Citation Nr: 21013351 Decision Date: 03/09/21 Archive Date: 03/09/21 DOCKET NO. 17-60 738 DATE: March 9, 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 honorably in the United States Army from July 1960 to July 1963 and from June 1964 to June 1965. In a February 2019 decision (Board Decision) the Board of Veterans’ Appeals (Board) denied the Veteran’s claim for entitlement to service connection for (1) collagenous colitis with recurrent diarrhea and (2) erectile dysfunction, both as secondary to a service-connected disability. The Veteran appealed that decision to the U.S. Court of Appeals for Veterans Claims (CAVC or Court). In July 2020, the Court issued a decision (Court Decision) which vacated the parts of the Board’s Decision which denied the claim related to collagenous colitis and affirmed the denial of the claim related to erectile dysfunction. The Court remanded the claim related to collagenous colitis back to the Board for further development and readjudication. To comply with the terms of the Court’s Decision, the Board, in turn, is remanding the claim to the agency of original jurisdiction (AOJ) for additional evidentiary development and other action consistent with the Court’s Decision. As the Court affirmed the Board’s previous denial of the erectile dysfunction claim, it is not part of this Board decision. This appeal has been advanced on the Board’s docket pursuant to 38 C.F.R. § 20.900(c); 38 U.S.C. § 7107(a)(2). 1. Entitlement to service connection for collagenous colitis. In its July 2020 Decision, the Court noted that both Parties agreed that the Board erred by not ensuring that the Department of Veterans Affairs (VA) complied with its duty to assist the Veteran under the requirements of 38 U.S.C. § 5103A and 38 C.F.R. § 3.159(c), to provide an examination that was adequate for rating purposes. Specifically, the Board conceded that the December 2015 intestinal conditions examination and 2016 addendum opinion, relied on in its decision, are inadequate and that the matter should be remanded for a new examination or opinion. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (“[O]nce the [VA] undertakes the effort to provide an examination [or opinion,]...[it] must provide an adequate one.”). The Veteran was provided a VA intestinal conditions examination in December 2015. However, the AOJ found the December 2015 intestinal conditions examination to be “insufficient” because the examiner’s opinion conflicted with the opinion of another VA psychological examiner, and the examiner’s rationale was directly contradicted by medical findings of record. Therefore, the AOJ requested that the examiner provide an addendum opinion to reconcile the conflicting evidence. In the responsive 2016 addendum opinion the examiner amended his opinion because the other VA psychological examiner found that the Veteran did not have a current mental health disorder that would account for his gastrointestinal complaints and therefore, although the medical records clearly indicate work ups, lab tests, cultures, and pathology specimens, they do not provide a diagnosed cause for the Veteran’s gastrointestinal complaints. The examiner further noted that the Veteran tested negative for shigella paradysenteria and that medical literature implicated smoking as a possible causative factor for his types of gastrointestinal complaints. The examiner concluded by stating that he was “unable to further comment on causation, and thus not on aggravation either [without] resort to speculation.” Based at least in part on this amended opinion the RO denied the Veteran’s claim. The Board then affirmed that decision. This was in error. The 2016 addendum 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. See Jones v. Shinseki, 23 Vet. App. 382, 390 (2010) (concluding that, “before the Board can rely on an examiner’s conclusion that an etiology opinion would be speculative, the examiner must explain the basis for such an opinion or the basis must otherwise be apparent in the Board’s review of the evidence”). The parties agreed and the Court ordered that remand for another addendum opinion which corrects these deficiencies is required. The Court also directed that on remand the Veteran is free to submit additional evidence and argument on the remanded matter, including the specific arguments raised here on appeal, and the Board is required to consider any such relevant evidence and argument. See Kutscherousky v. West, 12 Vet. App. 369, 372-73 (1999) (per curiam order); see also Kay v. Principi, 16 Vet. App. 529, 534 (2002) (stating that, on remand, the Board must consider additional evidence and argument in assessing entitlement to the benefit sought). Pursuant to 38 U.S.C. § 7112, this matter is to be afforded expeditious treatment. The matters are REMANDED for the following action: 1. Provide the Veteran with a new addendum VA medical opinion. If possible, return the matter to the VA examiner who prepared the 2016 addendum opinion. If that examiner is not available, assign the matter to another qualified clinician. The examiner is directed to review the Veteran’s entire file in conjunction with authoring the opinions requested herein. After review of the Veteran’s file the examiner should address the following: (a.) The examiner should issue an addendum medical opinion as to whether it is at least as likely as not (50 percent probability or higher) that the Veteran’s collagenous colitis with recurrent diarrhea had its onset in service or is related to his service (direct service connection), or was caused or aggravated by any of his current service-connected disabilities (secondary service connection). A complete opinion for each issue, either positive or negative, must include rationale that is based on a full history of the Veteran’s condition, including, but not limited to, his lay statements and testimony, as well as that contained within other relevant medical records. The examiner is advised that the Veteran is competent to report his symptoms and that such reports must be acknowledged and considered in formulating any opinion. If his reports are discounted, the examiner should provide a reason for doing so. The examiner must provide a comprehensive report including complete rationales for all opinions and conclusions reached, citing the objective medical findings leading to the conclusions. If any requested opinion cannot be provided without resorting to mere speculation, then the examiner must explain why. (Continued on the next page)   2. Readjudicate the appeal. R. FEINBERG Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Bannach, 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.