Citation Nr: 21003226 Decision Date: 01/21/21 Archive Date: 01/21/21 DOCKET NO. 09-30 819 DATE: January 21, 2021 REMANDED Entitlement to an evaluation greater than 10 percent for gastroenteritis is remanded. REASONS FOR REMAND The Veteran served on active duty with the United States Air Force from June 1966 to March 1970. This matter originally came before the Board of Veterans’ Appeals (Board) on appeal from an April 2009 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia, which denied a rating in excess of 10 percent for gastroenteritis. The Veteran testified before a Veterans Law Judge (VLJ) at a Board hearing in August 2012; this VLJ is no longer available. The Board notified the Veteran in an October 2017 letter that he has the right to testify at a new hearing before a VLJ who will participate in the final determination of his claim. See 38 C.F.R. § 20.707. The Veteran responded in a timely manner, declining a new Board hearing In June 2015, the Board denied the Veteran’s claim for an increased evaluation for gastroenteritis. The Veteran appealed the decision to the United States Court of Appeals for Veterans Claims (Court), and the Court granted a Joint Motion for Remand (JMR) that vacated the June 2015 Board decision. The JMR noted that the Board set forth a list of symptoms that the Veteran had experienced throughout the pendency of the appeal; however the JMR found in pertinent part that the Veteran’s symptoms were not adequately described by Diagnostic Code 7307 and they appeared to overlap with symptomatic criteria listed for other disorders, such as Diagnostic Codes 7308 and 7319. Thus, the JMR found remand was necessary to allow the Board to adequately explain why other potential diagnostic criteria were not for application. The Board remanded the appeal in November 2016 to afford the Veteran an additional VA examination. The Veteran underwent VA examinations in March 2017 and June 2017. In January 2018, the Board denied the Veteran’s claim for an increased evaluation for gastroenteritis. The Veteran appealed the decision to the Court, and the Court issued a Memorandum Decision in May 2019 that vacated and remanded the January 2018 Board decision. The Memorandum Decision found that the Board erred in (1) relying on the March 2017 and June 2017 examinations, which the Board acknowledged did not discuss the list of symptoms the Veteran experienced, per the JMR, (2) relying on the 2017 examinations in finding that the Veteran’s symptoms at issue did not warrant a higher rating under a diagnostic code other than 7307, and (3) relying on the 2017 examinations that appeared to find that the Veteran did not have gastroenteritis. In December 2019, the Board remanded the Veteran’s claim for an increased evaluation for gastroenteritis for further development, including a new VA examination. In Stegall v. West, 11 Vet. App. 268, 271 (1998), the United States Court of Appeals for Veterans Claims (Court) held that a remand by the Board confers upon the Veteran or other claimant, as a matter of law, the right to compliance with the Board's remand order. Moreover, the Court further held that the Board itself errs when it fails to ensure compliance with the terms of its remand. Id. As discussed previously, per the December 2019 Board remand, the Veteran underwent a VA examination in March 2020. An addendum opinion was provided in September 2020. However, the Board finds the examination and opinion inadequate for adjudicative purposes. Notably, the examiner did not report all of the Veteran’s symptoms necessary for evaluating his gastroenteritis. The Board notes that the JMR provided that the Veteran’s gastroenteritis was manifested by mild to moderate reflux; intolerance to certain foods; intermittent diarrhea and constipation; frequent abdominal pain, bloating and discomfort, worsening after meals; and excessive belching and flatulence. The March 2020 examiner only noted the Veteran’s symptoms as “belching or expelling gas frequently, abdominal pain.” Moreover, in determining whether the Veteran had any other diagnoses, particularly gastroesophageal reflux disease (GERD), hiatal hernia, or irritable bowel syndrome (IBS), the examiner merely indicated there was “no direct link” between the gastroenteritis, GERD and hiatal hernia, without any pertinent rationale. In addition, the examiner did not expressly address whether the Veteran’s IBS was associated with his gastroenteritis. As such, in light of this Stegall violation, the Board will remand the issue for an addendum VA medical opinion. The matters are REMANDED for the following action: 1. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and severity of his service-connected gastroenteritis/gastritis. Provide access to the Veteran’s claims folder to the examiner for review in connection with the examination. After reviewing the record and examining the Veteran, the examiner should delineate all symptoms associated with the Veteran’s service-connected gastroenteritis/gastritis. In addition to any symptoms reported by the Veteran at the examination, the examiner must also consider the following symptoms which have manifested during the pendency of the appeal: mild to moderate reflux; intolerance to certain foods; intermittent diarrhea and constipation; frequent abdominal pain, bloating and discomfort, worsening after meals; and excessive belching and flatulence. The examiner must then provide an opinion, with supporting rationale, as to whether each of these symptoms is due to the Veteran’s service-connected gastroenteritis/gastritis as opposed to any nonservice-connected gastrointestinal disabilities such as gastroesophageal reflux disease (GERD), hiatal hernia, or irritable bowel syndrome (IBS). If any of the symptoms cannot be distinguished between the service-connected gastroenteritis and any nonservice-connected disability, the examiner must so state. K. Conner Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Norwood, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.