Citation Nr: 23016830 Decision Date: 03/18/23 Archive Date: 03/18/23 DOCKET NO. 20-09 511 DATE: March 18, 2023 REMANDED Entitlement to service connection for gastroesophageal reflux disease (GERD) is remanded. REASONS FOR REMAND The Veteran served on active duty from February 1966 to November 1970. In May 2022, the Veteran testified at a video conference hearing (hearing) before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the claims file. This matter was previously remanded by the Board of Veterans' Appeals (Board) in August 2022 for additional development. It now returns for further appellate review. 1. Entitlement to service connection for GERD is remanded. Although further delay is regrettable, the Board finds a remand is necessary to ensure compliance with the August 2022 Board remand. A See Stegall v. West, 11 Vet. App. 268, 271 (1998) (remand by the Board confers on the claimant, as a matter of law, a right to compliance with the remand orders.) Specifically, the Board finds that the January 2023 VA medical opinion does not fully comply with the Board's remand instructions and is insufficient for the reasons discussed below. The January 2023 VA examiner opined that it was less likely than not that the Veteran's GERD was incurred in or caused by the claimed in-service injury. See January 2023 VA Medical Opinion Disability Benefits Questionnaire (DBQ). The examiner's rationale for her conclusion stated that there was no evidence to support a GERD or hiatal hernia diagnosis during service. However, the examiner did not address the notations of symptoms of nausea, diarrhea, and vomiting which occurred during active service in October 1967, January 1968, October 1968, and January 1969 as requested in the August 2022 Board remand. Additionally, the examiner impermissibly relied on the absence of a diagnosis of GERD or hiatal hernia in the Veteran's service treatment records to support her negative nexus opinion. An examination is inadequate where the examiner did not comment on a Veteran's report of in-service injury and relied on the lack of evidence in service medical records to provide a negative opinion, which is the case here. See Dalton v. Nicholson, 21 Vet. App. 23 (2007) (). The Board also finds that the January 2023 VA medical opinion does not provide sufficient rationale in concluding that the Veteran's GERD is not related to service. The examiner made no attempt to explain why the Veteran's GERD was not caused by his service and did not indicate review of the Veteran's specific contentions or address the specific contentions as to the causes of his GERD. Additionally, the examiner did not provide an adequate opinion on the question of whether the Veteran's GERD was caused by exposure to Agent Orange. Her only response was based on the absence of GERD from the list of presumptive conditions, without consideration on whether GERD could have been caused directly by those exposures, as required Combee v. Brown. 34 F.3d 1039, 1044 (Fed. Cir. 1994). The Board also requested an opinion regarding whether the Veteran's GERD was caused by or aggravated (any incremental increase) by his service-connected disabilities including prescribed medications for those conditions. See August 2022 Board Decision. The examiner opined that the Veteran's GERD was not related to his service-connected conditions because they were not risk factors for GERD. See January 2023 VA Medical Opinion DBQ. However, the examiner did not address whether his medications for chronic lymphocytic leukemia, lumbosacral strain, and posttraumatic stress disorder (PTSD), either caused or aggravated his GERD. As the examiner did not address the Veteran's contentions and did not provide the requested medical opinion the Board finds that the medical opinion does not comply with the August 2022 Board remand and is not probative. See Miller v. Wilkie, 32 Vet. App. 249 (2020) (stating that a VA medical opinion lacks probative value when the examiner does not address a veteran's lay reports of his medical history and symptoms). The Board also notes that the examiner did not address whether the Veteran's GERD was aggravated by his service-connected disabilities, which the Court has stated is required in El Amin v. Shinseki. 26 Vet. App. 140 (2013) (A medical opinion regarding secondary service connection must address both causation and aggravation.) Accordingly, the Board finds a remand is warranted for an addendum medical opinion regarding whether the Veteran's GERD is related to active service or is secondary to his service-connected disabilities. The matters are REMANDED for the following action: 1. Return the claims file to the January 2023 VA examiner if available, or to another qualified examiner to provide an addendum medical opinion regarding the etiology of the Veteran's claimed GERD. 2. The examiner is asked to provide the following information: a) Opine whether it is at least as likely as not (i.e., probability of approximately 50 percent), that any currently diagnosed gastroesophageal disorder, had its clinical onset during active service or is related to any incident of service? i) The examiner should address the notations of symptoms of nausea, diarrhea, and vomiting which occurred during active service in October 1967, January 1968, October 1968, and January 1969 and whether the Veteran's current GERD is related to or caused by the in-service symptoms listed above. 3. The examiner is reminded that a negative medical opinion may not be rendered solely on (i) the lack of notations indicating diagnosis or treatment for a stomach disability or GERD in the service treatment records, or (ii) the fact that GERD is not on the list of diseases presumed to be associated with exposure to Agent Orange, or (iii) general medical literature untethered to this particular Veteran and the facts of his case. To rely exclusively on the above (i) - (iii) alone or in conjunction with each other will render the opinion inadequate for VA adjudication purposes. 4. In responding, the examiner is asked to specifically consider and discuss the lay statements from the Veteran regarding the onset of his symptoms and his in-service symptoms. 5. As the standard is at least as likely as not, is it possible that the Veteran's current GERD could be related to or was caused by in-service symptoms of nausea, diarrhea, and vomiting including GERD symptoms he had during his service in Vietnam. 6. Whether it is at least as likely as not that the Veteran's GERD was caused by or related to his exposure to Agent Orange herbicides? Why or why not? 7. Is it medically feasible that his current GERD is related to his in-service symptoms of nausea, diarrhea, and vomiting including GERD symptoms he had during his service in Vietnam, or his conceded exposure to Agent Orange herbicides? (a.) If not, state why not and on what basis this conclusion was made. (b.) If so, state why and on what basis this conclusion was made. 8. Are the Veteran's assertions that his current GERD was caused by his in-service symptoms of nausea, diarrhea, and vomiting including GERD symptoms he had during his service in Vietnam consistent with medical knowledge or implausible with how the Veteran's GERD is known to develop? 9. Whether it is at least as likely as not (i.e., probability of 50 percent or greater) that the Veteran's GERD was proximately caused by any of his service-connected disabilities including prescribed medications for his disabilities. 10. Whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran's GERD underwent an incremental increase (aggravated), regardless of permanence, by his any of his service-connected disabilities including prescribed medications. 11. The term incremental increase in disability means additional impairment of earning capacity. Objective measurement, or numerical quantification, is not required to ascertain an increase in disability. Moreover, any incremental increase in disability need not be permanent. 12. A rationale for all opinions expressed should be provided in the examination report. If medical literature is relied upon in rendering any opinion(s), the VA examiner should identify and specifically cite each reference material utilized. 13. THE AOJ MUST REVIEW THE CLAIMS FILE AND ENSURE THAT THE FOREGOING DEVELOPMENT ACTION HAS BEEN COMPLETED IN FULL. IF ANY DEVELOPMENT IS INCOMPLETE, APPROPRIATE CORRECTIVE ACTION MUST BE IMPLEMENTED. IF ANY REPORT DOES NOT INCLUDE ADEQUATE RESPONSES TO THE SPECIFIC OPINIONS REQUESTED, IT MUST BE RETURNED TO THE PROVIDING EXAMINER FOR CORRECTIVE ACTION. (Continued on the next page) YVETTE R. WHITE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board G. Lilly, 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.