Citation Nr: 21067937 Decision Date: 11/08/21 Archive Date: 11/08/21 DOCKET NO. 16-60 950 DATE: November 8, 2021 REMANDED Entitlement to compensation under 38 U.S.C. § 1151 for a gastrointestinal disorder is remanded. REASONS FOR REMAND The Veteran served on active duty in the U.S. Army from November 1966 to October 1968. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a July 2014 rating decision by the agency of original jurisdiction (AOJ) of the United States Department of Veterans Affairs (VA). In January 2019 and December 2020, the Board remanded the issue of entitlement to compensation under 38 U.S.C. § 1151 for a gastrointestinal disorder for further evidentiary development. The Board directed that a VA examiner address and consider the Veteran's lay assertions in the formulation of the requested opinions. A remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with the remand instructions, and imposes upon VA a concomitant duty to ensure compliance with the terms of the remand. Stegall v. West, 11 Vet. App. 268, 271 (1998). Where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance. Pursuant to the Board's December 2020 remand, a medical opinion was obtained in March 2021. At that time, however, the AOJ had not completed other required development for missing records. A new VA examination was then performed in April 2021. An opinion was then obtained in May 2021. As highlighted by the Board in its December 2020 remand, the Veteran asserts that he sought VA treatment on numerous occasions in the 1970s and did not receive a consistent diagnosis during that time period. As a result, he contends his gastrointestinal ulcer grew to the size of a softball. The Veteran further asserts that a month prior to its discovery at the Temple VA Medical Center, a physician in the Dallas VA Medical Center failed to identify it. The March 2021 and May 2021 VA examiners, as with the prior June 2019 VA examiner, did not address such contentions. Therefore, the Board must remand the claim for an addendum VA medical opinion in order to make a fully informed decision on the issue of entitlement to compensation under 38 U.S.C. § 1151. The matters are REMANDED for the following action: 1. Obtain a medical opinion from a qualified VA clinician to assess the Veteran's claim under the provisions of 38 U.S.C. § 1151 for a gastrointestinal disorder resulting from any of the mid-1970s, 1983 or 1993 surgeries or a failure to timely diagnose or properly treat a gastrointestinal disorder. The claims folder must be reviewed in conjunction with the opinion. Based on the review of the record, the examiner should address the following: (a.) Is it at least as likely as not (a 50 percent or greater probability) that the Veteran presently has or has had during the appellate period an additional disability? "Additional disability" means any condition that did not exist immediately before the VA medical or surgical treatment but does not encompass a predicted side effect or progression of the Veteran's gastrointestinal disorder(s). In rendering this opinion, the examiner should address the diagnoses of bile reflux and dumping syndrome, as well as any other gastrointestinal disorders identified upon examination. (b.) If and only if the answer to question (a) is "yes," it is at least as likely as not (a 50 percent or greater probability) that the VA medical or surgical treatment resulted in the additional disability? The examiner should address (i) whether there was a failure to timely diagnose and properly treat the existing condition(s) and (ii) whether any surgery was necessitated to correct the prior surgery. (c.) If and only if the answer to questions (a) and (b) are "yes," it is at least as likely as not (a 50 percent or greater probability) that the VA failed to exercise the degree of care that would be expected of a reasonable health care provider? To reiterate, if there is a diagnosed additional disability, is it due to carelessness, negligence, lack of proper skill, error in judgment, or other instance of fault on the part of the VA in furnishing medical or surgical treatment. The examiner should elicit a complete, detailed history of symptoms and treatment from the Veteran and include these in the examination report. The examiner is reminded that the term "at least as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided, that in the examiner's expert opinion, it is as medically sound to find in favor of the preposition as it is to find against it. A complete rationale must be provided for all opinions expressed. If an opinion cannot be offered without resort to mere speculation, the examiner must indicate why this is the case and what additional evidence, if any, would allow for a more definitive opinion. 2. Then, readjudicate the claim on appeal. If the benefit sought remain denied, issue a supplemental statement of the case and then return the matter to the Board, if otherwise in order. WILLIAM H. DONNELLY Veterans Law Judge Board of Veterans' Appeals Attorney for the Board G.A. Ong, 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.