Citation Nr: 21042377 Decision Date: 07/12/21 Archive Date: 07/12/21 DOCKET NO. 17-38 240 DATE: July 12, 2021 REMANDED Entitlement to service connection for gastroesophageal reflux disease (GERD) is remanded. Entitlement to service connection for irritable bowel syndrome (IBS) is remanded. REASONS FOR REMAND The Veteran served on active duty from September 1965 to April 1969, October 1972 to October 1974, and October 1974 to November 1978. This matter comes before the Board of Veteran's Appeal (Board) on appeal from a June 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). 1. Entitlement to service connection for GERD is remanded. This matter was previously remanded in March 2019 for further development to include a new VA medical opinion. The case has now returned to the Board for appellate review and, although it again regrets the further delay, the Board finds that additional remand is required. Here, the Board finds that the January 2020 examiner's medical opinion is not in compliance with the Board's March 2019 remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Specifically, the January 2020 VA examiner opined that the Veteran's GERD was less likely than not incurred or caused by the claimed in-service injury, event or illness. See January 2020 VA Medical Opinion. In support of this finding, this examiner explained that there was no objective information within the medical records that showed that the onset of the Veteran's GERD occurred while in the service. However, the examiner failed to consider and address the Veteran's contention that he self-medicated his GERD symptoms during service, which is contrary to the Board's March 2019 directives. See August 2015 Notice of Disagreement. Because the examiner failed to address the Veteran's contention, as directed, the Board finds that this opinion is inadequate for adjudicative purposes. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Relatedly, the January 2020 VA examiner also opined that it is less likely than not the Veteran's GERD disability was permanently aggravated beyond its natural progression by his service-connected PTSD. However, this negative finding fails to comply with the Court of Appeals for Veterans Claims' (Court) holding in Ward v. Wilkie. Specifically, the Court held that 38 C.F.R. § 3.310(b) does not require permanent aggravation. Ward v. Wilkie, 31 Vet. App. 233, 241-42 (2019); 38 C.F.R. § 3.310(b). Further, the January 2020 VA examiner failed to reconcile this negative finding with the May 2015 VA examiner's finding that the Veteran's GERD symptoms may be aggravated, mildly or intermittently, by his PTSD. See May 2015 VA Medical Opinion. Thus, the Board finds the January 2020 VA medical opinion is inadequate. Based on the foregoing deficiencies, the Board finds that an addendum opinion is warranted. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). The VA examiner should consider and specifically address the Veteran's contention that he treated his GERD symptoms since service. The examiner should also address whether the Veteran's PTSD aggravated his GERD disability in compliance with the Court's holding in Ward v. Wilkie. Lastly, if the examiner finds that the Veteran's GERD was not aggravated by his PTSD, the examiner should reconcile this finding with May 2015 VA examiner's finding. In ordering a remand in the instant case, the Board is not making a preliminary formal finding as to the credibility of the Veteran's lay reports. Rather, the Board is merely requesting that the examiner on remand consider the Veteran's own descriptions of the history of his GERD disability. See Smith v. Wilkie, 32 Vet. App. 332, 338-39 (2020). 2. Entitlement to service connection for the Veteran's IBS disability is remanded. Here, the Board finds that the January 2020 examiner's medical opinion is not in compliance with the Board's March 2019 remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The January 2020 VA examiner opined that the Veteran's IBS disability was less likely than not incurred or caused by the claimed in-service injury, event or illness. See January 2020 VA Medical Opinion. In support of this finding, this examiner explained that there was no objective information within the medical records that showed that the onset of the Veteran's IBS occurred while in the service. However, the examiner failed to consider and address the Veteran's contention that he self-medicated his IBS symptoms during service, which is contrary to the Board's March 2019 directives. See August 2015 Notice of Disagreement. Since the examiner failed to address the Veteran's contention, as directed, the Board finds that this opinion is inadequate for adjudicative purposes. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Relatedly, the January 2020 VA examiner also opined that it is less likely than not the Veteran's IBS was permanently aggravated beyond its natural progression by his service-connected PTSD. However, this negative finding fails to comply with the Court of Appeals for Veterans Claims' (Court) holding in Ward v. Wilkie. Specifically, the Court held that 38 C.F.R. § 3.310(b) does not require permanent aggravation. Ward v. Wilkie, 31 Vet. App. 233, 241-42 (2019); 38 C.F.R. § 3.310(b). Based on the foregoing deficiencies, the Board finds that an addendum opinion is warranted. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). The VA examiner should consider and specifically address the Veteran's contention that he treated his IBS symptoms since service. See August 2015 Notice of Disagreement. The examiner should also address whether the Veteran's PTSD aggravated his IBS disability in compliance with the Court's holding in Ward v. Wilkie. In ordering a remand in the instant case, the Board is not making a preliminary formal finding as to the credibility of the Veteran's lay reports. Rather, the Board is merely requesting that the examiner on remand consider the Veteran's own descriptions of the history of his IBS disability. See Smith v. Wilkie, 32 Vet. App. 332, 338-39 (2020). The matters are REMANDED for the following action: 1. The RO should send the claims file to an appropriate VA examiner who has not previously participated in this case for an addendum opinion as to whether the Veteran's GERD and IBS disabilities are related to service and/or caused by or aggravated by the Veteran's service-connected PTSD. The claims file, including a copy of this Remand, must be made available to and be reviewed by the examiner in conjunction with the examination. If a clinical evaluation is deemed necessary to answer the questions presented, one should be scheduled. The claims file, and a copy of the remand, must be reviewed by the examiner. A notation indicating that the claims file and remand was reviewed should be included in the examination report. Following review of the file and this remand, the examiner is to address the following: (a.) The examiner should determine whether it is at least as likely as not that the Veteran's GERD disability had its clinical onset during service. For the purpose of providing the opinion requested, please accept as valid the Veteran's statements that he has self-medicated his GERD symptoms since service, and state whether a nexus between the Veteran's GERD disability and service is medically consistent with the information provided by the Veteran. See August 2015 Notice of Disagreement. (The Board reminds the Veteran that in asking the examiner to accept the history he provided, the Board is not at this time making an assessment of the credibility of his statements). (b.) If you determine that the Veteran's GERD did not have its clinical onset in service, please state whether it is at least as likely as not (50 percent probability or greater) that the Veteran's GERD disability was caused by the service-connected PTSD condition. (c.) Please state whether it is at least as likely as not that the Veteran's GERD disability was aggravated by his service-connected PTSD condition. Here, aggravated means worsened beyond the natural progression of the condition. The examiner's opinion should reflect consideration of the Court's holding in Ward v. Wilkie that aggravation need not be permanent in nature. Ward v. Wilkie, 31 Vet. App. 233, 241-42 (2019); 38 C.F.R. § 3.310(b). (d.) If you determine that the Veteran's PTSD did not aggravate the Veteran's GERD symptoms, please address and reconcile this finding with the May 2015 VA examiner's finding that the Veteran's GERD symptoms may be aggravated, mildly or intermittently, by his PTSD. (e.) If you find that the Veteran's GERD disability has been aggravated by the Veteran's PTSD disability, please estimate the baseline severity of the Veteran's GERD disability before it was aggravated by his service-connected PTSD disability. (f.) Please state whether it is at least as likely as not (50 percent probability or greater) that the Veteran's IBS disability was caused by the service-connected PTSD condition. (g.) Please state whether it is at least as likely as not that the Veteran's IBS disability was aggravated by his service-connected PTSD condition. Here, aggravated means worsened beyond the natural progression of the condition. The examiner's opinion should reflect consideration of the Court's holding in Ward v. Wilkie that aggravation need not be permanent in nature. Ward v. Wilkie, 31 Vet. App. 233, 241-42 (2019); 38 C.F.R. § 3.310(b). (h.) If you find that the Veteran's IBS disability has been aggravated by the Veteran's PTSD disability, please estimate the baseline severity of the Veteran's IBS disability before it was aggravated by his service-connected PTSD disability. The examiner should provide a complete rationale for any opinion rendered. If the examiner's opinion is negative, he or she must clearly explain why. If he or she cannot provide the requested opinions without resorting to speculation, he or she should expressly indicate this and provide a supporting rationale as to why that is so. S.C. Krembs Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Foster, 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.