Citation Nr: 21077376 Decision Date: 12/29/21 Archive Date: 12/29/21 DOCKET NO. 17-60 738 DATE: December 29, 2021 REMANDED Entitlement to service connection for collagenous colitis with recurrent diarrhea, including as secondary to service-connected disabilities, is remanded. REASONS FOR REMAND The Veteran served on active duty from July 1960 to July 1963 and from June 1964 to June 1965. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2016 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). This appeal has been advanced on docket pursuant to 38 C.F.R. §§ 20.900(c) (2017). 38 U.S.C. §§ 7107(a)(2). This matter was most recently before the Board in July 2021, wherein the Board remanded the issue to obtain an addendum medical opinion. The matter has returned to the Board for adjudication. Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. See 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c). By way of history, a February 2019 Board decision denied entitlement to service connection for collagenous colitis with recurrent diarrhea, including on a secondary basis. The Veteran appealed this decision to the United States Court of Veterans Appeals (Court). In a July 2020 Memorandum Decision, the parties agreed that the Board erred in relying on a December 2015 intestinal conditions examination and January 2016 addendum opinion to deny the Veteran's claim for collagenous colitis with recurrent diarrhea secondary to his service-connected disabilities. The parties found that the opinion was inadequate because the examiner did not provide a rationale for his conclusion that he could not provide an etiology opinion as to causation and aggravation without resort to speculation. The matter returned to the Board in March 2021 and the Board remanded the issue for another addendum opinion. An addendum opinion was obtained in April 2021. In May 2021, the Veteran submitted two medical article abstracts which he claims related to and support his claim for compensation due to colitis. The July 2021 Board decision found that new addendum opinions were required to address whether the new evidence submitted by the Veteran is probative on the Veteran's claim. The Board instructed the examiner to issue an addendum opinion as to whether the additional medical articles, or other evidence received after remand, impact any of the addendum opinions prepared in April 2021. In August 2021, the RO obtained the requested addendum opinion. The examiner opined that the claimed condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. He indicated the prior 2021 opinion was correct and would be unchanged based on the review article submitted by the Veteran. The examiner indicated that the collagenous colitis is not caused by psychological conditions. He stated that it is less likely than not that the Veteran's collagenous colitis is due to or incurred in the Veteran's stress during service or is due to any other psychological comorbidity. He also stated that is it a separate condition from shigella and unrelated to the prior history of shigella. However, the examiner did not address aggravation and whether the medical articles submitted by the Veteran changed the prior April 2021 aggravation opinion. When there is not substantial compliance with Board remand requests, the Board errs as a matter of law when it does not ensure compliance. Stegall v. West, 11 Vet. App. 268 (1998). Furthermore, the April 2021 examiner stated in the medical opinion on aggravation that collagenous colitis and service-connected conditions are medically unrelated. She further stated that there was no aggravation of colitis documented i.e., resection of affected bowel and that no aggravation is plausible. In this regard, the nurse practitioner did not provide adequate rationale as to why aggravation was not plausible and provided conclusory statements. It also appears that the examiner addressed aggravation as a part of causation in that she stated that the conditions are medically unrelated. The examiner should be informed that aggravation is different from causation in that it did not cause the disability but that it aggravated the disability. The Board notes that "aggravation" is any incremental increase in disability attributable to the service-connected disability, i.e., any additional impairment of earning capacity that is above the degree of disability existing before the increase, regardless of its permanence. Ward v. Wilkie, 31 Vet. App. 233 (2019). Based on the deficiencies in the medical opinions addressed above, the Board finds that remand is warranted to obtain an adequate medical opinion that addresses both causation and aggravation. Additionally, the April 2021 medical opinion was provided by a nurse practitioner. Here, there is no indication that the examining nurse practitioner lacked the necessary training and qualifications to provide an adequate examination and opinion. The Board presumes the examiner's competency to conduct VA examinations and medical opinions; however, in a May 2021 statement, the Veteran indicated his disagreement with the examination being conducted by a nurse practitioner. As the issue is being returned to the RO, on remand, the addendum opinion should be completed by a medical expert specifically trained in the field of gastroenterology. The matters are REMANDED for the following action: 1. Obtain VA treatment records from October 2021 to present. All reasonable attempts should be made to obtain any identified records. 2. After completion of the above, obtain an addendum opinion, from a medical profession who is a gastroenterologist or with appropriate expertise in gastroenterology disabilities, other than the January 2016, April 2021, or August 2021 VA examiners, to address the claim for service connection for collagenous colitis. The decision for an in-person examination of the Veteran is left to the discretion of the examiner. The Veteran's record, to include a copy of this remand, should be made available to and reviewed by the examiner, and an opinion as follows is requested: a) Is it at least as likely as not (a 50 percent or greater probability) that the Veteran's collagenous colitis had an onset in service or is otherwise related to service? b) Is it at least as likely as not (a 50 percent or greater probability) that the Veteran's collagenous colitis was caused by or aggravated by the service-connected disabilities? Secondary service connection is warranted for any incremental increase in disability. State whether there was an increase in disability regardless of permanence, but medically ascertainable. Any increase in disability should be described in terms of diagnosis, severity, and duration. The examiner is reminded that he or she must address both causation and aggravation. If aggravation is found, the examiner should attempt to quantify the degree of additional disability resulting from the aggravation (specifying the baseline level of disability and current level of severity, based on consideration of VA's rating schedule). In rendering the above opinion, the examiner must address both causation and aggravation. In other words, even if the Veteran's service-connected disabilities did not cause his collagenous colitis, the examiner should still address whether his service-connected disabilities could have worsened his collagenous colitis. If aggravation is found, the examiner should quantify the degree of aggravation, if possible, and state whether there was an increase in disability regardless of permanence, but medially ascertainable. In providing the above opinion, the VA examiner should consider and address as appropriate (1) the article submitted by the Veteran: Alexandra Labanski, et. al., Stress and the brain-gut axis in functional and chronic-inflammatory gastrointestinal diseases: A transdisciplinary challenge, Psychoneuroendocrinology (November 2019) and (2) the abstract to the medical articles: David Banfi, et. al., Impact of Microbial Metabolites on Microbiota-Gut-Brain Axis online 2021 Feb 5. doi: 10.3309/ijms22041623. The rationale for a negative opinion must not be based solely on the lack of a relevant in-service diagnosis or clinical findings and must reflect consideration of the competent lay assertions of pertinent symptomology from service to the present. In considering any lay statements of record, the examiner should note that the Veteran is competent to attest to matters of which he had first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. The examination report must include a complete rationale for any opinion provided. If the examiner cannot provide the requested opinion without resorting to speculation, the examiner should so state and explain why an opinion cannot be provided without resorting to speculation. MARJORIE A. AUER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Kim, 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.