Citation Nr: 21022237 Decision Date: 04/15/21 Archive Date: 04/15/21 DOCKET NO. 17-08 794 DATE: April 15, 2021 ISSUE Entitlement to service connection for a stomach disability, to include as due to service-connected post-traumatic stress disorder (PTSD). REMANDED Entitlement to service connection for a stomach disability, to include as due to service-connected post-traumatic stress disorder (PTSD) is remanded. REASONS FOR REMAND The Veteran served on active duty in the Air Force from February 1961 to April 1963. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a September 2016 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO) which denied entitlement to the benefits currently sought on appeal. The Veteran appeared before the undersigned Veterans Law Judge in a Travel Board hearing in January 2018 to present testimony on the issues on appeal. A transcript of the hearing has been associated with the Veteran’s claims file. By way of background, a rating decision from December 2011 denied the Veteran’s claim to entitlement to service connection for post-traumatic stress disorder. The Veteran did not immediately appeal that denial, which then became final. In a September 2016 rating decision, the Veteran’s PTSD claim was reopened but subsequently denied, in addition to the denial of secondary claims for the stomach and bladder disabilities. The Veteran appealed this denial, and in a Board decision from June 2018, the Veteran’s claim of entitlement to service connection for PTSD was granted. In that same decision, the claims of entitlement to service connection for the bladder and the stomach disability, each to include as due to PTSD, were remanded for a VA etiological opinion and subsequent adjudication. The Veteran’s claims returned to the Board in May 2020, however they were each remanded again. Following that, in a Decision from November 2020, the Board denied entitlement to service connection for the bladder disability but remanded the Veteran’s claim for entitlement to service connection for the stomach disability, to include as due to PTSD. Upon review of the Veteran’s claim file, the Board finds that there has been substantial compliance with the Board’s remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). Having said that, the Board finds that additional evidentiary development is required before the claim on appeal is adjudicated. This appeal has been advanced on the Board’s docket pursuant to 38 C.F.R. § 20.900 (c). 38 U.S.C. § 7107 (a)(2). Entitlement to service connection for a stomach disability, to include as due to service-connected post-traumatic stress disorder (PTSD) is remanded. The Veteran is claiming that she has a diagnosed stomach disability, which is due to her service-connected PTSD. This claim was further reflected in her January 2018 testimony, where she testified that her stomach pain was due to PTSD. The Board is also reminded that in an Appellant Brief from April 2020, the Veteran’s Representative argued that her stomach disability resulted in pain, which “would cause a functional impairment.” This argument was given again by the Veteran’s Representative in an Appellant Brief from October 2020 and more recently in an Appellant Brief from March 2021. To establish an entitlement to service connection, the Veteran must establish (1) the existence of a present disability, (2) an in-service occurrence or aggravation of a disease or injury, and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. 38 C.F.R. § § 3.303(a). Service connection may also be granted as secondary to a currently service-connected disability. To meet the criteria for secondary service connection, a Veteran must prove that there is (1) a current disability that is not already service-connected; and (2) at least one service-connected disability; and (3) evidence that the non-service connected disability is either proximately due to or the result of a service-connected disability, or aggravated (increased in severity) beyond its natural progress by a service connected disability. 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439 (1995). In June 2018, the Board remanded this matter for a VA examination, as it was unclear whether or not the Veteran had a current diagnosis for her claimed stomach disability. The Veteran was then given a VA examination in September 2019, whereby the VA examiner denied that the Veteran had a current stomach disability. When the Veteran’s claim was returned to the Board in May 2020, the Board determined that the VA examination was inadequate pursuant to the holding in Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018). In Saunders v. Wilkie, the Federal Circuit found that the term “disability” as used in 38 U.S.C. § 1110 ”refers to the functional impairment of earning capacity, not the underlying cause of said disability,” and held that “pain alone can serve as a functional impairment and therefore qualify as a disability.” The case reversed years of precedent that had held that “pain alone is not a disability for the purposes of VA disability compensation.” Sanchez-Benitez v. West, 13 Vet. App. 282 (1999). In other words, where pain alone results in functional impairment, even if there is no identified underlying diagnosis, it can constitute a disability. As a result, the Veteran’s claim was remanded in May 2020 for a VA examination. That VA examination occurred in July 2020, however in a Decision from November 2020, the Board again determined that the July 2020 VA examination as inadequate pursuant to Saunders. In brief, the claimed stomach disability was not clearly identified, and when the Veteran’s claims of “abdominal pain” were cited by the examiner, they are instead woven into analysis which denied an etiological link between the bladder disability and the Veteran’s service-connected PTSD. The Board also specifically noted that functional impairment was not discussed, which is required pursuant to Saunders. See November 2020 Board Decision. As such, the Veteran’s claim was remanded for a VA examination. That VA examination occurred in January 2021. The Veteran was not seen in person, but instead was given a telephone interview. The examiner indicated that a review of the Veteran’s claims file took place. The examiner denied that the Veteran had a current stomach disability. In the medical history portion of the exam, the examiner noted the Veteran’s complaints of “abdominal discomfort with either diarrhea or constipation,” and that the condition had “progressed/worsened.” No signs or symptoms were indicated, despite the Veteran’s claims of abdominal pain. Any possible functional impairment was not discussed. The examiner then denied an etiological link between the claimed stomach disability and the Veteran’s service-connected disability, stating that there was “no current stomach condition/diagnosis; therefore, a relationship to the service connected condition cannot be made at this time.” That rationale is subsequently copied eight separate times in the final remarks/opinion section of the exam. No further details are provided. In consideration of the above, the Board finds that the January 2021 VA examination is again inadequate pursuant to Saunders. The Veteran was not seen in person, and while there is some indication that her lay statements of “abdominal discomfort with either diarrhea or constipation” were noted, those symptoms were later disregarded in the Symptoms portion of the exam. Most importantly, the Veteran has repeatedly provided lay statements and testimony regarding her claimed stomach pain, and that this leads to the question of functional loss. The January 2021 VA examiner did not address that claimed pain in their rationale, nor was functional loss mentioned. This was specifically requested in the Board’s November 2020 remand directives and is required under Saunders. As such, the Board finds that the January 2021 VA examination is inadequate as it relates to the Veteran’s claim of entitlement to service connection for a stomach disability. Because the Veteran’s entire history is reviewed when making disability evaluations, the record must be complete for such service connection determinations to be made. See Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Therefore, a remand is necessary to ensure that there is a complete record upon which to decide the Veteran’s claim for an entitlement to service connection so that she is afforded every possible consideration. 38 U.S.C. § 5103 (A); 38 C.F.R. § 3.159. Again, the Veteran’s claim must be remanded for a medical addendum opinion to assess the functional impairment of the claimed stomach disability. See Saunders v. Wilkie, Id. If such functional impairment is shown, an opinion must also be obtained as to the question of whether it is as likely as not related to the Veteran’s period of service, to include as secondary to her service-connected PTSD. The matters are REMANDED for the following action: 1. Make appropriate efforts to obtain and associate with the claims file any further private or VA medical records identified and authorized for release by the Veteran. 2. Schedule the Veteran for a VA examination (or telehealth interview(s), review(s) of the record, etc., if an in-person examination(s) is not feasible) by an appropriate clinician to determine the nature and etiology of the Veteran’s claimed stomach disability. The claims folder and this remand must be made available to the examiner for review, and the examination report must reflect that such a review was undertaken. After performing any/all necessary testing, the examiner should provide responses to the following questions: (a.) the examiner is to provide a diagnosis which accounts for the Veteran’s present symptoms of her claimed stomach disability. If a medical diagnosis cannot be given, the examiner must state whether the Veteran has any functional impairment, such as pain, or instability. Complete the “Functional Impact” section of the report. Then, for any/all disabilities found, address: Is it at least as likely as not (50 percent or greater) that the Veteran’s claimed stomach disability was caused by a disease or injury in service? If not, whether the Veteran’s stomach disability 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. **Please note new case law: pain alone, even without an underlying pathology or diagnosis, can constitute a disability under VA law where such pain results in functional impairment. Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018) (holding that a “disability” under38 U.S.C. § 1110 refers to functional impairment of earning capacity; pain need not be diagnosed as connected to a current underlying condition to function as an impairment). The examiner is reminded that the Veteran has provided competent lay statements and testimony whereby she described continued abdominal pain, which has resulted in a functional impairment. See January 2018 Board Hearing. A detailed rationale for the opinions must be provided. The examiner is reminded that the term “as likely as not” does not mean “within the realm of medical possibility,” but rather that the evidence of record is so evenly divided that, in the examiner’s expert opinion, it is as medically sound to find in favor of the proposition as against it. If the examiner is unable to offer the requested opinion, it is essential that the examiner offer a rationale for the conclusion that an opinion could not be provided without resort to speculation, together with a statement as to 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. See Jones v. Shinseki, 23 Vet. App. 382 (2010). (Continued on next page.) 3. Thereafter, readjudicate the issues on appeal as noted above. If the determination remains unfavorable to the Veteran, she and her Representative should be furnished a supplemental statement of the case (SSOC) which addresses all evidence associated with the claims file since the last statement of the case. The Veteran and her Representative should be afforded the applicable time period to respond. Michael A. Pappas Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board G. Mulrain, 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.