Citation Nr: 21068150
Decision Date: 11/09/21	Archive Date: 11/09/21

DOCKET NO. 17-02 975
DATE: November 9, 2021

REMANDED

Entitlement to service connection for diverticulosis, including as due to a service-connected disability, is remanded.

REASONS FOR REMAND

The Veteran had active service from January 1972 to December 1975 in the U.S. Navy, including in the official waters offshore of Vietnam (so-called Blue Water Navy service).

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2017 rating decision which denied, in pertinent part, the currently appealed claim.

A videoconference Board hearing was held in July 2019 before the undersigned Veterans Law Judge and a copy of the hearing transcript has been added to the record.

In May 2021, the Board remanded the currently appealed claim to the Agency of Original Jurisdiction (AOJ) for additional development.  A review of the claims file shows that there has been substantial compliance with the Board's remand directives.  The Board directed that the AOJ obtain addendum opinions concerning the contended etiological relationships between the Veteran's diverticulosis, his service-connected hypertension, and his service-connected diabetes mellitus.  These opinions were obtained in June 2021.  See Stegall v. West, 11 Vet. App. 268 (1998); see also Dyment v. West, 13 Vet. App. 141 (1999) (holding that another remand is not required under Stegall where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002).

Having reviewed the record evidence, and although the Board is reluctant to contribute to "the hamster-wheel reputation of Veterans law" by remanding this claim again, additional development is required before the underlying claim can be adjudicated on the merits.  Cf. Coburn v. Nicholson, 19 Vet. App. 427, 434 (2006) (Lance, J., dissenting) (finding that repeated remands "perpetuate the hamster-wheel reputation of Veterans law").

The Veteran essentially contends that he incurred diverticulosis during active service and experienced continuous post-service disability.  He alternatively contends that a service-connected disability caused or aggravated his current diverticulosis.  The Board acknowledges that this claim has been remanded repeatedly, most recently in May 2021.  The Board also acknowledges that the AOJ substantially complied with the May 2021 remand directives.  Unfortunately, a review of the claims file show that, to date, a VA clinician has not been asked to provide an opinion concerning the contended etiological relationship between the Veteran's diverticulosis and active service on a direct service connection basis.  See 38 C.F.R. §§ 3.303, 3.304; see also Szemraj v. Principi, 357 F.3d 1370, 1371 (Fed. Cir. 2004), and Roberson v. Principi, 251 F.3d 1378, 1384 (Fed. Cir. 2001) (explaining that the Board must consider all potential theories of entitlement raised by the evidence).  Thus, the Board finds that, on remand, an opinion should be obtained which addresses this matter.

The matters are REMANDED for the following action:

1.  Forward the claims file to the VA clinician who completed the June 2021 VA intestinal conditions Disability Benefits Questionnaire (DBQ) or another appropriate clinician for an opinion concerning the contended etiological relationship between the Veteran's diverticulosis and active service on a direct service connection basis.  The Veteran does not need to report for examination.

Based on a review of the claims file, the clinician is asked to state whether it is at least as likely as not (i.e., a 50 percent or greater probability) that diverticulosis is related directly to active service.  A rationale must be provided for any opinion(s) expressed.

 

 

R. FEINBERG

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Michael T. Osborne, 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.