Citation Nr: 21039728 Decision Date: 07/01/21 Archive Date: 07/01/21 DOCKET NO. 18-00 373A DATE: July 1, 2021 REMANDED Service connection for hypertension is remanded. Service connection for a gastroesophageal disorder, claimed as gastroesophageal reflux disorder (GERD), is remanded. Service connection for a gastrointestinal disorder, claimed as irritable bowel syndrome (IBS), is remanded. Service connection for a left knee disability is remanded. Service connection for a right knee disability is remanded. REASONS FOR REMAND The Veteran served on active duty from July 2003 to March 2004 and from June 2007 to September 2008; he served in the National Guard from November 2002 to November 2010. These matters come before the Board of Veterans' Appeals (Board) on appeal from September and December 2015 rating decisions. In August 2019, the Board denied service connection for, in pertinent part, left and right knee disabilities. This Board decision also remanded the issues of entitlement to service connection for hypertension, GERD, and a gastrointestinal disorder to the Agency of Original Jurisdiction (AOJ) for further development. The Veteran appealed the issues of entitlement to service connection for left and right knee disorders to the Court of Appeals for Veterans' Claims (Court). In a September 2020 order, the Court approved a Joint Motion for Remand (JMR), vacating the August 2019 decision and remanding these issues to the Board. In February 2021, the Board remanded the issues of service connection for left and right knee disabilities, hypertension, GERD, and a gastrointestinal disorder to the AOJ for additional development. Although the Board regrets the additional delay, another remand is required in order to substantially comply with the Board's prior remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). 1. Service connection for hypertension The Veteran is claiming he has hypertension which began during active duty service or which is secondary to his service-connected psychiatric disorder. In February 2021, Board remanded the Veteran's claim for new opinions noting that the December 2019 opinion failed to consider relevant evidence such as the Veteran's lay statement he was diagnosed with hypertension in 2007 and a July 2006 service treatment record documenting elevated blood pressure. Additionally, the February 2021 Board remand found that the opinions regarding secondary service connection lacked a supporting rationale. At a March 2021 examination, the examiner diagnosed hypertension, yet in an opinion regarding the etiology, the medical professional simply wrote "Veteran without." However, the Veteran's VA treatment records indicate he continues to take medication to control his hypertension, and, even if it had resolved, which the evidence does not show, the Court of Appeals for Veterans Claims (Court) has held that the requirement that a current disability be present is satisfied "when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim... even though the disability resolves prior to the Secretary's adjudication of the claim." McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Thus, a remand is required to obtain an opinion consistent with the prior remand directives. The Board also finds that the March 2021 opinions regarding secondary service connection are cursory and that new ones with supporting rationale should be obtained on remand. 2. Service connection for a gastrointestinal disorder, to include IBS The Veteran is claiming service connection for a gastrointestinal disorder (claimed as IBS) on a direct basis and as secondary this service-connected psychiatric disorder. In its August 2021 remand directives, the Board noted that although a December 2019 examiner found no diagnosis of IBS, the Veteran's treatment records contain a diagnosis of chronic gastritis, and the medical professional failed to provide an opinion regarding this diagnosis. Therefore, the Board broadened and remanded the claim for consideration of all gastrointestinal disorders. See Clemons v. Shinseki, 23 Vet. App. 1, 7 (2009). The Board also instructed that a new opinion pertaining to chronic gastritis and to consider the Veteran's statements regarding the onset of symptoms. A March 2021 VA intestinal conditions examination, the Veteran reported loose stools four times a day. Under the medical history section regarding date and details of onset, course of condition since onset, and current symptoms, the examiner wrote "none." The examiner found no diagnosis of IBS and no diagnosed intestinal condition. In the opinions regarding the etiology of any gastrointestinal condition, the examiner only addressed the Veteran's GERD and indicated the Veteran had GERD symptoms with no known gastrointestinal pathology. Given that there is no opinion which addresses the diagnosis of chronic gastritis in the Veteran's VA treatment records, a remand is required to obtain one. The Board also finds that the March 2021 opinions regarding secondary service connection are cursory and that new opinions with supporting rationale should be obtained on remand. 3. Service connection for a gastroesophageal disorder, to include GERD The Veteran is claiming service connection for a gastroesophageal disorder (claimed as GERD) on a direct basis and as secondary to his service-connected psychiatric disorder. In its February 2021 remand, Board found that the December 2019 opinion regarding direct service connection failed to consider the Veteran's statements that his symptoms began in 2007 and that the opinions regarding secondary service connection lacked supporting rationale. Therefore, the claim was remanded for new opinions. A March 2021 examiner indicated that the Veteran had a diagnosis of GERD and found it was less likely than not that it began during or was caused by active service, reasoning "Veteran with intermittent GERD symptoms controlled by medication. No in-service diagnosis, no nexus." In a separate opinion addressing the Veteran's statements regarding symptoms he experienced, the examiner indicated the "Veteran claims subjective symptoms without known pathology, or objective verification of those symptoms." Here, while the examiner again acknowledged the Veteran's statements regarding symptoms, he or she appears to have discounted them as being subjective without objective verification. Essentially, the examiner found the Veteran was not competent (or implicitly found him not credible) to report such symptoms. Therefore, the Board finds a new opinion is required which considers the Veteran's statements. The Board also finds that the March 2021 opinions regarding secondary service connection are cursory and that new ones with supporting rationale should be obtained on remand. 4. Service connection for a right knee disability 5. Service connection for a left knee disability In an August 2019 decision, the Board denied the issues of service connection for left and right knee disorders based on a lack of a current disability, largely relying on a February 2013 examination. The Board's denial was vacated in a September 2020 Joint Motion for Remand (JMR) on the basis that the Board failed to address several indications of functional knee impairment. These included VA treatment records noting "traumatic arthroplasty" of the right knee with progressively worsening symptoms after an in-service fall; diagnoses of chondromalacia patella and patellofemoral pain syndrome of the right knee; and right knee treatment, including a steroid injection and physician prescribed knee brace. The September 2020 JMR also observed that the Board did not address VA treatment records which contain complaints of left knee pain due to favoring the right knee. Accordingly, in February 2021, the Board remanded the claims for a new examination and opinions. A March 2021 examiner concluded that the Veteran did not have any diagnosed left knee disability, had a normal knee on examination, and had no chronicity of care, and therefore, no nexus to service could be established. Turning to the right knee, the examiner provided a diagnosis of chondromalacia, but indicated in the opinion that the Veteran had a normal knee on examination and that the condition had resolved. The Board finds these opinions are inadequate and that new ones must be obtained on remand. First, as noted in the September 2020 JMR, the Board's prior decision was vacated because it failed to address several indications of knee impairment in the record. Significantly, the U.S. Court of Appeals for the Federal Circuit has held that "pain in the absence of a presently-diagnosed condition can cause functional impairment," which may qualify as a "disability" under 38 U.S.C. § 1110. Saunders v. Wilkie, 886 F.3d 1356, 1368 (Fed. Cir. 2018). Thus, even in the absence of a currently diagnosed disability, opinions are required, and the examiner failed to provide an opinion with respect to the right knee. Turning to the left knee, the examiner based a negative opinion on lack of chronicity of care, with no consideration of the Veteran's lay statements. Thus, new opinions regarding direct service connection must be obtained. Further, as the September 2020 JMR noted, the Veteran's treatment records contain complaints of left knee pain due to favoring the right. Thus, medical opinions regarding whether any right knee disability caused or aggravated any left knee disability must be obtained. See Robinson v. Peake, 21 Vet. App. 545, 552 (2008) (holding that VA has a duty to "consider all issues either raised by the claimant or by the evidence of record"). The Veteran and his representative have the right to submit additional evidence and argument on the matters the Board has remanded. See Kutscherousky v. West, 12 Vet. App. 369 (1999). The matters are REMANDED for the following action: 1. Obtain updated VA treatment records. 2. Obtain opinions regarding the etiology of the Veteran's hypertension. An examination is not necessary unless the medical professional designated to provide the opinions finds one is required. The medical professional must obtain from the Veteran and record in the medical opinion the Veteran's description of the onset and continuity of symptoms, which may be accomplished using the ACE telephone process. Following a complete review of the evidence of record, and with consideration of the Veteran's statements, please provide the following: (a) Determine whether it is at least as likely as not (50 percent probability or higher) that the Veteran's hypertension began during or is etiologically related to his active duty service. Why or why not? (b) Determine whether it is at least as likely as not (50 percent probability or higher) that the Veteran's hypertension manifested within one year of separation from either period of active duty service. Why or why not? (c) Determine whether it is at least as likely as not (50 percent probability or higher) that the Veteran's hypertension is caused by his service-connected psychiatric disorder. Why or why not? (d) Determine whether it is at least as likely as not (50 percent probability or higher) that the Veteran's hypertension is aggravated by his service-connected psychiatric disorder. Why or why not? In the opinions, medical professional must discuss the following: July 2006 service treatment records noting elevated blood pressure; and The Veteran's report that he was diagnosed with hypertension in 2007 during a physical examination. A complete and separate rationale for each opinion is required. Citation to accepted medical literature and/or principles (or lack thereof) would be of great assistance to the Board. If the medical professional is unable to provide any opinion without resorting to speculation, he or she must explain why this is so. 3. Obtain opinions regarding the etiology of the Veteran's GERD and chronic gastritis. Examinations are not necessary unless the medical professional designated to provide the opinions finds they are required. The medical professional must obtain from the Veteran and record in the medical opinion the Veteran's description of the onset and continuity of symptoms, which may be accomplished using the ACE telephone process. Following a complete review of the evidence of record, and with consideration of the Veteran's statements, please provide the following: (a) Determine whether it is at least as likely as not (50 percent probability or higher) that the Veteran's GERD began during or is etiologically related to his active duty service. Why or why not? (b) Determine whether it is at least as likely as not (50 percent probability or higher) that the Veteran's GERD is caused by his service-connected psychiatric disorder. Why or why not? (c) Determine whether it is at least as likely as not (50 percent probability or higher) that the Veteran's GERD is aggravated by his service-connected psychiatric disorder. Why or why not? (d) Determine whether it is at least as likely as not (50 percent probability or higher) that the Veteran's chronic gastritis began during or is etiologically related to his active duty service. Why or why not? (e) Determine whether it is at least as likely as not (50 percent probability or higher) that the Veteran's chronic gastritis is caused by his service-connected psychiatric disorder. Why or why not? (f) Determine whether it is at least as likely as not (50 percent probability or higher) that the Veteran's chronic gastritis is aggravated by his service-connected psychiatric disorder. Why or why not? In providing these opinions, the medical professional must discuss the following: August 2008 in-service complaints of abdominal pain and gastric symptoms; December 2008 post-service complaints of abdominal pain and gastric symptoms; November 2015 VA treatment records noting gastritis; and A December 2017 statement to a clinician that he has "diarrhea every day" and that his heartburn, diarrhea, and acid reflux symptoms began in 2007. The medical professional is informed that an opinion based on lack of care or treatment and without consideration of a Veteran's lay statements will be deemed inadequate. A complete and separate rationale for each opinion is required. Citation to accepted medical literature and/or principles (or lack thereof) would be of great assistance to the Board. If the medical professional is unable to provide any opinion without resorting to speculation, he or she must explain why this is so. 4. Obtain medical opinions regarding the Veteran's claims for left and right knee disabilities. Examinations are not necessary unless the medical professional designated to provide the opinions finds they are required. The medical professional must obtain from the Veteran and record in the medical opinion the Veteran's description of the onset and continuity of symptoms, which may be accomplished using the ACE telephone process. Following a complete review of the evidence of record, and with consideration of the Veteran's statements, please provide the following: (a) Determine whether it is at least as likely as not (50 percent probability) that the Veteran's left knee symptoms began during or are etiologically related to his active duty service. Why or why not? (b) Determine whether it is at least as likely as not (50 percent probability) that the Veteran's right knee symptoms began during or are etiologically related to his active duty service. Why or why not? (c) Determine whether it is at least as likely as not (50 percent probability) that the Veteran's left knee symptoms were caused by his right knee symptoms. Why or why not? (d) Determine whether it is at least as likely as not (50 percent probability) that the Veteran's left knee symptoms were aggravated by his right knee symptoms. Why or why not? The medical professional is informed: Opinions must be provided even though there is no formal diagnosis; and An opinion based on lack of care or treatment and without consideration of a Veteran's lay statements will be deemed inadequate. A complete and separate rationale for each opinion is required. Citation to accepted medical literature and/or principles (or lack thereof) would be of great assistance to the Board. If the medical professional is unable to provide any opinion without resorting to speculation, he or she must explain why this is so. (CONTINUED ON NEXT PAGE) 5. This case has been the subject of several remands. Thus, the AOJ must review the required opinions to ensure they are adequate and comply with the Board's specific remand directives herein. If deficient in any manner, corrective action must be taken at once. Jennifer White Veterans Law Judge Board of Veterans' Appeals Attorney for the Board O'Connell, Jessica L. 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.