Citation Nr: 21026730 Decision Date: 05/03/21 Archive Date: 05/03/21 DOCKET NO. 14-05 552 DATE: May 3, 2021 REMANDED Entitlement to service connection for a respiratory disorder is remanded. Entitlement to service connection for an ovarian cyst is remanded. REASONS FOR REMAND The Veteran served in the United States Navy from December 1984 to October 1988. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2012 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The issues on appeal were previously remanded in November 2017, August 2019 and September 2020. 1. Entitlement to service connection for a respiratory disorder. The Veteran contends that she experienced problems with bronchitis during service, and that she has experienced problems since separating from service. See Form 9 (February 2014). Despite three previous Board remands, the Board again finds that there has not been substantial compliance with its September 2020 remand instructions as the newly obtained VA medical opinion (VAMO) is inadequate. A remand by the Board imposes upon the Secretary of VA a concomitant duty to ensure compliance with the terms of the remand. Where remand orders of the Board are not complied with, the Board errs in failing to ensure compliance. Stegall v. West, 11 Vet. App. 268 (1998). By way of background, the Veteran's service treatment records (STRs) indicate normal findings at enlistment in September 1984. See STR Medical (October 2014). She was treated for respiratory problems on multiple occasions during service, including, in March 1985, when she was seen for a sore throat, clogged ears, and cough that was noted as an upper respiratory infection. Id. In June 1985, she was seen for nasal congestion, bilateral earache, and a cough that was diagnosed as acute bronchitis. Id. In June 1986, she was seen for an early respiratory infection. Id. In December 1986, she was seen for a cough and earache that was noted as an upper respiratory infection. In January 1988, she was seen for a viral upper respiratory infection. Id. Her separation physical in October 1988 reflects findings of normal lungs, chest and sinuses. Id. Following her separation from service, the Veteran sought treatment from a private provider in March 2012 for apparent bronchitis symptoms, including a productive cough, as well as additional symptoms of a respiratory infection, with the final assessment being sinusitis and wheezing. See Medical Treatment Record - Non-Government Facility (March 2018). The Veteran was also diagnosed with asthma by her private physician in August 2014. Id. The Veteran submitted a private respiratory DBQ completed by Dr. T. H. in February 2018. See Medical Treatment Record - Non-Government Facility (March 2018). At that time, the Veteran was diagnosed with asthma, and it was noted that the Veteran had "several episodes of lower respiratory illness since 1986." Id. VA treatment records in June 2019 also show that the Veteran has been prescribed Albuterol for "asthma." See CAPRI (July 2019). The Board has previously found that the available VA examinations, including in July 2012, May 2019 and January 2020, were inadequate. The Board requested a complete rational for all opinions. See BVA Decision (September 2020). While the Board has not previously addressed the December 2017 VA examination, such was obtained and provides that the claimed condition was less likely than not incurred in or caused by the clamed in-service injury event or illness, because of "no evidence of bronchitis or other respiratory disability since March 2011." The examiner stated that, while there was documentation of treatment for bronchitis during service in January 1988 and December 1988, and in March 2012, it was acute and resolved with treatment. Id. However, the examiner failed to address at least three notations in the Veteran's STRs that refer to either bronchitis or another type of respiratory infection as well as apparent bronchitis symptoms in March 2012. Therefore, the VA examiner's opinion regarding the etiology of the Veteran's respiratory conditions is inadequate because it is based on an inaccurate factual premise. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (indicating that a medical opinion based on an inaccurate factual premise has no probative value). A March 2021 VAMO obtained upon the September 2020 remand is inadequate as well. First, the opinion does not reflect full consideration of the Veteran's reports of symptoms since service. See McKinney v. McDonald, 28 Vet. App. 15, 30-31 (2016) ("the VA examiner's failure to consider [the Veteran's] testimony when formulating her opinion renders that opinion inadequate."). Generally, a claimant is competent to attest to observable symptomatology and, if rejected or found unpersuasive in view of other facts, this must be explained. Here, the December March 2021 VAMO finds that, "there is no reliable, objective evidence to support a service-connection." However, the examiner does not address the Veteran's reports of ongoing problems since service without any explanation for doing so. Second, March 2021 VAMO relies on one study that purportedly supports that "these infections are acute and self-limited, not chronic, nor indicative of an underlying burgeoning respiratory condition," without any specific application or discussion of that citation. See McCray v. Wilkie, 31 Vet. App. 243 (2019); see also, Bailey v. O'Rourke, 30 Vet. App. 54, 60 (2018) (reliance on the absence of medical literature supporting nexus without discussing the specific facts of the case renders an opinion inadequate). Third, the opinion provides that the Veteran only has a diagnosis of asthma, while records from February 2018 and January 2019 show a diagnosis of bronchitis, which suggests that the examiner did not adequately review the facts of the Veteran's respiratory disability. See Reonal, supra; Medical Treatment Record - Non-Government Facility (November 2020). Lastly, the March 2021 VAMO reflects that there did not appear to be any "service-connected nexus" without providing rationale on such conclusion. When a medical examination or opinion is provided, the clinician must support the conclusions with an analysis that is adequate for the Board to consider and weigh against contrary opinions. Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007) (quoting Ardison v. Brown, 6 Vet. App. 405, 407 (1994) (quoting Green v. Derwinski, 1 Vet. App. 121, 124 (1991)). Given the absence of rationale that explains the basis for the conclusion reached, which the Board requested in its prior remand, the Board finds that the VA medical opinion is inadequate. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Therefore, a remand is necessary to obtain an adequate medical opinion. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). 2. Entitlement to service connection for an ovarian cyst. The Veteran contends that she was diagnosed with ovarian cyst in service and has continued to experience problems with ovarian cysts since her separation from service. See Form 9 (February 2014). The Board finds that the matter requires remand as there has not been substantial compliance with the September 2020 Board remand directives. See Stegall, supra. By way of background, the Veteran's service treatment records (STRs) indicate normal findings at enlistment in September 1984. See STR Medical (October 2014). As previously noted, the Veteran's STRs document several instances of complications possibly representative of ovarian cysts, including in June 1985, February 1987, and July 1987, as well as other reproductive issues noted in November 1985. Id. Her separation physical in October 1988 shows normal pelvic and vaginal system. Id. Post-service, in March 2005, she was seen for an apparent mass near her left psoas muscle that was noted as possibly being a tiny ovary. Additionally, a July 2012 VA examiner diagnosed the Veteran as having a benign ovarian cyst at the time of the examination. In its prior remands, the Board found that the available VA examinations, including in July 2012, in December 2017 and January 2020, were inadequate. The Board specifically provided in its September 2020 remand that "the examiner must specifically discuss this finding [the July 2012 examination report includes a diagnosis of benign ovarian cyst] in the opinion. A complete rationale for all opinions must be provided." See BVA Decision (September 2020). Pursuant to the Board remand, the RO obtained a March 2021 VAMO, which reflects that it was less likely than not that the claimed condition was incurred in or caused by in-service injury, event, or illness. See C&P Exam (March 2021). While the opinion referred to a July 1987 in-service treatment for abdominal/pelvic pain with possible ovarian cyst considered in the differential diagnosis, the opinion did not explain how this "differential diagnosis" did not support a nexus between the in-service "possible ovarian cysts" and current benign ovarian cysts. The examiner seemed to attribute it to a sexually transmitted disease diagnosed later that month without any rationale. The conclusion provides that, There is no evidence to support a nexus to a service-connected diagnosis of an ovarian cyst. Therefore, it is my medical opinion that it is less likely than not (less than 50% probability) that the Veteran's claimed condition of an ovarian cyst was proximately incurred in or caused by any service-connected event, injury or illness. The Board finds that the March 2021 VAMO is inadequate as it wholly ignores the crux of the Board's remand, which was to discuss the in-service instances involving "possible ovarian cysts" in June 1985 (follicular cyst), February 1987 (rule out torsed ovary) and July 1987 (rule out ovarian cyst), as well as a specific discussion of the July 2012 VA examination findings of benign ovarian cyst. See STR-Medical (October 2014). An adequate medical opinion must be "accurate and fully descriptive," 38 C.F.R. § 4.1, and based on an accurate factual premise and consideration of a veteran's prior medical history, Ardison v. Brown, 6 Vet. App. 405, 407 (1994). In addition, the opinion "must support its conclusions with an analysis that the Board can consider and weigh against contrary opinions." Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007); see Nieves-Rodriguez, 22 Vet. App. at 304 ("most of the probative value of a medical opinion comes from its reasoning"). An adequate medical examination report or opinion must also "sufficiently inform the Board of a medical expert's judgment on a medical question and the essential rationale for that opinion." Monzingo v. Shinseki, 26 Vet. App. 97, 106 (2012). In sum, although an examiner need not discuss all potentially favorable or unfavorable evidence in order to render an adequate opinion, see Monzingo, 26 Vet. App. at 105, it must be clear that the examiner was "informed of sufficient facts upon which to base an opinion relevant to the problem at hand." Nieves-Rodriguez, 22 Vet. App. at 303. First, the March 2021 VAMO neither recognizes the June 1985 assessment of possible follicular cyst, nor addresses the assessments from February 1987 and July 1987 as possible ovarian cysts in service. Nor does it provide a "specific discussion" of the July 2012 VA examination finding of benign ovarian cysts. See Stegall, supra. Second, the March 2021 VAMO cites to medical literature, but does not reflect consideration of facts specific to the Veteran vis-à-vis the medical literature that was reviewed. See Bailey v. O'Rourke, 30 Vet. App. 54, 60 (2018) (stating that a medical rationale based solely on general medical literature without discussing the specific facts pertaining to a veteran's condition or individual circumstances is inadequate). The March VAMO does not provide adequate rationale for its conclusion, because it reflects no meaningful discussion of the application of medical studies to the documented in-service complaints. Indeed, aside from the conclusory statements, the opinion simply referenced the study without providing the Board a reasoned medical rationale connecting the Veteran's individual circumstances to the specific facts of the cited medical literature. In remanding these matters, the Board makes no finding, implicit or otherwise, as to the credibility of the Veteran's assertions. Neither the Veteran's credibility nor any lack thereof should be presumed in this remand. The matters are REMANDED for the following action: 1. Obtain the Veteran's VA treatment records from January 2021 to the Present. 2. Thereafter, obtain an addendum medical opinion regarding the etiology of the Veteran's respiratory disorders, to include both, bronchitis and asthma. The examiner must provide specific, thorough responses to each of the following: (a.) List all current diagnoses pertaining to the Veteran's respiratory system, to include bronchitis and asthma. (b.) For each disability diagnosed, the examiner must opine as to whether it is at least as likely as not that the disability began in or is otherwise related to the Veteran's service. The examiner should specifically comment on the following instances in the Veteran's STRs: 1. March 5, 1985 (noted as an upper respiratory infection); 2. June 21, 1985 (noted as acute bronchitis); June 30, 1986 (noted as an early respiratory infection); 3. December 31, 1986 (noted as an upper respiratory infection); and 4. January 26, 1988 (noted as a viral upper respiratory infection). Additionally, the examiner should comment on the July 2012 VA respiratory examination report, the February 2018 DBQ completed by Dr. T.H. (diagnosing the Veteran with asthma) and the February 2018 private assessment of bronchitis as well as a January 2019 assessment of bronchitis. Note (1): If another etiology is the more likely cause, the clinician must identify that cause and provide a complete explanation of his or her reasoning. Note (2): The clinician is not required to accept the Veteran's theory that she has had her respiratory problems since service if this is incongruous with the record or accepted medical principles; however, the clinician is required to fully explain why he or she disagrees with the Veteran's theory of causation or rejects any history provided. Note (3): An adequate medical opinion may not be predicated solely on the absence of medical literature supporting the Veteran's theory of causation; and, to the extent medical literature is relied upon to support the conclusion reached, the clinician must discuss the literature vis-à-vis facts specific to the Veteran. A complete rationale for all opinions must be provided. 3. Obtain an addendum medical opinion regarding the etiology of the Veteran's ovarian cyst. The examiner must provide an opinion as to whether it is at least as likely as not (i.e. 50 percent or greater probability) that the Veteran's benign ovarian cyst was incurred in or is otherwise related to service, to include all the noted instances in service involving possible ovarian cysts in June 1985, February 1987, and July 1987, as well as other reproductive issues noted in November 1985. It is noted that the July 2012 examination report includes a diagnosis of benign ovarian cyst; the examiner must specifically discuss this finding in the opinion. A complete rationale for all opinions must be provided. Note (1): If another etiology is the more likely cause, the clinician must identify that cause and provide a complete explanation of his or her reasoning. Note (2): The clinician is not required to accept the Veteran's theory that she has had her ovarian cyst problems since service if this is incongruous with the record or accepted medical principles; however, the clinician is required to fully explain why he or she disagrees with the Veteran's theory of causation or rejects any history provided. (Continued on the next page) Note (3): An adequate medical opinion may not be predicated solely on the absence of medical literature supporting the Veteran's theory of causation; and, to the extent medical literature is relied upon to support the conclusion reached, the clinician must discuss the literature vis-à-vis facts specific to the Veteran. 4. Ensure that the VA medical opinion obtained include a complete rationale for the conclusions reached. The medical opinion must support the conclusions reached with an analysis that is adequate for the Board to consider and weigh against other evidence of record; medical opinion must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. If an opinion cannot be expressed without resort to speculation, ensure that the clinician so indicates and discusses why an opinion is not possible, to include 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. C.A. SKOW Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. M. Pesin 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.