Citation Nr: 21005187 Decision Date: 01/29/21 Archive Date: 01/29/21 DOCKET NO. 13-33 100 DATE: January 29, 2021 REMANDED Entitlement to service connection for a gastrointestinal disorder is remanded. Entitlement to service connection for prostate cancer is remanded. REASONS FOR REMAND The Veteran served on active duty from June 1982 to November 1996. These matters come to the Board of Veterans’ Appeals (Board) from a decision of the Agency of Original Jurisdiction (AOJ). In July 2018, the AOJ issued a rating decision that denied the Veteran’s claim for service connection for a bilateral wrist disability. The AOJ also denied his service connection claims for a gastrointestinal disorder and prostate cancer, to include as due to service in Southwest Asia. The Veteran timely disagreed in an October 2009 Notice of Disagreement (NOD) and perfected his appeal in an October 2013 VA Form 9. In June 2014, a Board hearing was conducted. The hearing transcript has been associated with the Veteran’s file. Later, in December 2017, the Board denied the Veteran’s claims. The Veteran appealed the Board decision to the Court of Appeals for Veterans Claims (CAVC) and, in October 2018, the CAVC granted a Joint Motion for Remand vacating the Board’s December 2017 decision that denied the Veteran’s claims. In June 2019, the Board issued a remand for the AOJ to obtain VA treatment records from the Augusta VA Medical Center (VAMC) and addendum medical opinions that consider those records. In October 2020, the AOJ readjudicated the Veteran’s claims after obtaining more VA treatment records. The AOJ granted the Veteran’s claim for service connection for his bilateral wrist disability and denied the others. Thus, the only remaining issues on appeal are his claims for entitlement to service connection for prostate cancer and a gastrointestinal disorder. In December 2020, the Veteran’s case was returned to the Board. 1. Entitlement to service connection for gastrointestinal disorder is remanded. Although the Board regrets the delay, the Veteran’s claim must be remanded before the Board is able to decide on the merits. This is because the evidence indicates there may be more outstanding relevant VA treatment records. Also, another VA disability examination is required that considers his lay observations of gastrointestinal symptoms shortly after his return from SW Asia. The VA has a duty to assist claimants and must make “reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the claimant’s claim for benefits.” 38 U.S.C. § 5103A(a)(1). And part of that duty to assist includes obtaining a medical opinion when an “opinion is necessary to make a decision on the claim.” 38 U.S.C. § 5103A(d)(1). Also, a remand by the Board grants the Veteran the right to compliance with its orders. Stegall v. West, 11 Vet. App. 268, 271 (1998). And when the Board remands a claim for a VA disability examination or opinion, the Secretary must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). A VA medical examination or opinion is adequate where it is based upon consideration of the veteran’s prior medical history. Nievez-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2006). And when it describes the disability in sufficient detail so that the Board’s evaluation of the claimed disability will be a fully informed one. Barr, 21 Vet. App. at 311.Whenever the Board remands a claim for a VA medical examination, as it has done here, the Secretary must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). That includes ensuring the medical opinion addresses the appropriate theories of entitlement. Stefl v. Nicholson, 21 Vet. App. 120, 123-24 (2007). Beginning with the Veteran’s service, the record reflects the Veteran has active duty service in SW Asia from December 17, 1990, to May 21, 1991. He has asserted that even though his job as a non-commissioned officer in a mailroom—his unit was co-located with a combat unit—and he was around “a lot of stuff,” specifically diesel fuel and “chemicals and stuff like that in different things” a combat unit used. See Transcript dated June 2014 at 23. The Veteran asserts that he observed gastrointestinal symptoms shortly after his return from SW Asia. Around June 1991, while stationed in Germany, he returned from training and observed chest pains and nausea. And when he went to the bathroom, he vomited while simultaneously defecating. It lasted for most of the night, then resolved. Id. at 4. The Veteran’s spouse asserted incident, like the one the Veteran described, occurred more than once while he was stationed in Germany. Id. at 11. Following service in Germany, the Veteran was stationed at Fort Gordon, Georgia. He described several other observations of gastrointestinal symptoms while at Fort Gordon. In March 1992, he went to the doctor to complain of gastrointestinal symptoms; he states the doctor attributed his symptoms to the flu. In September 1992, he observed vomiting, diarrhea, indigestion, and dizziness. Id. at 4, 5, 6. Both of these incidents are noted in his service treatment records. The Veteran also observed chest pains that interfered with his ability to sleep or move around. He reported it was intermittent. He started to associate it with consumption of dairy products. He also asserted he continued to observe symptoms following service. Id. at 5. In March 2003, the Veteran underwent a Gulf War Registry exam where he reported numbness at his arms, legs, for the last three to four years and was unsure if it is related to his service in SW Asia. He reported rashes that stated after he received shots in SW Asia, but believed it may be due related to an allergic reaction to dairy products. He also observed sinus congestion since returning from SW Asia. In July 2013, the Veteran underwent a VA Gulf War Exam. Following that examination, the examiner opined that the Veteran’s gastrointestinal symptoms are not related to his service. The examiner acknowledged that the Veteran was treated for gastroenteritis in 1992. But explained that, since it lasted a few days, it had resolved. The examiner also indicated that the Veteran’s diarrhea was likely due to radiation therapy administered to treat his diagnosed prostate cancer. She did not acknowledge or discuss the Veteran’s lay observations of gastrointestinal symptoms shortly after his return from SW Asia. See July 2013 VA DBQ Gulf War Exam at 23. In December 2015, the same examiner provided another opinion reiterating her prior conclusions. She did not acknowledge or discuss the Veteran’s lay observations of symptoms shortly after his return from SW Asia in this opinion either. See December 2015 VA Medical Opinion at 8. Nor did the examiner who prepared the September 2020 opinion. The examiner indicated he believed the symptoms noted during service were indicative of acute gastroenteritis. And it had resolved. He emphasized that there was only one episode of gastroenteritis during service. See September 2020 VA Medical Opinion at 3. Later, in December 2020, the case was returned to the Board without all the VA treatment records it was directed to obtain. The Board’s June 2019 remand directed the AOJ to obtain records from the Augusta VAMC going as far back as November 1996; the AOJ obtained records from April 2003 to August 2012. And there was no documentation confirming records prior to 2003 are unavailable. Turning to the Veteran’s claim for disability compensation, a remand is required to allow the AOJ to obtain the outstanding records or confirm records at Augusta VAMC prior to April 2003 do not exist. Whether or not those records exist, the Veteran should be provided another VA disability examination for his gastrointestinal disorder. The July 2013, December 2015, and September 2020 VA medical opinions are not sufficient for the Board to evaluate the Veteran’s claim. The examiners did not acknowledge or discuss the Veteran’s lay observations of gastrointestinal symptoms shortly after his return from SW Asia, to include nausea, diarrhea. So, it is not apparent to the Board that those examiners were fully cognizant of the Veteran’s past medical history. Nievez-Rodriguez, 22 Vet. App. at 301. As a result, another medical opinion is required. Stegall, 11 Vet. App. at 271. Also, the Veteran is a Persian Gulf Veteran and his observed symptoms following his return from SW Asia have not been fully evaluated. So, he should be scheduled for an examination to determine the nature and etiology of his condition. 2. Entitlement to service connection for prostate cancer is remanded. For the reasons explained above, the Board is unable to decide on the merits until all the outstanding relevant VA treatment records are obtained or shown to be unavailable. So, a remand is required to for the AOJ to obtain the outstanding records from the Augusta VAMC or confirm that records prior to 2003 are unavailable. Then, the AOJ should request an addendum opinion to evaluate the additional medical treatment records for the Veteran’s claim for service connection for prostate cancer. These matters are REMANDED for the following action: 1. Obtain the Veteran’s VA treatment records for the period from November 1996 to 2004 from the Augusta VA medical center. If they are unavailable, a formal finding of unavailability should be included in the claims file. 2. Then, forward the claims file, including previous examination reports and a copy of this remand, to a qualified medical professional for preparation of an addendum opinion for the Veteran’s entitlement claim for prostate cancer. Based upon a review of the entirety of the claims file, the history presented by the Veteran, and the examination results, the examiner is requested to provide an opinion as to the following questions: (a.) Is it at least as likely as not (i.e. a 50 percent probability or greater) that the Veteran’s prostate cancer was incurred in or is otherwise related to an active duty service period or an injury incurred during a period of inactive service? 3. After completing the first remand directive and associating all responsive records with the claims file, schedule the Veteran for an appropriate VA examination or examinations to determine the nature and etiology of his gastrointestinal disorder, to include their potential relationship to environmental exposures during his Gulf War service: Based upon a review of the entirety of the claims file, the history presented by the Veteran, and the examination results, the examiner is requested to provide an opinion as to the following questions: (a.) Please state whether each claimed symptom is attributable to a known clinical diagnosis, present at any point since his service in SW Asia (December 1990 to May 1991). If the Veteran does not now have, but previously had any such condition, when did that condition resolve? (b.) Is the Veteran’s disability pattern consistent with: (1) a diagnosable but medically unexplained chronic multi-symptom illness of unknown etiology or undiagnosed illness, (2) a diagnosable chronic multi-symptom illness with a partially explained etiology, or (3) a disease with a clear and specific etiology and diagnosis? If, after examining the Veteran and reviewing the claims file, you determine that the Veteran’s disability pattern is either (2) a diagnosable chronic multi-symptom illness with a partially explained etiology, or (3) a disease with a clear and specific etiology and diagnosis, then please provide an opinion as to the following: (c.) Whether the diagnosed disability is at least as likely as not (i.e. a 50 percent probability or greater) related to any presumed environmental exposures experienced by the Veteran during his service in SW Asia. (d.) Is it at least as likely (i.e. a 50 percent probability or greater) as not that any diagnosed disorder had its onset during the Veteran’s service or is otherwise causally related to any event or circumstance of his service? (e.) Is it at least as likely as not (i.e. a 50 percent probability or greater) that the Veteran’s gastrointestinal disorder was caused by his diagnosed prostate cancer? (f.) Is it at least as likely as not (i.e. a 50 percent probability or greater) that the Veteran’s gastrointestinal disorder was aggravated by the Veteran’s diagnosed prostate cancer? The examiner, in coming to his or her conclusion, is asked to comment on the following: Discuss the Veteran’s statement in June 2014 indicating he was exposed to environmental hazards. He asserted he was exposed to diesel fuel and “chemicals and stuff like that in different things.” Discuss the Veteran’s June 2014 statement that, in June 1991 (a few weeks after returning from SW Asia) he observed chest pains, nausea, and vomiting while simultaneously defecating. Consider that his spouse observe that incident happen more than once (in a nine-month period). Discuss the Veterans June 2014 statement that he observed chest pains that interfered with his ability to sleep or move around. Also, that it was intermittent. And he associates it with consumption of dairy products. Discuss the March 17, 1992, service treatment record (handwritten note in the Chronological Record of Medical care) showing the Veteran complained of stuffiness, congestion, headaches, fever and chills. Discuss the Veteran’s September 30, 1992, service treatment record (handwritten note in Chronological Record of Medical care) showing the Veteran sought medical attention for vomiting, nausea, diarrhea, and indigestion. Discuss the Veteran’s statements during his March 2003 Gulf War Registry exam, where he reports (1) numbness at his arms, legs, for the last three to four years; (2) rashes; (3) his statement that his rashes may be due related to an allergic reaction to dairy products but thinks it started after he received shots in SW Asia; and (4) sinus congestion since returning from SW Asia. Address the July 2013 VA medical opinion that his gastrointestinal disorder is not related to his service. Address the December 2015 VA medical opinion that his gastrointestinal disorder is not related to his service. Address the September 2020 VA medical opinion that his gastrointestinal disorder is not related to his service. It should be noted that the Veteran, is competent to attest to matters of which he has first-hand knowledge, including observable symptomatology. If there is a clinical basis to support or doubt the lay history provided by the Veteran, the examiner should provide a fully reasoned explanation. Explanations for all opinions must be provided. While providing the requested rationale, the examiner is asked to cite to the pertinent evidence of record, including clinical records, and explain how that evidence justifies your opinion. DAVID L. WIGHT Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Dean, Michael S. 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.