Citation Nr: 21032869 Decision Date: 05/28/21 Archive Date: 05/28/21 DOCKET NO. 06-24 437 DATE: May 28, 2021 REMANDED Entitlement to compensation benefits under the provisions of 38 U.S.C. § 1151 for ileostomy surgery is remanded. Entitlement to service connection for ulcerative colitis is remanded. REASONS FOR REMAND The Veteran served on active duty from January 1952 to January 1954. These matters come before the Board of Veterans' Appeals (Board) on appeal from February 2006 and March 2008 rating decisions. The Veteran testified before the undersigned Veterans Law Judge (VLJ) at a hearing in September 2008. A transcript of that hearing is of record. These matters have been remanded for additional development several times. A March 2013 Board decision/remand denied service connection for ulcerative colitis and remanded the issue of entitlement to compensation benefits under the provisions of 38 U.S.C. § 1151 for ileostomy surgery. The Veteran appealed the denial to the United States Court of Appeals for Veterans Claims (Court). In January 2014, the Court issued an order granting a Joint Motion for Remand (JMR) submitted by both parties, which served to vacate the March 2013 Board denial as to service connection for ulcerative colitis. These matters were most recently remanded in March 2017. 1. Entitlement to compensation benefits under the provisions of 38 U.S.C. § 1151 for ileostomy surgery is remanded. Unfortunately, there has not been substantial compliance with the Board's March 2017 remand directives. Another remand is required. Stegall v. West, 11 Vet. App. 268, 271 (1998). The remand stated that the examiner should address whether the Veteran has any additional disability as a result of the ileostomy, and in doing so must comment on the 2006 medical records as well as the evidence of chronic pain disability. Unfortunately, the August 2020 VA medical opinion found that the Veteran does not have any additional disability as a result of the ileostomy without commenting upon the 2006 medical records or evidence of chronic pain disability, and went on to answer every other question related to this issue as "N/A". A new opinion must be obtained that discusses the evidence of additional disability. 2. Entitlement to service connection for ulcerative colitis is remanded. Remand is also required for the issue of entitlement to service connection for ulcerative colitis because the August 2020 VA examination did not substantially comply with the March 2017 remand directives. The remand instructed the examiner to provide an opinion as to whether the Veteran's ulcerative colitis had its onset during service, with consideration of the credible testimony of the Veteran and his wife that he had bloody stools and diarrhea during service as well as bloody stools shortly after service. The lengthy August 2020 VA medical opinion concluded that the Veteran's complaints of hemorrhoids and diarrhea during military service and his subsequent testimony seem credible, but that it is not possible that those symptoms were due to ulcerative colitis based on what is known about ulcerative colitis. The examiner went on to state that "[t]here is convincing evidence that Veteran's [ulcerative colitis] as a diagnosis when started appearing in the documents, was when he was diagnosed with [ulcerative colitis] and not before, and certainly, not before 1954." These assertions are too vague to have probative value. The examiner later opined that it is not possible that in the Veteran's case, his hemorrhoids followed by diarrhea in service was in any way proximately due to ulcerative colitis more than 2-3 decades later, when there are more common, plausible, expected and explainable etiologies. The clinician suggested that the Veteran had hemorrhoids per se and diarrhea per se in service. This opinion seems to misunderstand the Veteran's contention. The Veteran does not argue that ulcerative colitis in the 1980s caused diarrhea or hemorrhoids decades earlier; he contends that his pattern of diarrhea and bloody stools in service and in the years following service were misdiagnosed as hemorrhoids, and were actually early manifestations of ulcerative colitis. He essentially argues that his ulcerative colitis had its onset during service but was not diagnosed until years later. Additionally, the August 2020 medical opinion asserts that there is no scientific evidence that driving a truck causes ulcerative colitis. This assertion also misunderstands the Veteran's contention, which is that the ongoing stress he felt about driving an ammunition truck and fearing a crash that would cause the ammunition to explode caused his ulcerative colitis. He does not contend that the mere act of driving a truck caused ulcerative colitis. Upon remand, a medical opinion should be obtained that directly addresses the Veteran's contentions. The matters are REMANDED for the following action: 1. Obtain an addendum opinion from an appropriate clinician regarding the etiology of the Veteran's ulcerative colitis and the residuals of ileostomy surgery. The clinician must provide response to the following questions: (a.) Is it at least as likely as not (50 percent or greater probability) that the credible statements of the Veteran and his wife of in-service rectal bleeding or bloody stools and diarrhea, as well as problems with rectal bleeding shortly after discharge and for years thereafter, indicate that the Veteran's ulcerative colitis had its onset during service, even though it was not diagnosed until years later? The Veteran believes that his rectal bleeding symptoms were manifestations of ulcerative colitis that were misdiagnosed as hemorrhoids at the time. The mere fact that the Veteran was not formally diagnosed with ulcerative colitis until well after service is not a sufficient reason to provide a negative response. (b.) If the answer to the question above is no, is it at least as likely as not (50 percent or greater probability) that the Veteran's stress during service, including fear that he would be in an accident while driving an ammunition truck that would cause the ammunition to explode, caused his ulcerative colitis? (c.) Did the Veteran have any additional disability as a result of the ileostomy? In answering that question, the clinician must discuss the 2006 medical records as well as the evidence of chronic pain disability. If the clinician does not believe that the Veteran has chronic pain or adhesions in spite of the records, or believes that the chronic pain or adhesions are not the result of the ileostomy, he or she must explain why. (d.) If there is additional disability, is the additional disability due to carelessness, negligence, lack of proper skill, error in judgment or similar instance of fault on the part of VA? (e.) Notwithstanding any informed consent documents, was any additional disability a reasonably foreseeable outcome of the procedure based upon the specific facts and circumstances of this Veteran's case? The clinician must reconcile his or her response with the 2007 medical article, Various Complications in Ileostomy Construction, whose list of complications of ileostomy did not include adhesions or chronic pain disability. The clinician is advised that the article was submitted to support the Veteran's contention that his chronic pain and adhesions are not reasonably foreseeable complications of ileostomy. The article has not been cited to dictate the appropriate standard of care. Each opinion offered must be supported by a complete rationale. The clinician must clearly explain why his or her medical knowledge supports his or her conclusion. 2. After the above development, and any additionally indicated development, has been completed, readjudicate the issues on appeal. M.E. Larkin Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Budd, 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.