Citation Nr: 21069198
Decision Date: 11/17/21	Archive Date: 11/17/21

DOCKET NO. 18-48 876
DATE: November 17, 2021

REMANDED

Service connection for diverticulitis is remanded.

REASONS FOR REMAND

The Veteran has active service from February 1967 to April 1972, including service in the Republic of Vietnam and October 1990 to June 1991, with additional service in the National Guard.  

This matter is on appeal from a September 2016 rating decision.  The appeal was previously remanded in August 2020, March 2021, and August 2021

1. Service connection for diverticulitis is remanded.

In March 2021, a VA medical opinion concluded that the Veteran's diverticulitis is less likely than not related to service.  In so concluding, the examiner addressed why a February 1991 service treatment record did not constitute evidence of in-service diverticulitis.  

In August 2021, the Board noted that the March 2021 VA medical opinion did not address abdominal complaints contained in October 1968 and December 1969 service treatment records.  The Board remanded, stating: "Further development is necessary prior to appellate review to provide the Veteran with an adequate VA medical opinion addressing all evidence of symptoms while in service."  

In September 2021, the same VA examiner again opined that the Veteran's diverticulitis is less likely than not related to service.  The examiner directly addressed the October 1968 and December 1969 service treatment records.  The examiner indirectly addressed the February 1991 service treatment record by reference to the March 2021 medical opinion.  Indeed, recently in Miller v. Wilkie, 32 Vet. App. 249, the United States Court of Appeals for Veterans Claims (Court) held that when an examiner fails to address the veteran's reports of symptoms, VA must get a new examination.

Unfortunately, as noted, the Board has already held that the March 2021 medical opinion is inadequate.  An additional addendum opinion is required, since the September 2021 VA medical opinion relies on an opinion held to be inadequate.  

The matters are REMANDED for the following action:

1. Obtain all VA treatment records from October 2021 to the present.  If no records are available, the claims folder must indicate this fact.  Any additional records identified by the Veteran during the course of the remand should also be obtained, following the receipt of any necessary authorizations from the Veteran, and associated with the claims file.

2. Notify the Veteran that he may submit lay statements from himself and from other individuals who have first-hand knowledge, and/or were contemporaneously informed of his in-service and post-service gastrointestinal problems.  The Veteran should be provided an appropriate amount of time to submit this lay evidence.

3. After obtaining any additional records to the extent possible, an examiner, other than the examiner who provided the March 2021 and September 2021 medical opinions, should review the entire claims file and provide the following opinions: 

(a.) Whether the Veteran has any diverticulitis impairment. 

(b.) Whether it is at least as likely as not that any diverticulitis impairment was incurred in the Veteran's service.

In rendering these opinions, the examiner should address the October 1968 service treatment record, the December 1969 service treatment record, and the February 1991 service treatment record, all of which describe stomach problems during service.  

The examiner should provide a complete rationale for any opinions offered.  If the examiner is unable to provide any requested opinion without resort to speculation, he or she should explain why this is so.

 

 

STEVEN D. REISS

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Cannon, Brian

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.