Citation Nr: 22014663 Decision Date: 03/14/22 Archive Date: 03/14/22 DOCKET NO. 16-60 950 DATE: March 14, 2022 REMANDED Entitlement to compensation under 38 U.S.C. § 1151 for a gastrointestinal disorder is remanded. REASONS FOR REMAND The Veteran had active military service from November 1966 to October 1968. This matter comes before the Board of Veterans' Appeals (Board) from a July 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In January 2019, December 2020 and November 2021, the Board remanded the issue of entitlement to compensation under 38 U.S.C. § 1151 for a gastrointestinal disorder for further evidentiary development. 1. Entitlement to compensation under 38 U.S.C. § 1151 for a gastrointestinal disorder is remanded. In the November 2021 remand, the Board directed that the examiner to address the diagnoses of bile reflux and dumping syndrome. Although the November 2021 examiner discussed dumping syndrome, the examiner did not address bile reflux. The Board also directed the examiner to address any other gastrointestinal disorder identified upon examination. The November 2021 Stomach and Duodenal Conditions Disability Benefits Questionnaire (DBQ) noted diagnoses of gastric ulcer, gastritis, postgastrectomy syndrome and GERD. The examiner did not address all of these diagnoses in the addendum opinion. Specifically, the examiner should state which diagnoses occurred during the appeal period. In the examination report, the examiner noted that the Veteran had gastroesophageal reflux disease (GERD) but that it was outside the scope of this DBQ. The examiner should state whether the Veteran's GERD in an additional disability from his surgeries. The examiner also noted that due to the Veteran's symptoms of dizziness and weakness, he may not be able to fully exert himself to full physical capacity or for prolonged periods of time. The examiner should also explain whether the Veteran's dizziness and weakness are symptoms of an additional disability that did not exist immediately before the VA medical or surgical treatment. The Board regretfully remands this case once again but is hopeful that the addendum opinion will provide the necessary clarity to decide this case. As highlighted by the Board in its December 2020 remand, the Veteran asserts that he sought VA treatment on numerous occasions in the 1970s and did not receive a consistent diagnosis during that time period. As a result, he contends his gastrointestinal ulcer grew to the size of a softball. The Veteran further asserts that a month prior to its discovery at the Temple VA Medical Center, a physician in the Dallas VA Medical Center failed to identify it. These contentions have not been addressed by the March 2021, May 2021 and November 2021 examiners. Therefore, the Board must remand the claim for an addendum VA medical opinion in order to make a fully informed decision on the issue of entitlement to compensation under 38 U.S.C. § 1151. The matters are REMANDED for the following action: 1. The AOJ is asked to provide these exact questions to a qualified VA clinician so that a medical opinion can be provided. The Veteran alleges that he has gastrointestinal disorders due the mid-1970s, 1983 or 1993 surgeries or a failure to timely diagnose or properly treat a gastrointestinal disorder. The clinician should answer the following questions: (a) Is it at least as likely as not (a 50 percent or greater probability) that the Veteran presently has or has had during the appellate period an additional disability? "Additional disability" means any condition that did not exist immediately before the VA medical or surgical treatment but does not encompass a predicted side effector progression of the Veteran's gastrointestinal disorder(s). In rendering this opinion, the examiner should address the diagnoses of bile reflux and dumping syndrome, gastric ulcer, gastritis, postgastrectomy syndrome and GERD. The examiner should also address whether dizziness and weakness (noted in the November 2021 Stomach and Duodenal Conditions DBQ) are symptoms of an additional disability that did not exist immediately before the VA medical or surgical treatments. (b) If and only if the answer to question (a) is "yes," it is at least as likely as not (a 50 percent or greater probability) that the VA medical or surgical treatment resulted in the additional disability? The examiner should address (i) whether there was a failure to timely diagnose and properly treat the existing condition(s) and (ii) whether any surgery was necessitated to correct the prior surgery. i. The examiner should address the Veteran's contentions that he sought VA treatment on numerous occasions in the 1970s and did not receive a consistent diagnosis during that time period. His gastrointestinal ulcer grew to the size of a softball. The Veteran further asserts that a month prior to its discovery at the Temple VA Medical Center, a physician in the Dallas VA Medical Center failed to identify it. (c) If and only if the answer to questions (a) and(b) are "yes," is it at least as likely as not (a 50 percent or greater probability) that the VA failed to exercise the degree of care that would be expected of a reasonable health care provider? To reiterate, if there is a diagnosed additional disability, is it due to carelessness, negligence, lack of proper skill, error in judgment, or other instance of fault on the part of the VA in furnishing medical or surgical treatment. The examiner should elicit a complete, detailed history of symptoms and treatment from the Veteran and include these in the examination report. The examiner is reminded that the term "at least as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided, that in the examiner's expert opinion, it is medically sound to find in favor of the preposition as it is to find against it. A complete rationale must be provided for all opinions expressed. If an opinion cannot be offered without resort to mere speculation, the examiner must indicate why this is the case and what additional evidence, if any, would allow for a more definitive opinion. 2. Then, readjudicate the claim on appeal. If the benefit sought remain denied, issue a supplemental statement of the case and then return the matter to the Board, if otherwise in order. KRISTI L. GUNN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Tahirih S. Samadani, 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.