Citation Nr: 21012058 Decision Date: 03/03/21 Archive Date: 03/03/21 DOCKET NO. 15-37 510 DATE: March 3, 2021 ORDER Service connection for a gastrointestinal disability is denied. REMANDED Entitlement to service connection for gastroesophageal disability to include gastroesophageal reflux disease (GERD) is remanded. Entitlement to service connection for a lower respiratory disability, to include chronic obstructive pulmonary disease (COPD) and asthma, is remanded. Entitlement to service connection for carpal tunnel syndrome (CTS) is remanded. Entitlement to service connection for sinus disability to include sinusitis is remanded. Entitlement to service connection for hypertension is remanded. FINDING OF FACT The preponderance of the evidence of record is against finding that the Veteran has had a chronic gastrointestinal disability at any time during or approximate to the pendency of the claim. CONCLUSION OF LAW The criteria for entitlement to service connection for a gastrointestinal disability have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from May 1968 to May 1970. His exposure to herbicide agents is conceded based on service in the Republic of Vietnam. 38 C.F.R. § 3.307(a)(6)(iii). He has a combined 100 percent disability rating from October 12, 2017. See Rating Decision Codesheet (January 2019). These matters come before the Board of Veterans’ Appeals (Board) on appeal from a rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In September 2018, the Board remanded these matters for additional development. As to the matter adjudicated below, the Board finds that there has been substantial compliance with the Board’s prior remand directives. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (Board remand directives must be substantially met). Service Connection Compensation may be awarded for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131. Service connection basically means that the facts, shown by evidence, establish that an injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. 38 C.F.R. § 3.303. Service connection may be granted for any disease diagnosed after discharge, when the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Establishing service connection generally requires (1) evidence of a current disability; (2) evidence of in- service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a), (d). Certain chronic diseases, such as hypertension, will be presumed related to service, absent an intercurrent cause, if they were shown as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service (or within an applicable presumptive period) with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). For veterans exposed to herbicide agents during active military, naval, or air service, certain diseases will be presumed related to that exposure if the requirements of 38 C.F.R. § 3.307(a) are met, even if there is no record of such disease during service. Here, none of the conditions claimed by the Veteran in this case are included in the list of disease enumerated as associated with herbicide agent exposure. 38 C.F.R. § 3.309(e). However, even if a veteran is not entitled to presumptive service connection for a disease claimed as secondary to herbicide exposure, service connection may be established with proof of direct causation. Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994); see also McCartt v. West, 12 Vet. App. 164, 167-68 (1999) (providing that the provisions set forth in Combee are equally applicable in cases involving claimed Agent Orange exposure). Lastly, service connection may be granted, on a secondary basis, for a disability which is proximately due to or the result of an established service-connected disorder. 38 C.F.R. § 3.310. Similarly, any increase in severity of a non-service-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 non-service-connected disease, will be service-connected. Allen v. Brown, 7 Vet. App. 439 (1995). Entitlement to service connection for a gastrointestinal disability. The Veteran contends that he has a gastrointestinal disability related to in-service herbicide agent exposure or, in the alternative, secondary to service-connected PTSD. See generally, VA Form 21-4138 (August 2012). Specifically, he reported having symptoms of constipation and diarrhea in his October 2015 substantive appeal, but did not provide any specific details as to the frequency, severity, or duration of these symptoms to include any reference to functional impairment or impact on his ability to perform work. His former attorney wrote, in support of the appeal, that he reported no gastrointestinal symptoms prior to his Vietnam service and that he has “dealt with them since he got back.” See NOD (November 2012). However, there was no indication as to whether his symptoms reached the level of a functional impairment of earning capacity. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that the Veteran does not have a current gastrointestinal “disability” and he has not had one at any time during the pendency of the claim or recent to the filing of the claim. Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). The Veteran’s service treatment records (STRs) do not reflect complaints or finding for abnormal pathology of the gastrointestinal system. His April 1970 report of medical examination at service separation reflects normal clinical evaluation of all systems, noting only a thigh mole. Also, report of medical history, dated in April 1970, reflects that the Veteran denied having or ever having had stomach or intestinal trouble; frequent indigestion; and piles or rectal disease. VA received in June 1979 the Veteran’s original VA disability application. However, it does not include any report of gastrointestinal symptoms or disability. See VA Form 21-526 (June 1979). The first indication of a possible disability of the gastrointestinal system is in the Veteran’s August 2012 VA disability claim, wherein he reported constipation and diarrhea treated with over the counter medication. See VA Form 2104138 (August 2012). However, both September 2012 and December 2019 VA intestinal examinations reflect that the Veteran does not now have or has he ever been diagnosed with an intestinal condition. Likewise, VA outpatient treatment records are also negative for findings of any abnormal pathology of the Veteran’s gastrointestinal system. The Board has considered whether the Veteran's lay statements describing constipation and bowel disturbances constitute a disability for purposes of VA compensation benefits. See Saunders v. Wilkie, 886 F.3d 1356, 1367-69 (Fed. Cir. 2018), (“pain alone, without an accompanying diagnosis of a present disease, can qualify as a disability” if it “reaches the level of a functional impairment of earning capacity.”). However, in this case, neither the lay nor the medical evidence shows any functional loss or impairment in earning capacity due to his reported symptoms of occasional constipation and diarrhea. Saunders, 886 F.3d 1356, 1363 (Fed. Cir. 2018). Therefore, the evidence does not support a finding that the Veteran has a current gastrointestinal disability. The existence of a current disability is the cornerstone of a claim for VA disability compensation. See 38 U.S.C. §§ 1110, 1131; Degmetich v. Brown, 104 F.3d 1328 (1997). In the absence of proof of a current disability, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); Sanchez Benitez v. Principi, 259 F.3d 1356 (2001). Accordingly, the claim is denied. The evidence in this case is not so evenly balanced so as to allow application of the benefit-of- the-doubt rule. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. REASONS FOR REMAND 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). In remanding these matters, 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. 1. Entitlement to service connection for gastroesophageal disability is remanded. The Veteran contends that his GERD is related to in-service herbicide agent exposure or secondary to service-connected PTSD. The Veteran is service connected for PTSD at 70 percent. See Rating Decision – Codesheet (January 2019). In January 2016, the Veteran submitted treatise type evidence (Article: Gasto-esophageal Reflux Disease and Psychological Comorbidity) to articles noting a relationship between PTSD and GERD and gastrointestinal disabilities). For example, the research stated that their study indicated that patients with GERD had higher anxiety and depression scores as compared to normal subjects, and that subjects exposed to “prolonged life stressor are more likely to complain of symptoms of GERD.” In September 2018, the Board remanded the claim of entitlement to service connection for a gastroesophageal disability, to include GERD, to address, among other things, whether the Veteran has a gastroesophageal disability that is related to in-service herbicide exposure or secondary to service-connected PTSD. VA obtained a December 2019 VA examination and opinion. The December 2019 VA examination report shows that the Veteran had a diagnosis of GERD. By history, the Veteran’s condition began around 1985, roughly 15 years after service discharge, and has worsened since that time. The associated December 2019 VA medical opinions (VAMOs) reflect as follows. A December 2019 VAMO reflects that GERD less likely than not had its onset during service or is otherwise related to service because it was not shown in service, it was shown years after service, and because there were no documented medical findings for “continuous ongoing medical treatment” from the time of the Veteran’s discharge to present. The Board finds that this medical opinion is inadequate because, although the Veteran reported onset of symptoms more than a decade after service, the opinion does not address whether it was at least as likely as not caused by the Veteran’s conceded herbicide agent exposure in service. It is noted that even if a veteran is not entitled to presumptive service connection for a disease claimed as related to herbicide exposure, service connection may be established with proof of direct causation. Combee, 34 F.3d 1039, 1042 (Fed. Cir. 1994). Further, the VAMO makes no attempt to explain how the absence of in-service findings or continuity of symptoms from service is dispositive of whether current findings for GERD are etiologically related to in-service herbicide agent exposure. See Dalton v. Nicholson, 21 Vet. App. 23 (2007) (an examination was inadequate where the examiner relied on the absence of evidence in a Veteran's service treatment records to provide a negative opinion). Also, the VAMOs addressing secondary service connection are not adequate for adjudicative purposes. A December 2019 VAMO reflect that GERD is less likely than not due to or the result of the Veteran’s service-connected PTSD because it was not shown on service separation, it was shown years after service, and because there were no documented medical findings for “continuous ongoing medical treatment” from the time of the Veteran’s discharge to present; and because “GERD is caused by transient relaxation of the lower esophageal sphincter causing esophageal acid reflux and is not caused by claimed PTSD condition.” Another December 2019 VAMO, addressing the aggravation prong of secondary service connection, reflects that GERD is less likely than aggravated by the Veteran’s service-connected PTSD because it was not shown in service and it was shown years after service; and because there were no documented medical findings for “continuous ongoing medical treatment or aggravation of acute or chronic” GERD from the time of the Veteran’s discharge to present. Neither VAMO supports the negative conclusion reached with an analysis that is adequate for the Board to consider and weigh against other evidence of record. See Stefl v. Nicholson, 21 Vet. App. 102, 124-25. While the VAMOs contain clear conclusions with supporting data, neither provides a reasoned medical explanation connecting the two. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008). Therefore, remand is necessary. Stegall, 11 Vet. App. 268 (1998). 2. Entitlement to service connection for a respiratory disability, to include COPD and asthma, is remanded. 3. Entitlement to service connection for CTS is remanded. 4. Entitlement to service connection for sinus disability is remanded. Issues 2-4: The Veteran contends that he has a COPD, sinusitis, and carpal tunnel syndrome are related to in-service herbicide agent exposure. STRs are silent as to any treatment, complaints, or diagnoses of a lower respiratory condition (e.g. COPD, asthma), sinus disorder, or carpal tunnel syndrome. The claimed conditions are first documented many years after service. VA treatment records reflect diagnoses of COPD, asthma, chronic sinusitis, and bilateral carpal tunnel syndrome. While a VAMO was obtained in December 2019, the Board finds that it is inadequate for adjudicative purposes. The VAMO reflects that the Veteran's COPD, asthma, sinusitis, and carpal tunnel syndrome are less likely than not due to his active service, to include herbicide exposure, because the Veteran’s service separation examination and history were negative for the conditions or symptoms which would indicate onset of the conditions. The opinion makes no attempt to explain how the absence of in-service findings is dispositive of these matters, and is bereft of any meaningful discussion of whether the conditions, even if of delayed onset and diagnosis, are etiologically related to herbicide agent exposure in service. See Dalton, 21 Vet. App. 23 (2007). Therefore, remand is necessary. Stegall, 11 Vet. App. 268 (1998). 5. Entitlement to service connection for hypertension is remanded. The Veteran contends that he has hypertension due to or a result of herbicide agent exposure in service; or alternatively, as secondary to service-connected PTSD. In support of his claim, the Veteran submitted an abstract of a journal article that discussed the fact that cardiovascular risk factors and cardiovascular disease, particularly hypertension, are more common among individuals with PTSD. He also submitted an article discussing a possible relationship between Agent Orange exposure and hypertension. In September 2018, the Board remanded the claim of entitlement to service connection for hypertension for a medical to address, among other things, whether it is at least as likely as not etiologically related to in-service herbicide agent exposure or secondary to service-connected PTSD. Although a December 2019 VAMO was obtained, it is inadequate for adjudicative purposes. The opinion reflects that the Veteran’s age, race, and familial incidence are more likely than not the reason for the Veteran's hypertension, explained that approximately 15% of Caucasian males over the age of fifty develop hypertension and that the Veteran has a family history of similarly aged male relatives also developing hypertension. However, the VAMO does explain why this is dispositive in the Veteran’s case or how the finding about 15% of Caucasian males over age 50 have hypertension support the conclusion that the Veteran’s hypertension is less likely than not related to his herbicide agent exposure or service-connected PTSD. Further, although expressly directed by the 2018 Board remand, the opinion does not reflect any meaningful discussion of the 2008 Agent Orange Update (suggestive evidence of an association between HTN and Agent Orange in “Health Outcomes Not Associated With Exposure to Certain Herbicide Agents; Veterans and Agent Orange: Update 2008,”75 Fed. Reg. 81,332-01 (Dec. 27, 2010)). Further, the VAMO applied an incorrect evidentiary standard (“compelling evidence”) when addressing the actual question of whether it is at least as likely as not that the Veteran developed hypertension due to or as a result of his herbicide agent exposure in service. Given the above, remand is necessary to obtain a new medical opinion that is supported by a complete rationale and applies the correct standard. See Stegall, 11 Vet. App. 268 (1998). Accordingly, the matters are REMANDED for the following action: 1. Obtain the Veteran’s VA treatment records for the period from November 2017 to the Present. 2. Obtain a medical opinion from an appropriate clinician to address the nature and etiology of the Veteran’s gastroesophageal disability, to diagnosed as GERD. Detail the Veteran’s reported symptoms’ onset, progression and severity. The medical opinion should, at a minimum, reflect consideration of (i) the documented history; (ii) the lay contentions (e.g. the claimed disability was caused by herbicide agent exposure in service, or caused by PTSD, or aggravated by PTSD); and (iii) medical evidence of record. The 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). The opinion must address: (a) Whether any gastroesophageal disability, to include GERD, at least as likely as not is etiologically related to the Veteran’s in-service exposure to herbicide agents. Explain. (b) Whether any gastroesophageal disability, to include GERD, at least as likely as not is (1) proximately due to service-connected PTSD, or (2) aggravated beyond its natural progression by service-connected PTSD. Explain. Expressly consider in the rationale the articles the Veteran provided in January 2016 indicating a link between PTSD and GERD. NOTE (1): A negative medical opinion may not be predicted solely on the absence of any in-service documented complaints, findings, or diagnoses. NOTE (2): A negative medical opinion may not be predicted on the fact that the claimed condition is not among those diseases enumerated by regulation as associated with herbicide agent exposure. 3. Obtain a medical opinion from an appropriate clinician(s) to determine the nature and etiology of any respiratory disability, to include diagnosed COPD and asthma; sinus disability; and carpal tunnel syndrome. The medical opinions should, at a minimum, reflect consideration of (i) the documented history; (ii) the lay contentions (e.g. the claimed disability was caused by herbicide agent exposure in service); and (iii) medical evidence of record. The opinions 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 an etiology other than herbicide agents is the more likely cause of a claimed condition, this should be identified and thoroughly explained. The opinion must address: (a) Whether any respiratory disability, to include asthma and COPD, at least as likely as not (1) had its onset in service or (2) is related to an in-service injury, event, or disease, to include in-service exposure to herbicide agents. Explain. (b) Whether any sinus disability to include sinusitis at least as likely as not (1) had its onset in service or (2) is related to an in-service injury, event, or disease, to include in-service exposure to herbicide agents. Explain. (c) Whether any carpal tunnel syndrome at least as likely as not (1) had its onset in service or manifested within one year after service discharge, or (2) is related to an in-service injury, event, or disease, to include in-service exposure to herbicide agents. Explain. NOTE (1): A negative medical opinion may not be predicted solely on the absence of any in-service documented complaints, findings, or diagnoses. NOTE (2): A negative medical opinion may not be predicted on the fact that the claimed condition is not among those diseases enumerated by regulation as associated with herbicide agent exposure. 4. Obtain a medical opinion from an appropriate clinician to determine the nature and etiology of the Veteran’s hypertension. Detail the onset, progression and severity of the Veteran’s hypertension based on review of the record, lay and medical. The medical opinion should, at a minimum, reflect consideration of (i) the documented history; (ii) the lay contentions (e.g. the claimed disability was caused by herbicide agent exposure in service, or caused by PTSD, or aggravated by PTSD); and (iii) medical evidence of record. The 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). The opinion must address: (a) Whether the Veteran’s hypertension, at least as likely as not is etiologically related to his in-service exposure to herbicide agents. Explain. Expressly consider in the rationale the limited or suggestive evidence of an association between HTN and Agent Orange in “Health Outcomes Not Associated With Exposure to Certain Herbicide Agents; Veterans and Agent Orange: Update 2008,”75 Fed. Reg. 81,332-01 (Dec. 27, 2010). (b) Whether the Veteran’s hypertension is, at least as likely as not (1) proximately due to service-connected PTSD, or (2) aggravated beyond its natural progression by service-connected PTSD. Explain. Expressly consider in the rational Presumptions of Service Connection for Diseases Associated With Service Involving Detention or Internment as a Prisoner of War, 70 Fed. Reg. 37040 (June 28, 2005); Presumptions of Service Connection for Diseases Associated With Service Involving Detention or Internment as a Prisoner of War, 69Fed. Reg. 60083 (Oct. 7, 2004), which indicate some association between PTSD and cardiovascular disease including HTN. NOTE (1): A negative medical opinion may not be predicted solely on the absence of any in-service documented complaints, findings, or diagnoses. NOTE (2): A negative medical opinion may not be predicted on the fact that the claimed condition is not among those diseases enumerated by regulation as associated with herbicide agent exposure. 5. Ensure that the VA medical opinions obtained include 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 opinion 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 E.D. Anderson, 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.