Citation Nr: 21029917 Decision Date: 05/17/21 Archive Date: 05/17/21 DOCKET NO. 16-05 042 DATE: May 17, 2021 REMANDED Entitlement to service connection for a respiratory condition, to include chronic obstructive pulmonary disease (COPD), is remanded. Entitlement to service connection for a gastrointestinal condition, to include Crohn's disease and chronic enterocolitis, is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Navy from August 1976 to March 1982. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2012 rating decision issued by a Department of Veterans Appeals (VA) regional office. This matter was previously remanded by the Board in August 2018 and September 2020. In April 2018, the Veteran testified via video conference before the undersigned Veterans Law Judge (VLJ). A copy of the hearing transcript has been associated with the claims file. See April 2018 Board Hearing Transcript. As an initial matter, the Board notes that the Veteran filed a claim of entitlement to service connection for Crohn's disease, which was recharacterized as a claim of entitlement to service connection for a gastrointestinal condition, to include Crohn's disease, by the Board in the 2018 decision. See August 2011 VA Form 21-526. However, it is well settled that when a veteran makes a claim, they are seeking service connection for symptoms, regardless of how those symptoms are diagnosed or labeled. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). Here, the record indicates that the Veteran has a current diagnosis of chronic enterocolitis. See March 2012 VA Intestinal Conditions Disability Benefits Questionnaire (DBQ). Accordingly, the Board finds it appropriate to recharacterize the Veteran's claim as one of entitlement to service connection for a gastrointestinal condition, to include Crohn's disease and chronic enterocolitis. 1. Entitlement to service connection for a respiratory condition, to include COPD, is remanded. The Board sincerely regrets the delay associated with this remand, particularly as this matter has been the subject of prior remands. However, based on a review of the evidence of record, the Board finds that another remand is necessary as the Agency of Original Jurisdiction (AOJ) has not substantially complied with the August 2018 remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Specifically, in September 2020, the Board instructed the AOJ to obtain an opinion regarding the etiology of the Veteran's respiratory condition. The examiner was instructed to contact the Veteran and obtain his detailed lay history, including onset and progression of symptomatology and employment. In March 2021, an opinion was obtained in which the examiner opined that the Veteran's COPD was less likely than not related to his active duty service, to include in-service exposure to asbestos, white lead, beryllium, oil-soaked bronze, as well as welding and the resulting vapors and fumes. However, there is no indication that the Veteran was contacted to obtain a detailed lay history. See March 2021 VA Medical Opinion Disability Benefits Questionnaire (DBQ). As the Board cannot find substantial compliance with the September 2020 remand directives, a remand is necessary to allow the AOJ to obtain a VA opinion that complies with the Board's remand directives. See Stegall v. West, supra. 2. Entitlement to service connection for a gastrointestinal condition, to include Crohn's disease and chronic enterocolitis, is remanded. The Board sincerely regrets the delay associated with this remand, particularly as this matter has been the subject of prior remands. However, based on a review of the evidence of record, the Board finds that another remand is necessary as the Agency of Original Jurisdiction (AOJ) has not substantially complied with the August 2018 remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Specifically, in September 2020, the Board instructed the AOJ to obtain an opinion regarding the etiology of the Veteran's claimed gastrointestinal condition. The examiner was instructed to contact the Veteran to obtain his detailed lay history and opine as to the etiology for each diagnosed gastrointestinal condition. In March 2021, a VA opinion was obtained, in which the examiner opined that it was less likely than not Crohn's disease or a chronic gastrointestinal condition was incurred during active duty service. However, the examiner did not specifically address the Veteran's diagnosed chronic enterocolitis. Rather, the examiner's rationale focused on the examiner's conclusion that the Veteran does not have a diagnosis of Crohn's disease. Additionally, there is no indication that the Veteran was contacted to obtain a detailed lay history. See March 2021 VA Gastrointestinal Medical Opinion DBQ. As the Board cannot find substantial compliance with the September 2020 remand directives, a remand is necessary to allow the AOJ to obtain a VA opinion that complies with the Board's remand directives. See Stegall v. West, supra. Even if the Board could find substantial compliance with the September 2020 remand directives, a remand would be warranted nonetheless as the Board finds the March 2021 opinion to be inadequate for adjudication purposes. As discussed above, the March 2021 examiner's rationale focused on the examiner's conclusion that the Veteran does not have a diagnosis of Crohn's disease. As part of this rationale, the examiner noted that the Veteran had a bout of abdominal pain with vomiting and diarrhea, was admitted to "rule out" appendicitis, and was provided a final diagnosis of viral gastroenteritis. See March 2021 VA Gastrointestinal Medical Opinion DBQ. However, though the Veteran's service treatment records (STRs) indicate that he was hospitalized in December 1980 for gastrointestinal issues and was provided a final diagnosis of viral gastroenteritis, they also indicate that he was treated for gastroenteritis in September 1980, and was diagnosed with acute cholecystitis in December 1980/January 1981. See STR-Medical. As such, the March 2021 VA opinion appears to be based, in part, on an inaccurate factual premise and, therefore, is inadequate. See Reonal v. Brown, 5 Vet. App. 458 (1993). Additionally, an opinion is inadequate when, as indicated here, an examiner fails to consider the Veteran's prior medical history. See Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007). As such, the Board finds the March 2021 VA opinion to be inadequate for adjudication purposes, and therefore, a remand is necessary to obtain an adequate opinion regarding the etiology of the Veteran's respiratory condition. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Lastly, the Board notes that the evidence indicates that there may be pertinent private medical records that are not associated with the electronic claims file. Specifically, the record indicates that the Veteran receives treatment at the Cleveland Clinic. However, to date, only excerpts of records relating to such treatment have been associated with the claims file. See Cleveland Clinic records. The evidence also indicates that, in September 2020, the AOJ requested that the Veteran provide the names, addresses, and approximate dates of treatment of all medical care providers that provided him with treatment pertinent to his claims. The AOJ also provided the Veteran and his representative with a VA Form 21-4142, Authorization to Disclose Information, and VA Form 21-4142a, General Release for Medical Provider Information, to allow the AOJ to obtain the Veteran's medical records on his behalf. See September 2020 VA Correspondence. To date, the Veteran has not responded to the request. VA's duty to assist is not a "one-way street," and a Veteran seeking help cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining pertinent evidence. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Nonetheless, as a remand of this matter is otherwise warranted, the Board finds that the AOJ should make one more attempt to identify and obtain any pertinent medical records. Accordingly, the matters are REMANDED for the following action: 1. With the Veteran's assistance as appropriate, obtain and associate with the electronic claims file any pertinent medical records, whether VA or private, to include records relating to treatment at the Cleveland Clinic. Pursuant to 38 C.F.R. § 3.159(e), any efforts to secure these records MUST be documented in the electronic claims file, and the Veteran must be informed if any of these records are unable to be secured. 2. The Board recognizes the potential practical difficulties in scheduling an examination in light of the COVID-19 pandemic and requests flexibility and understanding in affording the Veteran any warranted examination. 3. After completing the development above, and any additional development warranted by the record, schedule the Veteran for an examination with an appropriate clinician regarding the nature and etiology of the Veteran's respiratory condition. The entire claims file must be provided to, and reviewed by, the examiner, and any indicated studies, tests, or evaluations should be conducted. The examiner is asked to: (a.) OBTAIN THE VETERAN'S DETAILED LAY HISTORY, INCLUDING ONSET AND PROGRESSION OF SYMPTOMATOLOGY AND EMPLOYMENT. (b.) For each diagnosed respiratory condition, opine as to whether it is at least as likely as not (i.e. a 50 percent or greater probability) that such condition had its onset during, or is otherwise related to, the Veteran's active duty service. (c.) In formulating the requested opinions, the examiner is asked to consider and address: i. The Veteran's in-service exposure to asbestos, white lead, beryllium, oil-soaked bronze, as well as welding and the resulting vapors and fumes; ii. The Veteran's in-service treatment for chest pain and difficulty breathing; iii. Any after-service exposure to chemicals working as a toolmaker and the impact, if any, of such exposure on the Veteran's in-service exposures set forth above; iv. The Veteran's history of smoking; v. The Veteran's treating physician's July 2018 statement that there is a definite association between the type of occupation dust exposure the Veteran experienced during service and the subsequent development of COPD. The term at least as likely as not does not mean within the realm of medical possibility. Rather, it means that the weight of the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of the conclusion (e.g., etiology) as it is to find against the conclusion. Any opinion expressed by the examiner should be accompanied by a complete rationale. IF MEDICAL LITERATURE IS RELIED UPON IN RENDERING A DETERMINATION, THE EXAMINER SHOULD IDENTIFY AND SPECIFICALLY CITE EACH REFERENCE MATERIAL UTILIZED. If the examiner is unable to offer an opinion without resort to speculation, a thorough explanation as to why an opinion cannot be rendered should be provided. The examiner is reminded that the Veteran is competent to report symptoms, treatment, and injuries, and that his reports must be taken into account in formulating the requested opinions. The examiner is further reminded that the mere absence of in-service evidence of a particular condition as the sole basis for forming a negative nexus opinion, without additional explanation, will not be adequate. 4. After completing the development set forth in Section One above, and any additional development warranted by the record, schedule the Veteran for an examination with an appropriate clinician, preferably a gastroenterologist, regarding the nature and etiology of the Veteran's claimed gastrointestinal condition. The entire claims file must be provided to, and reviewed by, the examiner, and any indicated tests, studies, or evaluations should be performed. The examiner is asked to: (a.) OBTAIN THE VETERAN'S DETAILED LAY HISTORY, INCLUDING ONSET AND PROGRESSION OF SYMPTOMATOLOGY AND EMPLOYMENT. (b.) For each diagnosed gastrointestinal condition, opine as to whether it is at least as likely as not (i.e. a 50 percent or greater probability) that such condition had its onset during, or is otherwise related to, the Veteran's active duty service. (c.) In formulating the requested opinions, the examiner is specifically asked to consider and address: i. The Veteran's contention that he has been diagnosed with Crohn's disease; ii. The Veteran's current diagnosis of chronic enterocolitis; iii. The Veteran's in-service diagnoses of gastroenteritis in September 1980 and December 1980, and cholecystitis in December 1980/January 1981. The term at least as likely as not does not mean within the realm of medical possibility. Rather, it means that the weight of the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of the conclusion (e.g., etiology) as it is to find against the conclusion. Any opinion expressed by the examiner should be accompanied by a complete rationale. If medical literature is relied upon in rendering a determination, the examiner should identify and specifically cite each reference material utilized. If the examiner is unable to offer an opinion without resort to speculation, a thorough explanation as to why an opinion cannot be rendered should be provided. The examiner is reminded that the Veteran is competent to report symptoms, treatment, and injuries, and that his reports must be taken into account in formulating the requested opinions. The examiner is further reminded that the mere absence of in-service evidence of a particular condition as the sole basis for forming a negative nexus opinion, without additional explanation, will not be adequate. 5. The AOJ must review the claims file and ensure that the foregoing development action has been completed in full. If any development is incomplete, appropriate corrective action must be implemented. If any report does not include adequate responses to the specific opinions requested, it must be returned to the providing examiner for corrective action. YVETTE R. WHITE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. T. Martin III, 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.