Citation Nr: 21029491 Decision Date: 05/13/21 Archive Date: 05/13/21 DOCKET NO. 14-14 304 DATE: May 13, 2021 REMANDED The issue of entitlement to service connection for gastrointestinal condition, to include gastric ulcer is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from August 1967 to March 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2012 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). It was previously before the Board in August 2014, September 2015, and March 2018, when it as remanded for additional development. However, when the matter returned to the Board in December 2019, it was denied. The Veteran appealed that decision to the United States Court of Appeals for Veterans Claims (CAVC), which resulted in a December 2020 Joint Motion for Remand (JMR) by the parties. A December 2020 Order by CAVC remanded the matter to the Board for action consistent with the terms of the JMR. Now, the Board remands the claim of entitlement to service connection for gastrointestinal condition, to include gastric ulcer. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). However, the December 2019 Board decision denying the claim relied on inadequate VA opinions. The August 2019 VA examination indicated that "it would be mere speculation to try and identify any acute or chronic diagnosis related to the Veteran's gastric condition and complaints during his active duty service period." However, opinions that state an opinion cannot be provided without resorting to "mere speculation" are generally inadequate. Jones v. Shinseki, 23 Vet. App. 382, 390-91 (2010). Furthermore, the opinion was not in compliance with the initiating remand directives which provided that, if an opinion without mere speculation could not be provided, the examiner should provide a reason; that was not done. See 4/18/2018 BVA Remand; Stegall v. West, 11 Vet. App. 268, 271 (1998). In addition, the Board also relied on a December 2015 VA opinion which opined that the gastric condition "clearly and unmistakably existed prior to service, [and] was not aggravated beyond its natural progression by an in-service event, injury or illness". However, the Board did not find that the presumption of soundness was rebutted in this case and, as such, the examiner's opinion was based upon a different factual predicate than the Board's decision. Finally, the December 2015 opinion was conclusory and therefore inadequate. See Stefl v. Nicholson, 21 Vet. App. 120 (2007). The examiner did not adequately explain how the stomach troubles noted in the Veteran's entrance medical history and the eight months of intermittent stomach cramps while in service, were within the natural progression of the Veteran's condition. For the foregoing reasons, remand is required for a new VA opinion. The matters are REMANDED for the following action: 1. Forward the claims file, including a copy of this remand to an appropriate clinician. The examiner is asked to review the file and then address the following: Is it at least as likely as not (50 percent probability or greater) that any currently manifested gastric condition is related to the Veteran's October 1968 complaints of stomach problems during his active duty service? The examiner should specifically address the Veteran's in-service symptoms of stomach problems, his statements regarding continuity of symptomatology, and ongoing treatment for this condition. A complete rationale for the examiner's opinion should be provided, citing to specific evidence of record, as necessary. If the examiner cannot provide an opinion without resort to speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). (Continued on the next page) If the inability to provide an opinion without resorting to speculation is due to a deficiency in the record (additional facts are required), the AOJ should develop the claim to the extent it is necessary to cure any such deficiency. If the inability to provide an opinion is due to the examiner's lack of requisite knowledge or training, then the AOJ should obtain an opinion from a medical professional who has the knowledge and training needed to render such an opinion. S.C. Krembs Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Z. Sloley, 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.