Citation Nr: 21011877 Decision Date: 03/02/21 Archive Date: 03/02/21 DOCKET NO. 15-34 246 DATE: March 2, 2021 REMANDED Service connection for irritable bowel syndrome (IBS) is remanded. Service connection for joint pain is remanded. REASONS FOR REMAND The Veteran served on active duty from May 1988 to June 1991. In June 2020, the Veteran was informed that the Veterans Law Judge who held the January 2019 hearing was no longer employed by the Board, and he was given an opportunity to appear at another hearing. 38 C.F.R. § 20.604. The letter informed the Veteran that, if no response was received in 30 days, the Board would assume he did not want another hearing. The Veteran has not responded to the letter; therefore, no further action concerning a Board hearing in necessary. This appeal was previously before the Board in May 2019, at which time the Veteran’s claims on appeal were remanded to the agency of original jurisdiction (AOJ) so that opinions could be obtained that addressed the Veteran’s contentions. With regard to his claimed IBS, the Board directed the examiner to address whether the Veteran had a current diagnosed disability. With regard to his claimed joint pain, the Board directed the examiner to address whether the Veteran had a current diagnosis of gout, fibromyalgia, and/or any other disability. The examiner was then directed to address a number of questions, to include whether the Veteran’s current disability was a congenital disease; whether such was caused or aggravated by his military service; or whether another condition was superimposed on the Veteran’s gout. Although the Veteran underwent a VA examination in October 2019, and the VA examiner confirmed that he had a current diagnosis of IBS, the examination reports currently associated with the claims file do no contain an opinion as to whether his diagnosed IBS is related to his military service, to include his service in Southwest Asia. The Board notes that the April 2020 supplemental statement of the case indicated that the October 2019 VA examiner opined that there was no pathology and no relation to a specific exposure event experienced in Southwest Asia; however, this opinion is not of record. Therefore, to ensure an adequate record upon which to decide the Veteran’s a remand is necessary to obtain the opinion referenced in the April 2020 supplemental statement of the case. Bell v. Derwinski, 2 Vet. App. 611 (1992) (holding that VA is charged with constructive notice of medical evidence in its possession). If the opinion cannot be obtained, the AOJ should obtain another medical opinion addressing whether the Veteran’s currently-diagnosed IBS is related to his military service, to include his service in Southwest Asia. With regard to the Veteran’s claimed joint pain, although a VA medical opinion was obtained in October 2019, as will be explained, the opinion is insufficient to adjudicate the claim. First, the examiner opined that the Veteran’s complaints of joint pain were explained by a diagnosis of congenital gout and that his uric acid levels had been elevated, contrary to his contentions. Furthermore, although the examiner opined that his congenital gout was clearly and unmistakably not aggravated beyond its natural progression by his military service, the examiner’s rationale was that there was no alcohol abuse nor history of hypertension noted at the time of enlistment. This rationale clearly does not support the conclusion reached as it relies upon the Veteran’s condition(s) when he entered active duty to determine whether any subsequent in-service injury, event, or illness aggravated his gout. Finally, the examiner failed to address whether a condition was superimposed on the Veteran’s gout. Instead, the examiner merely noted that he was not diagnosed with fibromyalgia. Given that the medical evidence of record fails to adequately address the issues raised in this appeal, the Board finds that a new examination is necessary. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). On remand, the AOJ should associate with the record any outstanding VA treatment records that are not currently associated with the claims file. Additionally, the Veteran should be given the opportunity to identify any outstanding pertinent records. The matters are REMANDED for the following action: 1. Associate with the Veteran’s claims file the opinion addressing whether his currently-diagnosed IBS is related ot his military service that was referenced in the April 2020 supplemental statement of the case, as well as any VA treatment records dated after March 10, 2020. 2. Give the Veteran an additional opportunity to identify any outstanding pertinent evidence that has not already been associated with the claims file, including any evidence pertinent to his gastrointestinal disorder, his bilateral foot disorder, and/or his sleep apnea. The AOJ should then attempt to obtain those records if the Veteran provides the appropriate authorization. 3. Obtain a medical opinion from a competent medical professional to determine whether the Veteran’s IBS had onset during service, or are otherwise related to his military service, to include his service in Southwest Asia. The record must be made available to and reviewed by the opinion provider. The need for further examination is left to the discretion of the medical professional selected to render the opinion. Following a review of the entire record, to include the Veteran’s lay statements concerning onset and continuity of symptomatology, the examiner should address the following question: Is it at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran’s currently-diagnosed IBS had its onset during, or is otherwise related to, his active duty service, to include service in Southwest Asia? In offering any opinion, the examiner must consider the full record, to include the Veteran’s lay statements regarding in-service incurrence and continuity of symptomatology, and the opinion should reflect such consideration. A clearly-stated rationale for any opinion offered should be provided. 4. Schedule the Veteran for a new VA examination to determine whether his currently-diagnosed gout had its onset during, or is otherwise related to, his military service. The record must be made available to, and reviewed by, the examiner. Any indicated evaluations, studies, and tests should be conducted, and the examiner should take a history from the Veteran as to the onset and progression of his claimed disability. Upon review of the file, as well as interview and examination of the Veteran, the examiner should respond to each of the following: (a) With regard to the Veteran’s gout, did such clearly and unmistakably (i.e., by a showing of obvious and manifest evidence) preexist the Veteran’s active service? In this regard, the Board notes that gout was not listed on the Veteran’s April 1988 entrance examination. Furthermore, please address the significance, if any, of the September 2011 VA examiner’s opinion that his gout was congenital in nature. (i) If the answer to the above question is “YES,” is it also clear and unmistakable (i.e. undebatable) that the disorder was NOT aggravated beyond its normal progression during the Veteran’s active service? (ii) If it is the examiner’s conclusion that the Veteran’s gout pre-existed his service and was congenital in nature, is it at least as likely as not that another joint disorder became superimposed on the gout during service? If so, please identify the superimposed disorder. (iii) If the answer to question (i) or (ii) is “NO,” then assume as true that the Veteran’s gout did not preexist service. With this understanding, is it at least as likely as not (i.e., a 50 percent or greater probability) that the gout had its onset in, or is otherwise related to, his active duty service. In offering any opinion, the examiner must consider the full record, to include the Veteran’s lay statements regarding the onset and continuity of his symptomatology, and the opinion should reflect such consideration. A clearly-stated rationale for any opinion offered should be provided. (CONTINUED ON NEXT PAGE) 5. Thereafter, and after any further development deemed necessary, the issues on appeal should be readjudicated. JOHN Z. JONES Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board James R. Springer, 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.