Citation Nr: 22038245 Decision Date: 07/05/22 Archive Date: 07/05/22 DOCKET NO. 18-32 146 DATE: July 5, 2022 REMANDED A claim of entitlement to service connection for a gastrointestinal (GI) disorder, to include colonic polyps, chronic constipation, irritable bowel syndrome, and lower GI bleeding is remanded. A claim of entitlement to service connection for asbestosis is remanded. A claim of entitlement to a respiratory disorder is remanded. REASONS FOR REMAND The Veteran honorably served on active duty for over 20 years, from December 1951 to January 1972, in the U.S. Air Force. He has a schedular and combined disability rating of 100 percent with special monthly compensation. In January 2020, the Veteran and his spouse testified before the undersigned Veterans Law Judge (VLJ) in support of his claims. Pertinent testimony included that the Veteran's primarily medical treatment was provided by non-VA civilian doctors, whose medical records had not been associated with the claims file, and that the Veteran suffered from constipation in service for which he consistently used laxatives. In an August 2020 decision, the Board remanded the above-referenced claims to the Department of Veterans Affairs (VA) Agency of Original Jurisdiction (AOJ) for further development. Although the AOJ completed the Board's remand directions to the extent possible, the Board finds that in the sake of fairness to the Veteran, the appeal should be remanded once more to give the Veteran the opportunity to provide important post-service medical records from private medical providers (referenced during the Veteran's Board hearing and in the claims file) that the AOJ requested upon remand but did not receive. A remand is also warranted for the AOJ to seek clarification from the VA examiner who provided medical opinions in March 2021 and March 2022 in response to the Board's remand directives. 1. Service connection for a gastrointestinal disorder In its prior remand, the Board noted that the Veteran's service records include a November 1955 Report of Medical Examination form that remarks that the Veteran had dysentery in December 1952. A review of the Veteran's overall service treatment records also shows that he was diagnosed with gastroenteritis in August 1956; was seen in April 1959 for abdominal cramps; was seen for loose stool diarrhea in May 1961; was diagnosed with enteritis in May 1963; was diagnosed with gastroenteritis in February 1964; and was seen abdominal pain in February 1965. The Veteran also testified during his January 2020 Board hearing that he was given laxatives throughout service for problems with constipation. Post-service medical records reflect the Veteran as having a diagnosis of chronic constipation and colonic polyps. A June 2016 VA medical examination report reflects diagnoses of chronic constipation and dysentery, while a June 2020 report reflects the sole diagnosis of chronic constipation. Further, the Board notes that the claims file contains a January 2020 Intestinal Conditions Disability Benefits Questionnaire (DBQ) submitted by one of the Veteran's private medical doctors (Dr. R.N.), noting that the Veteran has diagnoses of irritable bowel disease, lower GI bleeding, and chronic constipation. Turning to the medical examinations of record, the June 2016 medical examiner provided a negative medical nexus opinion with the rationale that the Veteran's dysentery and diarrhea were self-limited infectious disease conditions which occurred due to poor sanitation while the Veteran served in Korea. As such, it was his opinion that that the Veteran's in-service dysentery and diarrhea did not contribute to nor cause the Veteran's post-service colonic polyps or chronic constipation. The January 2020 Intestinal Conditions DBQ did not contain a medical nexus opinion. As for the June 2020 medical examination, a VA examiner opined that there was no causal connection between the Veteran's post-service chronic constipation as his service treatment records were silent for a diagnosis of/or chronic treatment for chronic constipation. Dissatisfied with the current medical opinions and considering the Veteran's hearing testimony, the Board remanded the Veteran's gastrointestinal disorder claim for an addendum VA medical opinion. In March 2021, a negative medical nexus opinion was associated with the record on appeal. In formulating this opinion, a VA medical doctor reviewed the Veteran's entire claims file. Addressing the Veteran's hearing testimony regarding his gastrointestinal problems and chronic use of laxatives in service, the doctor discounted this lay evidence as being inconsistent with the objective medical record evidence, specifically citing to 1971 service separation documents in the Veteran's service medical file. The doctor also specifically noted the Veteran's post-service diagnoses of chronic constipation, dysentery, irritable bowel syndrome, lower GI bleed and polyps. See VA June 2016 and June 2021 medical opinions. After doing so, he stated that he disagreed with the Veteran having these diagnoses as they were based solely on the Veteran's history and not on the objective medical record evidence. Further, the doctor appears to indicate that if it were to be presumed that the Veteran did in fact have a validly diagnosed gastrointestinal disorder, he would agree with the negative nexus opinions provided by the June 2016 and June 2019 VA medical examiners (referenced above) as those examiners' rationales were consistent with the objective medical record and reputable medical literature evidence. Additionally, he stated that if found, any gastrointestinal pain/condition/pathology the Veteran had would be less likely than not proximately due to or been permanently aggravated by the Veteran's in-service gastrointestinal problems and chronic use of laxatives in service. Rather, if found, it was his opinion that the Veteran's gastrointestinal pain/condition/pathology was at least as likely as not proximately due to or the result of a post service process. Although the March 2021 medical opinion is very detailed, it appears to be incomplete as the medical doctor who provided the opinion did not address several pages of records in the claims file related to the Veteran's medical treatment by private gastroenterologist R.N., MD. Dr. RN diagnosed the Veteran with irritable bowel syndrome, lower GI bleed, and chronic constipation in 2014 and 2018, respectively. Given the lack of complete medical records from Dr. R.N., it is unfair for the March 2021 doctor to discount the above-referenced diagnoses as their being solely based upon a history provided by the Veteran. The Veteran should be given another opportunity to provide these records. A remand is also warranted for the March 2021 doctor to discuss what a "post service process" is and why it would be responsible for the Veteran's gastrointestinal disorder if one is diagnosed. 2. Service connection for asbestosis and/or a respiratory disorder Also in its remand, the Board observed that the Veteran's service records note at least one instance when the Veteran was reported as having a mild respiratory infection that was found to be without complications. The claims file also contains a statement from the Veteran attesting to how he believed he was exposed to asbestos in service. Post-service medical records reveal the Veteran was noted as having decreased breath sounds in the right lower lobe (RLL) and x-rays that revealed minimal pleural-parenchymal scarring with suspected granulomatous change in the far-right lateral lung base, likely sequelae of a remote infection. Although one treating VA medical provider opined the Veteran could have some signs of damage from smoke, potential damage from exposure to asbestos was not addressed. The Board remanded the Veteran's claims to obtain a VA medical opinion addressing if the evidence supports a causal connection between the Veteran's current scarring of the lungs and his respiratory problem in service and/or exposure to asbestos. It should be noted that after the Board's remand, VA conceded that the Veteran likely had exposure to asbestos in service. A VA medical opinion related to the Veteran's respiratory disorder claims was associated with the claims file in March 2022. It was provided by the same medical doctor who prepared the March 2021 medical opinion referenced above. The AOJ asked the doctor to provide an opinion as to whether the Veteran has a diagnosis of chronic obstructive pulmonary disease (COPD) and pleural thickening with scarring on the right side that is at least as likely as not incurred in or caused by the respiratory infection the Veteran suffered in service and/or his exposure to asbestos during service. In providing a negative medical nexus opinion, the doctor stated that the Veteran's diagnosis of COPD was equivocal as it was based upon a single X-ray and that such a diagnosis would need to be confirmed by a CT scan of the chest, PFTs and/or a pulmonary consult (none of which are in the record). See also March 2021 medical opinion (doctor stated that there was no objective medical record evidence to include imaging and/or pulmonology consult to confirm that the Veteran currently has a respiratory/pulmonary condition resulting from asbestos exposure). Further, he stated that if COPD was confirmed, the Veteran's greatest risk factor by far for the development of COPD is his history of tobacco abuse. Turning to the Veteran's lung scarring, the doctor reported that mild right lateral basilar pleural parenchymal scarring is an incidental radiographic finding which is nonspecific and not pathognomonic for respiratory infection during service. In support of his negative nexus, the doctor stated that the Veteran has absolutely no radiographic findings to include plural plaques and/or ground-glass opacity (interstitial lung disease), PFTs showing restrictive pattern (interstitial lung disease), and/or pulmonary consults to indicate asbestosis exposure or asbestosis. In sum, he ultimately concluded that if the Veteran has COPD, it and his mild right lateral basilar pleural parenchymal scarring were at least as likely as not caused by his history of tobacco abuse and/or post service processes, respectively. As with the Veteran's gastroenterology claim, the Board has concerns over the scant private medical records contained in the claims file. The Veteran is noted as having a private pulmonologist, J.G., and the claims file only contains five pages of records from him. Absent these records, the Board cannot know if any of the diagnostic evidence that the March 2022 doctor notes is missing in the claims file (i.e., radiographic findings, PFTs, and/or pulmonary consult to indicate asbestosis exposure or asbestosis) may be found therein. Given the importance of the Veteran's private pulmonary records to his asbestosis and respiratory disorder claims, another attempt should be made to obtain them. The matters are REMANDED for the following actions: 1. After reviewing this remand in full, contact the Veteran and stress the need for his private medical records to be associated with his claims file. Ask him to complete VA Form 21-4142 for his private gastroenterologist Dr. R.N., his private pulmonologist Dr. J.C., and any other private medical provider who has treated him in relation to his stomach or lung conditions. See, e.g., BVA hearing transcript, p.9. Make two requests for the authorized records unless it is clear after the first request that a second request would be futile. 2. After additional medical records are associated with the claims file, or it is determined that no such records will be provided or obtained, request an addendum to the March 2021 gastrointestinal medical opinion. If the VA medical provider determines that a medical examination of the Veteran is warranted, to include for the undertaking of any diagnostic studies or tests that may be pertinent, one should be scheduled. Lastly, the medical provider should be asked to elaborate on what a "post service process" is and why it would be responsible for the Veteran's gastrointestinal disorder (if one is diagnosed). 3. After additional medical records are associated with the claims file, or it is determined that no such records will be provided or obtained, request an addendum to the March 2022 respiratory medical opinion. If the VA medical provider determines that a medical examination of the Veteran is warranted, to include for the undertaking of diagnostic studies or tests deemed pertinent, one should be scheduled. Lastly, the medical provider should be asked to elaborate on what a "post service process" is and how it would be the cause of a diagnosed asbestosis/respiratory disorder. 4. Undertake any additional development deemed warranted. H.M. WALKER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board P. Talpins 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.