Citation Nr: 21076175 Decision Date: 12/22/21 Archive Date: 12/22/21 DOCKET NO. 17-61 418 DATE: December 22, 2021 REMANDED Entitlement to service connection for lymphocytic colitis of the sigmoid and ascending colon (lymphocytic colitis) is remanded. REASONS FOR REMAND The Veteran served on active duty from August 1965 to July 1969. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a July 2016 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran submitted a notice of disagreement in August 2016. The RO issued a statement of the case in November 2017. The Veteran submitted his substantive appeal (VA Form 9) in November 2017. In his November 2017 substantive appeal, the Veteran requested a Board hearing by live videoconference. However, in October 2021, he advised that he no longer wanted a Board hearing, thus, withdrawing his request for a hearing. 38 C.F.R. §§ 20.702 (e), 20.704(e). This claim has been advanced on the docket pursuant to 38 C.F.R. § 20.900. The Board notes that a VA prostate examination was performed after the November 2017 statement of the case was issued. However, the VA prostate examination did not include any relevant information regarding the issue of service-connection for lymphocytic colitis. As such, waiver of agency of original jurisdiction (AOJ) review is not necessary. 38 C.F.R. § 19.37; 38 U.S.C. § 7105(c). Additionally, as the issue on appeal is being remanded for further development, the AOJ will have the opportunity to review all evidence of record since the November 2017 statement of the case. Entitlement to service connection for lymphocytic colitis is remanded The Veteran contends that his lymphocytic colitis should be service connected because it was caused by the radiation treatment for his service-connected prostate cancer. He has also indicated that medication treatment for his service-connected conditions may have caused his lymphocytic colitis. The Veteran further maintains that if treatment for his service-connected conditions did not cause the lymphocytic colitis, such treatment has aggravated his condition. Once VA has provided a VA examination, it is required to provide an adequate one, regardless of whether it was legally obligated to provide an examination in the first place. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). The Veteran was afforded a VA intestinal examination in June 2016. The Board finds that examination opinion to be inadequate. The examiner recognized that the Veteran has a diagnosis of lymphocytic colitis of the sigmoid and ascending colon, as well as radiation proctitis. The examiner opined that the Veteran's lymphocytic colitis is less likely than not proximately due to or the result of the service-connected prostate cancer. The examiner's rationale explained that due to the symptomology of the Veteran's lymphocytic colitis, it is less likely that the radiation treatment for the prostate cancer caused the colitis and more likely that the colitis is due to simvastatin medication or some other unknown etiology. The examiner also noted that the Veteran's symptoms presented and worsened in the last 1.5 - 2.0 years ago, according to the treatment notes. In providing the rationale for the opinion, the examiner did not address the statement of the Veteran that his lymphocytic colitis symptoms worsened when he received radiation treatment. In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and recurrence of symptoms. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). A Veteran's lay statements can provide evidence of symptoms that should be evaluated by an examiner. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The examiner did not address the Veteran's statements that he had a worsening of symptoms directly related to his treatment. Additionally, the examiner found that it is likely that the prescribed simvastatin caused the lymphocytic colitis. A November 2017 medical note indicates that the Veteran had a history of prostate cancer, noting that the Veteran currently has a low prostate specific antigen (PSA), and simvastatin gave the patient colitis. This note suggests that there could be a connection between the prescription for simvastatin and maintaining a low PSA, which is related to the Veteran's prostate cancer. The examiner did not address whether the simvastatin would have been prescribed not only for reducing cholesterol, but also for the purpose of maintaining a low PSA as prophylactic care for the Veteran's prostate cancer. If it is as likely as not that the simvastatin was prescribed for maintaining a low PSA, sufficient connection to the Veteran's prostate cancer will have been established for a secondary connection. Although it was acknowledged by the examiner that the Veteran's lymphocytic colitis was most likely caused by simvastatin, it was also indicated that it could have been caused by an unknown etiology. In accepting that a medication could have caused the lymphocytic colitis, the examiner should have also considered whether any other prescribed medication for the Veteran's service-connected conditions at least as likely as not caused the lymphocytic colitis. The examiner did not address whether any other medication treatment caused the Veteran's condition. Furthermore, it is mentioned in the VA intestinal examination that the Veteran has stress fecal incontinence. This suggests that the Veteran's stress impacts his fecal incontinence. Whether the Veteran's lymphocytic colitis was caused by, or aggravated by, his post-traumatic stress disorder (PTSD) symptoms was not addressed in the VA intestinal opinion. However, the examiner needed to discuss whether the Veteran's service-connected PTSD symptoms caused, or aggravated, the lymphocytic colitis considering the indication that stress affects the lymphocytic colitis. See Id. The examiner also failed to consider whether the Veteran's lymphocytic colitis is aggravated by his service-connected prostate cancer. A secondary opinion which addresses a causal relationship, but which does not address the question of aggravation, is inadequate. See El-Amin v. Shinseki, 26 Vet. App. 136, 140 (2013). Moreover, it is noted in the VA intestinal examination that the radiation therapy treatment notes were not available, and that the radiation therapy was performed at David Grant United States Air Force Medical Center. Additionally, the Veteran has stated that he received care for his lymphocytic colitis from the Sutter Medical Center. However, only one medical note from Sutter Medical Center has been associated with the case file. As such, it appears that there may be outstanding relevant Department of Defense medical records that have not yet been associated with the case file. Therefore, remand is necessary to make reasonable efforts to obtain such records. Based on the foregoing reasons, remand is warranted for further development. The matters are REMANDED for the following action: 1. Associate with the case file any relevant outstanding VA medical records, to include records of radiation treatment at the David Grant United States Air Force Medical Center. 2. The AOJ must assist the Veteran in procuring any relevant private medical records, to include records from Sutter Medical Center. The AOJ must provide the Veteran with the proper authorization forms for release of information and ask the Veteran to complete the forms in order for VA to assist him in obtaining the records. The AOJ must provide the Veteran with the appropriate period of time to complete and return the authorization forms. If the initial request for such information is not responded to, the AOJ must issue a follow-up request. Upon receipt of authorization by the Veteran to obtain the relevant medical records, the AOJ must make reasonable efforts, at least two (2) attempts, to obtain the relevant records. All attempts to secure the relevant medical evidence must be documented in the claims file, and if, after exhausting efforts to obtain the records, they are not able to be secured and it is determined that they do not exist or that further attempts would be futile, the AOJ must provide the Veteran and his representative the required notice and opportunity to respond. 3. After completing the foregoing development, obtain a VA addendum opinion to the June 2016 opinion by an appropriate clinician, preferably a specialist, for the issuance of a medical opinion as to the nature and etiology of the Veteran's lymphocytic colitis. If a VA examination is necessary to make a determination, please schedule one. The examiner should thoroughly review the Veteran's entire claims file, including a copy of this Remand. The examiner must be advised that the Veteran is competent to attest to factual matters of which he has first-hand knowledge, including observable symptomatology. The examiner should opine as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran's lymphocytic colitis was: (1) caused by any of his service-connected conditions, to include prostate cancer, medications or other treatments for the service-connected conditions, and/or stress or anxiety from PTSD; or (2) aggravated by the service-connected conditions, to include prostate cancer, medications or other treatments for the service-connected conditions, and/or stress or anxiety from PTSD. The term "aggravation" is defined for legal purposes as a chronic worsening of the underlying condition beyond its natural progression. If aggravation is present, the clinician should indicate, to the extent possible, the approximate level of disability (i.e., a baseline) before the onset of the aggravation. Any evaluations, studies, or tests deemed necessary by the examiner should be accomplished and any such results must be included in the examination report. (Continued on the next page) A complete rationale for any opinion expressed must be provided. If the examiner is unable to reach an opinion without resort to speculation, he or she should explain the reasons for this inability and comment on whether any further tests, evidence or information would be useful in rendering an opinion. A. J. Spector Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. Temple, Associate 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.