Citation Nr: 21028584 Decision Date: 05/11/21 Archive Date: 05/11/21 DOCKET NO. 10-36 169 DATE: May 11, 2021 REMANDED Entitlement to service connection for hemorrhoids, claimed as secondary to service-connected disabilities is remanded. Entitlement to service connection for diverticular disease to include diverticulitis and diverticulosis with right-sided abdominal pain and chronic constipation, to include as secondary to postoperative cholecystectomy syndrome (PCS) is remanded. REASONS FOR REMAND The Veteran served on active duty from May 1963 to July 1965. Additionally, the Veteran served in the United States Navy Reserve from 1962 to 1963 with various periods of active duty for training (ACDUTRA) and inactive duty training (INACDUTRA). This appeal comes to the Board of Veterans' Appeals (Board) from a Department of Veterans Affairs (VA) May 2010 rating decision of the Agency of Original Jurisdiction (AOJ). The Veteran appeared before the undersigned Veterans Law Judge at a June 2014 Board hearing. A transcript of that hearing has been reviewed by the Board, and has been associated with the claims file. In August 2015, the Board, in pertinent part, denied the Veteran's claims on appeal. The August 2015 Board decision was appealed to the U.S. Court of Appeals for Veterans Claims (Court) which vacated the Board's decision and remanded the matters to the Board for action consistent with the Court's May 2017 Memorandum Decision. The Board thereafter, remanded the case to the AOJ for additional development in January 2018. In March 2020 the Board denied the Veteran's claim for service connection for his hemorrhoid disability and remanded the claim for service connection for diverticulitis. In September 2020, the Board again remanded the claim for service connection for diverticular disease to the AOJ for additional development. The Veteran appealed the Board's March 2020 decision as to the issue of service connection for hemorrhoids to the Court. In January 2021 the Court, pursuant to a Joint Motion for Partial Remand (JMPR), remanded the issue of service connection for hemorrhoids back to the Board for further action consistent with the terms of the JMPR. While the Board regrets the additional delay, a further remand is necessary for the AOJ to properly develop the Veteran's claims as directed by the Court. 1. Entitlement to service connection for hemorrhoids, claimed as secondary to service-connected disabilities, is remanded. The Veteran claims that his hemorrhoid disability is caused by, or due to, his active duty military service. In the alternative, the Veteran claims that his hemorrhoids are caused by, due to, or aggravated by his other service-connected disabilities, including but not limited to his service-connected postcholecystectomy syndrome (PCS) with hepatomegaly and dilated common bile duct, status post cholecystectomy with gastroesophageal reflux disease (GERD). In January 2021, the Court, pursuant to a JMPR, found that a February 2018 VA examination that the Board relied upon in its March 2020 decision was inadequate for adjudicative purposes. Specifically, as to the question of service connection for hemorrhoids based on aggravation, the Court found that the examiner "inappropriately relied on the standard of 'permanent worsening.'" The Board notes that in Ward v. Wilkie, the Court held that, for secondary service connection, "aggravation" need not be permanent in nature. 31 Vet. App. 233, 241-42 (2019). Additionally, the JMPR found that the February 2018 examiner failed to provide adequate rationale in compliance with the Court's and the Board's previous remand orders because the examiner cited general articles without discussing any facts pertinent to the Veteran's condition and provided substantially the same rationale as the previously inadequate 2013 VA examination. The JMPR also found that the Board failed to provide an adequate statement of reasons or bases because the Board did not address the Veteran's "expressly raised argument that [his] hemorrhoids are secondary to [his] service-connected GERD" which the Board notes is now evaluated with the Veteran's service-connected other gastrointestinal disorders. See October 2018 rating decision. As discussed below, the JMPR also noted that the Veteran's claim for service-connected for hemorrhoids is inextricably intertwined with the claim for service connection for diverticular disease as the record on appeal contains medical evidence that the Veteran's hemorrhoids condition is aggravated by the Veteran's diverticulitis, and as such, the claims should be considered together. Based on the above, a new VA hemorrhoid opinion "that provides adequate rationale" must be obtained. 2. Entitlement to service connection for diverticular disease to include diverticulitis and diverticulosis, with right-sided abdominal pain and chronic constipation, to include as secondary to postoperative cholecystectomy syndrome, is remanded. The Veteran claims this his diverticular disease, with right sided abdominal pain and chronic constipation, is due to his other service-connected conditions. As noted, the Court, in its January 2021 JMPR, found that the Veteran's hemorrhoids and diverticulitis claims are inextricably intertwined. Thus, as the Veteran's claim for service connection for his hemorrhoids must be remanded, his claim for service connection for diverticular disease must also be remanded. Harris v. Derwinski, 1 Vet. App. 180 (1991). The Board has also found inadequacies with the recent December 2020 VA opinion that require further remand in that the examiner did not provide sufficient rationale for his opinion regarding aggravation as outlined in the Board' s September 2020 remand. The matters are REMANDED for the following action: 1. The AOJ shall obtain, from an appropriate clinician, an addendum opinion regarding the etiology of the Veteran's hemorrhoid disability. The examiner should have access to the Veteran's entire claims file including these remand directives. The examiner must provide the following opinion: (a.) Whether it is as least as likely as not (50 percent chance or greater) that the Veteran's hemorrhoids are proximately due to, or aggravated by, his service-connected disabilities, including but not limited to his PCS and/or GERD, or proximately due to, or aggravated by, his diverticular disease. The examiner should note that the Court has defined "aggravation" as any incremental increase in disability attributable to the service-connected disability, i.e., any additional impairment of earning capacity that is above the degree of disability existing before the increase, regardless of its permanence. The examiner must provide a detailed rationale for the findings. Merely citing to general articles without discussing any facts pertinent to the Veteran's condition, or providing substantially the same rationale as the previously inadequate 2013 and 2018 VA examinations will not constitute an adequate medical rationale per the recent January 2021 JMPR. If the examiner cannot provide the requested opinion without resorting to mere speculation, the examiner must explain why that is the case. If the examiner cannot provide the required opinion without an in-person examination of the Veteran, the AOJ shall afford the Veteran such an examination. 2. Once the above examination has been completed, the AOJ shall obtain, from an appropriate clinician, an addendum opinion regarding the etiology of the Veteran's diverticular disease. The examiner should be provided access to the Veteran's entire claims file including these remand directives. The examiner must provide the following opinion: (a.) Whether it is as least as likely as not (50 percent chance or greater) that the Veteran's diverticular disease to include diverticulitis and/or diverticulosis is proximately due to, or aggravated by, his service-connected disabilities, to include but not limited to his PCS and/or GERD. The examiner should note that the Court has defined "aggravation" as any incremental increase in disability attributable to the service-connected disability, i.e., any additional impairment of earning capacity that is above the degree of disability existing before the increase, regardless of its permanence. The examiner must provide a detailed rationale for the findings regarding aggravation as opposed to the rationale for proximate causation as the same rationale will not be considered adequate. If the examiner cannot provide the requested opinion without resorting to mere speculation, the examiner must explain why that is the case. If the examiner cannot provide the required opinion without an in-person examination of the Veteran, the AOJ shall afford the Veteran such an examination. S. L. Kennedy Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Neville, 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.