Citation Nr: 21071334 Decision Date: 11/30/21 Archive Date: 11/30/21 DOCKET NO. 16-49 233 DATE: November 30, 2021 REMANDED Entitlement to service connection for ulcerative colitis is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Marine Corps from January 1976 to January 1977, and in the United States Army from February 2001 to October 2001, December 2002 to December 2003, December 2005 to February 2007, and February 2008 to April 2009 with periods of active duty for training and (ACDUTRA) and inactive duty training (INACDUTA) in June 2014. The Veteran had service in the Southwest Asia Theater. This matter comes before the Board of Veterans' Appeals (Board) from rating decisions by a Department of Veterans Affairs (VA) Agency of Original Jurisdiction (AOJ). The Veteran testified before the undersigned in a May 2019 Board hearing; the transcript of that hearing is of record. The Board remanded this matter in January 2020 and March 2021. 1. Service connection for ulcerative colitis is remanded. The Veteran contends that his ulcerative colitis is due to his service in the Southwest Asia theater, notably exposures to burn pits. In March 2021, the Board remanded this matter in order to obtain a medical opinion. In the March 2021 remand, the Board summarized the medical opinions provided by VA and by a private physician, and found a new opinion was required. Specifically, Board found that new opinion was required to adequately address medical evidence. The Board directed VA to obtain an opinion to determine whether the Veteran's ulcerative colitis is at least as likely as not related to service including exposure to burn pits and/or sandstorms. The examiner was to address a May 2007 colonoscopy report that indicated intermediate colitis, and the September 2020 VA Gulf War examiner's opinion that ulcerative colitis is caused by an immune response and whether such immune response was caused by exposure to burn pits and/or sandstorms. In May 2021, VA obtained a medical opinion. The examiner opined that the Veteran's colitis is less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner reasoned that the Veteran suspected his Gulf War exposure to burn pits led to his ulcerative colitis. The examiner noted the medical record revealed that in May 2007 his intermittent colitis appeared to resolve. A 2016 colonoscopy confirmed ulcerative colitis. The examiner stated the ulcerative colitis is less likely than not incurred in or caused by ulcerative colitis during service because the condition was diagnosed after leaving service. The examiner further noted that VA presumes certain chronic, unexplained functional gastrointestinal disorders existing for 6 months or more are related to Gulf War service without regard to cause. Functional gastrointestinal disorders are common disorders are characterized by persistent and recurring gastrointestinal (GI) symptoms. These occur as a result of abdominal function of the GI tract. They are not caused by structural (tumors or masses) or biochemical abnormalities. Ulcerative colitis does not fall in the guidelines of functional gastrointestinal disorders. The examiner concluded that the Veteran's ulcerative colitis is less likely than not related to service including exposure to burn pits and/or sandstorms. The examiner addressed the private July 2018 positive medical opinion by noting that the private opinion failed to explain the medical connection between exposure to burn pits and/or sandstorms and ulcerative colitis. The Board finds the May 2021 VA medical opinion is not adequate. It appears the May 2021 misunderstood the Board's directive for an opinion regarding the etiology of the Veteran's ulcerative colitis. The May 2021 examiner focused his negative rationale on the fact that the Veteran was not diagnosed with ulcerative colitis in service and that ulcerative colitis does not fall under the presumptions relating to gastrointestinal disorders and Gulf War service. The examiner merely explained that ulcerative colitis was not a functional gastrointestinal disorder. To the first point, a disability need not be diagnosed in service in order for it to be service connected. To the second point, a disability that does not fall under a specific presumption may nevertheless be service connected on a direct basis. See Combee v. Brown, 34 F.3d 1039, 1043-44 (Fed. Cir. 1994). To this point, the examiner failed to address the Board's March 2021 remand directive related the causation of ulcerative colitis (an immune response as explained by the September 2020 VA Gulf War examiner) and whether environmental exposures caused an immune response that caused the ulcerative colitis. Therefore, upon remand a medical opinion must be obtained to provide an adequate medical opinion. The matters are REMANDED for the following action: 1. Obtain an addendum medical opinion from an appropriate clinician to determine the etiology of the Veteran's ulcerative colitis. The examiner must review the complete record to include the January 2020 and March 2021 Board remands. The examiner must opine as to the following: (a.) Whether the Veteran's ulcerative colitis is at least as likely as not related to service, including exposure to burn pits and/or sandstorms. i. The examiner must address the May 2007 colonoscopy report that indicated indeterminate colitis. The examiner must fully explain the why indeterminate colitis is not related to the Veteran's current ulcerative colitis. ii. The examiner must address the September 2020 Gulf War examiner's opinion that ulcerative colitis is caused by a bacteria or virus which instigates an immune response and whether exposure to burn pits would cause this immune response. (b.) The examiner must provide a complete medical rationale for all opinions provided. A negative rationale based on the fact that ulcerative colitis is not presumptive disorder will deemed as inadequate. S. L. Kennedy Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Robert Batten 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.