Citation Nr: 21064225 Decision Date: 10/19/21 Archive Date: 10/19/21 DOCKET NO. 16-27 381 DATE: October 19, 2021 REMANDED Entitlement to service connection for cholelithiasis with primary sclerosing cholangitis is remanded. REASONS FOR REMAND The Veteran, who is the appellant in this case, served on active duty in the United States Navy from November 1992 to August 1996. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2013 rating decision of the Department of Veterans' Affairs (VA) Regional Office (RO) in Little Rock, Arkansas. The Veteran testified at a hearing before a Veterans Law Judge in February 2019. A copy of the hearing transcript is of record and has been reviewed. The Veteran testified at a travel Board hearing before a Veterans Law Judge (VLJ) of the Board in February 2019. The law requires that the VLJ who conducts a hearing on an appeal must participate in any decision made on that appeal. 38 U.S.C. § 7107(c); 38 C.F.R. § 20.707. However, the VLJ who conducted the February 2019 Board hearing is no longer employed by the Board and in September 2021, the Veteran and his representative were so notified by letter and offered another hearing before a different VLJ provided a reply was received within 30 days. As there was no response to the letter, the Board proceeds with review of the appeal without an additional hearing. In July 2019, the Board remanded the Veteran's claim for further development, to include obtaining outstanding treatment records, and to obtain an addendum VA opinion addressing the likely etiology of his cholelithiasis. A VA opinion dated December 2019 is of record and has been reviewed. However, for reasons set forth below, the Board finds that there has not been substantial compliance with its July 2019 remand directives. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that there must be substantial compliance with the terms of a Court or Board remand). December 2019 VA Opinion Once VA undertakes the effort to provide an examination or medical opinion when developing a service-connection claim, it must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Additionally, a Board remand confers on the claimant, as a matter of law, the right to compliance with the remand order. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Here, the December 2019 VA opinion reflects numerous deficiencies that render it inadequate. First, although the examiner referred to rationale provided in a previous January 2013 opinion, the Board previously found the 2013 opinion deficient because of subsequent statements made by the Veteran during his February 2019 Board regarding exposure to tear gas, toxic paint, and jet fuel fumes, and internet articles he submitted suggesting that exposure to such chemicals could have caused his cholelithiasis with primary sclerosing cholangitis. Therefore, to the extent that a rationale is reflected in the January 2013 VA opinion, incorporating it by reference fails to provide a basis for the December 2019 opinion. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (the probative value of a medical opinion depends on its rationale and consideration of an accurate record). Second, the examiner concluded that there is no evidence of ongoing gastro-intestinal or gallbladder symptoms dating from service to suggest a chronic disorder. However, the examiner failed to consider the lay statements of the Veteran describing in-service symptoms such as stomach-ache as reflected in his February 2019 Board hearing testimony, and those of his parents L.K. and D.K. in August 2019 correspondence, who state that they directly observed the Veteran's symptoms of unexplained fever, nausea, abdominal pain, and jaundice dating from the Veteran's service. See Third Party Correspondence received August 8, 2019. The symptoms described by the Veteran during the Board hearing and those described by his parents in their August 2019 letter are almost identical to those associated with the Veteran's 2004 diagnosis of cholelithiasis. See, e.g., VA Gastroenterology Procedure Consult dated July 6, 2004; VA Gastroenterology Procedure Consult dated July 6, 2004; see also Dalton v. Nicholson, 21 Vet. App. 23, 39-40 (2007) (finding a medical examination inadequate where the examiner impermissibly ignored the appellant's lay assertions regarding onset of symptoms during service); Kahana v. Shinseki, 24 Vet. App. 428, 434 (2011) (a veteran is competent to report the circumstances giving rise to the initial observable symptoms, as well as the nature of the symptoms during and after service). Third, while the Veteran points to in-service exposure to specific chemicals, including tear gas, paint, and jet fuel fumes as possible causes for his cholelithiasis, the examiner referred to these collectively as "chemical exposure" without any discussion of risks of developing cholelithiasis from such exposures. See Nieves-Rodriguez, supra. Additionally, the VA examiner observed that review of medical literature does not suggest chemical exposures during service would "typically" cause cholelithiasis. However, this statement suggests that chemical exposures may cause cholelithiasis in atypical cases, and the examiner failed to explain why the Veteran's condition is typical, not atypical, and if not, why in-service chemical exposures were unlikely to have caused the disorder. The examiner also failed to discuss the medical literature upon which his opinion rests or internet articles submitted by the Veteran in February 2019 in support of his claim. Id. Lastly, the Board notes that during the February 2019 Board hearing, the Veteran stated that he sees his doctor every three months. See Board hearing transcript dated February 15, 2019 at pg. 8. As the most recent VA treatment notes of record are dated January 2020, on remand all outstanding VA treatment records should be associated with the claims file and the Veteran should be invited to identify or submit outstanding relevant private treatment records. Accordingly, remand is necessary to obtain an adequate opinion addressing the etiology of the Veteran's cholelithiasis with primary sclerosing cholangitis and to obtain the Veteran's outstanding VA treatment records is warranted. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c)(2). See Barr, supra; Stegall, supra. The matter is REMANDED for the following action: 1. Ensure that all outstanding VA treatment records are associated with the claims file. 2. Contact the Veteran and invite him to provide information regarding all outstanding non-VA medical treatment relevant to his currently diagnosed cholelithiasis with primary sclerosing cholangitis, providing him appropriate VA forms for this purpose. Also advise him that he may submit such records if he so chooses. Allow a reasonable time for reply. If VA attempts to obtain any outstanding records that are unavailable, the Veteran and his representative should be notified pursuant to 38 C.F.R. § 3.159(e). 3. Then, obtain an addendum opinion from as to the etiology of the Veteran's currently diagnosed cholelithiasis with primary sclerosing cholangitis from the same examiner who authored the December 2019 opinion, if available. If the same examiner is unavailable, request an addendum opinion from an appropriately qualified VA clinician who is a VA physician (M.D.). All clinical findings should be reported in detail and correlated to a specific diagnosis. The claims file, and a copy of this Remand, should be made available to the examiner, who will acknowledge receipt and review of these materials. *The examiner's review of the body of this Remand is recommended to assist in avoiding deficiencies identified in previous opinions. *The need for another examination(s) is left to the discretion of the medical professional offering the addendum opinion. Should an examination(s) be necessary, all indicated studies, tests, and evaluations must be conducted, and all findings reported in detail. Based upon a review of the relevant evidence of record and the history provided by the Veteran, the VA examiner is asked to offer the following opinion: After a complete review of the claims file, the examiner is asked to provide an opinion with complete rationale addressing the following: (a) Is it at least as likely as not (a 50 percent probability or greater) that the Veteran's cholelithiasis with primary sclerosing cholangitis had its onset in service, or is related to an in-service injury, event, or disease, including Gulf War service, to include exposure to chemicals in service including tear gas, paint, and jet fuel fumes? In responding to this question, the examiner is requested to: (i) Include discussion of the lay statements of record of the Veteran and his parents describing the Veteran's symptoms during and after service; and (ii) Indicate whether any diagnosed condition meets the diagnostic criteria for a functional gastrointestinal disorder under 38 C.F.R. § 3.317. *Under 38 C.F.R. § 3.317, functional gastrointestinal disorders are defined as excluding structural gastrointestinal diseases and further as a group of conditions characterized by chronic or recurrent symptoms that are unexplained by any structural, endoscopic, laboratory, or other objective signs of injury or disease and may be related to any part of the gastrointestinal tract. In addition, a list of examples, which is specifically noted to not be exhaustive, is also provided in 38 C.F.R. § 3.317. Although the examiner must review the entire claims file, the examiner is requested to consider the following potentially relevant evidence, which is identified by VBMS labels and receipt dates in parenthesis: *Articles submitted by the Veteran suggesting a medical link between environmental/toxin triggers of primary sclerosing cholangitis (see VBMS entry with document type "Web / HTML Documents", receipt date 02/14/2019); *Lay statements of the Veteran reflected in the February 15, 2019 Board hearing (see VBMS entry with document type "Hearing Transcript," receipt date 02/15/2019); *Lay statements of the Veteran's parents (see VBMS entry with document type "Third Party Correspondence," receipt date 02/22/2013); and *Lay statements of the Veteran's parents (see VBMS entry with document type "Third Party Correspondence," receipt date 08/08/2019). The examiner must provide a complete rationale for all opinions proffered. 4. Thereafter, ensure that the examiner has substantially responded to the questions posed by the Board, and if not, take corrective action. 5. Then, readjudicate the remanded claim. S. B. MAYS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. Farrell, 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.