Citation Nr: 1315552 Decision Date: 05/10/13 Archive Date: 05/15/13 DOCKET NO. 98-19 107 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUE Entitlement to service connection for ulcerative colitis, to include as secondary to service-connected hemorrhoids. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARINGS ON APPEAL Appellant ATTORNEY FOR THE BOARD Thomas H. O'Shay, Counsel INTRODUCTION The Veteran served on active duty from December 1971 to February 1974. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2002 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi. The Veteran has been afforded three Board hearings-in June 2003, March 2008, and March 2012. See Arneson v. Shinseki, 24 Vet. App. 379 (2011). This appeal was previously before the Board in January 2004, at which time it was remanded in pertinent part to obtain outstanding VA treatment records; to obtain a VA examination; and to provide proper notice. This appeal was again before the Board in March 2006, at which time it was remanded to address the theory of service connection for ulcerative colitis on a secondary basis in a statement of the case. This appeal was next before the Board in July 2008, at which time the issue was clarified as whether new and material evidence had been received. The issue was remanded in order to obtain outstanding Social Security disability records. This appeal was again before the Board in April 2009, at which time it was remanded in order to provide the Veteran appropriate notice regarding the pre-2001 definitions of new and material evidence, and the reasons that his claim had been previously denied. The appeal was, however, again remanded in March 2010 because the June 2009 notice issued by VA was inadequate. This appeal was remanded again in November 2011, this time to afford the Veteran a hearing before a third Veterans Law Judge. In August 2012, the Board determined that new and material evidence had been received to reopen the claim of service connection for ulcerative colitis. The Board remanded the reopened claim for a VA examination addressing the several theories involved in this case. The case was returned to the Board in February 2013. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND Unfortunately, another remand of the claim is required in this case. The Board is aware that this case has already been remanded seven times, and sincerely regrets the additional delay. As explained below, however, the Agency of Original Jurisdiction (AOJ) did not comply with the Board's instructions contained in the August 2012 remand. As a result, the Board is compelled to remand the case for compliance with those instructions. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The Board's August 2012 remand instructed the AOJ to afford the Veteran a VA examination to obtain medical opinions as to whether it was at least as likely as not that the Veteran's ulcerative colitis was related to service; or was caused or worsened by the Veteran's service-connected hemorrhoids, to include any etiological relationship to medications prescribed for the treatment of hemorrhoid symptoms. The record shows that the Veteran thereafter was examined by VA in October 2012. With respect to direct service connection, the examiner concluded that the ulcerative colitis was not incurred in service or caused by in-service injury, event or illness. In explanation, the examiner noted that the first post-service documentation of ulcerative colitis was in 1984. He acknowledged that the Veteran now claims he experienced symptoms of ulcerative colitis as early as 1973, and noted that it was certainly possible that the ulcerative colitis began during that timeframe, but that it would be speculative to conclude that the ulcerative colitis in fact began then, in the absence of objective clinical findings. The examiner did note that he reviewed a "letter" from a treating gastroenterologist by the name of Dr. Alfred McNair, who reportedly indicated that the Veteran was first diagnosed with ulcerative colitis in 1974. The examiner indicated that if Dr. McNair's treating records of the Veteran could be obtained for review, this might clarify the matter of the onset. It is unclear what "letter" from a Dr. McNair the examiner referred to in his report. The Board finds that further development may be necessary in this regard to ensure that the record is complete. As to secondary service connection, the examiner concluded that the service-connected hemorrhoids did not cause the ulcerative colitis, noting that there is no basis in the "medical literature" to establish that hemorrhoids and the treatment for hemorrhoids causes such a disease. The examiner did not in any manner respond to the Board's instruction to address whether the Veteran's service-connected hemorrhoids, or treatment therefor, aggravated the ulcerative colitis. Given the examiner's reference to the need to see records from a Dr. McNair, and in light of the examiner's failure to offer an opinion concerning the possibility that the ulcerative colitis was aggravated by the service-connected hemorrhoids, the Board finds that remand is necessary. Accordingly, the case is REMANDED for the following actions: 1. The AOJ should contact the Veteran and request that he identify the address of Dr. Alfred McNair, and the approximate dates he was treated by that individual. When the requested information and any necessary authorization have been received, the AOJ should attempt to obtain copies of all pertinent records from Dr. McNair. 2. Thereafter, forward the claims files to the same physician who conducted the October 2012 VA examination. The examiner should be requested to review the claims file, including any evidence added to the file after the October 2012 examination and provide an opinion as to whether it is at least as likely as not that the Veteran's ulcerative colitis is etiologically related to service. The examiner must also provide an opinion as to whether it is at least as likely as not that the Veteran's ulcerative colitis was chronically worsened (i.e., aggravated) by the Veteran's service-connected hemorrhoids, to include medications taken therefor. The examiner must provide a rationale for each opinion offered. If any opinion and supporting rationale cannot be provided without invoking processes relating to guesses or judgment based upon mere conjecture, the examiner should clearly and specifically so specify in the report, and explain why this is so. In this regard, if the examiner concludes that there is insufficient information to provide an etiologic opinion without result to mere speculation, the examiner should state whether the inability to provide a definitive opinion was due to a need for further information (with said needed information identified) or because the limits of medical knowledge had been exhausted regarding the etiology of the Veteran's psychiatric pathology. See Jones v. Shinseki, 23 Vet. App. 383 (2010). 3. If and only if the examiner who conducted the October 2012 VA examination is not available, the AOJ should arrange for a VA examination of the Veteran to determine the nature and etiology of any current ulcerative colitis. The Veteran's claims file must be forwarded to the VA examiner for review. The examiner is to provide an opinion as to whether it is at least as likely as not (50 percent or higher probability) that any ulcerative colitis is related to service, to include an in-service injury, and whether it is at least as likely as not that the Veteran's ulcerative colitis was caused or chronically worsened (i.e., aggravated) by the Veteran's service-connected hemorrhoids (to include any etiological or causal relationship to medications prescribed for treatment of hemorrhoid symptoms). The examiner should provide a rationale for all opinions reached. In addition, the examiner should discuss the Veteran's description of reported early symptomatology and its progression. If any opinion and supporting rationale cannot be provided without invoking processes relating to guesses or judgment based upon mere conjecture, the examiner should clearly and specifically so specify in the report, and explain why this is so. In this regard, if the examiner concludes that there is insufficient information to provide an etiologic opinion without result to mere speculation, the examiner should state whether the inability to provide a definitive opinion was due to a need for further information (with said needed information identified) or because the limits of medical knowledge had been exhausted regarding the etiology of the Veteran's psychiatric pathology. See Jones v. Shinseki, 23 Vet. App. 383 (2010). 4. After conducting any additional development deemed necessary, readjudicate the claim. If the benefit sought on appeal remains denied, the Veteran and his representative should be issued a supplemental statement of the case, and given an opportunity to respond before the case is returned to the Board. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). _________________________ _________________________ T. Stephen Eckerman Steven D. Reiss Acting Veterans Law Judge Veterans Law Judge Board of Veterans' Appeals Board of Veterans' Appeals _________________________ James L. March Veterans Law Judge Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2012).