Citation Nr: 21009882 Decision Date: 02/23/21 Archive Date: 02/23/21 DOCKET NO. 15-33 632 DATE: February 23, 2021 REMANDED Entitlement to service connection for an ulcer is remanded. Entitlement to service connection for irritable bowel syndrome is remanded. REASONS FOR REMAND The Veteran served in the United States Army from January 2003 until January 2005. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a May 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. The Board previously remanded these claims in September 2018 for further development and it is now before the Board. Unfortunately, a review of the claims file reveals that a remand is necessary before a decision on the merits of the claims can be reached for the following reasons. 1. Entitlement to service connection for an ulcer is remanded. 2. Entitlement to service connection for irritable bowel syndrome is remanded. The Veteran asserts that her ulcer and irritable bowel syndrome are a result of her active duty service. She contends that her digestive issues began in April 2005 and continues through the present. Post service records show periods of constant diarrhea, abdominal plain, bloating, increased flatulence, multiple bowel movements per day, and occasional vomiting. She was diagnosed with a peptic ulcer in 2008—three years after separation from service. In its September 2018 remand decision the Board instructed the RO to obtain a medical opinion concerning the etiological relationship between the Veteran’s ulcer disability and irritable bowel syndrome disability. A review of the record since the September 2018 remand does not reflect developmental actions consistent with the directives of the remand. Parenthetically, the Board notes that the examiner did not provide sufficient rationale for the etiological opinions provided. In its September 2018 remand decision, the Board noted that there was a previous examination conducted for service connection for an ulcer and service connection for irritable bowel syndrome in March 2017, but the examination was inadequate because the examiner failed to take into account that although the Veteran’s diagnoses occurred in 2008 and 2010, the Veteran asserted that she had ongoing symptomatology since service, and medical records showed symptomatology within the first couple of years after service. Moreover, the Board noted that because of the failure to take into account symptomatology or explain whether Accutane which was a medication prescribed during service, could manifest in side effects after the course of treatment, another medical opinion was warranted. In the September 2018 Board decision, etiological opinions were requested in the remand directives for both disabilities; however, there was no reference by the most recent examiner (June 2019) regarding the Veteran’s assertions of ongoing symptomatology since service and to the medical records that showed symptomatology within the first couple years after service. The most recent June 2019 etiological opinions do not contain much rationale and simply state that the Veteran’s conditions are less likely than not incurred in or caused by service. As rationale, the examiner stated that there were no service treatment records for irritable bowel syndrome or for an ulcer or ulcer-like condition. The rationale for the overall etiological opinions which are merely based on the absence of documented complaints of each respective disability in service and no consideration to assertions of ongoing symptomatology make the opinion inadequate. While the examiner offered an opinion on why the Veteran’s course of treatment for Accutane in service did not cause the onset of GI symptoms, this opinion was also based on the delayed onset of the Veteran’s symptoms and did not consider the Veteran’s reports of ongoing symptomatology. A medical opinion based solely on the absence of documentation in the record is inadequate and a medical opinion is inadequate if it does not take into account the Veteran’s reports of symptoms and history. Dalton v. Peake, 21 Vet. App. 23 (2007). Here, the June 2019 examiner relies on the absence of evidence in the Veteran’s service treatment records to bolster conclusory statements regarding the lack of a medical nexus for the Veteran’s ulcer and irritable bowel syndrome disabilities. The absence of contemporaneous evidence is an insufficient basis for an adequate medical opinion. Id. For an opinion to be adequate, it must include consideration of the Veteran’s statements, be based on accurate factual premises, and contain a rationale sufficient to support its conclusions. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Here, the June 2019 VA examiner failed to give consideration to the Veteran’s statements regarding ongoing symptomatology of her disabilities. VA must consider all lay and medical evidence of record. 38 U.S.C. § 1154(a); 38 U.S.C. § 5107; 38 C.F.R. § 3.303. The Board thus concludes that the June 2019 VA examination is not adequate for adjudicative purposes. Therefore, the RO has not complied with the instructions from the September 2018 remand. The Board is obligated by law to ensure that the RO complies with its directives. Stegall v. West, 11 Vet. App. 268, 271 (1998). RO compliance with remand directives is not optional or discretionary, and the Board errs as a matter of law when it fails to ensure remand compliance. Stegall, 11 Vet. App. at 271. Accordingly, remand is required to obtain an adequate medical opinion that complies with the Board remand directives. The matters are REMANDED for the following action: 1. Forward the record and a copy of this remand to the examiner who conducted the June 2019 examinations, or, if that examiner is unavailable, to another qualified medical professional, for completion of an addendum opinion to determine the etiology of the Veteran’s ulcer disability and irritable bowel syndrome. If the examiner deems an in-person examination is necessary for completion of an adequate opinion, such examination should be scheduled. The entire claims file including a copy of this remand must be made available to and be reviewed by the examiner. Any indicated tests and studies must be accomplished and all clinical findings must be reported in detail and correlated to a specific diagnosis. After reviewing the file and eliciting a detailed medical history from the Veteran, the examiner is asked to opine as to the following: (a.) Is it at least as likely as not (50 percent or greater probability) that the Veteran’s ulcer had its onset in, was aggravated by, or is otherwise etiologically related to active military service, to include the Veteran’s Accutane prescription in service? The examiner must consider and address the Veteran’s assertions that she had ongoing symptomatology of digestive issues since service, and medical records that show symptomatology of constant diarrhea, abdominal plain, bloating, increased flatulence, multiple bowel movements per day, and occasional vomiting within the first couple of years after service. (b.) Is it at least as likely as not (50 percent or greater probability) that the Veteran’s irritable bowel syndrome had its onset in, was aggravated by, or is otherwise etiologically related to active military service, to include the Veteran’s Accutane prescription in service? The examiner must consider and address the Veteran’s assertions that she had ongoing symptomatology of digestive issues since service, and medical records that show symptomatology of constant diarrhea, abdominal plain, bloating, increased flatulence, multiple bowel movements per day, and occasional vomiting within the first couple of years after service. (Continued on the next page)   In providing these opinions, the examiner is reminded that the Veteran is competent to report continuous symptoms since service, and such reports must be specifically acknowledged and considered in formulating any opinion. If the examiner rejects the Veteran’s reports regarding current or past symptoms, the examiner must provide a reason for doing so. Rationale for all requested opinions shall be provided. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). Tiffany Dawson Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Dorsey-Kwansa, 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.