Citation Nr: 21029577 Decision Date: 05/14/21 Archive Date: 05/14/21 DOCKET NO. 14-21 221 DATE: May 14, 2021 REMANDED Service connection for a gastrointestinal disorder, diagnosed as gastroesophageal reflux disease (GERD), to include as due to herbicide exposure. Service connection for headaches, to include as due to herbicide exposure. Service connection for arthritis, claimed as joint pain, swelling, weakness, and dysfunction in the hands, wrists, elbows, arms, shoulders, neck, knees, calves, legs, feet, and toes. Service connection for brittle nails. Service connection for syphilis. REASONS FOR REMAND The Veteran served on active duty from April 1963 to February 1967. He died in November 2017. The appellant is his surviving spouse. By a September 2018 letter, the RO informed the appellant that she was recognized as a substitute claimant in this appeal. These claims are on appeal from a rating decision issued May 2013. The Board remanded this matter in October 2017 and again in July 2020. 1. Service connection for a GERD, to include as due to herbicide exposure. 2. Service connection for headaches, to include as due to herbicide exposure. 3. Service connection for arthritis, claimed as joint pain, swelling, weakness, and dysfunction in the hands, wrists, elbows, arms, shoulders, neck, knees, calves, legs, feet, and toes. 4. Service connection for brittle nails. 5. Service connection for syphilis. These issues are remanded as there was not substantial compliance with the Board's July 2020 remand directives. See Stegall v. West, 11 Vet. App. 268 (1998); see D'Aries v. Peake, 22 Vet. App. 97, 104-05 (2008). The Board remanded because a prior November 2019 VA examiner's opinion was legally inadequate for two reasons. First, the Board explained, the examiner relied on an absence of evidence without explaining why, as a medical matter, that the Veteran would have sought treatment or complained of the conditions during or after service, or why an absence of treatment (as opposed to symptoms) was otherwise medically significant. See McKinney v. McDonald, 28 Vet. App. 15, 30 (2016); Fountain v. McDonald, 27 Vet. App. 258, 272-75 (2015); Buczynski v. Shinseki, 24 Vet. App. 221, 223-24 (2011). Second, the VA examiner gave a negative opinion as to Agent Orange exposure, but relied solely on the basis that the conditions were not on the presumptive list. The Board specifically asked the examiner not to do this. Upon remand, new VA opinions were given in August 2020, November 2020, and February 2021 (all by the same examiner). As to Agent Orange, the VA examiner's opinions appear to adequately address this question. As to the direct theory, however, the VA examiner again materially relied on an absence of evidence. The examiner repeatedly stated throughout each opinion that there was no evidence of diagnosis, treatment, or symptoms for the conditions. Based on context, it is clear that the examiner intended to mean that there was no documented evidence in the medical records. This was contrary to the July 2020 Board's remand. Hence, the VA examiners' combined opinion is not substantially compliant to this extent. Third, the VA examiner gave a legally inadequate opinion as to secondary service connection. For each condition, the examiner found that the Veteran's service-connected primary disabilities did not "cause or permanently aggravate" the claimed secondary conditions. Unfortunately, the VA examiner's "permanently aggravate" standard is legally incorrect. The correct question is whether any incremental increase in disabilityany additional impairment of earning capacityin nonservice-connected disabilities resulted from service-connected conditions, above the degree of disability existing before the increaseregardless of its permanence. See Ward v. Wilkie, 31 Vet. App. 233, 240 (2019). The VA examiner's opinion is inadequate to the extent it demanded a permanent increase. In the February 2021 addendum opinion, the VA examiner found that GERD was not aggravated beyond its natural progression by any other medical condition. This is the correct standard. However, as the examiner had already given an opinion as to GERD using the "permanent worsening" standard, it is not clear if this February 2021 addendum opinion was based on the correct standard or simply reiterating the prior opinion based on the incorrect standard. The matters are REMANDED for the following action: Obtain an opinion from an appropriate clinician regarding the Veteran's five claims. The examiner is asked to address each of the following: (a.) Did the Veteran have a diagnosis involving syphilis or brittle nails during his lifetime? The examiner must provide a diagnosis for any conditions found extant. i. With regard to syphilis, the examiner should consider an October 2017 statement indicating that he had an ongoing rash on his back and groin area continuously since receiving medication for syphilis during service. The examiner should also consider his VA Problem List showing a diagnosis of latent syphilis. ii. With regard to brittle nails, the examiner should consider VA medical records, such as VA Podiatry records in February 2011 and June 2012 showing symptoms diagnosed as onychomycosis and onychodystrophy. For all conditions, the examiner must address the following: (b.) Whether a disorder at least as likely as not (1) began during active service, (2) manifested within 1 year after discharge from service, (3) was noted during service with continuity of the same symptomatology since service, or (4) is otherwise related to an in-service injury, event, or disease. (c.) Whether the current condition is at least as likely as not (1) proximately due to a different medical condition, or (2) aggravated beyond its natural progression by a different medical condition. If so, the examiner is asked to identify the primary medical condition. (Continued on the next page) In answering these questions, the examiner is asked to consider the statements from the Veteran regarding his history of symptoms, including during service. The examiner is asked to explain why his statements make it more or less likely that a later condition started during service. If indicated, it should be explained whether there is a **medical** reason to believe that the Veteran's recollection of his symptoms during and after service may be inaccurate or not medically supported as the onset or cause of his current diagnosis. The examiner should not rely on silence in the medical records unless it can be explained: (a) why the silence in the available records can be taken as proof that the symptom(s) did not occur, including why the fact would have normally been recorded if present, or (b) why the absence of medical records is medically significant. RYAN T. KESSEL Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Bosely, 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.