Citation Nr: 21023193 Decision Date: 04/20/21 Archive Date: 04/20/21 DOCKET NO. 18-10 444 DATE: April 20, 2021 REMANDED Entitlement to service connection for a gastrointestinal disability is remanded. Entitlement to service connection for a heart disability is remanded. Entitlement to service connection for hypertension is remanded. Entitlement to service connection for gastroesophageal reflux disease (GERD) is remanded. REASONS FOR REMAND The Veteran served with the United States Army from April 1967 to April 1969, including foreign service. For his meritorious service, he was awarded (among other decorations) the Vietnam Campaign Medal, Army Commendation Medal, and Combat Infantryman Badge. These matters were previously remanded by the Board of Veterans’ Appeals (Board) in September 2019. The Board’s September 2019 remand directives and the subsequent actions of the AOJ will be discussed below. The Veteran’s appeal has been returned to the Board for further appellate consideration.  Also in September 2019, the Board remanded an appeal seeking service connection for tinnitus. Service connection was awarded in a June 2020 rating decision. This constitutes a complete grant of the benefit being sought, such that this matter is no longer for the Board’s consideration. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997) (noting that a grant of service connection extinguishes appeals before the Board). Finally, the Board notes that the Veteran is in receipt of a combined maximum evaluation from December 11, 2015. As such, any future awards of service connection or higher ratings will bear no impact on his compensation payments. 1. Entitlement to service connection for a gastrointestinal disability is remanded. 2. Entitlement to service connection for a heart disability is remanded. 3. Entitlement to service connection for hypertension is remanded. Although the Board regrets the additional delay, further development is required prior to the adjudication of the Veteran’s claims. In particular, remand is required to obtain medical opinions that comply with the Board’s prior remand instructions. See Stegall v. West, 11 Vet. App. 268, 270-71 (1998) (requiring substantial compliance with remand directives). Specifically, in the September 2019 Board remand, the examiner was directed to provide nexus opinions addressing the Veteran’s contentions that his gastrointestinal condition and hypertension were a result of or aggravated by his service-connected disabilities of PTSD and major depressive disorder or the medications therefor. Further, the examiner was directed to provide an opinion based on the Veteran’s claim that his heart disability was a result of exposure to herbicides, including Agent Orange. See September 2019 Board Decision. Following the remand, the Veteran was afforded several examinations for his separate conditions. However, the examiner did not provide the requested secondary service connection nexus opinions. The Board concludes that the January 2020 VA examinations do not substantially comply with the September 2019 Board remand directives. The examiner did not specifically consider the Veteran’s contentions of a secondary service connection opinion, instead, the examiner provided direct service connection nexus opinions. Further, the examiner did not provide an opinion based on the Veteran’s claim that his heart disability was a result of exposure to herbicides, including Agent Orange. Therefore, remand is required. See Stegall v. West, 11 Vet. App. 268, 270-71 (1998) (requiring substantial compliance with remand directives). 4. Entitlement to service connection for gastroesophageal reflux disease (GERD) is remanded. Although the Board regrets the delay, remand is necessary to ensure that there is a complete record on which to decide the Veteran’s claim for entitlement to service connection for GERD. The Veteran was afforded a VA examination in January 2020. The examiner provided a secondary service connection nexus opinion. The examiner concluded that the Veteran’s GERD was less likely than not incurred in or caused by PTSD. The examiner reasoned that the Veteran is not on any medications for PTSD and it did not appear that PTSD has led to his GERD. However, the examiner failed to offer an opinion regarding aggravation. See January 2020 VA examination. The Court has made it clear that an opinion will be considered inadequate unless it addresses both the “caused by” and “aggravation” avenues for secondary service-connection. El-Amin v. Shinseki, 26 Vet. App. 136 (2013); see also Stegall, 11 Vet. App. at 268 (holding that a remand by the Board confers on a claimant, as a matter of law, the right to compliance with the remand orders and provides that the Secretary of VA has a concomitant duty to ensure compliance with the terms of the remand). In this regard, a remand is required for compliance with the Board’s remand directives for a VA examination that is consistent with the criteria of an adequate secondary service connection opinion. The matters are REMANDED for the following action: Return the file back to the January 2020 examiner (or another appropriate examiner if the January 2020 examiner is unavailable) to ascertain the nature and etiology of the Veteran’s gastrointestinal disability, heart disability, hypertension, and GERD. Any indicated evaluations, studies, and tests deemed necessary should be accomplished. After eliciting a history of the Veteran’s disability, the examiner should offer comments, an opinion, and a supporting rationale for the following: With regard to the Veteran’s gastrointestinal disability claim, the VA examiner should offer the following opinions: 1. Is it at least as likely as not (i.e., at least a 50 percent probability) that the Veteran’s gastrointestinal disability was either (1) caused by or (2) aggravated by his service-connected PTSD? The examiner must address the articles the Veteran submitted to show a connection between depression, anxiety, and gastrointestinal symptoms. See April 2017 HTML Documents p. 9. 2. Is it at least as likely as not (i.e., at least as 50 percent probability) that the Veteran’s gastrointestinal disability was either (1) caused by or (2) aggravated by any of his medications used to treat any service-connected conditions? The examiner should note the Veteran is service-connected for PTSD with major depressive disorder, tinnitus, malaria, and erectile dysfunction. See June 2020 Rating Decision Codesheet. With regard to the Veteran’s heart disability claim, the VA examiner should offer the following opinions: 1. Is it at least as likely as not (i.e., at least a 50 percent probability) that the Veteran’s heart disability is related to service, to include the Veteran’s presumed exposure to Agent Orange? 2. Is it at least as likely as not (i.e., at least a 50 percent probability) that the Veteran’s heart disability was either (1) caused by or (2) aggravated by his service-connected PTSD? The examiner must address the article the Veteran submitted which found PTSD may increase the risk for heart disease. See July 2019 Web/ HTML Documents. 3. Is it at least as likely as not (i.e., at least as 50 percent probability) that the Veteran’s heart disability was either (1) caused by or (2) aggravated by any of his medications used to treat any service-connected conditions? The examiner should note the Veteran is service connected for PTSD with major depressive disorder, tinnitus, malaria, and erectile dysfunction. See June 2020 Rating Decision Codesheet. With regard to the Veteran’s hypertension claim, the VA examiner should offer the following opinions: 1. Is it at least as likely as not (i.e., at least a 50 percent probability) that the Veteran’s hypertension was either (1) caused by or (2) aggravated by his service-connected PTSD? The examiner must address the articles the Veteran referenced to support his contention that PTSD appears to be related to hypertension. See September 2018 Correspondence p. 7. 2. Is it at least as likely as not (i.e., at least as 50 percent probability) that the Veteran’s hypertension was either (1) caused by or (2) aggravated by any of his medications used to treat any service-connected conditions? The examiner should note the Veteran is service connected for PTSD with major depressive disorder, tinnitus, malaria, and erectile dysfunction. See June 2020 Rating Decision Codesheet. With regard to the Veteran’s GERD claim, the VA examiner should offer the following opinions: 1. Is it at least as likely as not (i.e., at least a 50 percent probability) that the Veteran’s GERD was either (1) caused by or (2) aggravated by his service-connected PTSD? The examiner must address the article the Veteran submitted which found an association between GERD and mental health disorders. See April 2017 Web/ HTML Documents pp. 1-4. 2. Is it at least as likely as not (i.e., at least as 50 percent probability) that the Veteran’s GERD was either (1) caused by or (2) aggravated by any of his medications used to treat any service-connected conditions? The examiner should note the Veteran is service connected for PTSD with major depressive disorder, tinnitus, malaria, and erectile dysfunction. See June 2020 Rating Decision Codesheet. In formulating their opinions, the examiners are advised that the term “at least as likely as not” does not mean “within the realm of possibility.”  Rather, it means that the weight of the medical evidence for and against the claim is so evenly divided that it is as medically sound to find in favor of the claim as it is to find against it.   [CONTINUED ON NEXT PAGE] A complete rationale should be provided for all opinions or conclusions expressed.  It should be noted that the Veteran is competent to attest to observable symptomatology.  If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation.  Kate E. Kovarovic Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Kovarovic, 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.