Citation Nr: 21015865 Decision Date: 03/18/21 Archive Date: 03/18/21 DOCKET NO. 17-63 283 DATE: March 18, 2021 REMANDED Entitlement to service connection for a digestive system condition (separate and distinct from diverticulitis with lactose intolerance) is remanded. REASONS FOR REMAND The Veteran had active military service from August 1974 to November 1994. This matter comes before the Board of Veterans’ Appeals (Board) from the July and September 2015 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). In October 2018, the Board remanded the issues on appeal for additional development. In November 2020, the Board remanded the issues on appeal for additional development. The Board finds that the Regional Office (RO) substantially complied with the Board’s remand instructions See Stegall v. West, 11 Vet. App. 268 (1998). In the July 2020 rating decision, the Veteran was awarded service connection for diverticulitis with an effective date of March 12, 2014. In the January 2021 rating decision, the Veteran was awarded service connection for his lactose intolerance, as it was included in the evaluation for diverticulitis with an effective date of March 12, 2014. Entitlement to service connection for a digestive system condition (separate and distinct from diverticulitis with lactose intolerance) is remanded. The Veteran contends that his current nonalcoholic fatty liver disease (stomach condition) is related to his military service. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. In order to prevail on the issue of service connection there must be competent evidence of a current disability; medical evidence, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and competent evidence of a nexus between an in-service injury or disease and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999); Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Service connection may be granted for a Persian Gulf veteran with objective indications of a qualifying chronic disability that manifested either during active service in the Southwest Asia theater of operations or to a degree of 10 percent or more not later than December 31, 2021. 38 U.S.C. § 1117(a)(1); 38 C.F.R. § 3.317(a)(1). A qualifying chronic disability is a chronic disability that may result from an undiagnosed illness or a medically unexplained chronic multisymptom illness (MUCMI). 38 C.F.R. § 3.317(a)(2)(i). Here, the Veteran had active service in the Southwest Asia theater of operations during the Persian Gulf War. Therefore, he is considered a Persian Gulf veteran. 38 C.F.R. § 3.317(e). Service connection may be granted on a presumptive basis for Persian Gulf veterans who exhibit objective indications of a qualifying chronic disability, provided that such disability became manifest either during active service in the Southwest Asia theater of operations, or to a degree of 10 percent or more not later than December 31, 2021, and which by history, physical examination, and laboratory tests, cannot be attributed to any known clinical diagnosis. See 38 U.S.C. § 1117; 38 C.F.R. § 3.317 (a)(1); see also 81 Fed. Reg. 71,382 (Oct. 17, 2016) (extending the date by which a disability must manifest to a degree of 10 percent or more for purposes of 38 C.F.R. § 3.317, from December 31, 2016, to December 31, 2021). Unlike a claim based on direct service connection, in a claim based on a qualifying chronic disability under 38 C.F.R. § 3.317, there is no requirement that there be competent evidence of a nexus between the claimed illness and service. See Gutierrez v. Principi, 19 Vet. App. 1, 8-9 (2004). In September 2019, the Veteran underwent a VA stomach and duodenal conditions examination. The examiner diagnosed the Veteran with diverticulosis, nonalcoholic fatty liver disease, and lactose intolerance. As the Veteran’s diverticulosis, nonalcoholic fatty liver disease, and lactose intolerance are diagnosed conditions, they cannot be considered undiagnosed illnesses. The examiner also indicated that the diverticulosis and lactose intolerance had a clear and specific etiology and diagnosis, and the nonalcoholic fatty liver disease had a partially understood etiology and diagnosis. 38 C.F.R. § 3.317(a)(1)(ii). Additionally, the Veteran was granted service connection for his diverticulosis with lactose intolerance, effective March 2014. The Veteran’s service treatment records note that the Veteran was seen numerous times for complaints of abdominal pain. Additionally, an in-service February 1982 note states that the Veteran had a history of intermittent epigastric pain and “a classic history for pud.” The Veteran’s medical records do not contain a diagnosis for a stomach condition. The Veteran’s separation examination stated severe abdominal pain. In June 2015, the Veteran underwent a VA stomach and duodenal conditions examination. The Veteran reported that his stomach condition began in 1981, and manifests as abdominal cramping, nausea, and diarrhea. The examiner noted that the Veteran reported abdominal pain less than monthly, pronounced, periodic, and only partially relieved by standard ulcer therapy. The examiner also noted that there is no diagnosis because there is no pathology to render a diagnosis. In September 2019, the Veteran underwent a VA stomach and duodenal conditions examination. The examiner indicated that the Veteran’s medical history is not consistent with a diagnosis of irritable bowel syndrome, and explained that the Veteran did not have a history of any diarrhea symptoms while in service, and in 2007 he had a physical, and he did not have any complaints. Thus, the examiner determined the Veteran did not have a diagnosis of irritable bowel syndrome. However, the examiner indicated that the Veteran was diagnosed with diverticulosis, nonalcoholic fatty liver disease, and lactose intolerance. The examiner also indicated that the diverticulosis and lactose intolerance had a clear and specific etiology and diagnosis, and the nonalcoholic fatty liver disease had a partially understood etiology and diagnosis. The examiner opined that, it is less likely as not that “the disability pattern or diagnosed diseases above are related to a specific exposure event experienced by the Veteran during service in Southwest Asia.” The examiner explained that the Veteran was diagnosed with diverticulosis, and this condition can cause abdominal pain sometimes severe without any bowel symptoms. The examiner also stated that the Veteran was not made aware of his condition but was instead referred for education on his diet/medication management. In November 2020, VA secured an addendum opinion for the Veteran’s stomach conditions. The examiner opined the [nonalcoholic fatty liver disease] condition claimed is less likely than not (less than 50% probability) proximately due to or the result of the Veteran’s service-connected condition. In the rationale, the examiner states, the major risk factors of nonalcoholic fatty liver disease which include diabetes mellitus, obesity (BMI 31), age, hyperlipidemia, male gender, and hypertension. The examiner concluded that, “The weight of the literature does not support nonalcoholic fatty liver disease as a cause or risk factor for diverticulosis.” The remaining portion of the examiner’s opinion discusses the development of diverticulosis. The examiner’s opinion appears to be stating that nonalcoholic fatty liver disease does not cause diverticulosis. However, the question the examiner was supposed to answer is whether diverticulosis causes nonalcoholic fatty liver disease. The Board cannot make a fully informed decision on the issue of entitlement to service connection for nonalcoholic fatty liver disease without obtaining an addendum opinion clarifying whether the Veteran’s service-connected diverticulosis with lactose intolerance could cause his diagnosed nonalcoholic fatty liver disease. The matter is REMANDED for the following action: 1. If possible, return the Veteran’s claim file to the examiner that provided the November 2020 medical opinion. If it is not possible to obtain clarification from the November 2020 examiner, then forward the Veteran’s claim file to a VA examiner who has the requisite expertise to render the requested medical opinions. 2. The examiner should provide the following medical opinions: Whether the Veteran’s diagnosed nonalcoholic fatty liver disease is at least as likely as not (50 percent or greater probability) (1) proximately due to his service-connected diverticulosis with lactose intolerance (2) aggravated beyond its natural progression by his service-connected diverticulosis with lactose intolerance. The examiner must provide the underlying reasons for any opinions provided. If the examiner is unable to provide this opinion without resorting to speculation, he or she must indicate why this is so. If aggravation is shown, the examiner should quantify the degree of aggravation, if possible. The question of secondary aggravation must be addressed separately from the question of secondary causation. The examiner must note that an opinion to the effect that one disability is not “caused by,” “a result of,” or “secondary to” another disability does not answer the question of aggravation and will necessitate a further opinion. 3. The AOJ must review this opinion to ensure it is adequate and complies with the Board’s specific remand directives herein. If deficient in any manner, corrective action must be taken at once. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that AOJ compliance with Board remand directives is not discretionary or optional). 4. Then, the Veteran’s claim must be readjudicated. If the benefit sought on appeal is not granted to the Veteran’s satisfaction, the Veteran and his representative must be provided a Supplemental Statement of the Case and be given an adequate opportunity to respond. Thereafter, the case should be returned to the Board for further appellate action. MICHAEL MARTIN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Quist, Associate 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.