Supplemental Claim) regarding the issue. In October 2020, the agency of original jurisdiction (AOJ) issued a supplemental claim decision. As the Veteran opted the issue of entitlement to service connection for erectile dysfunction into the AMA within 60 days of the August 2020 SSOC, the issue is no longer on appeal before the Board under the Legacy system. The Board notes that the Veteran filed a VA Form 20-0995 (Supplemental Claim) in September 2019 regarding the issue of entitlement to a TDIU. However, as this was not within 60 days of a Statement of the Case or SSOC, the Veteran’s appeal was not opted into the AMA. Additionally, the Board sent the Veteran and his representative a letter in December 2020 notifying him that if he wanted to switch to a different decision review option, he would have to formally withdraw his Board appeal. The Veteran was notified that he had 60 days from the date of the letter to withdraw the issue from the Board and that if he did not respond within 60 days, it would be assumed that he wanted to continue with the Board appeal for all issues. As the Veteran did not respond to this letter within 60 days, the issue of entitlement to a TDIU has not been withdrawn and remains before the Board under the Legacy system. 1. Entitlement to service connection for a gall bladder disability, to include as due to herbicide exposure or in the alternative, as secondary to a service-connected disability The Veteran contends that he suffers from a gall bladder disability as a result of his service, to include acknowledged exposure to herbicides. In the alternative, the Veteran contends that his gall bladder disability is secondary to his service-connected disabilities. The Veteran’s service treatment records show that in April 1969, he complained of chills, fever, headache, backache, nausea, and darkening of his urine. He was diagnosed with malaria and acute pharyngitis at the time. The Veteran was diagnosed with a gall bladder disability, to include gall stones in 2007, subsequent gall bladder removal surgery, and gall stones in what was described as a gall bladder remnant in July 2011. In December 2014 VA treatment notes, the Veteran was again shown to have multiple gall stones in his gall bladder. In July 2015, a VA surgical pathologist opined that the Veteran’s gallbladder condition is suggestive of chronic cholecystitis. The Veteran was provided with a VA Gallbladder and Pancreas Conditions examination in December 2019 where he reported “onset of symptoms in late 1990’s or early 2000’s.” The VA examiner noted diagnoses of cholecystectomy (removal of gall bladder) and a scar in the right upper abdomen, status post cholecystectomy. The examiner noted that the etiology was initially thought to be alcohol related. The examiner opined that the Veteran’s gall bladder disability was less likely than not due to his service, to include acknowledged exposure to herbicides. She noted that “there is no evidence of record found for evaluation, diagnosis, or treatment for GI symptoms consistent with gallbladder disease during active duty service.” The examiner noted that the “Veteran does have identified risk factors for developing cholelithiasis, to include history of cirrhosis, liver disease, and hyperlipidemia, and a nexus can be established with these risk factors in developing cholelithiasis which required surgical intervention.” The examiner added that “a nexus cannot be established between cholelithiasis and presumed environmental exposure to Agent Orange in the remote past,” adding that “there is no scientific evidence to date of Agent Orange chemicals causing cholelithiasis.” The examiner also opined that the Veteran’s gall bladder disability was less likely than not caused or aggravated by his service connected disability or medications taken for these disabilities because “a nexus cannot be established between cholelithiasis and medication side effects, as there is no evidence found for this Veteran taking the known medications that have been identified as risk factors.” In an August 2020 addendum medical opinion, a VA examiner was asked to clarify the December 2019 VA medical opinion containing conflicting medical evidence. The examiner opined that the Veteran’s gall bladder disability is less likely than not caused or aggravated by his service-connected disabilities or medications taken for those disabilities because the Veteran “did have identifiable risk factors for developing cholelithiasis to include history of cirrhosis, liver disease, and hyperlipidemia.” He added that “these risk factors were proximately responsible for Veteran’s cholelithiasis (and cholecystitis),” but noted that “these risk factors are independent of any service connected condition or medication for a SC condition.” The Board notes that the Veteran has been awarded service connection for a liver condition status post liver transplant. The December 2019 medical opinion found that the Veteran’s gall bladder disability was less likely than not secondary to any service-connected disabilities but suggested a link between the Veteran’s gall bladder disability and liver disease. As such, the addendum opinion in August 2020 was requested in order to clarify this conflicting evidence. However, the August 2020 medical opinion again noted that liver disease is a risk factor for the Veteran’s gall bladder disability but stated that this risk factor was independent of any service-connected disability. The opinion does not explain how liver disease and the Veteran’s service-connected liver condition status post liver transplant are independent of each other. The Board also notes that the December 2019 medical opinion does not provide a supporting rationale regarding whether the Veteran’s gall bladder disability is secondary to his service-connected disabilities. The December 2019 medical opinion explains that the Veteran’s medications for his service-connected disabilities did not cause or aggravate his gall bladder disability but did not explain whether the disabilities themselves could have caused or aggravated his gall bladder disability. The August 2020 addendum medical opinion also does not provide a rationale for this conclusion. The August 2020 opinion notes that the Veteran had cholecystitis, the “follow up procedures to include stents were from the chronic infection in the biliary tree and resultant fibrosis,” adding that “no SC condition or medication for a SC condition caused or aggravated gall bladder disease (none existed since 2007).” However, as noted above, the Veteran was found to have chronic cholecystitis as recently as July 2015. Additionally, the Board notes that the December 2019 VA examination suggested that the etiology of the Veteran’s gall bladder disability was initially thought to be alcohol related. The Board notes that the Veteran is service connected for posttraumatic stress disorder (PTSD) with alcohol abuse. As such, the Board finds that an addendum medical opinion is required prior to adjudication of this issue. Additionally, the Board notes that the December 2019 opinion did not address the Veteran’s treatment for a backache and nausea in service and explain whether this could have been an early sign or symptom of a gall bladder disability. Upon remand, the addendum opinion must address the Veteran’s documented complaints while in service. 2. Entitlement to service connection for cancerous colon polyps, to include as due to herbicide exposure or in the alternative, as secondary to a service-connected disability The Veteran contends that he suffers from cancerous colon polyps as a result of his service, to include acknowledged exposure to herbicides. In the alternative, the Veteran contends that his colon disability is secondary to his service-connected disabilities. The Veteran was diagnosed with colon polyps in 2007, in January 2008, and February 2016. In fact, in February 2016, the Veteran’s polyps were noted to have high grade dysplasia. The Veteran was provided with a VA Intestinal Conditions examination in December 2019 where he reported a “history of chronic diarrhea since late 1990’s.” The VA examiner diagnosed the Veteran with diverticulosis and tubular adenomatous polyp, status post excision with no recurrence to date. The examiner opined that the Veteran’s colon disability was less likely than not due to his service because “there is no evidence of record found for evaluation, diagnosis, or treatment for the colon or for cancer during active duty.” The examiner noted that “a nexus cannot be established between cancerous colon polyps or a colon disability and a presumed environmental exposure to Agent Orange in the remote past.” She noted that “several medications (e.g., nonsteroidal anti-inflammatory drugs, steroids, and opiates) are associated with an increased risk of diverticulitis and diverticular bleeding.” The examiner also opined that the Veteran’s colon disability was less likely than not caused or aggravated by his service connected disabilities or medications taken for these disabilities because “there is no evidence found for this Veteran taking the known medications during active military service many years ago which have been identified as risk factors for his current diverticulosis.” However, the Board notes that the Veteran has reported taking nonsteroidal anti-inflammatory drugs (NSAIDs) for his service-connected disabilities. See May 2012 statement. As the medical opinion lists NSAIDs as a risk factor for diverticulitis, the Board finds that an addendum medical opinion is required prior to adjudication of this issue. Additionally, the Board notes that whether or not the Veteran took such medications during service is not at issue as the Veteran could have taken these medications at any time after service and throughout the appeal period for his service-connected disabilities and they still could have caused or aggravated his current colon disability. Additionally, the medical opinion explains that the Veteran’s medications for his service-connected disabilities did not cause or aggravate his colon disability but did not explain whether the disabilities themselves could have caused or aggravated his colon disability. Upon remand, the addendum medical opinion must provide a rationale regarding whether the Veteran’s colon disability is proximately due to or aggravated by his service-connected disabilities. 3. Entitlement to a TDIU Lastly, any decision with respect to the claims being remanded may affect the Veteran’s derivative claim for a TDIU. These claims are “inextricably intertwined” because a hypothetical grant of service connection or additional evidentiary development or grant of additional compensation could significantly change the adjudication of his TDIU claim. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). Therefore, consideration of his entitlement to a TDIU must be deferred until the intertwined issues are either resolved or re-certified to the Board. Id. The matters are REMANDED for the following action: 1. Obtain an addendum opinion from an appropriate clinician regarding the following: a) Is it at least as likely as not (a 50 percent chance or greater) that the Veteran’s gall bladder disability began in service or is otherwise related to a disease, event, or injury in service, to include acknowledged exposure to herbicides while in service? In so opining, the examiner should consider the Veteran’s service treatment records from April 1969 showing complaints of chills, fever, headache, backache, nausea, and darkening of his urine. b) Is at least as likely as not (a 50 percent chance or greater) that the Veteran’s gall bladder disability is proximately due to or aggravated beyond its natural progression by any service-connected disabilities or medications taken for those disabilities? In so opining, the examiner should consider i) the December 2019 VA examination report suggesting that the etiology of the Veteran’s gall bladder disability was initially thought to be alcohol related, and ii) the December 2019 VA examination report and accompanying August 2020 addendum opinion noting that liver disease is a risk factor for the Veteran’s gall bladder disability. The examiner is advised that the Veteran is competent to report symptoms, treatment, and injuries, and that his reports must be considered in formulating the requested opinion. However, if there is a medical reason to doubt its veracity, the examiner should explain why the Veteran’s statements or recollection are inconsistent with the evidence in this case, medical principles relating to the onset and progress of the disease, the specific findings in the record, and/or your professional judgment. A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. 2. Obtain an addendum opinion from an appropriate clinician regarding the following: Is at least as likely as not (a 50 percent chance or greater) that the Veteran’s cancerous colon polyps are proximately due to or aggravated beyond its natural progression by any service-connected disabilities or medications taken for those disabilities? In so opining, the examiner should consider the December 2019 VA examination report suggesting that NSAIDs are a risk factor for diverticulitis. The examiner is advised that the Veteran is competent to report symptoms, treatment, and injuries, and that his reports must be considered in formulating the requested opinion. However, if there is a medical reason to doubt its veracity, the examiner should explain why the Veteran’s statements or recollection are inconsistent with the evidence in this case, medical principles relating to the onset and progress of the disease, the specific findings in the record, and/or your professional judgment. A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. M. Donohue Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Morrad, 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.