Citation Nr: 21028656 Decision Date: 05/11/21 Archive Date: 05/11/21 DOCKET NO. 05-15 977 DATE: May 11, 2021 REMANDED Entitlement to service connection for a digestive disorder, to include gastroesophageal reflux disease (GERD), hiatal hernia, and peptic ulcer disease (PUD), is remanded. REASONS FOR REMAND The Veteran served on active duty with the United States Marine Corps from June 1966 to May 1968 and with the United States Air Force from April 1971 to April 1989, to include service in the Republic of Vietnam for which he was awarded the Purple Heart. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2004 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In June 2007, the Veteran testified before a Veterans Law Judge who subsequently retired prior to a final Board decision being rendered. The Veteran then opted to have an additional hearing and subsequently testified before the undersigned in November 2010. In June 2007, January 2010, March 2011, June 2018, and December 2020, the Board remanded this matter for additional development. The Board has recharacterized the Veteran's claims, as reflected on the title page, to include consideration of all the related disorders reasonably raised by the record. See Clemons v. Shinseki, 23 Vet. App. 1, 6 (2009). The Veteran asserts that his current digestive disorder, to include GERD with hiatal hernia and PUD, had its onset during his active duty service and has persisted since his discharge from active duty to the present or is otherwise related to his active duty service, to include as being due his service connected disabilities and the medications prescribed for their treatment. See March 2003 VA treatment records, October 2003 General Medical Examination, June 2004 VA Form 21-4138, February 2007 Board Hearing Transcript at 30. Initially, the Board notes that in its March 2011 remand, the RO was directed to obtain all treatment records from the Loma Linda VA Medical Center, to include records that were pre-electronic records keeping. See March 2011 Board Remand. The RO obtained records from September 1998 through December 2007; however, the RO failed to request all records available from Loma Linda pursuant to VA development guidelines. Critically, in 1992 the RO obtained partial records from the Loma Linda VA medical center documenting the Veteran's treatment at that facility prior to 1998. See October 1991 VA Form 21-4138, April 1992 Deferred Rating, May 1991 through March 1992 Loma Linda VA treatment records. Thus, there is clear evidence the Veteran was being treated at a VA facility earlier than 1998, as he reported, and the RO's failure to obtain all of the records as directed and as identified by the Veteran as relevant to his claim represents a failure in the VA's duty to assist. 38 U.S.C. § 5103A. See also Stegall v. West, 11 Vet. App. 268 (1998). These records must be obtained on remand. In this regard, the Veteran reported receiving care at the Mobile, Alabama VA medical center for a digestive disorder, specifically that he underwent surgical care for a bleeding ulcer in 2001. See July 2003 VA medical treatment records. As of the date of this decision, no development has been undertaken to obtain these records, if any. Notably, while Birmingham VA treatment records have been obtained, Mobile VA treatment records are stored under the penumbra of the South-Central VA Health Care Network, and more specifically the Biloxi VA Medical Center. These records, if they exist, must also be obtained on remand. At the November 2010 Board hearing, the Veteran testified that he received treatment at multiple private treatment facilities, among them a Catholic Hospital located on Airport Road in Mobile, Alabama. See November 2010 Board Hearing Transcript at 9. In response to development undertaken by the RO and ordered in the March 2011 Board remand, the Veteran submitted a medical release for the described private hospital that was ignored by the RO until it aged out of validity. See February 2012 VA Form 21-4142. The Veteran supplied an updated release again in June 2014. See May 2014 Development Letter. In November 2014, the RO sent a clarification of address regarding this private hospital to the Veteran and no response was received. The RO requested the address again in July 2016. See July 2016 Development Letter and no response was received. The Board finds that the RO has fulfilled its duty to assist the Veteran regarding these records; however, as remand is already required, the Veteran should be allowed one more opportunity to obtain these relevant records. The RO should request that the Veteran provide a release for St. Vincent's Health System, Ascension Providence Hospital in Mobile, Alabama located on Airport Boulevard, consistent with the Veteran's report. Inform the Veteran and his duly appointed Veterans' Service Officer that a failure to provide this information may have a negative effect on his claim. Throughout the appeal period (June 2004 or just prior to), the Veteran has been diagnosed with multiple digestive disorders to include PUD secondary to substance abuse, PUD secondary to NSAID use, GERD, hiatal hernia, gastric fistula repair, and gastropathy. See December 2002, July 2003, March 2007, October 2007, July 2009, November 2011 VA treatment records; October 2003, December 2019 VA examination reports; March 2012 private treatment records. The Veteran was diagnosed with acute gastritis in service based upon his reports of abdominal pain and several episodes of vomiting. See June 1984 Service Treatment Records (STRs). Dorland's Medical Dictionary describes gastritis as being characterized by, among other things, "loss of appetite, nausea, abdominal pain, and vomiting." See Dorland's Illustrated Medical Dictionary, 757 (30th ed. 2003). Dorland's also notes that gastritis can be accompanied by bleeding and abscesses in the stomach wall. Id. Both hiatal hernia and gastroesophageal reflux disease are rated pursuant to 38 C.F.R. § 4.114, Diagnostic Code (DC) 7346, for symptoms such as dysphagia, pyrosis, regurgitation, substernal pain, shoulder and arm pain, vomiting, material weight loss, hematemesis or melena, and anemia. In this regard, the Board notes the Veteran reported problems with substernal pain and vomiting in December 1966, he reported back pain and coughing up blood for approximately two weeks straight in April 1971. See Service Treatment Records (STRs). In September 1971, he reported nausea, vomiting, and a burning sensation in his stomach. Id. In March 1972, the Veteran complained of weakness, vomiting, and abdominal pains. Id. In April 1977, he complained of abdominal cramps and diarrhea. Id. During each of these events, the Veteran complained of symptoms consistent with the claimed digestive disorders. The Veteran testified that he began using reflux medicine while in service and took over the counter medication daily until 2002. See February 2007 Board Hearing Transcript at 31. It is also worth noting that the Veteran was diagnosed and treated for nephrolithiasis on multiple occasions. See March 1972, March 1974, June 1974 STRs. Throughout the appeal period, the Veteran submitted to VA examinations in October 2003, February 2008, and December 2019. Additionally, an addendum opinion was obtained in December 2020. At the October 2003 VA examination, the Veteran reported continuing issues with indigestion and reflux, though he denied nausea, vomiting, abdominal pain, and any hematemesis or melena. The Veteran was diagnosed with gastric reflux with hiatal hernia. The Veteran reported to his examiner that he had been diagnosed with a gastric ulcer since the 1980s. See October 2003 VA examination report. The Board notes that the October 2003 was not performed in conjunction with the Veteran's subsequent claim for compensation in June 2004 and his statements are consistent with those reported in December 2002 to a VA treatment provider. At the February 2008 VA examination, the Veteran reported his symptoms onset in approximately 1987 and manifested as stomach pain. The Veteran reported burning pain occurring less than monthly and relieved by antacids. He also reported 1 to 3 episodes of diarrhea per week. The February 2008 VA examiner diagnosed GERD and opined that it was less likely than not that the Veteran's current digestive disorder had its onset during service as the January 1984 episode of gastritis was acute and treated only with Mylanta. The Board notes that the February 2008 VA examiner did not consider the Veteran's report that he began taking over the counter medication in service that continued until approximately 2002, the previous diagnosis of PUD secondary to substance abuse, or the November 2004 VA treatment record noting that the Veteran underwent surgery for his digestive issues reportedly aggravated by the long-term use of non-steroidal anti-inflammatory drugs (NSAIDs). See December 2002, November 2004, and March 2007 VA treatment records. In the present case, it is clear that all procurable and assembled data was not fully considered by the February 2008 VA examiner. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); see also Stefl v. Nicholson, 21 Vet. App. 120, 125 (2007) (an adequate VA medical examination must consider the Veteran's pertinent medical history). Accordingly, the February 2008 VA examiner's opinion is of no probative value. In December 2019, a VA nurse practitioner confirmed the diagnoses of GERD and hiatal hernia and opined that there was no medical pathophysiologic relationship between the Veteran's gastrointestinal disabilities, to include a diagnosis of GERD and PUD, and duplicated this opinion regarding whether the Veteran's digestive disorders were aggravated by his long-term use of NSAIDs. The Board notes that the opinions rendered by the December 2019 VA examiner were conclusory, based solely on a lack of treatment, and offered no medical rationale. Accordingly, the December 2019 VA examiner's opinion is of no probative value. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning). In December 2020, a VA physician's assistant opined that the Veteran's GERD was not related to the Veteran's active duty service, to include as being due to or aggravated by the Veteran's long-term use of NSAIDs. In support of his opinion, the December 2020 VA examiner noted there was no diagnosis of GERD in service and the first mention in the records post-service was in 2003. As noted above, the Veteran's VA treatment records are incomplete; however, the available records demonstrate the Veteran was complaining of PUD in 2002. Thus, the December 2020 VA examiner's opinion, in this regard, is based on a factual inaccuracy. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (holding that the Board may reject a medical opinion based on an inaccurate factual basis. Notably, the December 2020 VA examiner referenced alcohol use as a risk factor for developing a PUD but failed to discuss the January 2017 VA examination wherein a psychiatrist diagnosed the Veteran with PTSD with cannabis use disorder, alcohol abuse, and methamphetamine and cocaine use disorders and subsequently related the Veteran's substance abuse disorders to his PTSD in the attendant medical opinion. The December 2020 VA examiner's opinion is also inadequate in this regard. See Nieves, supra. The examiner referenced, inter alia, cytokine triggered inflammation as a possible cause of the development of esophagitis, but failed to address at all how this may or may not be present in the Veteran, and if so whether it is the result of any of the Veteran's service-connected disorders, to include degenerative arthritis. It is apparent to the Board that the examiner copied and pasted risk factors for developing digestive disorders and offered it as a rationale. Then concluded that as there are a multitude of possible risk factors (which are not discussed at all in relation to this Veteran's medical history) that may lead to the development of GERD, PUD, and hiatal hernia, that it is less likely than not that NSAIDs prescribed for service-connected disorders were the proximate cause of or aggravated the Veteran's digestive disorders. The Board stresses that copying and pasting medical definitions without any reasoned analysis or discussion about whether the listed factors even apply to the Veteran does not constitute a medical rationale. See Nieves, supra. Accordingly, a new medical opinion must be obtained on remand. The matters are REMANDED for the following action: 1. Obtain all outstanding VA treatment records including all records from the Loma Linda VA Medical Center from 1989 to the present and any available VA treatment records from the South-Central VA Health Care Network from 1989 to the present. Document all efforts undertaken to obtain these records, including the submission of any VA Forms VA Forms 10-7131 requesting these archived records. 2. Complete development for any post-service treatment the Veteran received at Norton Air Force Base in his capacity as a Department of Defense retiree from April through December 1989 (see June 2004 VA Form 21-4138). 3. With any necessary assistance from the Veteran, obtain any outstanding relevant private treatment records, to include any records with St. Vincent's Health System, Ascension Providence Hospital in Mobile, Alabama. 4. Only after completing items 1 through 3, obtain an addendum opinion from an examiner other than the February 2008, December 2019, and December 2020 VA examiners, preferably a gastroenterologist, addressing the nature and etiology of the Veteran's digestive disorders, to include GERD, hiatal hernia, PUD, gastric fistula repair, and gastropathy. No additional examination is necessary unless the examiner determines otherwise. The entire claims file must be made available to and reviewed by the examiner. After a review of the claims file, the examiner should address the following: (a.) Identify all digestive disorders diagnosed since June 2004, to include GERD, hiatal hernia, PUD, gastric fistula repair, and gastropathy, even if resolved. (b.) Then, the examiner should opine as to whether it is as least as likely as not (50 percent or greater probability) that any diagnosed digestive disorder, to include GERD: 1. had its onset in or is otherwise related to service, to include as a continuation or the result of the June 1984 diagnosis of gastritis. In answering this question, the examiner must address the following: a. the December 1966 complaints of vomiting, chest pain, and cough; b. the April 1971 report of back pain and coughing up blood for two weeks; c. the September 1971 report of nausea, vomiting, and burning sensation in the stomach; d. the March 1972 report of weakness, vomiting, and stomach pain; e. the April 1977 report of abdominal pain and diarrhea; f. the June 1984 diagnosis of acute gastritis; g. the July 1989 VA examination noting a normal digestive system; h. the October 2003 VA examination report diagnosing gastric reflux with PUD; i. the November 2004 VA treatment note regarding PUD status-post surgery; j. the March 2012 private treatment records noting the repair of a gastric fistula; k. the Veteran's history of tobacco smoking; l. the Veteran's October 2003 statement to a VA examiner that he has been experiencing symptoms of a gastric ulcer since the 1980s; m. the Veteran's June 2004 VA Form 21-4138 wherein he reports symptoms of GERD since 1971 and peptic ulcer since 1989; and n. the Veteran's February 2007 testimony that he began taking over-the-counter medication for digestive symptoms while on active duty and continued to do so daily until approximately 2002; In addressing this question, the examiner must assume items (l) through (n) as true, even despite the absence of "objective documentation." Please state whether the Veteran's current digestive disorders, to include GERD, are medically consistent with the symptomatology reported by the Veteran in items (l) through (n) above, and whether a nexus is "medically plausible" based on the same. The examiner is advised that the Veteran is competent to report symptoms and treatment, and these reports must be considered when formulating the requested opinion. 2. is proximately due to his service-connected PTSD, to include any secondary substance abuse; or 3. has been aggravated (worsened beyond natural progression) by his service-connected PTSD. In addressing questions (2) and (3), please discuss the December 2002 VA diagnosis of PUD related to substance abuse and the January 2017 VA examiner's opinion that the Veteran's substance abuse was secondary to his service-connected PTSD. Please note that the primary disability (PTSD) need not be service-connected, or even diagnosed at the time the secondary condition (GERD, PUD, hiatal hernia) is incurred, and reliance on this fact in support of a negative opinion will render it inadequate. 4. is proximately due to his service-connected musculoskeletal disabilities, to include any long-term use of NSAIDs for their treatment; or 5. has been aggravated (worsened beyond natural progression) by his service-connected musculoskeletal disabilities, to include any long-term use of NSAIDs for their treatment. In addressing questions (4) and (5), please discuss the July 2003 diagnosis of PUD secondary to NSAID use status-post surgery and the March 2007 VA treatment note regarding a history of PUD due to NSAIDs Please note that the primary disability (low back, lower extremities, neck, wrist, ankle disabilities) need not be service-connected, or even diagnosed at the time the secondary condition (GERD, PUD, hiatal hernia) is incurred, and reliance on this fact in support of a negative opinion will render it inadequate. Continued on Next Page The examiner should provide a complete rationale for any opinion given. The absence of evidence of treatment for specific digestive disorders in the Veteran's service treatment records cannot, standing alone, serve as the basis for a negative opinion and any reliance on such will render any opinion inadequate. If unable to opine without resorting to speculation, the examiner should provide a basis for reaching this conclusion. K.A. KENNERLY Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board G. Rouse, 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.