Citation Nr: 1332358 Decision Date: 10/18/13 Archive Date: 10/24/13 DOCKET NO. 07-31 718 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUES 1. Entitlement to service connection for a gastrointestinal disorder, to include colitis. 2. Entitlement to service connection for a skin disorder, to include a fungal infection of the feet. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD N. Holtz, Associate Counsel INTRODUCTION The Veteran served on active duty from March 1968 to January 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2007 rating decision by the Togus, Maine Regional Office (RO) of the Department of Veterans Affairs (VA). The claims were certified for appeal by the Pittsburgh, Pennsylvania RO. The Board remanded these matters in May 2009, and again in August 2011, for additional development. In March 2009, the Veteran testified before the undersigned Veterans Law Judge at a Travel Board Hearing at the RO in Pittsburgh, Pennsylvania. A transcript of that 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 issues on appeal must be remanded, as the report of the examination provided the Veteran following the most recent Board remand is inadequate to adjudicate the claims. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (holding that when VA undertakes to provide an examination, the examination, and ensuing report, must be adequate). Concerning the claim of entitlement to service connection for a gastrointestinal disorder, the report is deficient in that it (a) fails to provide a clear diagnosis of the Veteran's condition, and (b) relies on an inaccurate factual history to determine that the current diagnosis is unrelated to service. Regarding the current diagnosis, the examiner made conflicting statements. The diagnosis listed at the end of the report was "amebic dysentery colitis, resolved." No other gastrointestinal disorder was diagnosed. Given the August 2011 remand instruction, i.e., "to determine the etiology of any current gastrointestinal disorder," such a diagnosis suggests that no gastrointestinal disorder is present. Contradicting that suggestion, however, is the fact that the examiner proceeded to state that "the Veteran's current [gastrointestinal disorder] is not caused by or secondary to the amebic colitis dysentery, which was diagnosed and treated while on active duty. . . . The current gastrointestinal disorder is most likely the biology of this Veteran, dietary changes [sic]." Thus, on remand, the examiner must clarify the question of whether the Veteran has a current gastrointestinal disorder. The examiner also failed to consider the Veteran's complete gastrointestinal history. The examiner stated that the only treatment for diarrhea occurred in April 2001, but reports in the claims file indicate more frequent treatment: in March 2006, the appellant was seen by VA with a history of cramping and diarrhea; according to an April 2008 counseling note, the Veteran reported that his colitis had acted up over the previous weekend; in May 2008, he reported intermittent diarrhea accompanied by abdominal cramping and significant volume loss. Additionally, the Veteran competently reported that he had treatment for colitis in 1975 and 2000. Layno v. Brown, 6 Vet. App. 465, 470 (1994) (providing that a Veteran is competent to report on that of which he has personal knowledge). These factual inaccuracies damage the probative value of the examiner's opinion. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302 (2008) (holding that a medical opinion that is not factually accurate, fully articulated, or based on sound reasoning, is not probative). With regard to the claimed skin condition, the September 2011 examiner diagnosed the Veteran with tinea pedis and onychomycosis. In addressing the etiology of the foot disability, however, the examiner relied solely on the lack of in-service medical records to support her opinion that the Veteran's tinea pedis and onychomycosis of the bilateral feet were unrelated to service. The absence of in-service treatment is not a sufficient rationale for a negative nexus opinion. See Dalton v. Nicholson, 21 Vet. App. 23, 39 (2007) (holding that an examination report was inadequate where an examiner failed to comment on Veteran's report of in-service injury and relied on lack of evidence in service medical records to provide negative opinion). While the service treatment records do not document a skin disorder of the feet, the Veteran has consistently maintained that his foot problems, including fungal infections of his nails resulting in onychomycosis and tinea pedis, have persisted since his military service. He is competent report a history of problems regarding the skin on his feet since service. Further, the Veteran has indicated that he has been treated by private physicians in the 1970s and 1980s, but that those records are no longer available. Finally, the Veteran has also asserted that his gastrointestinal disorder and skin disorder could be related to exposure to Agent Orange. As the Veteran served in Vietnam, he is presumed to have been exposed to herbicides during service. 38 C.F.R. § 3.307(a)(6)(iii) (2013). Accordingly, the case is REMANDED for the following action: 1. Return the claims file to the examiner who provided the September 2011 examination. The examiner must review the September 2011 report, the claims file, any relevant documents on Virtual VA, and the directives of this Remand. The ensuing addendum must indicate that such a review occurred. The examiner must then address the following questions, with a fully supported rationale based on her training, knowledge, and experience: (a) Is it at least as likely as not, i.e., is there a 50/50 chance, that any diagnosed skin disorder, to include onychomycosis and tinea pedis, (i) began during service, (ii) is due to an event or injury during service (including exposure to herbicides), and/or (iii) is otherwise etiologically related to his active duty service? (b) Does the Veteran have, and/or at any time during the present appeal (since April 2006) has he had, a current gastrointestinal disorder? (c) If so, is it at least as likely as not, i.e., is there a 50/50 chance, that any diagnosed gastrointestinal disorder (i) began during service, (ii) is due to an event or injury during service (including exposure to herbicides and/or amebic dysentery colitis), and/or (iii) is otherwise etiologically related to his active duty service? The examiner must provide a full rationale in support of any opinion offered. If she is unable to answer the questions presented without resort to speculation, she must indicate why a response would be speculative. The examiner should note that the mere fact that the current skin and gastrointestinal disorders do not warrant presumptive service connection (see 38 C.F.R. § 3.309(e) (2013)) is not a valid basis for an opinion that those disorders are unrelated to herbicide exposure. If the September 2011 examiner is unavailable, then the requested opinions must be obtained from a similarly qualified medical professional. No examination is required unless deemed necessary by a medical professional for purposes of addressing the issues presented. 2. After the development requested has been completed, the RO should review the addendum to ensure that it is in complete compliance with the directives of this REMAND. The AMC/RO must ensure that the examiner documented his consideration of Virtual VA. If the report is deficient in any manner, the RO must implement corrective procedures at once. 3. Then, readjudicate the claims. If any benefit sought on appeal is not granted to the Veteran's satisfaction, he and his representative must be furnished a supplemental statement of the case and provided an appropriate opportunity to respond before the claims folder is returned to the Board for further appellate action. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims 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 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. 2013). _________________________________________________ DEREK R. BROWN 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) (2013).