Citation Nr: 21005503 Decision Date: 02/01/21 Archive Date: 02/01/21 DOCKET NO. 14-12 142A DATE: February 1, 2021 REMANDED Entitlement to service connection for gastrointestinal disorder, to include residuals from colon cancer is remanded REASONS FOR REMAND The Veteran served on active duty from January 1965 to November 1968, to include service in the Republic of Vietnam. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a May 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan. This matter was last remanded in October 2019, regrettably additional development is still necessary. Entitlement to service connection for a gastrointestinal disorder, to include colon cancer and residuals thereof, is remanded. In its October 2019 remand, the Board found that a prior examination was insufficient because it failed to adequately address the Veteran’s lay assertions that his colon cancer was related to herbicide exposure. Further, the Board asked that the examiner address a private medical opinion of record provided by examiner, KD, dated May 2019, in which she concluded that it was more likely than not that the Veteran’s condition of colon cancer was aggravated/related to his military service and exposure to Agent Orange when in Vietnam from 1967 to 1968. The Board found that the prior examination and Dr. K.D.’s opinion lacked sufficient rationale, and remanded the appeal so that a new examiner could provide a medical opinion as to the etiology of any gastrointestinal disability found with a thorough and comprehensive report which noted the evidence described above. The Veteran was afforded a new VA examination in February 2020 in accordance with the October 2019 remand. However, this examination is also inadequate as the VA examiner failed to discuss or mention Dr. K.D.’s findings, the Veteran’s lay assertions, or whether the Veteran’s colon cancer was related to service or to herbicide exposure outside of the fact that it was not presumed to be due to such. As the examiner failed to address the medical evidence as requested, the Board finds the examination inadequate and a new examination is required. Barr v. Nicholson, 21 Vet. App. 303, 311-12 (2007) (Once VA undertakes the effort to provide a medical examination or opinion, it must provide an adequate one). Stegall v. West, 11 Vet. App. 268, 271 (1998). The Board by this remand makes no determination, expressed or implied, concerning the credibility of any statements on file. The matters are REMANDED for the following action: 1. Obtain an opinion, preferably with a qualified clinician who has not previously examined the Veteran, to determine whether the Veteran’s claimed gastrointestinal disorder, described as irritable bowel syndrome by the February 2020 VA examiner following physical examination, is related to his military service. If the selected clinician determines that an examination is necessary to respond to this request, such examination should be scheduled. After review of the claims file, and examination of the Veteran if deemed necessary, the examiner must provide an opinion as to whether the Veteran’s claimed gastrointestinal disorder, to include colon cancer and residuals colon cancer with residuals is at least as likely as not (50 percent probability or greater) caused by or related to the Veteran’s active service. In rendering this opinion, the examiner must review the Veteran’s entire claims folder, consider the newly obtained private opinion dated May 2019 by examiner KD, and consider the Veteran’s lay statements. The VA examiner is reminded that if the claimed disease is not one of the presumptive diseases listed in 38C.F.R. §3.309 (e), but exposure to an herbicide is presumed or proven by the evidence, the veteran may establish service connection for the disease by (1) showing that the disease actually occurred in service; or (2) by submitting medical evidence of a nexus between the disease and his exposure to herbicides during military service (or another incident of service). The examiner is advised that relying solely on the absence of evidence in the STRs is an insufficient basis, by itself, for a negative opinion. If the examiner is unable to offer the requested opinion, it is essential that the examiner offer a rationale for the conclusion that an opinion could not be provided without resort to speculation, together with a statement as to whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. The examiner must provide a complete rationale for all opinions and conclusions expressed. 3. Ensure that the examination report is adequate. If it is deficient in any manner, return the report to the examiner as inadequate. 4. Then, after conducting any other development deemed necessary, readjudicate the Veteran’s claim. If the benefit sought on appeal remains denied, provide the Veteran and his representative with a supplemental statement of the case and allow an appropriate period of time for response. Thereafter, the claims folder should be returned to the Board. KELLI A. KORDICH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board G. Slovick, 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.