Citation Nr: 1333640 Decision Date: 10/24/13 Archive Date: 10/24/13 DOCKET NO. 09-17 544 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUE Entitlement to service connection for a digestive system disability manifested by acid reflux, polyps in the throat and esophagus, bacteria, and a hole in the stomach, to include as due to an undiagnosed illness. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Catherine Cykowski, Counsel INTRODUCTION The Veteran had active duty service from August 1979 to March 1992. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana. The Veteran and his spouse testified at a hearing at the RO in December 2008 on the issue of service connection for a disability manifested by acid reflux, polyps in the throat and esophagus, bacteria, and a hole in the stomach, to include as due to undiagnosed illness. In January 2013 and June 2013, the Board remanded this matter for additional development. 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 is seeking entitlement to service connection for a disability manifested by acid reflux, polyps in the throat and esophagus, bacteria, and a hole in the stomach, to include as due to undiagnosed illness. The Board remanded the claim in June 2013. The remand requested an addendum opinion from the VA examiner who performed a VA examination in February 2013 and provided an addendum opinion in March 2013. The instructions in the June 2013 remand asked the VA examiner to identify all gastrointestinal symptoms and/ or diagnoses. The VA examiner was requested to provide a medical statement explaining whether the Veteran's disability pattern is: (1) an undiagnosed illness, (2) a diagnosable but medically unexplained chronic multisymptom illness of unknown etiology, (3) a diagnosable chronic multisymptom illness with a partially explained etiology, or (4) a disease with a clear and specific etiology and diagnosis. The remand further instructed the VA examiner that, after examining the Veteran and reviewing the claims file, the examiner should determine whether the Veteran's disability pattern is either a diagnosable chronic multisymptom illness with a partially explained etiology or a disease with a clear and specific etiology and diagnosis, to provide a medical opinion, with supporting rationale, as to whether it is "at least as likely as not" (50 percent or greater probability) that the disability pattern or diagnosed disease for gastrointestinal problems is related to a specific exposure event experienced by the Veteran during service in Southwest Asia or otherwise to service. The VA examiner was also instructed to consider the Veteran and spouse's lay statements about the Veteran having experienced relevant symptoms, including chronic diarrhea, while in service. The examiner was asked to provide a rationale for the opinion, citing to specific evidence in the file. An addendum opinion was obtained from the examiner in June 2013. The VA examiner noted that, based on the result of the previous examination, the Veteran denied having gastrointestinal symptoms following the surgery to "repair a hole in the stomach." The VA examiner stated that, based on the medical history provided by the Veteran, his condition represented a disease with a clear and specific etiology and diagnosis which is less likely than not related to a specific exposure event experienced by the Veteran during service in Southwest Asia or otherwise related to service. The Board finds that the June 2013 addendum opinion did not comply with the remand instructions. The June 2013 addendum opinion did not address all of the gastrointestinal symptoms reported by the Veteran. The February 2013 examination shows that the Veteran reported that his GERD symptoms resolved after his surgery. However, the examination report shows that the Veteran reported gastrointestinal symptoms, including stomach cramps, gas and diarrhea. The VA examiner opined that the Veteran's symptoms are due to a known diagnosis, but the VA examiner did not specifically state a current diagnosis for the condition. The opinion did not address the lay statements of the Veteran or his spouse, which indicated that the Veteran's symptoms began in service and persisted since then. See also May 2013 statement of the Veteran. The VA examiner also did not provide a rationale for the opinion that the Veteran's condition is not related to service. The Veteran is entitled to substantial compliance with the terms of the Board's Remand. See Stegall v. West, 11 Vet. App. 268 (1998). The Board finds that a remand is necessary in order to obtain a new VA examination. Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for a new VA examination for his claimed digestive condition. If possible, the VA examination should be performed by a different examiner. The claims file and a copy of this remand should be made available to the examiner for review, and the examination report should indicate that the claims file was reviewed. The VA examiner should identify all current digestive system symptoms and/or diagnoses. The VA examiner should determine specifically whether any current symptoms or diagnosed disorder is related to the Veteran's military service and/or is part of an undiagnosed illness or chronic multi-symptom illness due to service in the Gulf War. The VA examiner should provide an opinion explaining whether the Veteran's has objective indications (signs or symptoms) of: (1) an undiagnosed illness, (2) a diagnosable but medically unexplained chronic multisymptom illness of unknown etiology (including functional gastrointestinal disorders --see 38 C.F.R. § 3.317(a)(2)(B)(3) (2012)), (3) a diagnosable chronic multisymptom illness with a partially explained etiology, or (4) a disease with a clear and specific etiology and diagnosis. If, after examining the Veteran and reviewing the claims file, the examiner determines that the Veteran's disability pattern is either (3) a diagnosable chronic multi-symptom illness with a partially explained etiology, or (4) a disease with a clear and specific etiology and diagnosis, then please provide a medical opinion, with supporting rationale, as to whether it is "at least as likely as not" (50 percent or greater probability) that the disability pattern or diagnosed disease for gastrointestinal problems is related to a specific exposure event experienced by the Veteran during service in Southwest Asia or otherwise to service. In making these determinations, the examiner must consider the Veteran's and his spouse's lay statements regarding having experienced relevant symptoms including chronic diarrhea, while in service and on a continuous basis in the years since service. The VA examiner should provide a detailed rationale for any opinion(s) expressed. If an opinion cannot be provided without resort to speculation, the examiner should so state and explain why an opinion cannot be provided without resort to speculation. 3. When the development requested has been completed, and the RO has ensured compliance with the requested action, this case should again be reviewed by the RO on the basis of the additional evidence. If the benefit sought is not granted, the Veteran and his representative should be furnished a Supplemental Statement of the Case, and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. The appellant has the right to submit additional evidence and argument on the matter or matters 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 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).