Designated for electronic publication only

UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS

NO. 19-3108

DAVID B. WHITE, APPELLANT,

V.

ROBERT L. WILKIE, SECRETARY OF VETERANS AFFAIRS, APPELLEE.

Before BARTLEY, Chief Judge.

MEMORANDUM DECISION

Note: Pursuant to U.S. Vet. App. R. 30(a), this action may not be cited as precedent.

BARTLEY, Chief Judge: Self-represented veteran David B. White appeals a March 19, 2019, Board decision denying service connection for allergic or vasomotor rhinitis, sinusitis, colon polyps, irritable colon syndrome, rectal ulcer, hypertension or hypertensive vascular disease, peptic ulcer, defective vision of both eyes, , chronic squamous of both eyes, chronic gastritis, ulcerative colitis, and colitis cystica profunda. Record (R.) at 5-28.1 For the reasons that follow, the Court will set aside the portions of the March 2019 Board decision denying service connection for rhinitis, sinusitis, colon polyps, irritable colon syndrome, rectal ulcer, hypertension or hypertensive vascular disease, peptic ulcer, defective vision of both eyes,

1 In the same decision, the Board granted entitlement to a 20% evaluation for hemorrhoids since August 17, 2012. R. at 21-23. To the extent that this finding is favorable to Mr. White, the Court will not disturb it. See Medrano v. Nicholson, 21 Vet.App. 165, 170 (2007) ("The Court is not permitted to reverse findings of fact favorable to a claimant made by the Board pursuant to its statutory authority."). Moreover, because the veteran did not challenge the Board's denial of an evaluation for that condition in excess of 10% prior to August 17, 2012, and in excess of 20% since that date, the Court deems any appeal of those issues abandoned and will dismiss those portions of the appeal. See Pederson v. McDonald, 27 Vet.App. 276, 281-86 (2015) (en banc) (declining to review the merits of an issue not argued and dismissing that portion of the appeal); Cacciola v. Gibson, 27 Vet.App. 45, 48 (2014) (same). The Board also remanded the issues of service connection for arthritis of both hips, ankylosis of both legs, ankylosis of the cervical spine, and sleep apnea. R. at 23-28. Because a remand is not a final decision of the Board subject to judicial review, the Court does not have jurisdiction to consider these matters at this time. See Howard v. Gober, 220 F.3d 1341, 1344 (Fed. Cir. 2000); Breeden v. Principi, 17 Vet.App. 475, 478 (2004) (per curiam order); 38 C.F.R. § 20.1100(b) (2020).

dry eye syndrome, and chronic squamous blepharitis, and remand those matters for further development and readjudication consistent with this decision. The Court will affirm the portions of the Board's decision denying service connection for ulcerative colitis, chronic gastritis, and colitis cystica profunda.

I. FACTS Mr. White served on active duty in the U.S. Air Force from July 1983 to October 1985, with additional service in the North Carolina Air National Guard and Air Force Reserve. R. at 4921, 4922, 4923, 5389, 6852, 6854. His service in the North Carolina Air National Guard and Air Force Reserve included periods of both active duty for training and inactive duty for training. R. at 4874, 4877, 4879, 4881, 4882, 4884, 4886, 4888, 4890, 4892, 4894, 4896, 4898, 4900, 4902, 4904, 5014, 5013, 5017, 5018. At entrance to active duty, an examiner noted normal nose, sinuses, eyes, ophthalmoscopy, , ocular motility, heart, vascular system, abdomen and viscera, and anus and rectum, with 20/20 distance vision in both eyes and a 90/76 blood pressure reading. R. at 5288-89. At that examination, Mr. White denied eye trouble, sinusitis, hay fever, palpitation or pounding heart, heart trouble, high or low blood pressure, frequent indigestion, stomach or intestinal trouble, and piles or rectal disease. R. at 5290-91. In June 1984, during Mr. White's active service, an examiner noted normal nose, sinuses, eyes, pupils, ocular motility, heart, vascular system, abdomen and viscera, and anus and rectum, with 20/20 distance vision in both eyes and a 110/60 blood pressure reading. R. at 5292-94. However, the examiner did note mild arcus senilis.2 R. at 5292. At that examination, Mr. White denied eye trouble; sinusitis; hay fever; palpitation or pounding heart; heart trouble; high or low blood pressure; frequent indigestion; stomach, liver, or intestinal trouble; and piles or rectal disease. R. at 5307. Also during active duty service, Mr. White sought treatment in August 1983 for swelling around his eyes assessed as allergies, in February 1984 for painful bowel movements assessed as rectal fissure, and in March 1985 for possible piles with bleeding. R. at 5325, 5326, 5335. In September 1985, an optometrist noted the veteran's eyes to be essentially asymptomatic, with 20/15 vision in both eyes at both near and distance. R. at 5331. August 1985 and September

2 Arcus is "a white or gray opaque ring in the corneal margin, present at birth, or appearing later in life, and becoming quite frequent in those over 50; it results from deposits in or hyalinosis of the corneal stroma, which may be associated with ocular defects or with familial . Called also a. juvenillis, a. lipoides corneae, and a. senilis." DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 124 (33d ed.2020).

2

1985 examiners noted normal nose, sinuses, eyes, ophthalmoscopy, pupils, ocular motility, heart, vascular system, abdomen and viscera, and anus and rectum. R. at 5299, 5303. In August 1985, Mr. White had 20/30 distance vision in the right eye, 20/40 vision in the left eye, and a 112/82 blood pressure reading; and in September 1985, he had 20/20 vision in both eyes and a 114/78 blood pressure reading. R. at 5300, 5304. At both examinations, Mr. White denied eye trouble, sinusitis, hay fever, palpitation or pounding heart, heart trouble, high or low blood pressure, frequent indigestion, and stomach or intestinal trouble; but reported 1984 treatment with good results for hemorrhoids. R. at 5301-02, 5305-06. Following Mr. White's period of active duty, November 1988, September 1992, and December 1997 examiners noted normal nose, sinuses, eyes, ophthalmoscopy, pupils, ocular motility, heart, vascular system, abdomen and viscera, and anus and rectum. R. at 5309, 5316, 5320. In November 1988, Mr. White had 20/20 vision in both eyes and a blood pressure reading of 118/80. R. at 5321. In September 1992, he had a blood pressure reading of 106/68. R. at 5310. In December 1997, he had 20/20 vision in both eyes and a blood pressure reading of 96/70. R. at 5317. At each examination, Mr. White denied eye trouble; sinusitis; hay fever; palpitation or pounding heart; heart trouble; high or low blood pressure; frequent indigestion; and stomach, liver, or intestinal trouble. R. at 5311, 5318, 5322. In November 1988, he denied piles or rectal disease, but reported a history of treatment for hemorrhoids in 1984. R. at 5322-23. In September 1992, he endorsed piles or rectal disease, citing a history of treatment for hemorrhoids in 1984. R. at 5311-12. Similarly, a September 2001 examiner noted normal nose, sinuses, eyes, ophthalmoscopy, pupils, ocular motility, heart, vascular system, abdomen and viscera, and anus and rectum, with 20/25 distance vision in the right eye, 20/30 vision in the left eye, and a 118/84 blood pressure reading. R. at 5295-96. At that examination, Mr. White denied wearing glasses, a history of eye surgery to correct vision, lack of vision, eye trouble, sinusitis, hay fever or allergic rhinitis, palpitation or pounding heart, heart trouble, high or low blood pressure, frequent indigestion, stomach or intestinal trouble, and hemorrhoids or rectal disease. R. at 5297. At a January 2003 Reserve Component Health Risk Assessment, Mr. White denied inflammatory bowel disease, high blood pressure, irregular heartbeat, and heart attack. R. at 5365. Mr. White also sought treatment for bloody stool in January 2003, R. at 5371, and had a November 2003 colonoscopy due to gastritis, R. at 5380. The November 2003 colonoscopy showed a rectal polyp. R. at 5373.

3

December 2003 Reserve treatment records reflect diagnosis for colitis cystica profunda. R. at 5378. June 2004 private treatment records list a family history of hypertension. R. at 7046. A June 2009 eye examination report reflects bilateral blepharitis. R. at 7095-96. October 2011 private treatment records show treatment for squamous blepharitis, hypertension, ulcers, rectal bleeding, and colon polyps. R. at 6883, 6888-89, 6896. In January 2010, Mr. White filed a claim for service connection for hemorrhoids, colitis cystica, rectal ulcer, colon polyps, and gastritis. R. at 7008. In April 2010, he added claims for bowel obstruction and eye problems including blepharitis, dry eyes, and infection. R. at 6730. In August 2010, he filed a claim for service connection for defective vision, hypertension, hemorrhoids, bilateral hip injuries, bilateral chronic leg pain, and sleep apnea. R. 7110. At a March 2012 VA ophthalmologic examination, Mr. White reported existing diagnosis of bilateral , but the examiner noted no , decrease in visual acuity, or other . R. at 6636-37. The examiner also noted diagnoses of chronic blepharitis and dry eye syndrome. R. at 6626. The examiner opined that Mr. White has dry eye syndrome secondary to Meibomian gland dysfunction and chronic blepharitis, treated with antibiotic ointment, warm compresses, and lid scrubs. R. at 6626, 6640. The examiner further noted arcus senilis, explaining that this is not a degenerative disease of the cornea, but can be a sign of hypercholestemia. R. at 6640. The examiner opined that none of these conditions are related to service, explaining that there is no connection between arcus senilis and blepharitis or dry eye syndrome. R. at 6645. At a May 2012 VA medical examination addressing stomach and duodenal conditions, Mr. White reported intermittent epigastric pain, gastroesophageal reflux disease (GERD), heartburn, and periodic abdominal pain, but denied incapacitating episodes. R. at 6703-05. Mr. White also described a history of a 2003 colonoscopy and 2011 surgery for ulcerative colitis and colitis cystica profunda, with current symptoms of diarrhea and gaseous distention. R. at 6555-56, 6659-60. The examiner performed an upper endoscopy and stomach biopsy and diagnosed gastritis. R. at 6706. The examiner opined that peptic ulcers, colitis cystica profundal, gastritis, and ulcerative colitis are not related to irritable bowel syndrome (IBS) or hemorrhoids during service because the conditions are not pathophysiologically related and neither IBS or hemorrhoids cause any of these conditions. R. at 6681, 6686, 6691, 6696.

4

In July 2012, a VA regional office (RO) awarded service connection for hemorrhoids, but denied service connection for allergic or vasomotor rhinitis, sinusitis, colon polyps, irritable colon syndrome, rectal ulcer, hypertension or hypertensive vascular disease, peptic ulcer, defective vision of both eyes, dry eye syndrome, chronic squamous blepharitis of both eyes, arcus senilis,3 chronic gastritis, ulcerative colitis, colitis cystica profunda, arthritis of both hips, ankylosis of both legs, ankylosis of the cervical spine, and sleep apnea. R. at 6328-51. Mr. White appealed. R. at 6294. In September 2013, Mr. White had a VA medical examination for rectum and anus conditions in relation to his claim for service connection for hemorrhoids. R. at 6198-6201. In June 2014 statements, he reported in-service treatment for painful, red, swollen eyes and a history of gastritis in the military. R. at 5763, 5855, 5856-58. In September 2014, Mr. White had a second VA medical examination for rectum and anus conditions in relation to his claim for service connection for hemorrhoids, and the examiner reviewed an April 2014 colonoscopy report showing a colon polyp. R. at 5750. Mr. White submitted a November 2014 statement reporting the onset of blood in his stool in 1984 or 1985, arguing that the symptom of blood in his digestive tract has continued since 1984, and that bleeding is not only a symptom of hemorrhoids. R. at 5520-25. He explained that the symptom of bleeding, indigestion, abdominal pain, and diarrhea in-service and since that time support his claims for gastritis, rectal ulcer, and peptic ulcer. Id. At a December 2016 decision review officer (DRO) hearing, Mr. White reported that his eye conditions developed during basic training in 1983 with swelling around his eyes, which was diagnosed as allergies and never went away. R. at 4405-06, 4408. He also argued that his current sinusitis, allergies, rhinitis, and eye problems began during basic training. R. at 4405-06. He testified that following basic training he developed hemorrhoids with bloody stools and diarrhea, which required a medical profile for ulcers and colonoscopy. R. at 4406-07. Mr. White further testified that he was put on medication for hypertension within the first year following his separation from active duty service. R at 4410. He emphasized that, for all of his claims, the conditions are not acute, but have required medication or treatment since service. R. at 4413. The RO issued an April 2017 Statement of the Case, R. at 3808-79, and Mr. White immediately perfected his appeal, R. at 3804.

3 Mr. White withdrew this claim in a November 2014 statement. R. at 5540. The issue is not on appeal, but is relevant to his other claimed eye conditions.

5

At a March 2018 VA medical examination, the examiner performed an echocardiogram and an interview-based METs test, then diagnosed congestive heart failure and hypertensive heart disease. R. at 2402, 2409, 2411. Mr. White described dyspnea on exertion and treatment with prescription medication. R. at 2403. The examiner opined that congestive heart failure, hypertensive heart disease, and hypertension are all unrelated to post-traumatic stress disorder (PTSD).4 R. at 2395. The examiner explained that scientific articles show comorbidity of PTSD and chronic diseases including heart failure, but do not show a linear connection, and that there are multiple causes of hypertension including age, sex, race, weight, diet, and family history. R. at 2395. The RO reviewed this examination in a May 2018 Supplemental Statement of the Case. R. at 1047-53. In June 2018, Mr. White reported that he sought treatment for his eyes during service due to allergies. R. at 796-98. In the March 2019 decision on appeal, the Board found that none of Mr. White's claimed conditions had their onset during service and were not otherwise related to his service. R. at 6-7. For Mr. White's sinusitis and rhinitis, the Board acknowledged Mr. White's DRO hearing testimony regarding his experience with allergies during basic training but found that statement inconsistent with the lack of complaint or diagnosis of sinusitis or rhinitis in his service treatment records (STRs). R. at 13. The Board also noted current diagnoses for essential hypertension, hypertensive heart disease, and congestive heart failure and Mr. White's DRO hearing testimony that he began taking blood pressure medication within one year of separating from active duty service, but considered the lack of in-service cardiac complaints and the March 2018 examiner's opinion to carry more probative weight than the lay testimony. R. at 14-15. The Board further denied presumptive service connection for hypertension because there was no evidence of diagnosis within one year of separation from active duty service. R. at 16. For his claimed eye conditions, the Board noted in-service diagnosis for arcus senilis and treatment for swelling around his eyes with current diagnoses of , , , squamous blepharitis, and allergic . R. at 10-11. The Board noted his DRO hearing testimony regarding in-service onset for eye problems diagnosed as allergies, but

4 Mr. White filed a November 2014 claim for service connection for anxiety and depression. R. at 5550. The issue is not on appeal.

6

considered the May 2012 VA examiner's opinion more probative and denied service connection based on that examiner's opinion. R. at 11-12. The Board then found evidence of current diagnoses for peptic ulcer, rectal ulcer, ulcerative colitis, chronic gastritis, and colitis cystica profunda. R. at 16. The Board also reviewed the clinically normal in-service examinations and December 2003 post-service diagnoses for colitis cystica profunda and March 2012 post-service diagnoses for ulcerative colitis, gastritis, and peptic ulcer. R. at 17. The Board considered Mr. White's lay statements as to in-service onset, but considered the lack of in-service complaints and the competent medical evidence to carry more probative weight. R. at 18. The Board finally recognized current diagnoses of colon polyps and irritable colon syndrome and considered Mr. White's lay statement regarding blood symptoms since 1985, but found the STRs clinically negative for any symptoms or complaint of rectal bleeding and therefore found his lay statement at odds with the STRs. R. at 19-20. The Board further considered competent medical evidence to carry more probative weight than Mr. White's lay statements, but referenced no affirmative medical opinion against service connection. The Board did not discuss 1985 STRs showing blood in stool. This appeal followed.

II. JURISDICTION AND STANDARD OF REVIEW Mr. White's appeal is timely and the Court has jurisdiction to review the March 2019 Board decision pursuant to 38 U.S.C. §§ 7252(a) and 7266(a). Single-judge disposition is appropriate. See Frankel v Derwinski, 1 Vet.App. 23, 25-26 (1990). The duty to assist includes providing a medical examination or obtaining a medical opinion based upon a review of the evidence of record if VA determines it is necessary to decide the claim. 38 C.F.R. § 3.159(c)(4) (2020); see 38 U.S.C. § 5103A(d). The Board's determinations regarding the adequacy of a medical examination or opinion and service connection are findings of fact subject to the "clearly erroneous" standard of review. 38 U.S.C. § 7261(a)(4); see D'Aries v. Peake, 22 Vet.App. 97, 104 (2008); Nolen v. Gober, 14 Vet.App. 183, 184 (2000). "A factual finding 'is "clearly erroneous" when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.'" Hersey v. Derwinski, 2 Vet.App. 91, 94 (1992) (quoting United States v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948)); see Gilbert v. Derwinski, 1 Vet.App. 49, 52 (1990)

7

(explaining that the Court "is not permitted to substitute its judgment for that of the [Board] on issues of material fact" and therefore may not overturn the Board's factual determinations "if there is a 'plausible' basis in the record for [those] determinations"). As with any finding on a material issue of fact and law presented on the record, the Board must support its factual determinations with adequate reasons or bases that enable the claimant to understand the precise basis for that determination and facilitates review in this Court. 38 U.S.C. § 7104(d)(1); Gilbert, 1 Vet.App. at 56-57. To comply with this requirement, the Board must analyze the credibility and probative value of evidence, account for evidence that it finds persuasive or unpersuasive, and provide reasons for its rejection of material evidence favorable to the claimant. Caluza v. Brown, 7 Vet.App. 498, 506 (1995), aff’d per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table). The Board must also address all potentially favorable evidence. See Thompson v. Gober, 14 Vet.App. 187, 188 (2000) (per curiam order).

III. ANALYSIS A. Scope of Appeal As an initial matter, the Court notes that, in his informal brief, Mr. White indicates that he wishes to appeal the issue of entitlement to service connection for anal fistula, among other conditions. Appellant's Informal (Br.) at 1. However, the Court lacks jurisdiction to review service connection for anal fistula because it was not the subject of the Board decision currently on appeal. See Howard v. Gober, 220 F.3d 1341, 1344 (Fed. Cir. 2000) (holding that the Court's jurisdiction "'is premised on and defined by the Board's decision concerning the matter being appealed,' and when the Board has not rendered a decision on a particular issue, the [C]ourt has no jurisdiction to consider it under section 7252 (a)" (quoting Ledford v. West, 136 F.3d 776, 779 (Fed. Cir. 1998)). Additionally, Mr. White's informal brief goes on to cite medical evidence pertaining to his eye and colon disorders. Although the Board decision does not list each of the referenced conditions separately, it did adjudicate several claims for service connection for eye and colon problems and the Secretary does not appear to contest that these issues are on appeal. In fact, he concedes that remand is necessary for the issues of service connection for colon polyps and irritable colon syndrome and provides argument supporting the Board's findings regarding service connection for cystica profunda and rectal ulcer. Secretary's Br. at 9-10. Accordingly, the Court will consider those issues.

8

For each of the issues on appeal, Mr. White generally argues that the Board failed to ensure that VA fulfilled the duty to assist in providing an adequate medical examination or opinion, failed to consider favorable evidence, and provided inadequate reasons or bases for its findings. Appellant's Informal Br. at 3. B. Sinusitis, Rhinitis, Colon Polyps, Irritable Colon Syndrome, and Rectal Ulcer The Secretary concedes that the issues of entitlement to service connection for sinusitis, allergic rhinitis, colon polyps, and irritable colon syndrome require remand because the Board improperly based its findings on the absence of evidence and failed to determine whether medical opinions are required to decide the claims. Secretary's Br. at 10-13. He notes that, in denying service connection for these conditions, the Board cited the STRs as silent for complaint, diagnoses, or treatment for these conditions. Id.; R. at 13, 20. The Court agrees. The Board did not account for Mr. White's November 2014 statement reporting blood in his stool, indigestion, abdominal pain, and diarrhea since 1984 or 1985 and December 2016 testimony reporting allergies since basic training in August 1983. R. at 4405-06, 5520-25. These statements constitute material evidence that is potentially favorable to the veteran's claims because it explains the potential in-service onset and continuous symptoms of sinusitis, rhinitis, colon polyps, and irritable colon syndrome, which could weigh against the negative inferences that the Board drew from the absence of treatment records. See Fountain v. McDonald, 27 Vet.App. 258, 272 (2015) ("[T]he Board must first establish a proper foundation for drawing inferences against a claimant from an absence of documentation."); Horn v. Shinseki, 25 Vet.App. 231, 239 n.7 (2012) (citing FED. R. EVID. 803(7) and Buczynski v. Shinseki, 24 Vet.App. 221, 224 (2011), for the proposition that the absence of evidence cannot be substantive negative evidence without "a proper foundation . . . to demonstrate that such silence has a tendency to prove or disprove a relevant fact"). These statements are particularly significant in light of the Board's implied finding that VA medical examinations or opinions are not required for these claims. The Secretary additionally concedes that the Board erred when it failed to determine whether the veteran was entitled to medical examinations or opinions for these conditions. Secretary's Br. at 10, 12-13. Again, the Court agrees, and, although the Secretary does not concede that the Board erred in not addressing entitlement to a VA examination or opinion for rectal ulcer,

9

Secretary's Br. at 20-21, the Court concludes that the Board's reasons or bases are inadequate in that respect as well. The duty to assist includes providing a veteran with a medical examination and opinion when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the veteran qualifies; (3) an indication that the disability or persistent or recurrent symptoms of disability may be associated with the veteran's service or with another service-connected disability; and (4) insufficient competent evidence on file for the Secretary to make a decision on the claim. McLendon v. Nicholson, 20 Vet.App. 79, 81 (2006); see 38 U.S.C. § 5103A(d)(2); Waters v. Shinseki, 601 F.3d 1274, 1276-77 (Fed. Cir. 2010); 38 C.F.R. § 3.159(c)(4)(i). The Board noted the veteran's diagnoses for sinusitis and gastrointestinal bleeding with diarrhea and colon polyps. R. at 13, 19. Mr. White's STRs additionally reflect that he sought treatment for allergies in August 1983, reported painful bowel movements assessed as rectal fissure in February 1984, and complained of possible piles with bleeding in March 1985. R. at 5325, 5326, 5335. The Board also reviewed Mr. White's lay statement reporting blood in his stool, indigestion, abdominal pain, and diarrhea since 1984 or 1985 and testimony reporting allergies since basic training in August 1983. R. at 4405-06, 5520-25. At his December 2016 DRO hearing, Mr. White further emphasized that these conditions have required medication or treatment since service. R. at 4413. Yet the Board never considered this evidence as providing evidence of potential in-service onset and persistent symptoms of sinusitis, rhinitis, colon polyps, irritable colon syndrome, and rectal ulcer for examination purposes, and offered no explanation for the lack of examinations or discussion of this evidence in relation to the McLendon factors. R. at 12-13. Moreover, despite the fact that Mr. White had undergone VA medical examinations for rectum and anus conditions in September 2013 and September 2014, R. at 5748-5750, 6198-6201, the Board did not discuss the adequacy of those examinations in relation to his claims of service connection for colon polyps, irritable colon syndrome, or rectal ulcer. R. at 16-18, 19-20. Curiously, the Board discussed the May 2012 examination report as including an opinion on the etiology of ulcers, without distinguishing between peptic and rectal ulcers, when the examination report itself refers only to peptic ulcers. R. at 17, 6680-81. The Board then found the veteran not competent to provide an etiological opinion for rectal ulcers and denied service connection by

10

assigning more probative weight to the purported medical opinion as to causation, even though the May 2012 examination report does not contain a causation opinion for rectal ulcer. R. at 18. The Court concludes that the Board failed to provide adequate reasons or bases for its implicit determination that the duty to assist did not require VA examinations or opinions for the foregoing claims for service connection. The claims, therefore, must be remanded for the Board to revisit its implied duty-to-assist determination. See McLendon, 20 Vet.App. at 84-86; see also Tucker v. West, 11 Vet.App. 369, 374 (1998) (holding that remand is the appropriate remedy "where the Board has incorrectly applied the law, failed to provide an adequate statement of reasons or bases for its determinations, or where the record is otherwise inadequate"). C. Hypertension or Hypertensive Vascular Disease and Peptic Ulcer The Secretary also concedes that the Board failed to adjudicate the theory of direct service connection for hypertension, citing the March 2018 VA medical opinion that only addressed secondary service connection. Secretary's Br. at 13. The Court agrees. When VA provides the claimant with a medical examination or obtains a medical opinion, the Secretary must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet.App. 303, 311 (2007). A VA medical opinion is adequate "where it is based upon consideration of the veteran's prior medical history and examinations," Stefl v. Nicholson, 21 Vet.App. 120, 123 (2007), "describes the disability . . . in sufficient detail so that the Board's 'evaluation of the claimed disability will be a fully informed one'," id. (quoting Ardison v. Brown, 6 Vet.App. 405, 407 (1994)), and "sufficiently inform[s] the Board of a medical expert's judgment on a medical question and the essential rationale for that opinion," Monzingo v. Shinseki, 26 Vet.App. 97, 105 (2012). See Acevedo v. Shinseki, 25 Vet.App. 286, 293 (2012) ("[A]n adequate medical report must rest on correct facts and reasoned medical judgment so as [to] inform the Board on a medical question and facilitate the Board's consideration and weighing of the report against any contrary reports."); Nieves-Rodriguez v. Peake, 22 Vet.App. 295, 301 (2008) ("[A] medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two."). As the Secretary acknowledges, the March 2018 examiner did not opine on the likelihood of a direct linkage between Mr. White's service and hypertension. R. at 2395. Additionally, there is no indication that the examiner considered Mr. White's in-service blood pressure readings or reported medical history of taking hypertension medication from within the first year following

11

his separation from service to the present. R at 4410, 4413. Instead, the examiner considered only the relationship between the veteran's PTSD and chronic diseases including heart failure. Although the examiner explained that there are numerous causes of hypertension, including age, sex, race, weight, diet, and family history, R. at 2395, the examiner failed to consider Mr. White's individual medical history in relation to the known causes of hypertension, hypertensive heart disease, or congestive heart failure. Id.; see Nieves-Rodriguez, 22 Vet.App. at 304 ("The Board must be able to conclude that a medical expert has applied medical analysis to the significant facts of the particular case in order to reach the conclusion submitted in the medical opinion."); Stefl, 21 Vet.App. at 123. This opinion is inadequate for failing to consider direct service connection based on Mr. White's specific medical history. See Monzingo, 26 Vet.App. at 105; Acevedo, 25 Vet.App. at 293; Nieves-Rodriguez, 22 Vet.App. at 301; Stefl, 21 Vet.App. at 123. Therefore, the Court concludes that the Board clearly erred in relying on the March 2018 medical opinion to deny service connection for hypertension or hypertensive heart disease. See D'Aries, 22 Vet.App. at 104; Ardison, 6 Vet.App. at 407. Accordingly, remand is warranted to obtain a medical opinion that adequately addresses the potential relationship between those conditions and service. See Barr, 21 Vet.App. at 311; Tucker, 11 Vet.App. at 374. The Secretary further concedes that the Board's denial of presumptive service connection for hypertension or hypertensive heart disease was conclusory and failed to consider continuity of symptoms. Secretary's Br. at 14-15. Again, the Court agrees. And although the Board failed to consider presumptive service connection for peptic ulcer, R. at 16-18, and the Secretary does not concede error in that regard, Appellant's Br. at 2; Secretary's Br. at 20-21, the Court concludes that remand is warranted for the peptic ulcer claim as well. Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a link between the claimed in-service disease or injury and the present disability. Romanowsky v. Shinseki, 26 Vet.App. 289, 293 (2013). For chronic diseases listed in 38 C.F.R. § 3.309(a)—including both hypertension and peptic ulcer —service connection may be established by showing continuity of symptoms, which requires a claimant to demonstrate (1) that a condition was "noted" during service; (2) evidence of post-service continuity of symptoms; and (3) medical or, in certain circumstances, lay evidence of a link between the present disability and the continuity of symptoms. 38 C.F.R. §§ 3.303(b) (2020), 3.309(a) (2020); see Walker v. Shinseki, 708 F.3d

12

1331, 1340 (Fed. Cir. 2013) (holding that only those chronic diseases listed in § 3.309 are subject to service connection by continuity of symptoms described in § 3.303(b)); Savage v. Gober, 10 Vet.App. 488, 496 (1997) (noting that "symptoms, not treatment, are the essence of any evidence of continuity of symptom[s]"). Both hypertension and peptic ulcers are chronic disease listed in § 3.309(a). Here, Mr. White has argued that he has continuously taken medication for his hypertension since within one year following his separation from service, and that he was put on a profile for ulcers during service and has required treatment ever since. R. at 4406-07, 4410, 4413. Yet the Board failed to address presumptive service connection based on continuity of symptoms for either condition. R. at 13- 18. Because the record reasonably raised that theory of entitlement, the Board was required to discuss it. See Robinson v. Peake, 21 Vet.App. 545, 553 (2008) (holding that the Board is required to address all theories of entitlement that are either expressly raised by the claimant or reasonably raised by the record), aff'd sub nom. Robinson v. Shinseki, 557 F.3d 1355 (Fed. Cir. 2009); Schafrath v. Derwinski, 1 Vet.App. 589, 593 (1991) (concluding that the Board errs when it fails to discuss a potentially applicable provision of law). Accordingly, the Court concludes that the Board erred by not providing adequate reasons or bases for its determination that service connection for hypertension or hypertensive vascular disease and peptic ulcer was not warranted. See Swann v. Brown, 5 Vet.App. 229, 232 (1993); Gilbert, 1 Vet.App. at 57; see also Tucker, 11 Vet.App. at 374. D. Defective Vision, Dry Eye Syndrome, and Chronic Squamous Blepharitis The Secretary does not concede remand for any of Mr. White's eye conditions. Secretary's Br. at 18-20. He argues that the Board provided an adequate statement of reasons or bases for the denials of service connection based on the May 2012 VA medical opinion. Secretary's Br. at 19. Mr. White argues that the VA examination was inadequate, Appellant's Br. at 3, and the Secretary does not defend the adequacy of the May 2012 VA examination, Secretary's Br. at 19. The Board noted in-service diagnosis for arcus senilis and treatment for swelling around his eyes, with current diagnoses of refractive error, astigmatism, presbyopia, squamous blepharitis, and . R. at 10-11. The May 2012 VA examiner explained that arcus senilis is not a degenerative disease of the cornea, but can be a sign of hypercholestemia. R. at 6640. The examiner opined that there is no connection between arcus senilis and blepharitis or dry eye syndrome and, hence, no relation between either condition and Mr. White's service. R. at 6645.

13

However, the examiner did not address any other possible in-service event or cause, including documented treatment for allergies, and did not provide opinions as to the veteran's other claimed eye disorders. The May 2012 VA opinion is inadequate for failing to consider service connection for each of Mr. White's claimed eye conditions based on his specific medical history, see Monzingo, 26 Vet.App. at 105; Acevedo, 25 Vet.App. at 293; Nieves-Rodriguez, 22 Vet.App. at 301; Stefl, 21 Vet.App. at 123, and the Court therefore concludes that the Board clearly erred in relying on that opinion to deny service connection for Mr. White's claimed eye conditions. See D'Aries, 22 Vet.App. at 104; Ardison, 6 Vet.App. at 407. Accordingly, remand is warranted to obtain a medical opinion that adequately addresses those conditions. See Barr, 21 Vet.App. at 311; Tucker, 11 Vet.App. at 374. E. Ulcerative Colitis, Chronic Gastritis, and Colitis Cystica Profunda The Secretary also does not concede remand for the issues of service connection for ulcerative colitis, chronic gastritis, and colitis cystica profunda. Secretary's Br. at 20-21. Instead, the Secretary asserts that the Board's denials of service connection for these conditions have a plausible basis in the record based on consideration of all the relevant evidence of record and were adequately explained. Secretary's Br. at 19-21. The Court is not persuaded by the veteran's arguments to the contrary. Mr. White specifies that the Board failed to consider a November 2003 colonoscopy report showing a pre-operative diagnosis of gastritis and post-operative diagnosis of a rectal polyp. Appellant's Br. at 1, 2; R. at 5373, 7035.5 But the Board considered this November 2003 colonoscopy report as it relates to his claimed ulcerative colitis, chronic gastritis, and colitis cystica profunda. Secretary's Br. at 21; R. at 18. He also generally argues that the May 2012 VA examination was inadequate to adjudicate these claims, but he fails to identify any specific inadequacy in the examination or opinions. Appellant's Br. at 3. Nor do his citations to the record relate to the May 2012 examination report. Appellant's Br. at 1-2. Nevertheless, the Court notes that the examiner, like the Board, considered the November 2003 colonoscopy, as well as the veteran's medical history of surgery in 2011 for ulcerative colitis and colitis cystica profundal. R. at 6555, 6659. Prior to offering his opinion, the

5 Although the veteran argues that the Board failed to address other favorable evidence, the evidence he cites pertains to his claimed eye conditions and hypertension. Appellant's Br. at 1-2 (citing R. at 5325, 7095, 6896, 7046, 7057).

14

examiner further diagnosed gastritis and considered Mr. White's report of current symptoms including intermittent epigastric pain, GERD, heartburn, and periodic abdominal pain, diarrhea, and gaseous distention. R. at 6556, 6660, 6703-04, 6706. The examiner addressed each claimed condition in turn and supported his opinion with the rationale that there is no pathophysiological relationship between the claimed conditions and the symptoms Mr. White experienced in service. R. at 6696, 6686, 6691. Mr. White has therefore failed to demonstrate that the Board committed prejudicial error in failing to consider favorable evidence or in relying on the May 2012 VA examination and opinion. See Hilkert v. West, 12 Vet.App. 145, 151 (1999) (en banc) (holding that the appellant has the burden of demonstrating error), aff'd per curiam, 232 F.3d 908 (Fed. Cir. 2000) (table); see also Monzingo, 26 Vet.App. at 105; Acevedo, 25 Vet.App. at 293; Nieves-Rodriguez, 22 Vet.App. at 301; Stefl, 21 Vet.App. at 123. Finally, regarding the Board's reasons or bases, the Board reviewed the August 1985 report of piles or rectal disease, the November 2003 report of gastritis, and the December 2003 diagnosis of colitis cystica profundal; it also reviewed evidence reflecting current diagnoses for ulcerative colitis, chronic gastritis, and colitis cystica profunda. R. at 16-18. It ultimately denied service connection because it concluded that the May 2012 examiner's opinion outweighed Mr. White's lay statements that his claimed conditions are due to service. In so doing, the Board permissibly found that, although Mr. White is competent to report observable symptoms, he is not competent to provide the required etiological opinion regarding his current disabilities. R. at 18; see Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Mr. White does not argue that the Board's reasons or bases are inadequate in any other respect and the Court discerns no error in the Board's analysis. Accordingly, the Court will affirm the Board's decision denying service connection for ulcerative colitis, chronic gastritis, and colitis cystica profunda, as he has failed to demonstrate remandable error as to those issues. See Hilkert, 12 Vet.App. at 151.

IV. CONCLUSION Upon consideration of the foregoing, the portions of the March 19, 2019, Board decision denying service connection for allergic or vasomotor rhinitis, sinusitis, colon polyps, irritable colon syndrome, rectal ulcer, hypertension or hypertensive vascular disease, peptic ulcer, defective

15

vision of both eyes, dry eye syndrome, and chronic squamous blepharitis of both eyes are SET ASIDE and REMANDED for further development and readjudication consistent with this decision. The portions of the March 19, 2019, Board decision denying service connection for ulcerative colitis, chronic gastritis, and colitis cystica profunda are AFFIRMED. The balance of the appeal is DISMISSED.

DATED: December 22, 2020

Copies to:

David B. White

VA General Counsel (027)

16