Citation Nr: 21014129 Decision Date: 03/11/21 Archive Date: 03/11/21 DOCKET NO. 14-25 220 DATE: March 11, 2021 REMANDED Entitlement to service connection for gastroesophageal reflux disease (GERD) is remanded. Entitlement to service connection for esophageal cancer is remanded. Entitlement to special monthly compensation (SMC) based on a need for aid and attendance of another person, or at the housebound rate is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from January 1966 to January 1968. This case comes on appeal of July 2011 and May 2012 rating decisions. The Veteran testified before the Board in an August 2017 video conference hearing. The Board notes that this case has a lengthy procedural history. In March 2018, the Board denied the claims on appeal. The Veteran appealed the case to the United States Court of Appeals for Veterans Claims (Court). In October 2018, the Court vacated and remanded the Board’s March 2018 decision pursuant to a Joint Motion for Remand (JMR) submitted by the Veteran and VA. In the JMR, the parties noted that the Board had not provided adequate reasons and bases as to why the Veteran’s claim had not met the low threshold necessary to trigger VA’s duty to assist by providing an examination. In May 2019, after further review of the case, the Board remanded the matters of service connection for esophageal condition and service connection for a stomach condition, to include GERD, to afford the Veteran examinations. The Board also remanded the matter of entitlement to SMC for readjudication as it was inextricably intertwined. In July 2020, the Board again remanded the case to ensure substantial compliance with its previous remand, specifically as it pertained to the provision of an adequate medical opinion regarding the open question of service connection for GERD on a direct basis. Unfortunately, as is discussed below, remand is still necessary to obtain a medical opinion that complies with the Board’s prior instructions as well as the terms of the JMR. 1. Entitlement to service connection for gastroesophageal reflux disease (GERD) is remanded. In the October 2018 JMR, the parties agreed that the Board had erred by failing to provide proper reasons and bases as to why the evidence of record did not meet the low threshold triggering VA’s duty to assist by providing the Veteran with an examination for GERD. In doing so, the parties noted that there was an open medical question as to whether GERD was caused by or incurred in service, to include as due to exposure to herbicide agents. In its May 2019 decision, the Board remanded the claim to afford the Veteran such examination. In a subsequent examination, the examiner opined that it was less likely than not that GERD was etiologically related to exposure to herbicide agents. By way of rationale, the examiner did not address the question on a direct basis; instead the examiner only based their opinion on the fact that GERD is not presumptively linked to herbicide agents under 38 C.F.R. § 3.309(e). As this opinion was not adequate, the Board once again remanded for a new medical opinion. In its remand instructions, the Board made note to the examiner that the mere fact that VA has declined to include GERD on its list of diseases presumptively linked to exposure to herbicide agents was not, on its own, adequate rationale for an opinion. In July 2020, the agency of original jurisdiction (AOJ) obtained a new medical opinion. In that opinion, the examiner opined that it was less likely than not that the Veteran’s GERD was causally related to presumed exposure to herbicide agents. However, by way of rationale, the examiner only cited to a veterans’ law article explaining that GERD is not eligible for presumptive service connection due to herbicide agent exposure. In September 2020, the AOJ responded to the examiner, explaining that this opinion provided the same rationale as the prior medical opinion which the Board had deemed inadequate. The AOJ therefore requested an addendum opinion. Following the AOJ’s request, in September 2020, the examiner provided an addendum stating that the Veteran’s first record of complaint for gastrointestinal issues was well after separation in 1982. Thus, the Veteran’s GERD was less likely than not related to service, to include presumed exposure to herbicide agents. Here, the examiner has once again not provided adequate rationale explaining the medical opinion. In this case, the timeline of the Veteran’s symptoms is fairly clear and there is no contention that GERD had its onset during active duty service. To the extent that the examiner found no relationship between GERD and exposure to herbicide agents, the addendum opinion did not include any explanation as to why that was the case. The open medical question that still must be addressed is whether there is an etiological connection between the Veteran’s GERD and exposure to herbicide agents. The Board is aware that GERD has not been determined by the Secretary to be presumptively linked to exposure to herbicide agents. However, even when service connection is not available on a presumptive basis, VA still has a duty to address whether service connection is available on a direct basis. Combee v. Brown, 34 F.3d 1039, 1043-44 (Fed. Cir. 1994). In other words, the regulations under 38 C.F.R. §§ 3.307 and 3.309 allow for service connection for the enumerated diseases based on presumed herbicide agent exposure, regardless of whether there is an independent medical nexus between the two. The fact that VA has not included a disease on the presumptive list does not automatically mean that it cannot be medically linked to herbicide agent exposure. Instead, VA must consider the Veteran’s presumed exposure to herbicide agents as an in-service injury or event, and must then address whether there is sufficient medical evidence to determine that the current disability is causally related to that exposure. Thus, there remains an open medical question as to whether the Veteran’s GERD was caused by the Veteran’s presumed exposure to herbicide agents. Accordingly, on remand, the AOJ should obtain a new medical opinion. The examiner should review the Veteran’s claims file, to specifically include this decision. Then, the examiner should answer whether the Veteran’s GERD—based on the specific nature of the Veteran’s condition—is at least as likely as not related to his exposure to herbicide agents. In answering this question, the examiner should identify the medical knowledge and/or research that supports the examiner’s conclusion, and should further explain why the evidence supports that conclusion. 2. Entitlement to service connection for esophageal cancer is remanded. 3. Entitlement to special monthly compensation (SMC) based on a need for aid and attendance of another person, or at the housebound rate is remanded. As has been previously explained by the Board, a VA examiner opined that the Veteran’s primary risk factor for developing esophageal cancer was the Veteran’s history of GERD. Therefore, this issue is inextricably intertwined and must be remanded as well. Furthermore, there is evidence that the Veteran requires regular aid and attendance due to the manifestations of esophageal cancer. As a result, the issue of SMC is inextricably intertwined with the other issues on remand. The matters are REMANDED for the following action: 1. Obtain a medical opinion from a clinician other than clinician who provided the July and September 2020 opinions addressing the nature and etiology of the Veteran’s diagnosed GERD. The clinician should review the entire claims file, to include a copy of this Remand, and the report of examination should include discussion of the Veteran’s documented history and assertions. The reviewing clinician should then render an opinion, as to whether it is at least as likely as not (i.e., there is a 50 percent or greater probability) that the Veteran’s GERD was caused by or incurred in service. The clinician should specifically address the question of whether the Veteran’s GERD was at least as likely as not caused by the Veteran’s presumed exposure to herbicide agents. The clinician should note that the mere fact that VA has declined to include GERD on its list of diseases presumptively linked to exposure to herbicide agents is not, on its own, adequate rationale for an opinion. Rather, the clinician is being asked whether, based on what is known medically about herbicide agents, and what is known medically about this Veteran’s GERD, it is at least as likely as not that there is a relationship between the two in this case. In answering these questions, the reviewing clinician should support all conclusions reached with complete rationale. Complete rationale should include an explanation of the relevant medical evidence used in support of the conclusion, to include any medical treatises consulted. (Continued on Next Page) 2. Once the above development has been achieved, as well as any other development deemed necessary thereafter, readjudicate the appeal. If any benefits sought remain denied, issue a supplemental statement of the case. V. Chiappetta Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Giaquinto, 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.