Citation Nr: 21026541 Decision Date: 05/03/21 Archive Date: 05/03/21 DOCKET NO. 16-05 641 DATE: May 3, 2021 REMANDED Entitlement to service connection for diverticulitis, to include as due to exposure to environmental Gulf War hazards, and as secondary to medication taken for service-connected migraine headaches, is remanded. REASONS FOR REMAND The Veteran served on active duty from October 2001 to December 2004. This matter was last before the Board in December 2019, whereupon it was remanded to the Agency of Original Jurisdiction (AOJ) for further development of the record. In its prior December 2019 remand instructions, the Board highlighted two queries that needed to be addressed prior to adjudication of the Veteran's service connection claim. First, the Board requested that the AOJ secure an addendum opinion regarding whether the Veteran's diverticulitis was caused or aggravated by the Veteran's service-connected headache condition; specifically, his regular use of NSAID pain medication for alleviation of his headache symptomatology. The Board explicitly directed the examiner to discuss a research article submitted by the Veteran which suggested that the regular use of NSAIDs could contribute to the development and worsening of diverticulitis. In addition, the Board requested that the AOJ address whether the Veteran's diverticulitis was attributable to his exposure to environmental hazards while in service in the Southwest Asia theater of operations. Upon receipt of the remand instructions, the AOJ provided the claims file to a VA examiner, who issued an October 2020 opinion report in which he found it less likely than not that the Veteran's diverticulitis was incurred in or otherwise attributable to service, to include as due to his exposure to environmental hazards while in service in the Southwest Asia theater of operations as well as secondary to the service-connected headache condition. Regarding the secondary theory of entitlement, the examiner stated that there was no medical or mechanical relationship between migraine headaches and diverticulitis. Furthermore, the examiner stated that NSAID use did not cause diverticulitis. In a separate section of the report, the examiner also stated that there was no medical evidence that diverticulitis was aggravated beyond natural progression by NSAID use. As for the question of whether the diverticulitis was attributable to the Veteran's exposure to environmental hazards while in service in the Southwest Asia theater of operations, the examiner merely stated that diverticulitis was most likely not caused by external occupational environmental hazards, and offered no rationale to support that statement. In an addendum opinion requested by the AOJ and issued later in October 2020, the same examiner reiterated that NSAIDs did not cause diverticulitis. The examiner further acknowledged that while aspirin could cause increased bleeding, and thus increased bleeding during an active attack of diverticulitis, it did not constitute chronic aggravation beyond the natural progression of diverticulitis. The Board finds these two opinions to be deficient. Regarding the question of whether the diverticulitis was attributable to the Veteran's exposure to environmental hazards while in service in the Southwest Asia theater of operations, the Board notes that in its prior remand instructions it did not set forth a full list of queries related to the different determinations inherent in an evaluation of such "Gulf War" veteran claims. Consequently, the October 2020 opinion does not address all relevant questions for that theory of entitlement. More appropriate remand instructions are enclosed below. Regarding whether the diverticulitis is secondary to the service-connected headache condition, the Board notes that the October 2020 examiner employed the incorrect standard in addressing the etiology of the Veteran's claimed diverticulitis. In Ward v. Wilkie, the United States Court of Appeals for Veterans Claims held that, for secondary service connection, "aggravation" need not be permanent in nature. 31 Vet. App. 233, 241-42 (2019). Rather "permanently aggravated" is the standard used for service connection of a disorder noted on the medical examination upon entry into service. 38 C.F.R. § 3.306. By insisting that the aggravation in this case be "chronic" in nature, the examiner applied a more stringent standard than is appropriate. Moreover, despite explicit instructions to do so, the examiner did not address the research article submitted by the Veteran and its suggestion that NSAID use could aggravate diverticulitis. Indeed, the only rationale the examiner provided to support his determination that there was no aggravation of the diverticulitis by the headache condition was the statement that there was "no medical evidence" of such aggravation, which is directly refuted by the existence of the research article the examiner neglected to address. Therefore, as the examiner employed the incorrect standard and provided a rationale based on an inaccurate statement of fact, a new medical opinion should be obtained on remand. The matters are REMANDED for the following action: Provide the claims file to a qualified medical professional for the purpose of eliciting an opinion as to the etiology of the Veteran's diverticulitis. The entire claims file, to include a complete copy of this REMAND, must be made available to the individual designated to examine the Veteran, and that individual must note review of the file prior to setting forth any etiology opinions. The examiner is asked to address the following: A) First, please determine whether there is a diagnosable disability to account for the Veteran's reported gastrointestinal symptomatology. If a distinct diagnosable condition is not appropriate, the examiner should also explain why this is so. B) If a diagnosable condition (known clinical diagnosis) is identified that accounts for the gastrointestinal symptomatology, the examiner must provide an opinion as to whether it is at least as likely as not (a 50 percent probability or greater) that any such diagnosed condition is etiologically related to the Veteran's military service, to include as due to his exposure to hazardous materials during his service in the Southwest Asia theater of operations. In addition, the examiner should also opine as to whether any diagnosable condition is at least as likely as not (a 50 percent or greater probability) proximately due to, the result of, or aggravated by the Veteran's service-connected headache condition, to specifically include his regular use of NSAID's to relieve his headache symptoms. In the rationale for this opinion, the examiner should address the Gastroenterology journal abstract/article submitted by the Veteran on October 1, 2013, entitled, "Use of Asprin or Non-Steroidal Anti-inflammatory Drugs Increases Risk for Diverticulitis and Diverticular Bleeding." If the opinion is that the service-connected headache condition aggravated any diagnosed condition, the medical professional should specify, so far as possible, the degree of disability resulting from such aggravation. C) If a diagnosable condition is not appropriate to account for the gastrointestinal symptoms detailed by the Veteran, please note whether the Veteran has a medically unexplained chronic multi-symptom illness corresponding to those symptoms detailed by the Veteran for which there is no diagnosable condition that accounts for that symptomatology. D) If the answer to (C) is negative, please describe whether any gastrointestinal symptomatology was chronic in nature since service and thus would constitute a qualifying chronic disability under 38 C.F.R. § 3.317 (a)(2)(i)(B). If this question is answered in the negative, an explanation for this determination is needed. If this question is answered in the positive, please address the possible etiology of such chronic disability. If a chronic disability is found to be attributable to a supervening condition or event that occurred between the Veteran's departure from active duty in the Southwest Asia theater of operations and the onset of the illness, the examiner should so state. The examiner must provide any and all opinions as to etiology in the form of a probability and must provide a complete rationale for any opinion expressed. The permanent or chronic aggravation standard should not be employed. Ward v. Wilkie, 31 Vet. App. 233 (2019). Marissa Caylor Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Christopher M. Collins, 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.