Veteranclaims’s Blog

September 17, 2018

Single Judge Application; secondary service connection; causal theory; aggravation theory; specific inquiry directly addressing aggravation; X may not cause Y but, at the same time, X can worsen Y;

Excerpt from decision below:

“In its decision, the Board relied on the September 2016 examination to conclude that appellant’s GERD was not secondary to his PTSD.7 In so doing, the Board erred.

Generally, secondary service connection is appropriate when either a service-connected disability causes another disability, or a service-connected disability proximately causes the worsening of a pre-existing disability.8 􀹠e former is a causal theory. 􀹠e latter, an aggravation theory, entitles a veteran to secondary connection when a service-connected disability triggers “[a]ny increase in severity of a nonservice-connected disease . . . proximately due to or the result of a service connected disease or injury, and not due to the natural progress of the nonserviceconnected disease.”9

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“The Court has emphasized that a specific inquiry directly addressing aggravation, separate from whether a service-connected disability caused the disability at issue, is necessary when an examiner opines on secondary service connection.15 􀹠is is no mere technicality. It is possible that X doesn’t cause Y but that, at the same time, X worsens Y. 􀹠erefore, an examination that addresses only causation and neglects to consider aggravation does not comply with the law. It cannot be the basis for a finding of no secondary service connection because, by definition, it is incomplete. 􀹠e Board clearly erred in relying on the September 2016 examination to deny appellant
secondary service connection for GERD. 􀹠e examination was inadequate because it addressed only one of the means by which a condition may be secondarily service connected, causation, when the examiner noted that “PTSD does not cause irritation of the esophagus.”16 􀹠e lack of discussion addressing aggravation as a theory of secondary connection renders the examination inadequate as matter of law and in concluding otherwise the Board committed reversible error.”

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Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
No. 17-4201
ANTHONY W. BELLIS, APPELLANT,
V.
ROBERT L. WILKIE,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before ALLEN, Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. VET. APP. R. 30(a),
this action may not be cited as precedent.
ALLEN, Judge: United States Army veteran Anthony W. Bellis appeals an August 25,
2017, decision of the Board of Veterans’ Appeals that denied him entitlement to service connection for a gastrointestinal disability secondary to PTSD.1 􀹠is appeal is timely and the Court has jurisdiction to review the Board decision.2 Because the Board relied on an inadequate medical examination to deny appellant’s claim, the Court will set aside the Board decision and remand the matter for further proceedings consistent with this decision.

I. ANALYSIS
Appellant argues that his gastrointestinal disability—gastroesophageal reflux disease
(GERD)—is associated with his service-connected PTSD either because it was caused by PTSD
1 􀹠is is the only issue before the Court. 􀹠e Board denied entitlement to service-connection for a sleep disability, a determination that appellant does not challenge and the Court considers abandoned. Pederson v. McDonald, 27 Vet.App. 276, 281-85 (2015) (en banc). 􀹠e Board also found new and material evidence was submitted sufficient
to reopen a claim for service connection for alcohol abuse. 􀹠is is a favorable finding that the Court will not disturb. See Medrano v. Nicholson, 21 Vet.App. 165, 170 (2007). 􀹠e Board remanded appellant’s claims of service connection for peripheral neuropathy and alcohol abuse secondary to PTSD. 􀹠e Court does not have jurisdiction over these
nonfinal matters. See Breeden v. Principi, 17 Vet.App. 475, 478 (2004).
2 38 U.S.C. §§ 7252(a) and 7266(a).
2
or because PTSD aggravated his condition. Appellant further asserts that the Board based its decision on a September 2016 report that is inadequate as a matter of law to deny secondary service connection. 􀹠e Court agrees with appellant and finds remand necessary to correct the Board’s clearly erroneous reliance on an inadequate medical examination.
By way of background, VA granted appellant service connection for PTSD in February
2005. VA also denied service connection for a gastrointestinal disorder at that time and again in 2009.3 In August 2011, this Court remanded appellant’s gastrointestinal disorder claim to determine whether his condition was secondary to PTSD.4 Appellant underwent a new examination, and, in September 2016, was diagnosed with GERD.5 􀹠e September 2016 examiner opined that appellant’s GERD was “less likely than not . . . incurred in or caused” either directly by an in-service event or secondarily by injury or illness sustained from active duty service (for our purposes appellant’s service-connected PTSD).6 In its decision, the Board relied on the September 2016 examination to conclude that appellant’s GERD was not secondary to his PTSD.7
In so doing, the Board erred.
Generally, secondary service connection is appropriate when either a service-connected
disability causes another disability, or a service-connected disability proximately causes the worsening of a pre-existing disability.8 􀹠e former is a causal theory. 􀹠e latter, an aggravation theory, entitles a veteran to secondary connection when a service-connected disability triggers “[a]ny increase in severity of a nonservice-connected disease . . . proximately due to or the result of a service connected disease or injury, and not due to the natural progress of the nonserviceconnected disease.”9
The Secretary’s duty to assist includes providing medical examinations when necessary to decide a claim.10 When he chooses to do so, or when it is required, the examination must be
3 R. at 4.
4 R. at 4, 1984.
5 R. at 10.
6 R. at 494 (emphasis added).
7 R. at 12.
8 38 C.F.R. § 3.310(a) (2018).
9 38 C.F.R. § 3.310(b); see generally El-Amin v. Shinseki, 26 Vet.App. 136, 138 (2013).
10 38 U.S.C. § 5103A(d).
3
adequate.11 Examinations are adequate when they consider a veteran’s medical history and describe
the disability well enough so the Board can make a fully informed decision.12 Whether a medical
examination is adequate is a factual question, which the Court reviews for clear error.13 A factual finding is clearly erroneous when the Court is “left with the definite and firm conviction that a mistake has been committed.”14
The Court has emphasized that a specific inquiry directly addressing aggravation, separate from whether a service-connected disability caused the disability at issue, is necessary when an examiner opines on secondary service connection.15 􀹠is is no mere technicality. It is possible that X doesn’t cause Y but that, at the same time, X worsens Y. 􀹠erefore, an examination that addresses only causation and neglects to consider aggravation does not comply with the law. It cannot be the basis for a finding of no secondary service connection because, by definition, it is incomplete. 􀹠e Board clearly erred in relying on the September 2016 examination to deny appellant
secondary service connection for GERD. 􀹠e examination was inadequate because it addressed only one of the means by which a condition may be secondarily service connected, causation, when the examiner noted that “PTSD does not cause irritation of the esophagus.”16 􀹠e lack of discussion addressing aggravation as a theory of secondary connection renders the examination inadequate as matter of law and in concluding otherwise the Board committed reversible error.
􀹠e Secretary attempts to avoid this straightforward result by pointing the Court to a March 2017 medical opinion.17 􀹠e March 2017 examiner found that “mental health conditions such as PTSD are not known to cause the physical weakening or incompetence of the lower esophageal sphincter.”18 􀹠e examiner concluded that “[t]here is no evidence that PTSD [] permanently
11 Barr v. Nicholson, 21 Vet.App. 303, 311-12 (2007); Stegall v. West, 11 Vet.App. 268, 270-71 (1998) (remanding case where a VA medical examination was “inadequate for evaluation purposes”); see also Nieves-Rodriguez v. Peake, 22 Vet.App. 295, 301 (2008) (“The Board must be able to conclude that a medical expert has applied valid medical
analysis to the significant facts of the particular case in order to reach the conclusions submitted in the medical opinion.”).
12 Stefl v. Nicholson, 21 Vet.App. 120, 123 (2007).
13 See 38 U.S.C. § 7261(a)(4); D’Aries v. Peake, 22 Vet.App. 97, 103 (2008).
14 United States v. United States Gypsum Co., 333 U.S. 364, 395 (1948).
15 El-Amin, 26 Vet.App at 140-41 (2013).
16 R. at 494-95 (emphasis added).
17 Secretary’s Brief (Br.) at 5.
18 R. at 489-90.
4
aggravated . . . GERD beyond her [sic] natural progression.”19 Even assuming this examination gwould be adequate on the question of aggravation, the problem with the Secretary’s argument is that the Board did not rely on this examination when denying appellant’s claims. In fact, the Board
never mentions the March 2017 examination. 􀹠ough the Secretary may be correct that the March 2017 examination is relevant to the Board’s error concerning the September 2016 examination, because the Board did not discuss the 2017 opinion at all the Secretary’s argument is a post hoc rationalization that the Court cannot accept.20 􀹠e obligation to decide a claim rests with the Board, not the Secretary’s litigation counsel before this Court.
􀹠e Court is left with the definite and firm conviction that the Board clearly erred by relying
on the September 2016 examination that failed to address whether appellant’s GERD was
aggravated by his PTSD. 􀹠us, remand is appropriate to obtain an adequate examination that
addresses both causation and aggravation.21
Finally, the Court is aware of its obligation to determine whether the veteran was prejudiced
by the Board’s error.22 On this record, it is not possible to say the Board’s error was harmless. The
only way to do so would be to conclude that the March 2017 examination was adequate and,
therefore, there was no medical evidence establishing aggravation. The Court finds, among other
problems, that the Court cannot tell what the Board’s silence about that examination means.
Perhaps the Board was not aware of the examination; a point that could arguably allow the Court
to address the examination in the first instance when conducting a harmless-error analysis. But
what if the Board didn’t discuss the examination report because it had doubts about its adequacy?
We simply do not know at this point and, therefore, cannot deem the Board’s error harmless.
Given this disposition, the Court need not address appellant’s remaining arguments.23 On
remand, appellant is free to submit additional evidence and argument, including the arguments
raised in the briefs to this Court, and has 90 days from the date of VA’s postremand notice to do
19 Id.
20 See Martin v. Occupational Safety & Health Review Comm’n, 499 U.S. 144, 156 (1991); Evans v. Shinseki, 25
Vet.App. 7, 16, 17 (2011).
21 Tucker v. West, 11 Vet.App. 369, 374 (1998); Ardison v. Brown, 6 Vet.App. 405, 407 (1994).
22 See 38 U.S.C. § 7261(b)(1) (requiring this Court to “take due account of the rule of prejudicial error”).
23 See Best v. Principi, 15 Vet.App. 18, 20 (2001) (per curiam).
5
so.24 The Board must consider any such evidence or argument submitted.25 The Board shall
proceed expeditiously, per 38 U.S.C. §§ 5109B and 7112.
II. CONCLUSION
After considering the parties’ briefs, the record on appeal, and the governing law, the Court
SETS ASIDE the August 25, 2017, Board decision as to secondary service connection for GERD
and REMANDS this matter for further proceedings consistent with this opinion.
DATED: September 13, 2018
Copies to:
Jerusha L. Hancock, Esq.
VA General Counsel (027)
24 Kutscherousky v. West, 12 Vet.App. 369, 372-73 (1999) (per curiam); see also Clark v. O’Rourke, 30 Vet.App. 92,
97 (2018).
25 Kay v. Principi, 16 Vet.App. 529, 534 (2002).

 

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