Citation Nr: 21071298 Decision Date: 11/30/21 Archive Date: 11/30/21 DOCKET NO. 17-46 220 DATE: November 30, 2021 REMANDED Entitlement to service connection for Crohn's disease is remanded. REASONS FOR REMAND The Veteran had active military service from July 1985 to August 1985 and February 2005 to April 2006. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2015 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) located in Los Angeles, California. The Veteran was provided with a videoconference hearing in April 2021 before the undersigned Veteran's Law Judge. The transcript has been associated with the claims file. 1. Entitlement to service connection for Crohn's disease is remanded. The Board finds that remand is warranted for an addendum VA opinion. The Veteran testified at the April 2021 hearing that he experienced symptoms of Crohn's disease in 2001. The Veteran underwent some examination, and the results were suggestive of Crohn's, but no definitive diagnosis was made. Crohn's disease was not noted in the Veteran's entrance examination. Under the law, every Veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C.A. § 1111. Applicable in this case, history provided by the veteran of the preservice existence of conditions recorded at the time of the entrance examination does not, in itself, constitute a notation of a preexisting condition. 38 C.F.R. §§ 3.304 (b)(1); Paulson v. Brown, 7 Vet. App. 466, 470 (1995); Crowe v. Brown, 7 Vet. App. 238, 246 (1995). In order to rebut the presumption of soundness at service entry, there must be clear and unmistakable evidence showing that the disorder preexisted service and there must be clear and unmistakable evidence that the disorder was not aggravated by service. The Veteran is not required to show that the disease or injury increased in severity during service before VA's duty under the second prong of this rebuttal standard attaches. Jordan v. Principi, 17 Vet. App. 261 (2003); Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). An examiner provided a VA opinion in August 2021. The examiner found that the Veteran's Crohn's disease clearly and unmistakably existed prior to service. The examiner noted that the Veteran exhibited symptoms of Crohn's disease in 2001. The examiner also noted that the Veteran's October 2004 report of medical history indicated that the Veteran was on prednisone which is used to treatment of Crohn's and colitis. The examiner then stated that as the Veteran had an extensive family history of Crohn's it was highly likely that the condition was genetic and most certainly pre-existed service. Additionally, the August 2021 VA examiner opined that the Veteran's condition "was not aggravated beyond its natural progression by an in-service event, injury, or illness." The examiner's rationale was that there was no medical evidence to indicate that the Veteran's service influenced the genetic, environmental, or other factors involved in the progression of Crohn's disease. The examiner stated that any finding of a correlation would be purely speculative. Although the August 2021 opinion provides sufficient rationale based on medical evidence to support that the Veteran's Crohn's condition clearly and unmistakably existed prior to service, the Board remands this matter for an additional VA examination by a physician of adequate medical expertise for an opinion concerning whether there is "clear and unmistakable" evidence that the preexisting Crohn's condition was not aggravated by service. Simply finding no evidence of aggravation by service is not sufficient. The government may show a lack of aggravation by establishing by clear and unmistakable evidence " that there was no increase in disability during service or that any increase in disability [was] due to the natural progress of the preexisting condition." Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). This burden of proof must be met by affirmative evidence demonstrating that there was no aggravation. The burden is not met by finding "that the record contains insufficient evidence of aggravation." Horn v. Shinseki, 25 Vet. App. 231, 236-37 (2012). The Board does not find that the August 2021 examiner provided sufficient rationale to support the opinion that the Veteran's Crohn's disease was not aggravated by service. The examiner failed to support his assertion with medical knowledge and evidence of record. The matters are REMANDED for the following action: 1. Obtain a medical opinion by an examiner of appropriate medical expertise to determine the etiology of the Veteran's Crohn's disease. The claims folder, any relevant electronic records, and a copy of this remand must be available for review. The examiner is apprised that the Crohn's disability preexisted service. The examiner is requested to review the evidence and respond to the following question: Is there clear and unmistakable evidence that the Veteran's Crohn's disease was NOT aggravated by service, either because there was no increase in disability during service or because any increase in disability was due to the natural progress of the preexisting condition? A complete rationale should be provided for any opinion offered and all credible lay evidence of record must be addressed. Particularly, the VA examiner is reminded that he or she cannot rely solely on the lack of STRs or contemporaneous medical records to provide a negative opinion. If the examiner is unable to offer any of the requested opinions, it is essential that the examiner offer a rationale for the conclusion that an opinion cannot be provided without resort to speculation, together with a statement as to whether there is additional evidence that might enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. See Jones v. Shinseki, 23 Vet. App. 328 (2010). H.M. WALKER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board AK 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.