Citation Nr: 21031585 Decision Date: 05/24/21 Archive Date: 05/24/21 DOCKET NO. 11-25 822 DATE: May 24, 2021 REMANDED Service connection for chronic low back pain. Service connection for chronic diarrhea. Service connection for an esophageal disability. Service connection for hypertension. Service connection for peripheral neuropathy of the left upper extremity. Service connection for peripheral neuropathy of the right upper extremity. REASONS FOR REMAND The Veteran served on active duty from July 1967 to July 1969. The Veteran died in October 2020. The Veteran's surviving spouse was accepted as a substitute in this appeal by the RO in February 2021. The case is on appeal from June 2009 and August 2013 rating decisions. In May 2017 and October 2019, the Board remanded these claims for additional development. Essentially, this appeal is remanded as there was not substantial compliance with the Board's prior remand. See Stegall v. West, 11 Vet. App. 268 (1998); see D'Aries v. Peake, 22 Vet. App. 97, 104-05 (2008). Remand for new VA opinions is needed. DISCUSSION Relevant to all the claims on appeal, various theories of entitlement have been raised. In the October 2019 Board remand, the Board discussed prior VA opinions, referenced some as inadequate, and remanded for new VA opinions as to all issues on appeal. The requested opinions, for all issues, included secondary service connection opinions. Following the October 2019 Board remand, various VA opinions, which will be discussed further in detail below, were obtained in December 2019. Review of the provided opinions indicates that, by the express terms of the opinions, secondary service connection was not explicitly addressed. In this regard, the provided opinions all stated, by way of a marked checkbox, that "[t]he claimed condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness." The sections on secondary service connection were not complete, and opinions were not otherwise provided as to secondary service connection. Following the issuance of an August 2020 supplemental statement of the case (SSOC), the RO issued a September 2020 deferred rating decision that stated "[c]ase is NOT ready for certification. Remand instructions were not followed. [VA examinations] do NOT address secondary/aggravation. Sent back . . . for corrective action regarding [VA examinations]." September and October 2020 examination requests are of record and contain requests for various secondary service connection opinions. As noted, the Veteran died in October 2020. It appears that following the Veteran's death, the RO took no further action in regard to the requested opinion. Rather, following recognition of the Veteran's surviving spouse as a substitute in this appeal in February 2021, the RO returned this appeal to the Board in April 2021. In short, the Board in October 2019 remanded for secondary service connection opinions but the VA opinions obtained in December 2019 did not explicitly address secondary service connection, a fact which was recognized by the RO in the September 2020 deferred rating decision. Remand for all claims is therefore required to ensure substantial compliance with the October 2019 Board remand. See Stegall v. West, 11 Vet. App. 268 (1998). The Board will proceed to provide more specific discussion of each claim. 1. Service connection for chronic low back pain. In the October 2019 remand, the Board discussed a negative August 2018 secondary service connection VA opinion. This opinion stated in part that "the literature does not support peripheral neuropathy as being causal of low back pain/conditions in the absence of a severely altered gait." The Board stated in the October 2019 remand that this August 2018 VA opinion was "inadequate for adjudication purposes." An additional negative July 2019 secondary service connection VA opinion was obtained. The Board referenced in the October 2019 remand this opinion and stated that "an additional opinion is required to determine if the Veteran's low back pain is caused or aggravated by his service-connected peripheral neuropathy." The Board also found that "a review of medical treatment reflects the Veteran has been diagnosed with abnormal gait which the examiner noted the literature supports a causal relationship between peripheral neuropathy and low back pain with the existence of severely altered gait." Following the October 2019 Board remand, no VA opinion was obtained at all with respect to this claim (a January 2020 VA examination was conducted, but no opinion was provided). As such, remand is required to obtain an opinion that complies with the October 2019 Board remand. 2. Service connection for chronic diarrhea. In the October 2019 remand, the Board discussed a negative August 2018 secondary service connection VA opinion addressing diarrhea as secondary to service-connected posttraumatic stress disorder (PTSD). The Board stated that "the opinion is inadequate" and remanded for a new secondary service connection opinion. A December 2019 VA opinion was obtained that, as referenced above, explicitly only addressed direct service connection. The provided rationale stated that "meds and [diagnosis] for PTSD do not [i]mpact [gastrointestinal]." This statement appears to go to the issue of whether PTSD could cause diarrhea, but the Board finds that, given that only an explicit direct service connection opinion was provided and the brevity of the statement, this opinion is not entirely sufficient to address secondary service connection causation. Further, the language "do not impact" is unclear and ambiguous. It is not obviously, without further context, whether the examiner meant this to include PTSD did not aggravate his diarrhea. See El-Amin v. Shinseki, 26 Vet. App. 136, 140 (2013). As the December 2019 VA opinion accordingly was not entirely sufficient, remand is required to obtain a new secondary service connection opinion that complies with the October 2019 Board remand. With respect to direct service connection, in the October 2019 remand the Board discussed a negative September 2017 VA opinion and stated that "[t]he examiner based the opinion on lack of evidence in the claims file" and that "[t]he examiner noted the Veteran was reliable to report symptoms but did not take into account the Veteran's lay assertions as reflected in medical treatment records that note the Veteran's reports of episodes of diarrhea since his return from Vietnam." The Board requested a new direct service connection opinion on remand. A negative opinion was obtained in December 2019 and the provided rationale stated "ETS silent for diarrhea. NOS etiology for diarrhea is all that is in c file. Onset is imprecise." The Board finds that this opinion is not entirely sufficient, as it was not explained why the onset was imprecise and, similar to the issue that the October 2019 Board remand raised with the September 2017 VA opinion, the opinion did not clearly address the Veteran's lay assertions as reflected in medical treatment records that note the Veteran's reports of episodes of diarrhea since his return from Vietnam. As such, a new direct service connection opinion is also warranted on remand. 3. Service connection for an esophageal disability. In the October 2019 remand, the Board discussed a negative July 2019 secondary service connection VA opinion addressing gastroesophageal reflux disease (GERD) as secondary to service-connected diabetes and a negative August 2019 secondary service connection VA opinion addressing GERD as secondary to service-connected PTSD. The Board found "these opinions inadequate for adjudication purposes" and remanded for new secondary service connection opinions. A December 2019 VA opinion was obtained that, as referenced above, explicitly only addressed direct service connection. The provided rationale did not address secondary service connection. As such, this opinion was not entirely sufficient and remand is therefore required to obtain a new secondary service connection opinion that complies with the October 2019 Board remand. 4. Service connection for hypertension. In the October 2019 remand, the Board discussed a negative October 2017 secondary service connection VA opinion addressing hypertension as secondary to service-connected PTSD. The Board found this opinion "to be inadequate for adjudication purposes" and remanded for a new secondary service connection opinion. A December 2019 VA opinion was obtained that, as referenced above, explicitly only addressed direct service connection. The provided rationale stated that "no medical [hypertension] link to PTSD . . . plausible. Nor meds for such." This statement appears to go to the issue of whether PTSD could cause hypertension, but the Board finds that, given that only an explicit direct service connection opinion was provided and the brevity of the statement, this opinion was not entirely sufficient to address secondary service connection causation. Further, the language "no medical...link to" does not clearly encompass the issue of whether the Veteran's PTSD aggravated his diarrhea. See Allen v. Brown, 7 Vet. App. 439, 449 (1995); El-Amin v. Shinseki, 26 Vet. App. 136, 140 (2013). As the December 2019 VA opinion accordingly was not entirely sufficient, remand is required to obtain a new secondary service connection opinion that complies with the October 2019 Board remand. With respect to direct service connection, in the October 2019 remand the Board discussed stated that a negative September 2017 VA direct service connection opinion was "inadequate for adjudication purposes" because such "did not consider whether the Veteran's conceded exposure to herbicide agents in service contributed to his hypertension." The Board requested a new direct service connection opinion as to whether the Veteran's hypertension was "related to his conceded exposure to herbicide agent exposure." The negative December 2019 VA direct service connection opinion did not address whether the Veteran's hypertension was related to the Veteran's presumed in-service herbicide agent exposure. As such, this opinion was not entirely sufficient and on remand a new direct service connection opinion must be obtained that complies with the October 2019 Board remand. 5. Service connection for peripheral neuropathy of the left upper extremity. 6. Service connection for peripheral neuropathy of the right upper extremity. In the October 2019 remand, the Board stated that "[t]he record reflects the Veteran's [diabetes] has been noted to be coupled with neuropathy. The Board finds an opinion is needed to determine whether the Veteran's peripheral neuropathy of the bilateral upper extremities are caused or aggravated by his service-connected [diabetes]." Two December 2019 VA opinions were obtained that, as referenced above, explicitly only addressed direct service connection. The provided rationale for the right upper extremity opinion did not address secondary service connection. The provided rationale for the left upper extremity stated "2002 NOS neuropathy is noted. [O]nset of diabetes is not till 2009. [C]urrent severity of neuropathy is presumed to be predate of [diabetes] and therefore no link. [S]everity and lack of control of diabetes is not sufficient for that to be etiology of current presumed idiopathic neuropathy." This discussion goes to the issue of whether the Veteran's neuropathy was caused by his diabetes and indicates, essentially, that this causation did not occur because the Veteran's neuropathy predated his diabetes. An earlier negative August 2013 VA secondary service connection causation opinion contained a similar rationale. Neither the August 2013 or December 2019 VA opinions, however, addressed the issue of whether the Veteran's diabetes aggravated his peripheral neuropathy of the left and right upper extremities. As the December 2019 VA opinions were accordingly not entirely sufficient, remand is required to obtain a new secondary service connection opinion, as to aggravation only, that complies with the October 2019 Board remand. With respect to direct service connection, in the October 2019 remand the Board discussed that a negative August 2019 VA direct service connection opinion was adequate. In the earlier May 2017 Board remand, an opinion was requested as to whether upper extremity neurologic manifestations "had its clinical onset during the Veteran's period of service, or was manifested within the first post-service year, or is otherwise related to such period of service, including due to in-service herbicide exposure." The August 2019 VA opinion, however, did not specifically address whether the Veteran's upper extremity peripheral neuropathy was related to his presumed in-service herbicide agent exposure. As such, this opinion was not entirely sufficient and on remand a new direct service connection opinion must be obtained that complies with the May 2017 Board remand. The matters are REMANDED for the following action: 1. Obtain an opinion from a medical professional that addresses the Veteran's chronic low back pain claim. The medical professional must provide an opinion addressing the following: (a.) Whether it is at least as likely as not that any low back disability was due to or caused by a different medical condition, particularly service-connected peripheral neuropathy of the lower extremities. If so, the examiner is asked to identify the primary medical condition. (b.) Whether it is at least as likely as not that any low back disability was aggravated (i.e., increased in severity) by a different medical condition, particularly service-connected peripheral neuropathy of the lower extremities. If so, the examiner is asked to identify the primary medical condition. The medical professional's attention is directed to the August 2018 secondary service connection VA opinion, which stated in part that "the literature does not support peripheral neuropathy as being causal of low back pain/conditions in the absence of a severely altered gait," and to evidence reflecting that the Veteran had an abnormal/altered gait. See, e.g., June 2019 VA Treatment Record (noting an assessment of impaired gait); July 2003 VA Peripheral Nerves Examination Report (noting that "[t]he [V]eteran's gait is markedly unsteady...He has been walking with a limp" and that he "complains of pain and numbness in his lower extremities...This has been going on since 1968"). Attention is also invited to the January 2020 VA Back (Thoracolumbar Spine) Conditions Disability Benefits Questionnaire (DBQ), which stated that the onset date of the spine condition was "1990s" and that the "Veteran states he began to have numbness and tingling in his lower extremities that then went to his back." 2. Obtain an opinion from a medical professional that addresses the Veteran's chronic diarrhea claim. The medical professional must provide an opinion addressing the following: (a.) Whether it is at least as likely as not that the Veteran's chronic diarrhea had its onset during service or is otherwise related to service. The medical professional's attention is directed to the Veteran's lay assertions as reflected in medical treatment records that note the Veteran's reports of episodes of diarrhea since his return from Vietnam. See October 2006 VA Treatment Note ("Reports episodes of diarrhea [with] cramping since he return from Vietnam"). The examiner is asked to explain why his statements make it more or less likely that a current 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. (b.) Whether it is at least as likely as not that the Veteran's chronic diarrhea was due to or caused by a different medical condition, particularly service-connected PTSD. If so, the examiner is asked to identify the primary medical condition. (c.) Whether it is at least as likely as not that the Veteran's chronic diarrhea was aggravated (i.e., increased in severity) by a different medical condition, particularly service-connected PTSD. If so, the examiner is asked to identify the primary medical condition. 3. Obtain an opinion from a medical professional that addresses the Veteran's esophageal disability claim. The medical professional must provide an opinion addressing the following: (a.) Whether it is at least as likely as not that any esophageal disability was due to or caused by a different medical condition, particularly service-connected PTSD or diabetes. If so, the examiner is asked to identify the primary medical condition. (b.) Whether it is at least as likely as not that any esophageal disability was aggravated (i.e., increased in severity) by a different medical condition, particularly service-connected PTSD or diabetes. If so, the examiner is asked to identify the primary medical condition. 4. Obtain an opinion from a medical professional that addresses the Veteran's hypertension claim. The medical professional must provide an opinion addressing the following: Whether it is at least as likely as not that the Veteran's hypertension was related to his conceded in-service herbicide agent exposure. In answering this question, the examiner is asked to disregard whether the disorder is one for which a "presumption" is established and, instead, to answer whether the medical condition is a result of Agent Orange exposure even though it is not on the list of "presumptive" diseases. The medical professional's attention is particularly invited to the NAS finding that that there is "sufficient" evidence of an association between exposure to herbicides and hypertension. See Veterans and Agent Orange: Update 11 (2018). (a.) Whether it is at least as likely as not that the Veteran's hypertension was due to or caused by a different medical condition, particularly service-connected PTSD. If so, the examiner is asked to identify the primary medical condition. (b.) Whether it is at least as likely as not that the Veteran's hypertension was aggravated (i.e., increased in severity) by a different medical condition, particularly service-connected PTSD. If so, the examiner is asked to identify the primary medical condition. 5. Obtain an opinion from a medical professional that addresses the Veteran's peripheral neuropathy of the left and right upper extremities claims. The medical professional must provide an opinion addressing the following: (a.) Whether it is at least as likely as not that peripheral neuropathy of the left or right upper extremity was related to the Veteran's conceded in-service herbicide agent exposure. In answering this question, the examiner is asked to disregard whether the disorder is one for which a "presumption" is established and, instead, to answer whether the medical condition is a result of Agent Orange exposure even though it is not on the list of "presumptive" diseases. (b.) Whether it is at least as likely as not that peripheral neuropathy of the left or right upper extremity was aggravated (i.e., increased in severity) by a different medical condition, particularly service-connected diabetes. If so, the examiner is asked to identify the primary medical condition. Corey Bosely Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Hoopengardner, 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.