Citation Nr: 1342841 Decision Date: 12/26/13 Archive Date: 01/07/14 DOCKET NO. 10-13 856A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUE Entitlement to service connection for ulcerative colitis. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Marne Marotta, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1994 to September 1994. This case comes before the Board of Veterans' Appeals (Board) on appeal from a January 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia. In March 2013, the Veteran presented testimony before the undersigned Veterans Law Judge at a Board hearing held at the RO. A copy of the transcript 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 entered service in August 1994. A June 1993 enlistment examination found no significant defects. An August 1994 Medical Evaluation Board report found that the Veteran had ulcerative colitis prior to service, based on the Veteran's report of symptoms of blood in his stool for two months prior to admission. The Veteran was discharged from service in September 1994. When no preexisting condition is noted upon entry into service, the burden falls on the government to rebut the presumption of soundness by clear and unmistakable evidence that the disability was both preexisting and not aggravated by service. Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). A January 2011 VA examination found that "[i]t is well documented by the admitting and discharging medical doctor as well as the consult for GI that the history/symptoms were beginning 2 months prior to admission." In an August 2012 addendum opinion, the VA examiner opined that the "claimed condition is less likely than not (less than 50 percent probability) proximately due to or the result of the Veteran's service connected condition." The examiner stated that the Veteran's "entrance exam review sheet makes notes of frequent indigestion, 21 days later the patient was seen for a GI bleed and diagnosed with colitis." The examiner indicated that symptoms of colitis include bloody diarrhea, abdominal bloating and indigestion. The examiner also opined that the Veteran's condition was not aggravated beyond its natural progression because "ulcers do not occur within 23 days, the[y] often will take months/years to develop." The Board notes that the Veteran indicated that he suffered from foot problems on his enlistment examination, not frequent indigestion. The Board finds the January 2011 and August 2012 VA opinions inadequate because they do not provide clear and unmistakable evidence on the questions of whether the Veteran's condition existed prior to service or whether any increase in disability during service was due to the natural progression of the preexisting condition. Wagner, 370 F.3d at 1096. Thus, another opinion is required. Barr v. Nicholson, 21 Vet. App. 303 (2007). Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for the appropriate VA examination to determine the extent and likely etiology of the Veteran's ulcerative colitis. Based on the examination and review of the record, the examiner should specifically address the following: (a) Does the evidence of record clearly and unmistakably show (i.e., it is undebatable) that the Veteran's ulcerative colitis preexisted his service? In answering this question, the examiner is asked to consider that the Veteran reported experiencing bloody stools for 2 weeks, 1 month and 2 months of and on during August 1994. The Medical Evaluation Board used the Veteran's report that he experienced symptoms for 2 months to find that his ulcerative colitis preexisted service. In addition, the examiner is asked to consider the Veteran's enlistment examination, which did not find any significant defects, and the Veteran's testimony that he did not suffer from ulcerative colitis prior to service. (b) Does the evidence of record clearly and unmistakably show (i.e., it is undebatable) that the Veteran's ulcerative colitis was not aggravated by service or that any increase in disability was due to the natural progression of the disease? Please identify any such evidence with specificity. (c) If the answer to (a) or (b) is no, is it at least as likely as not (likelihood 50 percent) that the Veteran's ulcerative colitis is related to service? The examiner is requested to provide a complete rationale for any opinion expressed, based on the examiner's clinical experience, medical expertise, and established medical principles. If an opinion cannot be made without resort to speculation, the examiner should provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made. 2. The RO should then readjudicate the Veteran's claim. If the claim remains denied, issue a supplemental statement of the case (SSOC) to the Veteran and his representative, and they should be 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 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). _________________________________________________ M. E. LARKIN 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).