Citation Nr: 21031768 Decision Date: 05/24/21 Archive Date: 05/24/21 DOCKET NO. 13-28 363 DATE: May 24, 2021 REMANDED Entitlement to service connection for chronic pancreatitis, to include as secondary to service-connected hypertension and coronary artery disease, is remanded. Entitlement to service connection for internal varices (claimed as gastric and/or esophageal varices), to include as secondary to service-connected hypertension and coronary artery disease is remanded. Entitlement to special monthly compensation (SMC) based on the need of aid and attendance, or by reason of being housebound, is remanded. REASONS FOR REMAND The Veteran served on active duty from September 1968 to June 1988. The Veteran died in August 2012. The appellant is his surviving spouse, who has been substituted in this appeal. These matters come before the Board of Veterans' Appeals (Board) on appeal from rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). These matters were previously before the Board in June 2018, at which time the above-enumerated claims were denied. The appellant appealed that decision to the United States Court of Appeals for Veterans' Claims (Court), which in June 2019, pursuant to a Joint Motion for Remand (JMR), vacated the Board's decision and returned the matters to the Board. In December 2019, the Board remanded the appeal. 1. Entitlement to service connection for chronic pancreatitis. 2. Entitlement to service connection for internal varices (claimed as gastric and/or esophageal varices). Issues 1 & 2: The appellant, first, contends that the Veteran's chronic pancreatitis and internal varices were due to service. Second, she argues that they were secondary to service-connected hypertension and/or coronary artery disease. See NOD (November 2011). Third, the appellant also maintains that the Veteran's service-connected hypertension and/or coronary artery disease, in concert with his nonservice-connected diabetes and dyslipidemia increased the risk of cirrhosis of the liver, with which he was diagnosed, resulting in his chronic pancreatitis and internal varices (claimed as gastric and/or esophageal varices). In support of her allegations, she submitted multiple medical treatises. See Medical Treatment Record - Non-Government Facility (October 2019). Fourth, via her attorney, the appellant also requests to investigate a possible link between liver disease and exposure to ionizing radiation, use of hepatotoxic prescription medications, and travel and shift work. See FOIA/Privacy Act Request (February 2020). She argues that the Veteran served as a dental laboratory assistant and as such was exposed to ionizing radiation regularly; while serving in the Navy, he likely engaged in shift work; and was also prescribed hepatoxic medications for his service connected conditions. Id. As a preliminary matter, the Board notes that the Veteran's service personnel records (SPRs) show that he had occupational exposure to ionizing radiation while in service. See Medical Treatment Record - Government Facility (October 2019). For reasons explained below, the Board finds that remand is necessary. A remand by the Board imposes upon the Secretary of VA a concomitant duty to ensure compliance with the terms of the remand. Where remand orders of the Board are not complied with, the Board errs in failing to ensure compliance. Stegall v. West, 11 Vet. App. 268 (1998). A December 2019 Board decision, in finding the March 2018 VA medical opinion inadequate, remanded the claims for medical opinions. Although an examination report and medical opinions were obtained, in January 2020, the Board finds that there has not been substantial compliance with the Board's remand. Specifically, the Board finds the VA medical opinion inadequate for adjudicative purposes because it does not fully answer the Board's questions. An adequate medical opinion must be "accurate and fully descriptive," 38 C.F.R. § 4.1, and based on an accurate factual premise and consideration of a veteran's prior medical history, Ardison v. Brown, 6 Vet. App. 405, 407 (1994). In addition, the opinion "must support its conclusions with an analysis that the Board can consider and weigh against contrary opinions." Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007); see Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) ("most of the probative value of a medical opinion comes from its reasoning"). An adequate medical examination report or opinion must also "sufficiently inform the Board of a medical expert's judgment on a medical question and the essential rationale for that opinion." Monzingo v. Shinseki, 26 Vet. App. 97, 106 (2012). In sum, although an examiner need not discuss all potentially favorable or unfavorable evidence in order to render an adequate opinion, see Monzingo, 26 Vet. App. at 105, it must be clear that the examiner was "informed of sufficient facts upon which to base an opinion relevant to the problem at hand." Nieves-Rodriguez, 22 Vet. App. at 303. Here, to the Board's question as to whether it is at least as likely as not that either the Veteran's pancreatitis or internal varices began in service or are otherwise related to service, the VA medical opinion found it less likely than not because of "no mention of either" in the STRs. However, service connection may be granted for any disease diagnosed after discharge, when the evidence, including that pertinent to service, establishes that the disease was incurred in service. See 38 C.F.R. § 3.303(d). Second, the December 2019 VA medical opinion states that the medical literature reveals that "Neither hypertension or CAD are established etiologies (or in any way associated) with pancreatitis." See C&P Exam (December 2019). However, the opinion does not cite or reference such literature; further, the opinion does not show consideration of facts specific to the Veteran vis-à-vis the medical literature that was reviewed. See Bailey v. O'Rourke, 30 Vet. App. 54, 60 (2018) (stating that a medical rationale based solely on general medical literature without discussing the specific facts pertaining to a veteran's condition or individual circumstances is inadequate). Third, the opinion does not reflect a conclusion or reasoned medical rationale on the question of whether either pancreatitis or internal varices, on an at least as likely as not basis, have been caused or aggravated beyond their normal course of progression by the Veteran's service-connected hypertension or coronary artery disease. See Allen v. Brown, 7 Vet. App. 439 (1995). Indeed, the bulk of the rationale provided by the opinion reflects an analysis based on causation. See Atencio v. O'Rourke, 30 Vet. App. 74, 90-91 (2018) (holding that a medical opinion was inadequate when it was unclear whether the examiner had clearly provided a rationale that dealt with causation and aggravation as independent concepts). Fourth, to the question of whether the Veteran developed metabolic syndrome due to interactions with his service-connected disabilities leading to cirrhosis, in turn leading to pancreatitis and internal varices, the examiner's only response was "not medically possible." No rationale was provided. See Stefl, supra; see also Bowling v. Principi, 15 Vet. App. 1, 12 (2001) (emphasizing the Board's duty to return an inadequate examination report "if further evidence or clarification of the evidence... is essential for a proper appellate decision"). Given the above, the Board finds that there has not been substantial compliance with it remand directives, and a new medical opinion is warranted. See Stegall, supra. Additionally, the Board recognizes that the Veteran's attorney expressed his intention to challenge the competency of the clinician who provided the January 2020 VA medical opinions. See Francway v. Wilkie, 930 F.3d 1377, 1380 (Fed. Cir. 2019). As the Board has found the medical opinions inadequate, this challenge is moot. Lastly, the record shows that the Veteran received Social Security Administration (SSA) benefits. SSA Inquiry shows that he had been entitled to SSA benefits since March 2017. See SSA Profile and Benefit Data (January 2020). The record, however, contains no SSA records, and the agency of original jurisdiction (AOJ) has not made any attempts to obtain these potentially relevant SSA records. Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2010) (the Federal Circuit Court acknowledged that VA's duty to assist was limited to obtaining relevant SSA records and defined relevant records as "those records that relate to the injury for which the claimant is seeking benefits and have a reasonable possibility of helping to substantiate" the claim). Therefore, to ensure that VA has met its duty to assist, remand is necessary to obtain those records associated with his SSA disability award. 3. Entitlement to SMC based on the need of aid and attendance, or by reason of being housebound. The Board finds the appellant's claim for SMC is inextricably intertwined with the claims remanded herein. Harris v. Derwinski, 1 Vet. App. 180 (1991) (two issues are "inextricably intertwined" when they are so closely tied together that a final decision on one issue cannot be rendered until a decision on the other issue has been rendered). Therefore, adjudication is deferred pending the outcome of the claims. In remanding these matters, the Board makes no finding, implicit or otherwise, as to the credibility of the appellant's assertions. Neither the appellant's credibility nor any lack thereof should be presumed in this remand. The matters are REMANDED for the following action: 1. Obtain all SSA records, including a copy of the award letter. Any negative search results should be noted in the record. 2. Thereafter, obtain an addendum opinion from an appropriate clinician regarding the etiologies of the Veteran's pancreatitis and internal varices. The entire claims file, to include a copy of this REMAND, should be made available to and reviewed by the clinician. The medical opinion should, at a minimum, reflect consideration of (i) the documented history; (ii) the lay contentions; (iii) medical evidence of record; and (iv) medical treatise submitted by the appellant. The opinion should identify and explain the relevance or significance, as appropriate, of any history, clinical findings, medical knowledge or literature, etc., relied upon in reaching the conclusion(s). Note (1): A negative medical opinion may not be predicated solely on the absence of documented findings or complaints in service; and Note (2): Reliance on the absence of medical literature supporting nexus without discussing the specific facts of the case renders an opinion inadequate. The clinician must opine on: Direct Service Connection (a.) Whether the Veteran's pancreatitis and/or internal varices was at least as likely as not (50 percent or greater probability) proximately due to or the result of in-service injury or disease to include any documented in-service exposures to ionizing radiation. Consider and address: i. The Veteran's use of hepatotoxic prescription medications; and ii. The Veteran's specialty as a dental laboratory assistant in the Navy, including engagement in shift work. Explain. Secondary Service Connection (b.) Whether the Veteran's nonservice-connected pancreatitis and/or internal varices was proximately due to his service-connected hypertension and/or coronary artery disease, to include medication taken for therefor. Explain. (c.) Whether the Veteran's nonservice-connected pancreatitis and/or internal varices was aggravated beyond its natural progression by his service-connected hypertension and/or coronary artery disease, to include medication taken for therefor. If yes, a pre-aggravation baseline level of disability must be provided. The clinician must provide a rationale that deals with causation and aggravation as independent concepts. Explain. (d.) Whether the Veteran developed metabolic syndrome due to interactions with his service-connected disabilities leading to cirrhosis, in turn leading to pancreatitis and internal varices. Explain. 3. Ensure that the medical opinion obtained includes a complete rationale for the conclusions reached. The medical opinion must support the conclusions reached with an analysis that is adequate for the Board to consider and weigh against other evidence of record; medical opinions must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. If an opinion cannot be expressed without resort to speculation, ensure that the clinician so indicates and discusses why an opinion is not possible, to include whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. C.A. SKOW Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. M. Pesin 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.