Citation Nr: 22012187 Decision Date: 03/02/22 Archive Date: 03/02/22 DOCKET NO. 17-62 897 DATE: March 2, 2022 REMANDED Entitlement to service connection for Crohn's disease is remanded. Entitlement to service connection for residuals from hernia surgery is remanded. REASONS FOR REMAND The Veteran had active duty military service from March 1961 to March 1981, including service in the Republic of Vietnam, for which he earned the Bronze Star. This appeal comes from an April 2017 rating decision which in part denied service connection for Crohn's disease and hernia. He testified before the undersigned Veteran's Law Judge at a hearing held in April 2019. The Board denied this matter in a September 2020 decision and the Veteran appealed the decision to the Court of Appeals for Veterans Claims (CAVC). In November 2021 the CAVC granted a Joint Motion for Remand (JMR). This matter is returned to the Board to address this matter. 1. Crohn's disease is remanded. For the issue of service connection for Crohn's disease, as discussed in the JMR, the Board failed to ensure compliance with its prior remand as required as required by Stegall v. West, 11 Vet.App. 268, 271 (1998); relied on an inadequate VA examination; and failed to ensure VA satisfied the duty to assist as required by 38 U.S.C. § 5103A(b) when it did not make adequate attempts to obtain Appellant's private treatment records. First it was determined that the VA gastrointestinal examination opinion obtained in January 2020 VA failed to comply with the terms of the Board's August 2019 remand directives. It was noted that the January 2020 VA examiner relied on the absence of STRs showing symptoms to find against a connection between Appellant's reported in-service symptoms and his current conditions, despite being directly instructed by the Board in its August 2019 remand that the lack of documented treatment or gaps in documented treatment are not sufficient reasons to find lack of nexus. It was pointed out that the January 2020 VA examination opinion determined that a nexus did not exist between the Veteran's in-service symptoms and Crohn's disease because the service treatment records (STRs) only reflected one gastrointestinal complaint and there were no reports of the condition in his medical records "soon after separation from service." This rationale relied on the absence of documented treatment to find against a nexus, in violation of the remand directives. Additionally, the January 2020 VA examiner did not address the lay reports of symptoms including the symptoms reported in his hearing testimony, as instructed by the Board remand. Instead the examiner's opinion and rationale only addressed the medical records of symptoms. Finally, the JMR pointed out that the January 2020 VA gastrointestinal examination failed to offer an opinion on a nexus between Appellant's reported in-service symptoms and the diagnosed conditions other than Crohn's disease. Instead the January 2020 VA examination exclusively addressed whether the Veteran's in-service condition reflected onset of his diagnosed Crohn's disease but failed to address the etiologies of the other reported diagnoses of diverticulitis, duodenitis, and gastritis. The scope of a claim is not limited to a particular diagnosis and "may reasonably be encompassed by several factors including: the claimant's description of the claim; the symptoms the claimant describes; and the information the claimant submits or that the Secretary obtains in support of the claim." Clemons v. Shinseki, 23 Vet.App. 1, 5 (2009). Thus, remand is necessary to obtain a new VA opinion that does not rely on the absence of medical documentation to find against nexus and addresses the Veteran's lay testimony of in-service symptoms and post-service progression, and addresses the etiology of all other claimed disorders within the scope of this claim. Further, the JMR determined that the Board failed to ensure VA satisfied the duty to assist when it failed to request authorization to obtain Appellant's complete private treatment records. See 38 U.S.C. § 5103A, 38 C.F.R. § 3.159(c). It is well-established that "where the VA is on notice that records supporting an appellant's claim may exist, the VA has a duty to assist the appellant to locate and obtain these records." Solomon v. Brown, 6 Vet.App. 396, 401 (1994); see also 38 C.F.R. § 3.159(e)(1). The Veteran was noted to have testified that he received treatment from Dr. Hossino for his Crohn's disease as far back as 1995 and that Dr. Hossino had provided 20-30 colonoscopies in his time. However, the only records from Dr. Hossino were submitted by Veteran dating back to 1998. Additionally it was noted that the Veteran testified to having hernia surgeries with Dr. Art Lim in 2000, 2006, 2012, and 2014. See R. 309 (Apr. 2019 BVA Hearing). However, the only records from Dr. Lim in the file are surgical reports submitted by the Veteran dated from 2012 and 2015. See R. 274-77. No letters to Dr. Hossino or Dr. Lim were sent to obtain further treatment records nor do any other attempts by VA to obtain Appellant's records from this treatment, including attempting to obtain authorization, appear in his VA file. Thus corrective action is necessary to attempt to obtain these complete private records. 2. Residuals from hernia surgery is remanded. With respect to the issue of service connection for residuals from hernia surgery, as discussed in the JMR, the Board failed to ensure compliance with its prior remand as required as required by Stegall, supra. It was pointed out that the Board remanded the hernia claim in August 2019 for a VA examination to address, in layman's terms, whether "the Veteran's inguinal hernia and post-service inguinal hernia repair surgery are related to or otherwise a result of the loose inguinal ring diagnosis in service and/or any other symptoms or incidents in service." The January 2020 VA hernia examiner noted that "[t]he Veteran's loose inguinal ring noted during service is an anatomic variant that is not a result of military service." The January 2020 VA examiner went on to find a negative nexus between Appellant's loose or lax inguinal ring and his later inguinal hernia. The JMR found that this medical opinion does not sufficiently comply with the terms of the Board's August 2019 remand. First, the medical question the January 2020 examiner was directed to address was whether the loose inguinal ring, as first noted during service, was related to Appellant's in-service and current symptoms of abdominal pain, and burning pain in the lower part of his stomach. As the VA examination failed to answer the medical question to sufficiently inform the Board, the VA hernia examination is inadequate. Second, the JMR determined that whether or not a loose inguinal ring is an anatomic variant is not material because the Veteran was presumed sound on entry and the loose inguinal ring was subsequently discovered during service. Moreover, the JMR pointed out that, contrary to the January 2020 examiner's statement, the loose ring need not be the result of military service. VA regulations required only that the disability be "incurred coincident with service." 38 C.F.R. § 3.303(a). Thus another remand is necessary to ensure compliance with its prior remand by obtaining an adequate VA hernia examination that addresses the foregoing deficiencies. Additionally, as discussed in detail above, when addressing the claimed Crohn's disease and other gastrointestinal disorders, remand is necessary to assist the Veteran in obtaining complete private treatment records as reported by the Veteran in his April 2019 hearing testimony. The matters are REMANDED for the following action: 1. Request that the Veteran complete a VA Form 21-4142 for Dr. Hossino and Dr. Art Lim. Make two requests for the complete authorized records from Dr. Hossino and Dr. Art Lim unless it is clear after the first request that a second request would be futile. 2. Obtain an addendum opinion from an appropriate clinician to address the claims of service connection for inguinal hernia and Crohn's disease and other claimed gastrointestinal disorders. The examiner should review the entirety of the claims record, with specific attention to records of treatment and complaints related to gastrointestinal distress and/or abdominal pain in service, as well as any reference to inguinal hernia or a loose inguinal ring. The examiner must review the Veteran's testimony at the April 2019 Board hearing regarding his symptom history regarding these medical issues and specifically address his reported symptom history as competent lay evidence. If it is deemed necessary to schedule an examination to address this matter, one should be scheduled. The examiner should offer an opinion as to whether it is at least as likely as not (probability 50 percent or greater) that the Veteran's inguinal hernia and post-service inguinal hernia repair surgery are related to or otherwise a result of the loose inguinal ring diagnosis in service and/or any other symptoms or incidents in service. The examiner should explain, in layman's terms, the relationship between the findings of loose inguinal ring and an inguinal hernia. In providing this opinion, the examiner must address is whether the loose inguinal ring, as first noted during service, was related to the Veteran's in-service and current symptoms of abdominal pain, and burning pain in the lower part of his stomach. The examiner is advised that whether or not a loose inguinal ring is an anatomic variant (as noted in the January 2020 exam) is not material in this matter because the Veteran was presumed sound on entry and the loose inguinal ring was subsequently discovered during service. The examiner is further advised that contrary to the January 2020 examiner's statement, the loose ring need not be the result of military service but that VA regulations require only that the disability be "incurred coincident with service." The examiner should also offer an opinion as to whether it is at least as likely as not (probability 50 percent or greater) that the Veteran's Crohn's disease or any other gastrointestinal disability other than Crohn's including the other reported diagnoses of diverticulitis, duodenitis, and gastritis had its/their onset in service or is otherwise related to service. The examiner should address the medical records showing abdominal distress in service and the relationship, if any, to the current disability. The examiner should provide a statement of the reasons or rationale for all opinions offered. The examiner is instructed that lack of documented treatment or gaps in documented treatment are not sufficient reasons to find a lack of relationship (or lack of nexus), particularly where the Veteran has provided statements and testimony regarding his history of symptoms, such as in this case. Eric S. Leboff Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Eckart 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.