Citation Nr: 21012571 Decision Date: 03/04/21 Archive Date: 03/04/21 DOCKET NO. 15-27 471 DATE: March 4, 2021 REMANDED Entitlement to service connection for Gilbert’s Syndrome is remanded. Entitlement to service connection for a total disability rating based on individual unemployability as due to service-connected disabilities (TDIU) is remand. REASONS FOR REMAND The Veteran served on active duty from June 1971 to June 1995. These matters were last before the Board in August 2018, whereupon they were remanded to the Agency of Original Jurisdiction (AOJ) for further development of the record. Following the issuance of a September 2020 supplemental statement of the case continuing the denial of both claims, the case was returned to the Board for its adjudication. 1. Gilbert’s Syndrome The Veteran contends that he has a liver condition that he incurred in service and which has continued to the present. In the alternative, he asserts that his diagnosed Gilbert’s Syndrome existed prior to his entrance into service but was clearly and unmistakably worsened beyond its natural progression by service. In the prior August 2018 Board decision, the AOJ was instructed to schedule the Veteran for a new VA examination to evaluate the nature and likely etiology of the Gilbert’s syndrome. Specifically, the AOJ was directed to answer the following queries: 1) whether the Gilbert’s syndrome existed prior to service; 2) whether the Gilbert’s syndrome was properly classified as a congenital disease or a congenital defect; 3) if the Gilbert’s syndrome was a congenital disease, whether it was at least as likely as not that the condition was aggravated due to a superimposed injury or disease. Unfortunately, the Board’s stated directions did not request an opinion that is responsive to the proper standard of evaluation in this case. Although the Board’s instructions specified that the examiner was to opine as to possible aggravation of the Gilbert’s syndrome only if the condition was considered a congenital disease, this standard is applicable instead if the Gilbert’s syndrome is considered a congenital defect, with a separate standard for application in the alternative where the condition is considered a congenital disease. See VAOPGCPREC 82-90 (1990) (cited at 55 Fed. Reg. 45, 711) (Oct. 30, 1990) (service connection may not be granted for defects of congenital, developmental or familial origin, unless the defect was subject to a superimposed disease or injury); Carpenter v. Brown, 8 Vet. App. 240, 245 (1995). Predictably, the resulting June 2019 opinion is not sufficient for the Board’s evaluation. After confirming that the Gilbert’s syndrome was a congenital defect that existed prior to service, the examiner noted that he was “unable to state with 50% or greater probability that there was any worsening in this condition during active duty service.” The examiner did not discuss whether any superimposed disease or injury impacted the Gilbert’s syndrome in service, and utilized the incorrect terminology, substituting worsening for aggravation. Furthermore, the examiner stated that they were “unable” to set forth an opinion as to whether the Gilbert’s syndrome was worsened by service but provided no rationale for this inability. The Board also calls into question any determination that there was no aggravation of the condition during service, as the Veteran’s documented bilirubin levels in service were considerably higher than those recorded in the Veteran’s post-service medical history. On remand, this contradiction must be accounted for when providing answers to the various queries underlying the service connection claim. 2. TDIU The claim of entitlement to a TDIU is inextricably intertwined with the service connection claim still on appeal, and accordingly must be deferred. Harris v. Derwinski, 1 Vet. App. 180 (1991). The matters are REMANDED for the following action: Provide the claims file to the individual who administered the June 2019 VA liver examination, or to another qualified medical professional if that individual is not available, for the purpose of eliciting an addendum opinion responsive to the queries detailed below. The Veteran’s entire claims file, including a copy of this remand, must be made available to the examiner for review.  The VA examiner should confirm the claims file review.  Following review of the claims file, the examiner is asked to opine whether it is at least as likely as not (a 50 percent probability or greater) that the Gilbert’s syndrome was incurred in or aggravated during service beyond its natural progression. In answering this question, the examiner is asked to specifically consider whether the congenital Gilbert’s syndrome was subjected to a superimposed disease or injury which creased additional disability. The Board notes that the Veteran’s documented bilirubin levels during service, which formed the basis of the in-service diagnosis of Gilbert’s syndrome, were significantly higher than the bilirubin levels documented in the Veteran’s post-service medical records. This discrepancy must be addressed in any opinion set forth by the examiner. If the examiner is unable to provide an opinion as to the likelihood that the Gilbert’s syndrome was incurred in or aggravated by service without resort to speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). A complete rationale is required for all opinions. A. C. MACKENZIE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Christopher M. Collins 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.