Citation Nr: 21028478 Decision Date: 05/11/21 Archive Date: 05/11/21 DOCKET NO. 16-28 537 DATE: May 11, 2021 REMANDED Entitlement to service connection for a throat disability is remanded. Entitlement to an initial rating in excess of 20 percent for duodenal ulcer, postgastrectomy syndrome, bile reflux gastritis and hiatal hernia with gastrointestinal reflux disorder (hereinafter "gastrointestinal disability") is remanded. REASONS FOR REMAND The Veteran had active military service from January 1964 to May 1965. This case comes before the Board of Veterans' Appeals (Board) on appeal of a May 2015 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). This case was previously before the Board in October 2018, at which time the issues on appeal were remanded for additional development. This case has been returned to the Board for further appellate action. Service Connection Throat disability The Veteran asserts that his throat disability is related to his active service or, alternatively, his service-connected gastrointestinal disability. Specifically, the Veteran asserts that he began having medical problems with a sore throat months into his enlistment and that those problems continued post-discharge; and, that his gastrointestinal related surgeries caused constant regurgitation over the years. The Veteran's service treatment records (STRs) reveal that in December 1964 and February 1965 he complained of a sore throat. In a July 2000 treatment note, the Veteran complained of a sore throat. In August 2002, the Veteran reported shortness of breath (SOB), feeling like the back of his throat was closed off and not being able to swallow water for a week. In September 2003, the Veteran reported that he had a sore throat and a severe cough. At that time, the Veteran was assessed as having congestion and a cough. In November 2004, the Veteran complained of stomach burning that caused a cough and sore throat. In August 2009, the Veteran was assessed as having dysphonia after complaining of hoarseness. At that time, it was noted that the Veteran was seen in April 2009 for six months of progressive hoarseness. It was also noted that the Veteran had restarted smoking two to three weeks prior and was up to one-half pack per day. In November 2009, it was noted that the Veteran was in preparing for a throat (larynx) injection procedure due to chronic hoarseness. In an October 2012 treatment note, it was noted that the Veteran complained of a cough for ten days and that he smoked for six to seven cigarettes daily. In May 2014, it was noted that the Veteran had worsening dysphonia over the past year as a result of prior cerebrovascular accident (CVA) in the remote past. It was also noted that the Veteran previously had an injection laryngoplasty in 2009 with a good result. In an August 2014 treatment note, it was documented that risks of the Veteran's radiation therapy for laryngeal cancer included: severe sore throat toward the end of his treatment; severe sore throat causing hospitalization and possibly prolonged use of a feeding tube; and, destruction of the cartilage of the throat that may cause chronic pain, cough, or inability to swallow that required surgery to repair. In a September 2014 treatment note, it was noted that the Veteran's sore throat was likely due to radiation. In an October 2014 treatment note, it was noted that the Veteran was on throat medication for a sore throat that was related to radiation. In October 2014, a treatment note documented that the Veteran reported having a cough that was due to throat irritation after radiation. Later in October 2014, the Veteran noted that he had a tickle at the back of his throat when he swallowed liquids that caused him to cough. In May 2015, the Veteran was afforded a VA examination for esophageal conditions. At that time, the Veteran reported that he was constantly sick with vomiting during active service and discussed his post-service gastrointestinal issues, to include related surgeries. The VA examiner noted that the Veteran's symptoms included pyrosis, reflux, and regurgitation. Additionally, the VA examiner opined that it was possible that the sore throat complained of along with gastrointestinal (GI) symptoms was due to reflux. In a May 2015 VA addendum opinion, the VA examiner noted that the Veteran reported that he felt his post-service tonsillectomy took care of his throat problem and denied further treatment, especially in the recent years. The VA examiner assessed that it was possible that the Veteran's February 1965 complaint of a sore throat could have been related to esophageal reflux. However, the VA examiner ultimately assessed that a current diagnosis was not warranted at that time as chronicity was not shown and a chronic disabling condition was not identified. In a June 2015 treatment note, a VA physician noted that the Veteran's nighttime symptoms of chronic cough and shortness of breath may be secondary to GERD and aspiration versus poorly controlled chronic obstructive pulmonary disease (COPD). Additionally, the VA physician noted that given the symptoms were mainly present when laying down and not during the day, she suspected a GI etiology as more likely. In September 2016, it was noted that the Veteran's need for a feeding tube was related to corrosion of his throat due to cancer treatments from two years prior. In October 2016, the Veteran was diagnosed with dysphagia. In October 2017, the Veteran reported that food became trapped in his throat when swallowing if he ate too fast. In an October 2018 treatment note, it was noted that the Veteran had throat cancer with radiation but no surgery, had COPD, and used two cigarettes daily. In January 2019, the Veteran complained of intermittent throat pain. In October 2019, the Veteran was afforded a VA examination for sinusitis, rhinitis and other conditions of the nose, throat, larynx, and pharynx. At that time, the Veteran reported having a sore throat for a long time and that an ear, nose, and throat (ENT) evaluation revealed laryngeal cancer in 2014. Additionally, the Veteran stated that his sore throat was mild and infrequent, and predominately related to irritation caused by frequent coughing. The VA examiner noted that the Veteran had a diagnosis of sinusitis, rhinitis, larynx or pharynx conditions, tumors or neoplasms. Additionally, the VA examiner noted that the that the Veteran suffered from alcoholism for decades after the military, had greater than a 60-pack year history of smoking, and still struggled with ongoing tobacco use. The VA examiner assessed that the Veteran's alcoholism and smoking were the most likely causative agents of his laryngeal cancer. However, the VA examiner noted that the formal report from the Veteran's laryngoscopy study, as well as his 2011 magnetic resonance imaging (MRI), were unavailable. The October 2019 VA examiner ultimately opined that the Veteran's throat disability was less likely than not proximately due to or the result of his service-connected condition. The VA examiner reasoned that decades after the Veteran's GERD and gastric diagnoses his EGD, from 2010, documented an esophagus that was entirely bland. The VA examiner also assessed that the Veteran's mild and intermittent sore throat was most likely due to frequent coughing with resultant throat irritation. Additionally, the VA examiner noted that the Veteran's laryngeal cancer was most likely caused by years of tobacco use and that a causative link between laryngeal cancer and the Veteran's gastrointestinal disability was not supported by medical literature. Further, the VA examiner noted that the related diagnoses were chronic sinusitis, squamous cell carcinoma of the larynx, and dysphagia status-post radiation treatment for laryngeal cancer. In October 2019, the Veteran was also afforded a VA examination for esophageal conditions. At that time, the Veteran reported an instance of water brash symptoms two months prior to the examination, difficulty swallowing and regurgitation after eating certain foods. The VA examiner assessed that the Veteran had dysphagia and swallowing problems that were caused by laryngeal cancer and radiation treatment and not due to GERD. The Board initially finds that the May 2015 VA medical opinion is inadequate for adjudication purposes. In that regard, the VA examiner used speculative language (i.e. "possible") to address whether the Veteran's throat disability was related to his active service or service-connected gastrointestinal disability. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The Board also finds that the October 2019 VA examination is inadequate for adjudication purposes. In that regard, the VA examiner fails to provide an adequate rationale as to why the Veteran's throat condition is linked to his laryngeal cancer and not his gastrointestinal disability. That rationale was especially necessary since the formal report from his laryngoscopy procedure was not available at that time, there was objective medical evidence to suggest that his throat disability could have been secondary to his GERD, or alternatively his CVA or COPD. Further, the VA examiner addressed a direct relationship to the Veteran's service-connected gastrointestinal disability but failed to provide an opinion regarding a direct relation to his active service AND an opinion regarding aggravation caused by the Veteran's service-connected gastrointestinal disability. See 38 C.F.R. §§ 3.303, 3.310 (2020). Based on the foregoing, the Board finds that an addendum opinion is warranted to determine whether the Veteran's throat disability was caused by his active service or aggravated (chronically worsened) by his gastrointestinal disability. Increased Rating Gastrointestinal Disability The Veteran's service-connected gastrointestinal disability is currently rated as 20 percent disabling, effective January 29, 2015, under 38 C.F.R. § 4.114, Diagnostic Code (DC) 7305. The Veteran asserts that the symptoms of his gastrointestinal disability are more severe than what is contemplated by his currently assigned rating. Specifically, the Veteran asserts that the symptoms of his gastrointestinal disability are frequent and negatively impact his daily life. In an April 2015 treatment note, the Veteran was assessed as having poorly controlled GERD with altered GI anatomy that may be contributing to his increased nighttime symptoms and aspiration. In May 2015, the Veteran was afforded a VA examination for esophageal conditions, which included GERD and hiatal hernia. At that time, the Veteran reported that he had to watch what he ate, could not eat hot foods, and indicated that he alternated between diarrhea and constipation. The Veteran also reported that he took medication and had formed stools at that time. The VA examiner noted that the Veteran had current diagnoses of GERD, hernia hiatal, and esophagitis and that his symptoms included pyrosis, reflux, and regurgitation. Additionally, the VA examiner assessed that the Veteran's GERD was clinically mild at that time and that the Veteran's disabilities did not impact his ability to work. In May 2015, the Veteran was also afforded a VA examination for stomach and duodenal conditions. The VA examiner noted that the Veteran took continuous medication for his duodenal ulcer, postgastrectomy syndrome, and bile reflux gastritis. The VA examiner also noted that the Veteran had symptoms that recurred four or more times per year and lasted for less than one day but assessed that those symptoms were not severe. Additionally, the VA examiner assessed that the Veteran's postgastrectomy syndrome was productive of mild infrequent episodes of epigastric distress with characteristic mild circulatory symptoms or continuous mild manifestations. However, the VA examiner also assessed that the Veteran had continuous abdominal pain that was only partially relieved by standard ulcer therapy. In March 2016, the Veteran stated that his GERD caused terrible symptoms that prevented him from being normal. In June 2016, the Veteran stated that he had lost 20 pounds during the winter, which he gained back in the summer. The Veteran also reported that he was given supplements to keep the anemia away but still had to be carefully monitored by VA doctors and given blood transfusions to get his blood levels back to normal. In July 2016, a VA dietician noted that the Veteran did not adhere to his honey-thick liquids and advanced dysphagia diet. The dietician assessed that the Veteran was a high aspiration risk and a high likelihood of continuing to develop pneumonia if he continued to eat and drink. Additionally, the dietician reported that the Veteran's weight continued to decline and that his nutrition status was moderately compromised. In October 2016, it was noted that the Veteran had been placed on antidepressants the prior summer due to losing a significant amount of weight. In December 2016, the Veteran reported that weight loss had prompted a J-tube placement. In January 2018, it was noted that the Veteran had significant and dramatic weight loss the year prior due to dysphagia. In October 2019, the Veteran was afforded a VA examination for esophageal conditions. At that time, the Veteran reported the following: that his GERD symptoms awakened him every night and he took Tums to help him return to sleep; an instance of water brash symptoms two months prior to the examination; GERD symptoms during that day for which he took hydrocodone for pain; and that he regurgitated certain food substances. The VA examiner assessed that the Veteran's symptoms included: reflux; sleep disturbance due to esophageal reflux which occurred over four times per year for less than a day; and an inability to lay flat due to GERD symptoms. However, the VA examiner noted that the Veteran's prior EGDs showed a normal esophagus which did not correspond with the frequency and duration of the Veteran's reported symptoms. Further, the VA examiner reported that he believed the Veteran's weight loss was due to acute hospitalization for pneumonia (PNA), other diagnoses, or COPD. In October 2019, the Veteran was also afforded a VA examination for stomach and duodenal conditions. At that time, the Veteran reported the following: he watched what he ate to prevent a sore stomach; he ate small meals and had symptoms of early satiety; he had continued weight loss and occasional nausea; he took MiraLax as needed for constipation; and, the he had abdominal cramping in cold weather. Additionally, the Veteran reported an inability to keep things down six months prior to the examination; the VA examiner noted that he was hospitalized for PNA during that time and had no vomiting since. The VA examiner reported that the Veteran had recurrent symptoms four or more times per year for less than a day. The VA examiner also reported that the Veteran's symptoms included periodic abdominal pain that was only partially relieved by standard ulcer therapy and transient nausea that occurred four or more times per year and lasted less than one day. Further, the VA examiner noted that the Veteran's postgastrectomy syndrome was manifested by mild and infrequent episodes of epigastric distress with characteristic mild circulatory symptoms or continuous mild manifestations. The VA examiner noted that the Veteran did not have anemia or weight loss. However, in the remarks the VA examiner stated that he believed the Veteran's weight loss was due to acute hospitalization for pneumonia (PNA), other diagnoses, or COPD. Finally, the VA examiner assessed that the Veteran's disability impacted his ability to work because he was unable to lay flat due to his GERD symptoms. At the outset, the Board notes that the VA examinations of record are inadequate for adjudication purposes. In that regard, the May 2015 VA examiner's assessment that the Veteran's GERD was clinically mild was inconsistent with the objective medical evidence from April 2015, that the Veteran's GERD was poorly controlled and leading to additional symptoms. Additionally, the May 2015 VA examiner's assessments were internally inconsistent as she stated that the Veteran's symptoms were not severe yet reported that he had continuous abdominal pain only partially relieved by standard ulcer therapy, which is one of the determining factors of a severe rating under DC 7305. Further, in both October 2019 VA examinations, the VA examiner used speculative language (i.e. "believe") when assessing the cause of the Veteran's weight loss, which does not provide the degree of certainty required for a medical nexus. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). Additionally, the Board notes that the medical evidence of record reveals that the Veteran has had consistent weight loss since 2016. However, the Board is not entirely certain as to whether the Veteran's documented weight loss was solely caused by his service-connected gastrointestinal disability. Additionally, the Board is unclear as to whether the Veteran has anemia. The Board notes that a critical determining factor of a maximum rating under DC 7305 (duodenal ulcer), DC 7308 (postgastrectomy syndromes) and DC 7346 (hiatal hernia), is whether the gastrointestinal disability is productive of material weight loss as well as anemia. Based on the foregoing, the Board finds that an addendum opinion is required to address the severity of the Veteran's gastrointestinal disability, the cause of his weight loss, and whether he has anemia. Accordingly, the matters are REMANDED for the following actions: 1. Forward the claims file, to include a copy of this remand, to a VA examiner. The claims file must be reviewed by the VA examiner and that review must be noted in the opinion. Based on a review of the claims file, the VA examiner must opine whether it is at least as likely as not (50 percent probability or greater) that the Veteran's throat disability was incurred in, or otherwise related to, his active service. If the VA examiner finds that the Veteran's throat disability is not related to his active service, they must list the alternative causes, to include CVA and COPD. Additionally, the VA examiner MUST ALSO opine whether it is at least as likely as not (50 percent probability or greater) that the Veteran's throat disability was aggravated (chronically worsened) by his service-connected gastrointestinal disability. In forming this opinion, the examiner MUST consider the Veteran's statements regarding the onset and continuity of symptomatology. The rationale for all opinions expressed must be provided. If the VA examiner cannot provide the requested opinions without resorting to mere speculation, it must be so stated, and the clinician must provide the reasons why an opinion would require speculation. Additionally, if the examiner determines that another in-person examination is required to provide the information requested, then such examination should be scheduled. 2. Forward the claims file, to include a copy of this remand, to a VA examiner. The claims file must be reviewed by the VA examiner and that review must be noted in the opinion. Based upon a review of the claims file, the VA examiner must opine whether it is at least as likely as not (50 percent or greater probability) that the Veteran had anemia at any point during the appeal (since January 2015) even if the condition has since resolved. The VA examiner MUST ALSO opine as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran's weight loss, and anemia if found, were a manifestation of, or otherwise caused by, his service- connected gastrointestinal disability, even if the condition has since resolved, at any point during the period on appeal (since January 2015). The rationale for all opinions expressed must be provided. If the VA examiner cannot provide the requested opinions without resorting to mere speculation, it must be so stated, and the clinician must provide the reasons why an opinion would require speculation. Additionally, if the examiner determines that another in-person examination is required to provide the information requested, then such examination should be scheduled. 3. Ensure that the medical opinions, and VA examinations, if necessary, comport with this remand. 4. Then, readjudicate the remaining issues on appeal. If a decision is adverse to the Veteran, issue a supplemental statement of the case (SSOC) and allow appropriate time for response. Then, return the case to the Board. B. G. LeMoine Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Byrd, 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.