Citation Nr: 1328866 Decision Date: 09/10/13 Archive Date: 09/17/13 DOCKET NO. 10-44 120A ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois THE ISSUE Entitlement to service connection for Crohn's disease. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD C. L. Wasser, Counsel INTRODUCTION The Veteran served on active duty from November 2001 to June 2006, including service in Iraq. This case comes to the Board of Veterans' Appeals (Board) on appeal from a July 2009 rating decision of the RO in Sioux Falls, South Dakota, that in pertinent part, denied entitlement to service connection for Crohn's disease. In August 2011, the Veteran testified at a Board videoconference hearing before the undersigned Veterans Law Judge. A transcript of this hearing is of record. 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 The Veteran claims that he has Crohn's disease that began during his military service in Iraq. He asserts that he has had continuous gastrointestinal symptoms since that time, to include diarrhea, abdominal pain, and constipation, but that he was not given a diagnosis for his condition until 2009. The claims file contains a lay statement from his wife that supports his contentions, who stated that she met the Veteran in November 2005, and that since then he had stomach cramps, and used the toilet very frequently. The Veteran's representative contends that the fact that hemorrhoids were noted during service in January 2006 is supportive of this claim, as this suggests he had chronic diarrhea and constipation, which can cause hemorrhoids. Evidence of record reflects that the Veteran was diagnosed with Crohn's disease in April 2009. A May 2009 VA outpatient treatment record reflects that the Veteran reported a four-year history of diarrhea. The Veteran has provided statements and testimony to the effect that he sought treatment for his gastrointestinal complaints and very frequent diarrhea during service in Iraq, but was not given medication for his complaints and was told that it was due to stress and would go away. He stated that on post-deployment questionnaire, he reported that he had ulcers because he had constant stomach pain, but did not know what he had. He has also stated that he did not report his gastrointestinal symptoms prior to leaving Iraq, because he was told that if he reported any complaints, his return to the U.S. would be delayed. The available service treatment records (STRs) do not reflect treatment for Crohn's or other gastrointestinal complaints, other than a single episode of gastroenteritis in 2002. Service personnel records reflect that the Veteran served in Iraq from November 2004 to November 2005. There are no STRs dated during his Iraq service, but only pre- and post-deployment questionnaires, and a November 2005 medical assessment. Accordingly, the Board finds that this case must be remanded for an attempt to obtain any additional STRs, to include any that are dated during his November 2004 to November 2005 period of service in Iraq. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c)(2). On VA examination in June 2009, the VA examiner diagnosed Crohn's disease, and opined that the March 2002 episode of gastroenteritis was less than likely to represent the first manifestation of Crohn's disease. He added that the Veteran reported that his bowel movements changed when he was in Iraq, and he had diarrhea that started at that time and continued to this day. The examiner stated that because of the lack of any documentation, other than the Veteran's own history, it was not possible to give an opinion as to whether the Veteran's diarrhea starting in 2005 was the first manifestation of his current Crohn's disease without resorting to mere speculation. The Board finds that the VA examiner did not provide an adequate opinion. As noted, the examiner's rationale for his conclusion that he could only speculate as to onset of Crohn's disease was because there is no documentation regarding the Veteran's reported change in bowel movements in 2005 in Iraq with continuing symptoms since that time. However, the examiner does not explain why he discounted the Veteran's competent statements as to ongoing gastrointestinal problems since 2005. See Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (finding that a VA medical opinion was inadequate where the examiner failed to consider whether the Veteran's lay statements presented sufficient evidence of the etiology of the claimed disability); Dalton v. Nicholson, 21 Vet. App. 23, 39 (2007) (holding that the VA examiner's opinion was inadequate where the examiner impermissibly ignored the appellant's lay assertions that he had sustained a back injury during service). Further, the examiner was unable to review the statement of the Veteran's spouse received in June 2005 in which she described her observations of the Veteran's gastrointestinal symptoms since 2005. Moreover, subsequent VA outpatient treatment records dated in August and September 2009 reflect that gastrointestinal studies revealed "marked involvement" with stricturing and dilated loops. On remand, the VA examiner should consider these VA treatment records. The Board finds that another VA medical opinion must be obtained from an appropriate VA examiner. 38 U.S.C.A. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4). See also McLendon v. Nicholson, 20 Vet. App. 79 (2006) and Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010). Relevant ongoing VA or private treatment records should also be obtained. See also 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c)(1) and (c)(2); and Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency and must be obtained if they could be determinative of the claim). Accordingly, the case is REMANDED for the following action: 1. Attempt to obtain any additional STRs, to include any STRs dated from November 1, 2004 to November 30, 2005. Document all efforts to obtain these additional records. If any attempts and necessary follow-up attempts to obtain any additionally identified records prove unsuccessful, and it is determined that further attempts would prove futile, then document this in the file and notify the Veteran of this in accordance with 38 C.F.R. § 3.159(e). 2. Ask the Veteran to provide the names and addresses of all VA or private medical care providers that have evaluated or treated him for any gastrointestinal disorder since March 2010. With his authorization, obtain all identified records that are not already in the claims file. 3. Then, forward the claims file to an appropriate VA examiner to obtain a medical opinion concerning the etiology of current Crohn's disease. Based on review of the claims file, including a complete copy of this remand, the examiner is asked to indicate the likelihood (very likely, as likely as not, or unlikely) that current Crohn's disease is related to service. The examiner should comment on the Veteran's reported history of frequent diarrhea for years prior to his diagnosis of Crohn's disease, the statement of the Veteran's spouse received in June 2010, the medical evidence, and the theory by the Veteran's representative that the hemorrhoids noted during service in January 2006 are supportive of this claim. The examiner is advised that the Veteran and other lay persons are competent to report injuries and symptoms, and that lay reports must be considered in formulating the requested opinion. If the lay evidence is discounted, the examiner should provide a reason for doing so. If an opinion cannot be expressed without resort to speculation, discuss why this is the case. In this regard, indicate whether the inability to provide a definitive opinion is due to a need for further information or because the limits of medical knowledge have been exhausted regarding the etiology of the disability at issue or because of some other reason. The examiner must discuss the rationale of any opinion offered, whether favorable or unfavorable, based on the information obtained from review of the record, if necessary citing to specific evidence in the file. 4. Then, after completion of this additional development and any other development deemed warranted, readjudicate this claim for service connection for Crohn's disease in light of all additional evidence received since the October 2010 statement of the case. If this claim is not granted to the Veteran's satisfaction, send him and his representative a supplemental statement of the case and give them an opportunity to respond before returning the file to the Board for further appellate consideration of this claim. 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 of Veterans' Appeals or by the United States Court (Continued on the next page) 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). _________________________________________________ S. L. Kennedy Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals 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).