Citation Nr: 21025767 Decision Date: 04/28/21 Archive Date: 04/28/21 DOCKET NO. 14-31 993A DATE: April 28, 2021 REMANDED The issue of entitlement to service for a back disability, to include as secondary to the service-connected gastroesophageal reflux disorder (GERD) with gastritis, is remanded. The issue of entitlement to service connection for residuals of a cerebrovascular accident (CVA), to include as secondary to service-connected posttraumatic stress disorder (PTSD), is remanded. REASONS FOR REMAND The Veteran served on active duty in the U.S. Army from March 1976 to March 1979. This appeal arose from an August 2012 rating decision. In June 2018, the Board remanded several claims, including the issues on this current appeal, for further evidentiary development. During the pendency of that remand, the Agency of Original Jurisdiction (AOJ) granted entitlement to service connection for bilateral hearing loss and posttraumatic stress disorder (PTSD). See March 2019 and July 2020 Rating Decisions. As this current time, these issues are not before the Board for appellate consideration. In September 2020, the Board remanded the claims of entitlement to service connection for back condition and CVA for further evidentiary development, specifically to obtain examinations and medical opinions regarding the nature and etiology of the Veteran’s conditions. Unfortunately, after a thorough review of the evidence of the record, the Board finds that another remand is necessary prior to the adjudication of the Veteran’s claims of entitlement to service connection. The Veteran is seeking entitlement to service connection for back condition and CVA. He also asserts that his conditions are secondary to his service-connected GERD and PTSD. The evidence of the record establishes that the Veteran has a current diagnosis of these conditions. A review of the medical evidence of the record shows that in May 1977, during his active service, the Veteran complained of abdominal and back pain for two months. In a May 2005 VA treatment record, while reporting his GERD symptoms, the Veteran reported that he experienced a burning pain that travels to his back area. Another VA treatment record from May 2010 documents the Veteran’s complaints of back and abdominal pain. See May 2012 VA Treatment Records (CAPRI). Regarding the Veteran’s CVA, the VA treatment records show that the Veteran reported that he was in a motor vehicle accident in June 2005. The Veteran’s daughter indicated that he “blacked out” just prior to the motor vehicle accident. It has been documented that the Veteran has had history of substance abuse, including using alcohol, cocaine and marijuana. In a September 2005 VA treatment note, it was stated that the Veteran had an episode of altered mental status and CVA diagnosis when he was discharged in June 2005. See May 2012 VA Treatment Records (CAPRI). At the September 2019 VA examination for PTSD, the examiner determined that the Veteran had a diagnosis of alcohol use disorder. The examiner opined that it was not uncommon for individuals to use alcohol and substances to cope with other mental conditions. The examiner determined that the alcohol use disorder was secondary to the Veteran’s PTSD to help him cope. Based on this evidence, the Board remanded the claims to obtain examinations and medical opinions that addressed whether the Veteran’s current conditions were related to his service or his service-connected conditions. In February 2021, the VA examiner opined that it was less likely than not that the Veteran’s back condition was incurred in or caused by his service. The examiner stated that there were no medical records showing a diagnosis or treatment for lumbosacral strain during his active service. The examiner concluded that due to the lack of evidence during and after military service, a nexus could not be established. The examiner also opined that it was less likely than not that the Veteran’s back condition was caused by or aggravated by his service-connected conditions. The examiner reasoned that there is no medical pathophysiologic relationship between GERD or PTSD causing or leading to a lumbosacral injury or strain, since there are both anatomically and different physiological systems. The rationale regarding aggravation was the same, stating that there was no medical pathophysiologic relationship between the two conditions that would aggravate or contribute to a lumbosacral injury or strain. Regarding the Veteran’s CVA, the examiner provided negative nexus opinions for direct and secondary service connection. Again, the examiner’s rationale was based on the absence of in-service documentation, and the rationales for causation and aggravation were the same as those given for the back condition. These opinions are inadequate for a number of reasons. Firstly, regarding direct service connection, the examiner bases the opinions solely on the absence of medical documentation during service. Specifically, for the Veteran’s back, the examiner does not consider the Veteran’s statement that he began experiencing back pain during physical training. The lack of medical documentation in service is not an absolute to service connection. Additionally, the examiner must consider the Veteran’s lay statements when rendering an opinion. Furthermore, in Atencio v. O'Rourke, 30 Vet. App. 74, 90 (2018), the Court emphasized that aggravation was independent of causation, and that the Board must ensure that medical examinations are adequate on that question and explain the bases for its conclusion regarding aggravation. The case was based on an examination report that considered causation and aggravation together. In this current matter, the examiner provides the same rationale for causation and aggravation. More importantly, the examiner fails to the address and reconcile the evidence of the record that speaks towards possible causation and aggravation. Specifically, regarding the Veteran’s back, the examiner does not discuss the in-service notations regarding back and abdominal pains and the post-service treatment records discussing radiation of pain to the back when reporting GERD symptoms. Regarding the Veteran’s CVA, the examiner does not discuss whether the Veteran’s substance use, which has been determined to be related to his PTSD, contributed to the Veteran’s CVA in any way. The medical questions derived by the evidence of the record still have not been resolved. Therefore, in order for the Board to make clear and informed determinations in this matter, another remand is necessary in order to obtain medical opinions that thoroughly addresses the medical evidence of the record and sufficiently attempts to resolve the medical questions. The matters are REMANDED for the following action: 1. Provide the Veteran an opportunity to identify any pertinent treatment records for his conditions. The Agency of Original Jurisdiction (AOJ) should secure any necessary authorizations. If the records cannot be obtained, inform the Veteran of the records that could not be obtained, including what efforts were made to obtain them. The Veteran should also be notified that he may submit any such records. All efforts should be recorded in the claims folder. Additionally, all updated VA treatment records since November 2020 should be obtained. If any requested outstanding records cannot be obtained, the Veteran should be notified of such. 2. Once all available, relevant medical records have been received, and associated with the claims file, the AOJ should refer the Veteran's entire claims file to a medical professional of appropriate expertise to provide an addendum opinion (or, if the VA examiner determines that it is necessary, schedule the Veteran for a VA examination) to address the nature and etiology of the Veteran's back condition and CVA. The claims file and a copy of this REMAND should be made available to the examiner for review. After record review and/or examination, the VA examiner should offer his or her opinion with supporting rationale as to the following inquiries, as clearly and precisely as possible: Back Condition (a) Is it at least as likely as not (a 50 percent or greater probability) that the Veteran's back condition was incurred in, caused by, or etiologically related to the Veteran's service? The examiner must consider and address the May 1977 in-service notation regarding experiencing back pain for two months, and the Veteran’s assertion that his back pain began during physical training. Solely relying on the absence of medical documentation is not sufficient in this matter. The examiner is asked to consider and discuss the likelihood that the Veteran's back condition is related his service, given the particulars of this Veteran's medical history, family history, and the absence or presence of other risk factors, etc. (b) Is it at least as likely as not (a 50 percent or greater probability) that the Veteran’s back condition is caused by his service-connected conditions, specifically his GERD? (c) Is it at least as likely as not (a 50 percent or greater probability) that his back condition is aggravated (i.e., worsened beyond the natural progress) by his service-connected conditions, specifically his GERD? The examiner must consider and discuss the post-service treatment records in which the Veteran reports experiencing back pain when discussing his GERD symptoms. If the Veteran’s back condition is deemed not to be due to, or aggravated by his service-connected conditions, specifically his GERD, then the examiner should, if possible, identify the cause considered more likely and explain why that is so. If the examiner determines that the Veteran’s back condition is aggravated by his service-connected conditions, specifically his GERD, the examiner should report the baseline level of severity of the condition prior to the onset of aggravation. If some of the increase in severity of his back condition is due to the natural progress of the disease, the examiner should indicate the degree of such increase in severity due to the natural progression of the disease. [In this regard, the Board notes that causation and aggravation are independent concepts. Therefore, the examiner must provide separate findings and rationales for causation and aggravation.] Cerebrovascular Accident (CVA) (a) Is it at least as likely as not (a 50 percent or greater probability) that the Veteran's CVA was incurred in, caused by, or etiologically related to the Veteran's service? (b) Is it at least as likely as not (a 50 percent or greater probability) that his CVA is caused by his service-connected conditions, specifically his PTSD? (c) Is it at least as likely as not (a 50 percent or greater probability) that his CVA is aggravated (i.e., worsened beyond the natural progress) by his service-connected conditions, specifically his PTSD? The examiner must consider and address the following when rendering the opinion: (i) VA treatment records discussing the Veteran’s CVA, history of substance abuse, and altered mental status. (ii)The September 2019 VA Examination Report for PTSD, in which the examiner found that the Veteran’s alcohol use disorder was secondary to his PTSD. If the Veteran’s CVA is deemed not to be due to, or aggravated by his service-connected conditions, specifically his PTSD, then the examiner should, if possible, identify the cause considered more likely and explain why that is so. If the examiner determines that the Veteran’s CVA is aggravated by his service-connected conditions, specifically his PTSD, the examiner should report the baseline level of severity of the condition prior to the onset of aggravation. If some of the increase in severity of his CVA is due to the natural progress of the disease, the examiner should indicate the degree of such increase in severity due to the natural progression of the disease. [In this regard, the Board notes that causation and aggravation are independent concepts. Therefore, the examiner must provide separate findings and rationales for causation and aggravation.] In rendering these opinions, the examiner is advised that the Veteran is competent to report his symptoms/history and that such reports must be acknowledged and considered in formulating any opinion. If the Veteran’s reports are discounted, the examiner should provide a reason for doing so. A fully articulated medical rationale for each opinion expressed must be set forth in the medical report. The examiner should discuss the particulars of this Veteran's medical history, pertinent lay evidence, and the relevant medical literature or studies as applicable to this case, which may reasonably explain the medical analysis in the study of this case. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question. 3. Then, review the record, conduct any additional development deemed necessary, and readjudicate the claim. If any benefit sought remains denied, furnish to the Veteran (and if applicable at the time, his representative) an appropriate supplemental statement of the case (SSOC). The Veteran (and if applicable at the time, his representative) should be afforded the appropriate time period to respond. Thereafter, if indicated, the case should be returned to the Board for the purpose of appellate disposition. R. Costello Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Middleton, 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.