Citation Nr: 21020694 Decision Date: 04/07/21 Archive Date: 04/07/21 DOCKET NO. 05-35 425 DATE: April 7, 2021 REMANDED Entitlement to service connection for a respiratory condition is remanded. Entitlement to service connection for a gastrointestinal condition is remanded. Entitlement to service connection for fibromyalgia is remanded. Entitlement to special monthly compensation (SMC) based on the need for aid and attendance is remanded. REASONS FOR REMAND The Veteran served on active duty from September 1969 to September 1971, December 1972 to August 1978, and from August 1991 to March 1992. The Board remanded the Veteran’s claims for service connection for a respiratory condition, a gastrointestinal condition, a sleep disorder, and fibromyalgia for additional development in February 2012 and September 2004. The Board then denied the claims in an August 2018 decision. The Veteran appealed the denial of the claims to the Court of Appeals for Veterans Claims (Court). In June 2019, the Court granted a Joint Motion for Partial Remand (JMPR) filed by the parties, which directed that the portion of the August 2018 decision denying service connection for a respiratory condition, a gastrointestinal condition, a sleep disorder, and fibromyalgia be vacated and remanded. In April 2020, the Board remanded the issues of service connection for a respiratory condition, a gastrointestinal condition, a sleep disorder, fibromyalgia, and entitlement to SMC in order to associate any VA or private medical records with the file and to obtain VA examinations. The Board notes that service connection was granted for a sleep disorder by a rating decision of January 2021. In January 2021, the RO issued a supplemental statement of the case. The appeal has now been returned to the Board for further appellate review. 1. Entitlement to service connection for a respiratory condition is remanded A remand confers on the claimant, as a matter of law, the right to compliance with the remand order and imposes upon the VA a concomitant duty to ensure compliance with the remand. See Stegall v. West, 11 Vet. App. 268 (1998). The April 2020 remand directed that the Veteran be afforded a VA gastrointestinal examination and for the examiner to determine if there is clear and unmistakable evidence (i.e., it is undebatable) that any respiratory disorder existed prior to the Veteran’s service. In November 2020, the Veteran was afforded a VA respiratory examination. The examiner’s opinion did not address whether there is clear and unmistakable evidence that a respiratory disorder existed prior to service. The examiner discussed aggravation but failed to address the issue as set out in the Board remand and thereby, did not substantially comply with the remand order. The remand also directed that if the examiner did not make a diagnosis the examiner was to opine whether the Veteran’s symptoms represent the manifestations of an undiagnosed illness. The examiner ultimately determined that the Veteran did not have a diagnosable respiratory condition. However, the examiner did not address whether the Veteran’s current symptoms are manifestations of an undiagnosed illness. Rather, the examiner determined that the Veteran did not have an undiagnosed illness during his military service. This finding did not respond to the directive of the April 2020 remand, and as such, did not substantially comply with the remand directive. For the foregoing reasons, remand is warranted for additional development in order to comply with the April 2020 Board remand. Additionally, since the Veteran’s claim for service connection for a respiratory condition is being remanded, the Board finds that a new VA respiratory examination should be provided to the Veteran in order to attempt to obtain valid PFT testing and for the Veteran to undergo any additional testing deemed necessary to determine whether the Veteran has a diagnosable respiratory condition. 2. Entitlement to service connection for a gastrointestinal condition is remanded The April 2020 Board remand directed that the Veteran be afforded a VA gastrointestinal examination and that if no diagnosis was made the examiner was to opine whether the Veteran’s symptoms represent the manifestations of an undiagnosed illness. The Veteran was afforded a VA gastrointestinal examination in November 2020. As was the case with the respiratory condition, the examiner focused on whether the Veteran had an undiagnosable illness during his military service rather than responding to the directive. Because the examiner did not discuss whether the Veteran’s current symptoms represent a manifestation of an undiagnosed illness there is not substantial compliance with the April 2020 Board remand. See Id. Although the examiner determined that the Veteran does not have a gastrointestinal condition, the examiner attempted to address whether the Veteran’s gastrointestinal condition was caused by, or aggravated by, a service-connected disability. The April 2020 Board remand specifically directed that in discussing that issue the examiner must address whether the use of NSAIDs caused or aggravated the Veteran’s gastrointestinal condition. The examiner failed to mention whether the use of NSAIDS for the Veteran’s service-connected conditions caused or aggravated the gastrointestinal condition. The examiner again failed to comply with the April 2020 Board remand in this regard. Once VA has provided a VA examination, it is required to provide an adequate one, regardless of whether it was legally obligated to provide an examination in the first place. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Additionally, the Board must be able to conclude that a medical expert has applied valid medical analysis to the significant facts of the particular case in order to reach the conclusion submitted in the medical opinion.” See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008); see also Stefl v. Nicholson, 21 Vet. App. 120, 125 (2007) (holding that “a mere conclusion by a medical doctor is insufficient to allow the Board to make an informed decision as to what weight to assign to a doctor’s opinion”). The examiner determined that no gastrointestinal diagnosis could be rendered because there were no findings, signs or symptoms regarding a gastrointestinal condition. However, the examiner noted symptoms of daily diarrhea with abdominal pain. Daily diarrhea and abdominal pain are signs and symptoms of a gastrointestinal condition. Additionally, the medical records show that the Veteran has been diagnosed with gastroparesis, gastroduodenitis, and gastroesophageal reflux disease, but the examiner failed to discuss these diagnoses. As such, the opinion and rationale are inadequate as they do not indicate that the examiner applied valid medical analysis to the significant facts of the particular case. See Id. Furthermore, the only medical testing performed was a blood test. Such limited testing is insufficient to determine whether the Veteran has a diagnosable gastrointestinal condition, especially in light of the Veteran’s history of ongoing gastrointestinal symptoms. See Barr. Based on the foregoing reasons, remand is warranted for further development. 3. Entitlement to service connection for fibromyalgia is remanded The April 2020 Board remand directed that the Veteran be afforded a VA fibromyalgia examination and that if no diagnosis was made the examiner was to opine whether the Veteran’s symptoms represent the manifestations of an undiagnosed illness. The Veteran was afforded a VA fibromyalgia examination in November 2020. As was the case with the issues of service connection for a respiratory condition and a gastrointestinal examination, the examiner did not appropriately respond as to whether the Veteran’s symptoms represent the manifestations of an undiagnosed illness. As such, the examiner did not substantially comply with the remand directive and remand is warranted for further development in compliance with the April 2020 Board remand. 4. Entitlement to SMC based on the need for aid and attendance is remanded The issue of SMC is inextricably intertwined with the issues of service connection for a respiratory condition, gastrointestinal condition, and fibromyalgia, and the determination of whether the Veteran’s conditions are service connected may have a direct impact on whether SMC is granted. As such, the issue of SMC must also be remanded. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (holding that two issues are “inextricably intertwined” when they are so closely tied together that a final Board decision cannot be rendered unless both are adjudicated). Furthermore, additional evidence has been submitted since the January 2021 supplemental statement of the case was issued and the Veteran, through his representative, has specifically not waived RO review of the new evidence. Given that this new evidence pertains to the claim and that the Veteran has not waived initial consideration of such evidence by the agency of original jurisdiction (AOJ), the RO must first consider this evidence and reevaluate the claim. See 38 C.F.R. § 19.31. Accordingly, the Board remands this matter for AOJ consideration of the additional evidence and for issuance of a supplemental statement of the case. The matters are REMANDED for the following action: 1. Associate with the file any new relevant VA treatment records not currently associated with the file. 2. Thereafter, obtain an addendum opinion by an appropriate clinician to determine the nature and etiology of any respiratory disorder. If the clinician determines an examination of the Veteran is necessary one should be scheduled. (a.) The clinician should also determine if there is clear and unmistakable evidence (i.e., it is undebatable) that any respiratory disorder existed prior to the Veteran’s service. (b.) If the clinician determines that a respiratory disorder existed prior to service, the examiner should also determine if the condition was aggravated beyond its natural progression by the Veteran’s active duty service, or whether there is clear and unmistakable evidence (i.e., it is undebatable) that the disorder was not aggravated by the Veteran’s active duty service. (c.) If no diagnosis is made, the clinician must opine whether the Veteran’s symptoms represent the manifestations of an undiagnosed illness. (d.) If, instead of an undiagnosed illness, the clinician makes a clinical diagnosis, the examiner must opine whether it is at least as likely as not related to an in-service injury, event, or disease, or whether it is at least as likely as not any diagnosis is (1) proximately due to another service-connected disability, or (2) aggravated beyond its natural progression by any service-connected disability. (e.) If a clinical diagnosis is made, and the inquiries in (d.) above are answered in the negative, the clinician should indicate whether the etiology OR pathophysiology of the Veteran’s respiratory disorder is not understood as to this particular Veteran. 3. After the development requested in number 1 above is completed, obtain an addendum opinion by an appropriate clinician to determine the nature and etiology of any gastrointestinal disorder. If the clinician determines an examination of the Veteran is necessary one should be scheduled. (a.) If no diagnosis is made, the clinician must opine whether the Veteran’s symptoms represent the manifestations of an undiagnosed illness. (b.) If, instead of an undiagnosed illness, the clinician makes a clinical diagnosis, the examiner must opine whether it is at least as likely as not related to an in-service injury, event, or disease, or whether it is at least as likely as not any diagnosis is (1) proximately due to another service-connected disability, to include NSAIDs taken to treat service-connected conditions, or (2) aggravated beyond its natural progression by any service-connected disability, to include NSAIDs taken to treat service-connected conditions. (c.) If a clinical diagnosis is made, and the inquiries in (b.) above are answered in the negative, the clinician should indicate whether the etiology OR pathophysiology of the Veteran’s respiratory disorder is not understood as to this particular Veteran. 4. After the development requested in number 1 above is completed, obtain an addendum opinion by an appropriate clinician to determine the nature and etiology of any fibromyalgia. If the clinician determines an examination of the Veteran is necessary one should be scheduled. (a.) If no diagnosis is made, the examiner must opine whether the Veteran’s muscle and joint symptoms represent the manifestations of an undiagnosed illness. In providing an opinion, the examiner must discuss the diagnosis of fibromyalgia in the December 2014 private medical opinion of Dr. R.C. and the January 2015 private medical opinion of Dr. D.D. 5. The clinician(s) must be advised that any evaluations, studies, or tests deemed necessary by the clinician to render an opinion should be accomplished and any such results must be included in the examination report. 6. The clinician(s) is/are advised that the Veteran is competent to report history and symptoms and that those reports must be considered in formulating any requested opinion. If the clinician(s) rejects the Veteran’s reports, the clinician(s) must provide a rationale for doing so. 7. The clinician(s) must provide a complete rationale for any opinion expressed. If the clinician(s) is/are unable to reach an opinion without resort to speculation, he or she should explain the reasons for this inability and comment on whether any further tests, evidence or information would be useful in rendering an opinion. 8. After completing the requested actions, and any additional action deemed warranted, readjudicate the claims on appeal. If the benefits sought on appeal remain denied, provide a supplemental statement of the case to the Veteran and his representative and afford them an opportunity to respond. Then, return the case to the Board. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. See Kutscherousky v. West, 12 Vet. App. 369 (1999). DUSTIN L. WARE Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. Temple, 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.