Citation Nr: 21032155 Decision Date: 05/26/21 Archive Date: 05/26/21 DOCKET NO. 17-19 144 DATE: May 26, 2021 REMANDED Entitlement to service connection for a left knee disability is remanded. Entitlement to service connection for a right knee disability is remanded. Entitlement to service connection for an upper back disability is remanded. Entitlement to service connection for a low back disability is remanded. Entitlement to service connection for a gastrointestinal disability, claimed as food allergies is remanded. INTRODUCTION The Veteran served on active duty from October 1989 to August 1993. In September 2019, the Veteran attended a hearing before the undersigned Veterans Law Judge. A transcript of that proceeding is of record. When this case was previously before the Board in December 2019 the above-noted issues were remanded for additional development. The case has since been returned for further appellate review. REASONS FOR REMAND While additional delay is unfortunate, the Board finds further development is required before the Veteran's claims are decided. 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). Further, a remand by the Board confers upon the claimant, as a matter of law, the right to compliance with the remand instructions, and imposes upon VA a concomitant duty to ensure compliance with the terms of the remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998). In the course of the December 2019 decision, the Board found prior VA examinations addressing the above-noted claims to be insufficient, because the examiner failed to provide a complete rationale explaining how and why she came to her conclusions, based her conclusions on a lack of contemporaneous treatment following service, and ignored the Veteran's competent statements related to his lay observable symptoms. The Veteran subsequently underwent VA examinations to assess his claimed gastrointestinal, knee, and back disabilities in January 2020. Following these examinations, the examiner principally concluded the Veteran's thoracic spine, lumbar spine, and bilateral knee disabilities were less likely than not incurred in service. In support of his conclusion the examiner indicated the Veteran's disabilities were more likely attributable to his injuries and load bearing resulting from his post-service work in law enforcement. However, the examiner again failed to consider or discuss the Veteran's reports of back and knee pain which was incurred in service. The examiner also failed to discuss the Veteran's reports of "no gaps" in his back and knee pain since that time. Further, following the above-noted examinations the Veteran provided statements, as well as a November 1998 treatment note corroborating his reports of back and knee pain since that time, which preceded his employment in law enforcement. Based on the foregoing, the Board finds the medical opinions provided by the January 2020 VA examiner suffer from the same critical deficiencies as those noted in the prior VA examination reports. Specifically, the examiner based his conclusions on a lack of contemporaneous treatment following service and ignored the Veteran's competent statements related to his lay observable symptoms. Additionally, a medical opinion based on an incorrect factual premise is not probative. See Reonal v. Brown, 5 Vet. App. 458, 460-61 (1993). With respect to the Veteran's claim for a gastrointestinal disability, the Board notes that during his January 2020 VA examination the examiner initially stated the Veteran's history was "significant for irritable bowel syndrome with IBS symptoms since time of service." In this regard, the Board notes IBS is a disability which is subject to service connection under 38 C.F.R. § 3.317 if a veteran has qualifying service in the Southwest Asia theater of operations. In this case, the Veteran does have qualifying service in Saudi Arabia. However, the January 2020 examiner later curiously indicated the Veteran's poultry intolerance was not likely a manifestation of an IBS condition. The examiner failed to state whether the Veteran does warrant a diagnosis of IBS based on his reports of food intolerances. As such, the Board finds this issue must also be remanded for further development at this time. Accordingly, these matters are REMANDED for the following actions: Afford the Veteran a VA examination by an examiner with sufficient expertise, who has not previously examined the Veteran, to address the etiology of the Veteran's claimed upper and lower back, bilateral knee, and gastrointestinal/food allergy disabilities. All pertinent evidence of record must be made available to and reviewed by the examiner(s). Any indicated studies should be performed, to include allergy testing if deemed necessary by the examiner to confirm or rule out the presence of food allergies. Following a review of the relevant records and lay statements, the examiner should state an opinion with respect to whether any diagnosed upper or lower back disability, bilateral knee disability, or gastrointestinal/food allergy at least as likely as not (a 50 percent probability or greater) originated during his period of active service or is otherwise etiologically related to his active service. With respect to the Veteran's claimed gastrointestinal/food allergy disability, the examiner should also state whether it is at least as likely as not (a 50 percent probability or greater) that the disorder: a) is a chronic multi-symptom disability, to specifically include irritable bowel syndrome, and if so, the examiner should state whether the disability results from a clear and distinct etiology, partially known etiology, or an unknown etiology; or b) constitutes manifestation clusters that do not correspond to recognized categories of diseases, and as such, should be defined as an undiagnosed illness. The examiner must provide a complete rationale for all proffered opinions. In this regard, the examiner must specifically consider and expressly discuss the Veteran's competent lay statements, to include his reports of knee and back pain which manifest in service and has continued with no gaps since that time. The examiner should also specifically consider and expressly discuss the January 2020 VA examiner's indication that the Veteran has a medical history that is significant for irritable bowel syndrome. If the examiner is unable to provide any required opinion, he or she should explain why. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation as to why this is so. If the inability to provide a more definitive opinion is the result of a need for additional information, the examiner should identify the additional information that is needed. T. REYNOLDS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board G. Fraser, 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.