HEPATITIS C

K.A. KENNERLY · 2026 · Case ID: 26002818

MIXED

Summary

The Veteran, a Navy Veteran who served from April 1965 to March 1969, including service in Vietnam, appealed the denial of service connection for hepatitis C and bilateral eye disabilities (cataracts and dry eye syndrome), and the remand of claims for gastrointestinal and sinus disabilities. The Board denied service connection for hepatitis C, noting that while the Veteran had a diagnosis and conceded herbicide exposure, there was no evidence of in-service diagnosis or related symptoms, and no adequate medical opinion linking the condition to service. VA medical opinions found the hepatitis C was less likely related to service due to post-service risk factors like cocaine use and a tattoo, and that there is no scientific evidence linking hepatitis C to herbicide exposure. The Board granted service connection for bilateral eye disabilities (cataracts and dry eye syndrome) on a secondary basis to service-connected CKD with hypertension. VA medical opinions found the eye conditions were aggravated by treatment for CKD and antihypertensive medications for hypertension. The Board found these opinions well-reasoned and persuasive, outweighing earlier negative opinions that failed to address aggravation. The claims for gastrointestinal and sinus disabilities were remanded due to inadequate VA medical opinions that failed to consider lay assertions, provide adequate rationale, or address all aspects of the claims, including secondary aggravation and specific etiology questions.

Rationale

No evidence of in-service diagnosis or related symptoms; No adequate medical opinion linking hepatitis C to service or herbicide exposure; VA opinions found less likely related to service due to post-service risk factors; Hepatitis C is not a presumptive condition for herbicide exposure

Service Branch

NAVY

Special Benefit

NO SPECIAL BENEFIT

Docket No.

17-47 899

Full Decision Text

Citation Nr: 26002818
Decision Date: 03/03/26 Archive Date: 03/03/26

DOCKET NO. 17-47 899
DATE: March 3, 2026

ORDER

Entitlement to service connection for hepatitis C is denied.

Entitlement to service connection for a left eye disability, to include cataracts and dry eye syndrome, to include as secondary to chronic kidney disease (CKD) with hypertension, is granted.

Entitlement to service connection for a right eye disability, to include cataracts and dry eye syndrome, to include as secondary to CKD with hypertension, is granted.

REMANDED

Entitlement to service connection for a gastrointestinal disability (claimed as stomach disability), to include as secondary to service-connected ischemic heart disease (IHD), posttraumatic stress disorder (PTSD), CKD, status-post transplant, with hypertension, and headaches, is remanded.

Entitlement to service connection for a sinus disability is remanded.

FINDINGS OF FACT

1. The Veteran had conceded exposure to herbicide agents during his military service.

2. The evidence of record persuasively weighs against finding that the Veteran's hepatitis C was etiologically related to his service, to include as a result of herbicide agent exposure.

3. The Veteran's left eye disability was secondary to his service-connected CKD with hypertension.

4. The Veteran's right eye disability was secondary to his service-connected CKD with hypertension.

CONCLUSIONS OF LAW

1. The criteria for entitlement to service connection for hepatitis C are not met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303.

2. The criteria for entitlement to service connection for a left eye disability, to include cataracts and dry eye syndrome, to include as secondary to CKD with hypertension are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.310.

3. The criteria for entitlement to service connection for a right eye disability, to include cataracts and dry eye syndrome, to include as secondary to CKD with hypertension are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.310.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served honorably in the United States Navy from April 1965 to March 1969, to include service in the Republic of Vietnam. The Veteran died in December 2020, and the appellant is his surviving spouse, who has been properly substituted in this appeal. See VA Correspondence, January 4, 2021.

Procedural History

These matters come before the Board of Veterans' Appeals (Board) on appeal from a March 2017 rating decision of the Department of Veterans Affairs' (VA) Veterans Benefits Administration, (the agency of original jurisdiction (AOJ)).

This appeal originated from a September 2017 VA Form 9. The appeal initially came to the Board in January 2020, following a September 2019 Board hearing before a Veterans Law Judge (VLJ). The hearing transcript is associated with the claims file. In January 2020, the Board addressed 19 issues by remanding all the claims for additional development. While the appeal was pending development, the appellant was notified that the VLJ who conducted the September 2019 hearing was no longer available, and that she had a right to request an additional Board hearing within 30 days of the notice. See VA Correspondence, July 12, 2021. The appellant was also informed that if no response was received by VA within 30 days of the issuance of this notice, VA would assume she did not desire an additional hearing. Id. The appellant did respond to the notice letter.

In November 2021, the Board granted the claims of entitlement to service connection for: hypertension; CKD; a headache disability; and glaucoma. The Board denied the claims of entitlement to service connection for: bladder cancer; peripheral neuropathy of the lower extremities; bilateral pes planus; bilateral hearing loss; tinnitus; erectile dysfunction; gout; a back disability; and a skin disability. The Board remanded the claims of entitlement to service connection for: a heart disability; hepatitis C; a bilateral eye disability; a sinus disability; and a gastrointestinal disability. This decision addressed all claims appealed to the Board via the September 2017 VA Form 9.

In June 2023, the Board subsequently denied the claims of entitlement to service connection for: a heart disability, hepatitis C, a bilateral
hypertension; CKD; a headache disability; and glaucoma. The Board denied the claims of entitlement to service connection for: bladder cancer; peripheral neuropathy of the lower extremities; bilateral pes planus; bilateral hearing loss; tinnitus; erectile dysfunction; gout; a back disability; and a skin disability. The Board remanded the claims of entitlement to service connection for: a heart disability; hepatitis C; a bilateral eye disability; a sinus disability; and a gastrointestinal disability. This decision addressed all claims appealed to the Board via the September 2017 VA Form 9.

In June 2023, the Board subsequently denied the claims of entitlement to service connection for: a heart disability, hepatitis C, a bilateral eye disability, a sinus disability, and a gastrointestinal disability. The appellant appealed this decision to the United States Court of Appeals for Veterans Claims (CAVC). In April 2024, the CAVC granted the parties' Joint Motion for Remand (JMR), which vacated the Board's June 2023 decision and remanded the issues of entitlement to service connection for a heart disability, hepatitis C, a bilateral eye disability, a sinus disability, and a gastrointestinal disability to the Board for additional action.

The appeal was most recently before the Board in August 2024. The appeal was remanded in its entirety to comply with the April 2024 JMR. The appeal has returned for further appellate consideration. Unfortunately, there has not been substantial compliance with the Board's previous remand directives regarding the issues of entitlement to service connection for a gastrointestinal disability, and a sinus disability. Remand is required. Stegall v. West, 11 Vet. App. 268, 271 (1998).

While the appeal was in remand status, the AOJ granted service connection for a heart disability, to include ischemic heart disease, which represents a full grant of benefits sought. Therefore, the issue is no longer in appellate status. See Grantham v. Brown, 114 F.3d 1156, 1158 (Fed. Cir. 1997) (holding that a separate notice of disagreement must be filed to initiate appellate review of "downstream" elements such as the disability rating or effective date assigned).

Entitlement to Service Connection for Hepatitis C, and a Right and Left Eye Disability

The Veteran contended during his lifetime that he had hepatitis C related to exposure to herbicide agents during service and bilateral eye disabilities related to service. See VA Form 21-526EZ, Fully Developed Claim, December 7, 2016.

Applicable Law

Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated during service. 38 U.S.C. §§ 1110; 38 C.F.R. § 3.303. To establish entitlement to service connection, there must be (1) evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) a causal connection between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004).

Certain chronic diseases, which are listed in 38 C.F.R. § 3.309(a) may be presumed to have been incurred during service if manifested to a compensable degree within one year of separation from active service. 38 U.S.C. §§ 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309.

With chronic disease shown as such in service (or within the presumptive period under § 3.307) so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time. Id. However, if chronicity in service is not established or where the diagnosis of chronicity may be legitimately questioned, a showing of continuity of symptoms after discharge is required to support the claim. 38 C.F.R. § 3.303(b). A claimant "can benefit from continuity of symptomatology to establish service connection in the ultimate sense, but only if [the] chronic disease is one listed in § 3.309(a)." Walker v. Shinseki, 708 F.3d 1331, 1338-39 (Fed. Cir. 2013).
required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time. Id. However, if chronicity in service is not established or where the diagnosis of chronicity may be legitimately questioned, a showing of continuity of symptoms after discharge is required to support the claim. 38 C.F.R. § 3.303(b). A claimant "can benefit from continuity of symptomatology to establish service connection in the ultimate sense, but only if [the] chronic disease is one listed in § 3.309(a)." Walker v. Shinseki, 708 F.3d 1331, 1338-39 (Fed. Cir. 2013). Service connection may nonetheless be granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d).

Also, certain diseases associated with exposure to certain herbicide agents used in support of military operations in the Republic of Vietnam (Vietnam) during the Vietnam era will be considered to have been incurred in service. 38 U.S.C. § 1116(a)(1); 38 C.F.R. § 3.307(a)(6). Hepatitis C is not listed as being associated with herbicide agent exposure for purposes of presumptive service connection. 38 U.S.C. § 1116(a)(2); 38 C.F.R. § 3.309(e). A non-presumptive disease may still be entitled to service connection on a direct basis if the medical evidence supports a relationship between that disease and exposure to an herbicide agent. Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994).

While on appeal, the Sergeant First Class Heath Robinson Honoring our Promise to Address Comprehensive Toxics Act of 2022 (PACT Act) was enacted on August 10, 2022. The PACT Act extended the presumed conditions listed under 38 C.F.R. § 3.309(e). See PACT Act, Pub. L. No. 117-168 (August 10, 2022). Hepatitis C is not included, and therefore, service connection on a presumptive basis is not available for this claim.

Service connection may also be established on a secondary basis. Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. 38 C.F.R. § 3.310(a)-(b). Secondary causation exists when, but for the service-connected disability, the non-service-connected was caused by a service-connected disability either in a direct, etiological way or via multiple steps in a causal chain. Spicer v. McDonough, 61 F.4th 1360, 1365 (Fed. Cir. 2023) (citations omitted). Secondary aggravation exists when the non-service-connected disability not caused by a service-connected disability would be less severe were it not for a service-connected disability. Id. at 1364.

In making all determinations, the Board must fully consider all the relevant medical evidence as well as lay evidence. Furthermore, the Board is required to assess the competency and credibility of the relevant evidence, and to consider its probative weight. When considering whether lay evidence is competent, the Board must determine, on a case-by-case basis, whether the appellant's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007).

Finally, when determining whether service connection is warranted, VA is responsible for determining whether the evidence persuasively favors one side or the other. Lynch v. McDonough, 21 F.4th 776, 781-82 (Fed. Cir. 2021). The appellant is entitled to the benefit of the doubt when the evidence is in approximate balance. Id.

A. Hepatitis C

The Veteran had a diagnosis of hepatitis C during his lifetime. See VA Nephrology Consult Note, August 4, 2006. VA also conceded the Veteran's exposure to herbicide agents during his time in service. See Toxic Exposure Risk Activity (TERA) Memorandum, June 28, 2023. Thus, the first and second Shedden elements are satisfied. Shedden, 381 F.3
Lynch v. McDonough, 21 F.4th 776, 781-82 (Fed. Cir. 2021). The appellant is entitled to the benefit of the doubt when the evidence is in approximate balance. Id.

A. Hepatitis C

The Veteran had a diagnosis of hepatitis C during his lifetime. See VA Nephrology Consult Note, August 4, 2006. VA also conceded the Veteran's exposure to herbicide agents during his time in service. See Toxic Exposure Risk Activity (TERA) Memorandum, June 28, 2023. Thus, the first and second Shedden elements are satisfied. Shedden, 381 F.3d 1163. The question for the Board is whether the Veteran's hepatitis C began during service or otherwise related to an in-service injury, event, or disease, to include sharing needles during his military service or conceded exposure to herbicide agents.

Hepatitis C is not listed as being associated with herbicide agent exposure for purposes of the presumption. 38 U.S.C. § 1116(a)(2); 38 C.F.R. § 3.309(e). Additionally, hepatitis C is not considered a chronic condition listed under 38 C.F.R. §§ 3.309(a). As such, service connection on a presumptive basis is not warranted. 38 C.F.R. §§ 3.307(a)(6)(ii), 3.309(a), (e).

A non-presumptive disease may still be entitled to service connection on a direct basis if the medical evidence supports a relationship between that disease and service. Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). While the Veteran had a diagnosis of hepatitis C, the evidence of record persuasively weighs against finding that it began during active service, or is otherwise related to an in-service injury, event, or disease, to include exposure to herbicide agents. See Shedden, supra.

Here, element (1), current disability, required to establish direct service connection under Shedden is met. See Shedden, supra. With respect to element (2) in-service disease or injury, while the Veteran had conceded exposure to herbicide agents during service, there is no evidence that the Veteran was diagnosed with hepatitis C during service, suffered any injury that could cause hepatitis C, or was noted to have any related symptoms during service. Additionally, there is no adequate medical opinion supporting a medical nexus, element (3), between the Veteran's hepatitis C and his conceded herbicide agent exposure or other event in service.

The AOJ obtained VA medical opinions in November 2024 and September 2025 to comply with the Board's previous remand directives.

In November 2024, a VA clinician opined that the Veteran's hepatitis C was not related to his service. The VA clinician reasoned that the Veteran was diagnosed with hepatitis C in 2004, months after receiving a new tattoo. The Veteran also reported several years of cocaine use from 1970 to 1980. Thus, as a result of these post-service behaviors it was less likely that the Veteran's hepatitis C was caused by sharing needles during his military service. See VA Medical Opinion Disability Benefits Questionnaire (DBQ), November 8, 2024. The VA clinician also opined that the Veteran's hepatitis C was not related to a TERA, specifically herbicide agents, as there is no medical or scientific evidence that provides any indication of a relationship between the development of hepatitis C and a TERA. The VA clinician indicated that the Veteran had risk factors outside his military service that outweighed the factors identified in the TERA. Id.

After reviewing these opinions, the AOJ requested an addendum opinion from the November 2024 VA clinician as the VA clinician did not provide a reasoned discussion of the Veteran's lay assertions regarding in-service needle sharing. Additionally, the AOJ indicated that the VA clinician failed to cite to any supporting medical literature to support the opinion concerning the relationship between the Veteran's hepatitis C and participation in a TERA. As such, the November 2024 VA clinician addressed the deficiencies in the previous opinions and indicated that the Veteran's hepatitis C was not related to service, to include reports of in-service needle sharing and herbicide agent exposure. See VA Addendum, September 12, 2025. The VA clinician reasoned that after considering the Veteran's competent lay reports of needle sharing, the totality of the epidemiologic evidence and the Veteran's substantial post-service risk profile, to include decades of cocaine use and a tattoo proximate to diagnosis, more strongly supports a post-service
the VA clinician failed to cite to any supporting medical literature to support the opinion concerning the relationship between the Veteran's hepatitis C and participation in a TERA. As such, the November 2024 VA clinician addressed the deficiencies in the previous opinions and indicated that the Veteran's hepatitis C was not related to service, to include reports of in-service needle sharing and herbicide agent exposure. See VA Addendum, September 12, 2025. The VA clinician reasoned that after considering the Veteran's competent lay reports of needle sharing, the totality of the epidemiologic evidence and the Veteran's substantial post-service risk profile, to include decades of cocaine use and a tattoo proximate to diagnosis, more strongly supports a post-service acquisition. Id. The VA clinician cited several medical references used in formulating the opinion and provided an adequate rationale that considered the Veteran's lay assertions. The Board affords this medical opinion substantial probative value as it is well reasoned and supported by the evidence of record. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008).

There are no medical opinions of record that have found a relationship between the Veteran's hepatitis C and his service.

The Board has considered the Veteran's and appellant's statements regarding the relationship between the Veteran's hepatitis C and his active service. However, in this case, neither the Veteran nor the appellant are competent to testify regarding the etiology of the Veteran's hepatitis C. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The diagnosis and evaluation of such condition require the expertise of a qualified medical professional. Therefore, the unsubstantiated statements made by the Veteran and the appellant are found to lack competency to find a nexus between the Veteran's hepatitis C and his service. Unfortunately, the evidence of record does not establish a nexus for the condition on a direct basis.

As there is no adequate medical opinion establishing a nexus between the Veteran's hepatitis C and his military service, including his exposure to herbicide agents, the persuasive weight of the evidence is against the claim, the benefit-of-the-doubt rule does not apply, and the appellant's claim for direct service connection is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Lynch, 21 F.4th at 781.

B. Bilateral Eye Disabilities

The evidence of record persuasively weighs in favor of finding service connection is warranted for the appellant's bilateral eye claims on a secondary basis.

The first element (current diagnosis) and second element (a service-connected disability) required to establish service connection on a secondary basis are met. 38 C.F.R. § 3.310. The medical evidence demonstrates the Veteran was diagnosed with bilateral dry eye syndrome and cataracts. See VA Medical Opinion DBQ, March 31, 2025. Additionally, during the Veteran's lifetime, service connection was in effect for CKD with hypertension.

As to the third element of secondary service connection, medical nexus, the evidence of record in support of the claims includes March 2025 and September 2025 VA medical opinions. In March 2025, the VA clinician opined that the Veteran's dry eye syndrome was aggravated by the Veteran's use of antihypertensive medications used to treat his service-connected hypertension. See VA Medical Opinion DBQ, March 31, 2025. The VA clinician also opined that the Veteran's cataracts were aggravated by treatment for the Veteran's service-connected CKD. Id. In September 2025, a VA clinician provided an addendum opinion and affirmed again that the Veteran's cataracts were likely aggravated due to treatment for the Veteran's CKD. See VA Addendum, September 4, 2025. Both VA clinicians were licensed ophthalmologists, who reviewed the claims file prior to rendering the opinions. The Board finds these opinions are thoroughly reasoned and are supported by adequate rationale to support the conclusions reached. Thus, the Board assigns substantial probative value to these opinions. See Nieves-Rodriguez, 22 Vet. App. 304.

The evidence against the claims includes VA medical opinions drafted in October 2024, and November 2024. In October 2024, the VA clinician opined that the Veteran's bilateral eye disabilities were not aggravated by his service-connected disabilities but only provided rationale addressing causation. See VA Medical Opinion DBQ, October 29, 2024. In November 2024, the VA clinician provided a negative medical opinion regarding secondary service connection based on causation and failed to provide an opinion on aggravation. See VA Medical Opinion DBQ, November 8, 2024. These opinions are afforded no probative value as the VA clinicians failed to address all the inquiries outlined in Spicer v. McDonough. Pursuant to Spicer v. McDonough, establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. 38 C.F.R. § 3.310(a)-(b). Secondary causation exists when, but for the service-connected disability, the non-service-connected was caused by a service-connected disability either in a direct, etiological way or via multiple steps in a causal chain. Spicer v. McDonough, 61 F.4th 1360, 1365 (Fed. Cir. 2023) (citations omitted). Secondary aggravation exists when the non-service-connected disability not caused by a service-connected disability would be less severe were it not for a service-connected disability. Id. at 1364. As these inquiries were not addressed in these opinions, the Board affords these opinions are afforded no probative value.

Thus, the weight of the evidence persuasively weighs in favor of finding that a positive nexus has been established, resulting in a grant of the appellant's claims. Thus, entitlement to service connection for left and right eye cataracts and dry eye syndrome, to include as secondary to service-connected CKD with hypertension is warranted. See 38 C.F.R. §§ 3.102, 3.303, 3.310.

REASONS FOR REMAND

Under the Appeals Modernization Act (AMA), VA's duty to assist ends when VA issues the notice of decision on a claim or returned claim and does not recommence unless a supplemental claim is submitted, or a claim is returned to the AOJ for correction of an error. 38 U.S.C. § 5103A(e); 38 C.F.R. § 3.159(c).

Given the limitations of when the duty to assist applies, remand by the Board in the AMA is proper for correction of (1) duty to assist errors occurring prior to the date of the AOJ decision on appeal (i.e., pre-decisional duty to assist errors); and (2) AOJ errors in satisfying a regulatory or statutory duty, if correction of such error would have a reasonable possibility of aiding in substantiating the appellant's claim. 38 C.F.R. § 20.802(a).

While additional delay is regrettable, remand is necessary in order to correct a pre-decisional duty to assist errors discussed below.

As there has not been substantial compliance with the Board's previous remand directives regarding the issues, another remand is required. Stegall, 11 Vet. App. 271.

1. Entitlement to service connection for a gastrointestinal disability, to include as secondary to service-connected IHD, PTSD, chronic kidney disease, status-post transplant, with hypertension, and headaches, is remanded.

Regarding the claim for a gastrointestinal disability, the Board, in its August 2024 Remand, instructed the AOJ to obtain a VA medical opinion that considered the claim on a direct and secondary basis. The VA clinician was specifically instructed to consider the Veteran's lay assertions when formulating the opinions and provide adequate rationale for the conclusions reached. The AOJ obtained VA medical opinions in November 2024, January 2025, March 2025, and May 2025. In November 2024, the VA clinciain opined that the Veteran's diagnosed GERD was not related to his service-connected disabilities. The VA clinician did not provide rationale for the conclusion reached and failed to provide an opinion on whether the Veteran's GERD was aggravated by any service-connected disabilities. Thus, the opinion is inadequate with respect to the claim on a secondary basis. See Spicer, supra. The VA clinician also opined that the
specifically instructed to consider the Veteran's lay assertions when formulating the opinions and provide adequate rationale for the conclusions reached. The AOJ obtained VA medical opinions in November 2024, January 2025, March 2025, and May 2025. In November 2024, the VA clinciain opined that the Veteran's diagnosed GERD was not related to his service-connected disabilities. The VA clinician did not provide rationale for the conclusion reached and failed to provide an opinion on whether the Veteran's GERD was aggravated by any service-connected disabilities. Thus, the opinion is inadequate with respect to the claim on a secondary basis. See Spicer, supra. The VA clinician also opined that the Veteran's GERD was not related to his reports of diarrhea during service or exposure to a herbicide agents. The VA clinician failed to provide adequate rationale for the opinions rendered and did not consider the Veteran's lay assertions. Additionally, the VA clincian raised obesity as a risk factor for the development of GERD but failed address obesity as an intermediate step to any specific service-connected disability. See VAOPGCPREC 1-2017 and Walsh v. Wilkie, 32 Vet. App. 300 (2020).

In Janaury 2025, as a result of deficiencies with the Novmber 2024 VA medical opinions, the AOJ obtained an addendum opinion from the same VA clinician. The VA clinician opined that the Veteran's GERD was not related to exposure to herbicide agents and was not secondary to his service connected disabilities. The VA clinician only noted how GERD develops without providing rationale for the conclusions reached.

As result of defieciencies in the January 2025 addendum opinion, the AOJ obtained addendum opinions in March 2025 and May 2025. However, review of both examinations continue to note the Veteran's GERD was not related to complaints of diarhhea during service, or exposure to herbicide agents during service, or secondary to a service connected disabilities. The VA clinician made conclusory statements for each opinion rendered. The opinions simply noted how GERD developed and concluded that there was no evidence linking GERD to service or a service connected disability. See VA Addendum Opinions, March 5, 2025; May 13, 2025. The VA clinician indicated that the Veteran's service-connected psychiatric disorder, CKD, and hypertension could excacerbate GERD sympotms but they were not causative factors. Id. The VA clinician failed to address whether the Veteran's service-connected disabiliteis aggravated his GERD symptoms. Additionally, the VA clinician did not consider the Veteran's lay assertions that his sympotms began during his service in Vietnam and failed to provide adequate rationale for the opinions reached. Thus, a remand is required to obtain VA medical opinions that comply with the Board's previous Remand directives. Stegall, 11 Vet. App. 271.

Additionally, service connection is currently in effect for a heart disability, as this condition was not considered in any opinion of record, on Remand, an opinion is needed to address the affects of this disability on the Veteran's gastrointestinal disability.

2. Entitlement to service connection for sinus disability is remanded.

Regarding the claim for a sinus disability, the Board, in its August 2024 Remand, instructed the AOJ to obtain a VA medical opinion that considered the claim on a direct basis, to include considering whether the Veteran suffered from congenital disease or defect during service and whether any diagnosed disability was related to exposure to herbicide agents. The VA clinician was specifically instructed to consider the Veteran's lay assertions when formulating the opinions and to provide adequate rationale for the conclusions reached. The AOJ obtained VA medical opinions in November 2024, January 2025, and March 2025. Review of these medical opinions reveals that the AOJ failed to substantially comply with the Board's remand instructions. Stegall, 11 Vet. App. 271.

The VA clinician who offered the November 2024 and March 2025 medical opinions made conclusory statements that did not consider the Veteran's lay assertions and are not supported by adequate rationale. Both the November 2024 and March 2025 VA medical opinions indicate that the Veteran did not have a diagnosis of sinusitis but he did have a diagnosis of rhinitis that was not related service, to include exposure to herbicide agents. See VA Medical Opinion DBQ, November 8, 2024; VA Addendum Opinion, March 5, 2025. The VA clinician simply noted how rhinitis develops and failed to provide rationale for the conclusions reached. The VA clinicians who offered the January 2025 VA medical opinions did not provide an opinion indicating that service connection was already in effect for the disability, but did not specify which disability. As such, a remand is required to obtain an adequate VA medical opinion addressing the claim on a direct basis and correct this duty to assist error. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) ("Once VA undertakes the effort to provide an examination when developing a service-connection claim...VA must provide an adequate one").

The matters are REMANDED for the following action:

1. Obtain an addendum opinion from an appropriate clinician to assist in determining the likely nature and etiology of the Veteran's gastrointestinal disability, to include on a secondary basis.

The clinician must review the claims file and address the following:

(a.) Identify all disabilities associated with the Veteran's gastrointestinal system noted during his lifetime.

(b.) Was any gastrointestinal disability, to include GERD likely (an approximate balance of positive and negative evidence) related to service, including reports of diarrhea during service, or to include as due to a TERA.

The clinician must consider the total potential exposure through all applicable military deployments of the Veteran and the synergistic, combined effect of all toxic exposure risk activities of the Veteran. See 38 U.S.C. § 1168.

The clinician is advised that a negative opinion cannot be based solely on the fact that a gastrointestinal disability is not on the list of diseases that are presumptively associated with exposure to herbicide agents.

In answering these questions, the clinician should take into consideration the Veteran's lay statements regarding in-service symptoms and continuity of those symptoms since service. An opinion based on the absence of treatment records without consideration of a veteran's competent lay statements is inadequate. Dalton v. Nicholson, 21 Vet. App. 23, 39-40 (2007); Smith v. Wilkie, 32 Vet. App. 332, 340 (2020). The Board does not render any credibility assessments of the Veteran's lay statements at this time.

Any opinion expressed by the clinician should be accompanied by a complete rationale. If medical literature is relied upon in rendering a determination, the clinician should identify and specifically cite each reference utilized. If the clinician is unable to offer an opinion without resort to speculation, a thorough explanation as to why an opinion cannot be rendered should be provided.

2. Obtain an addendum opinion from an appropriate VA clinician addressing the Veteran's gastrointestinal disability and obesity as an intermediate step in secondary service connection.

The clinician is requested to provide opinions responsive to the following:

(a.) State whether the Veteran's service-connected IHD, PTSD, chronic kidney disease, status-post transplant, with hypertension, left knee disability, right ankle disability, and/or headaches, caused the Veteran to become obese.

(b.) State whether the Veteran's service-connected IHD, PTSD, chronic kidney disease, status-post transplant, with hypertension, left knee disability, right ankle disability, and/or headaches aggravated the Veteran's obesity.

A complete rationale for any opinion expressed must be provided.

3. Obtain a VA medical opinion from an appropriate VA clinician to determine the nature and likely etiology of the Veteran's gastrointestinal disability on a secondary basis. The VA clinician should review all pertinent evidence in the Veteran's claims file.

The clinician is requested to provide opinions responsive to the following:

(a.) If a positive opinion is provided as to either opinion requested in remand directive two (i.e., the Veteran's service-connected IHD, PTSD, chronic kidney disease, status-post transplant, with hypertension, left knee disability, right ankle disability, and/or headaches caused the Veteran to become obese OR the Veteran's service-connected IHD, PTSD, chronic kidney disease, status-post transplant, with hypertension, left knee disability, right ankle disability, and/or headaches aggravated the Veteran's obesity), state whether the cause or aggravation of obesity, as a result of the Veteran's service-connected disabilities, was a substantial factor in causing the Veteran's gastrointestinal disability.

(b.) If so
.

The clinician is requested to provide opinions responsive to the following:

(b.) If so, state whether the Veteran's gastrointestinal disability would not have occurred but for obesity caused, or aggravated, by the Veteran's service-connected IHD, PTSD, chronic kidney disease, status-post transplant, with hypertension, left knee disability, right ankle disability, and/or headaches.

(c.) If obesity was not caused or aggravated by the Veteran's service-connected disabilities, then state generally whether, but for the Veteran's service-connected IHD, PTSD, chronic kidney disease, status-post transplant, with hypertension, left knee disability, right ankle disability, and/or headaches and associated medications, he would not have had a gastrointestinal disability.

(d.) State whether the Veteran's gastrointestinal disability would be less severe and result in less functional impairment but for his service-connected IHD, PTSD, chronic kidney disease, status-post transplant, with hypertension, left knee disability, right ankle disability, and headaches and associated medications.

If the clinician opines that his gastrointestinal disability would result in less functional impairment but for the service-connected IHD, PTSD, chronic kidney disease, status-post transplant, with hypertension, left knee disability, right ankle disability, and/or headaches and associated medications, the clinician must attempt to establish a baseline level of severity for the Veteran's gastrointestinal disability prior to aggravation by the service-connected IHD, PTSD, chronic kidney disease, status-post transplant, with hypertension, left knee disability, right ankle disability, and/or headaches and associated medications.

4. Obtain an addendum medical opinion from an appropriate clinician to determine the likely nature and etiology of the Veteran's sinus disability.

The clinician must review the claims file and answer the following:

(a.) Identify all sinus related disabilities, to include any sinusitis and allergic rhinitis, present during the Veteran's lifetime.

(b.) State whether the Veteran's atopy diagnosed during service is considered to be a congenital defect (more or less static in nature) or a congenital disease (capable of improving or deteriorating) for VA purposes?

(c.) If atopy is a congenital defect, was there a superimposed disease or injury in-service that resulted in additional sinus disability?

(d.) If atopy is a congenital disease, is it clear and unmistakable (undebatable) that atopy was not aggravated in service? Please determine whether (i) it is clear and unmistakable that there was no increase in severity during service, or (ii) clear and unmistakable that any increase in disability occurred.

(e.) For any diagnosed sinus disability which is not a congenital disease or defect, the clinician must opine as to whether the condition had onset in or is related to the Veteran's active service, to include reported upper respiratory symptoms, and allergies noted during service, or as due to a TERA.

The clinician is advised that a negative opinion cannot be based solely on the fact that the sinus disability is not on the list of diseases that are presumptively associated with exposure to herbicide agents.

In answering these questions, the clinician should take into consideration the Veteran's lay statements regarding in-service sinus issues and continuity of those symptoms since service. An opinion based on the absence of treatment records without consideration of a veteran's competent lay statements is inadequate. Dalton, 21 Vet. App. 39-40; Smith, 32 Vet. App. 340. The Board does not render any credibility assessments of the Veteran's lay statements at this time.

5. After the above development, and any additionally indicated development, has been completed, readjudicate the issues on appeal.

K.A. KENNERLY

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