Citation Nr: 25004475 Decision Date: 04/02/25 Archive Date: 04/02/25 DOCKET NO. 17-00 936 DATE: April 2, 2025 REMANDED Entitlement to service connection for a colon condition to include hemorrhaging is remanded. REASONS FOR REMAND The Veteran had active service from February 1975 to December 1975. This case comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in November 2013 by a Department of Veterans Affairs (VA) Regional Office (RO) or the Agency of Original Jurisdiction (AOJ). In August 2021, the Veteran testified before the undersigned Veterans Law Judge (VLJ) during a Video Conference Board hearing. A transcript of that hearing is associated with the claims file. In June 2022, the Board denied service connection for a colon condition to include hemorrhaging. The Veteran appealed the denial of service connection for colon condition to include hemorrhaging to the United States Court of Appeals for Veterans Claims (Court). In an October 2023 Memorandum Decision, the Court vacated that part of the Board's June 2022 decision that denied service connection for a colon condition to include hemorrhaging and remanded the issue to the Board for further consideration. In July 2024, the Board remanded the claim of service connection for a colon condition to include hemorrhaging to comply with the October 2023 Memorandum Decision. In September 2024, the representative withdrew representation with notice to the Veteran. The Veteran has not appointed another representative and is currently unrepresented. Entitlement to Service Connection for a Colon Condition to Include Hemorrhaging As noted in the prior July 2024 remand, in order to comply with the Court's decision, a medical advisory opinion was requested to address the likely etiology of the Veteran's colon condition to include hemorrhaging. The inquiry was to include discussion/consideration of the Veteran's report of experiencing blood in his stool that lasted for almost a month while in service, reoccurrence of bleeding approximately three years after service; and then reoccurrence of bleeding approximately every two to three years thereafter. Additionally, the Board noted there was no formal finding in the record as to whether the Veteran participated in a TERA. In December 2024, the AOJ obtained an addendum VA medical opinion. The response does not help the Board in its efforts to comply with the Court's decision. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (A remand by the Board confers on the claimant, as a matter of law, the right to compliance with the remand orders.). The examiner noted VA records indicate a history of ischemic vascular conditions of the abdomen, to include superior mesenteric vein thrombosis, sigmoid colon ischemic colitis, and the "inherited clotting disorder" of Factor V Leiden, and concluded that "this reveals that there is no direct causal relationship between sigmoid ischemic colitis and military service." The examiner failed to provide any other rationale, other than to state, "the response is not wholly resting on chronicity." The examiner acknowledged and conceded the Veteran's reported blood in stool and symptoms during service. However, the examiner stated, "the direct causal relationship is the limiting factor as this cannot be viewed as a more likely than not event as there is no direct causal relationship or presumptive relationship for sigmoid ischemic colitis and military service." The examiner does not explain why it is the "limiting factor." The opinion is, therefore, inadequate. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning); see Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). There is also no discussion of the etiology of the other diagnoses of record to include the Veteran's mesenteric ischemic thrombosis or Factor V Leiden. See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007) (holding that the requirement of a current disability is met when a claimant has a disability at the time a claim for VA compensation is filed or during the pendency of that claim). The examiner also failed to discuss whether the Veteran's Factor V Leiden (a blood clotting disorder) is a congenital defect or a congenital disease. VA laws and regulations provide that congenital and developmental defects are not disabilities within the meaning of applicable regulations providing for payment of VA disability compensation benefits. 38 C.F.R. §§ 3.303, 4.9. The VA General Counsel explained there is a distinction under the law between a congenital or developmental "disease" and a congenital "defect" for service connection purposes: congenital diseases may be recognized as service-connected if the evidence shows aggravation in service within the meaning of VA regulations. A congenital or developmental defect, on the other hand, is not service connectable because of 38 C.F.R. § 3.303 (c); however, service connection may be granted for additional disability due to a disease or injury superimposed upon the defect during service. VAOPGCPREC 82-90. Additional medical inquiry is, therefore, needed to clarify the developmental nature of the Factor V Leiden and to adequately address the etiology of the Veteran's mesenteric ischemic thrombosis; and sigmoid colon ischemic colitis, to include whether the Veteran's reported in-service symptomatology was evidence of an early indication thereof. As it pertains to TERA development, the record indicates that while the AOJ originally conceded a TERA based on the Veteran's MOS, see August 2024 Memorandum, it later retracted the concession. The first memorandum, conceding TERA exposure, appears based upon environmental research associated with the claims file in August 2024. In the January 2025 supplemental statement of the case, the AOJ determined that "everyone in the military is exposed to weapons fire exposure and you did not do any extensive time in service or combat to warrant that consideration. ILER does not support the exposure and neither do your 14 months of service personnel and STRs records." However, there was no discussion of the treatise evidence that formed the basis for the previous concession. Clarification is required. Lastly, it appears that the Veteran applied for, but was denied, benefits from the Social Security Administration (SSA) due to disability. See March 2021 SSA data inquiry printout (noting that there was a "disallowed claim"). Because the records from SSA could contain information pertinent to the issue on appeal, efforts should be made to procure those records as well. See 38 U.S.C. § 5103A; 38 C.F.R. § 3.159 (c). The matters are REMANDED for the following action: 1. Ask the SSA to provide copies of any relevant records in its possession pertaining to its consideration of the Veteran's application for disability benefits, to include any medical records considered in connection with his application, following the procedures set forth in 38 C.F.R. § 3.159. Efforts to obtain the evidence should be fully documented and should be discontinued only if it is concluded that the evidence sought does not exist or that further efforts to obtain the evidence would be futile. 38 C.F.R. § 3.159 (c) (2). The evidence obtained, if any, should be associated with the record. If any of the records sought are not available, the record should be annotated to reflect that fact, and the Veteran and his representative, if any, should be notified. 2. Clarify, via a formal finding for the record, after addressing the environmental research associated with the claims file in August 2024 (that formed the basis for the August 2024 Memorandum), whether the Veteran was or was not exposed to a TERA during service. 3. Then, forward the claims file to a qualified medical professional, preferably a gastroenterologist, if available, to obtain an addendum medical advisory opinion regarding the Veteran's colon condition to include hemorrhaging, diagnosed as resection of small intestine; mesenteric ischemic thrombosis; sigmoid colon ischemic colitis; and Factor V Leiden. If the examiner determines that an examination is necessary, such an examination should be scheduled. Regarding Factor V Leiden: The examiner should: (a.) Opine on whether the Veteran's Factor V Leiden constitutes a congenital defect or a congenital disease. (Generally, a congenital abnormality that is progressive in nature and subject to improvement or deterioration is considered a "disease." A "defect" is a structural or inherent abnormality or condition which is more or less stationary in nature. Essentially, a "defect" is a hereditary condition that cannot change.) (b.) If a defect, do you believe that it was subject to a superimposed disease or injury during active duty service resulting in additional disability? Why do you say so? (c.) If a disease, did it worsen in severity during service? If so, was the increase in severity consistent with the natural progression of the disease or did the increase represent a permanent worsening, or "aggravation," of the disease beyond its natural progression? Why do you say so? Regarding resection of small intestine; mesenteric ischemic thrombosis; and sigmoid colon ischemic colitis: The examiner should: (a.) Opine as to whether it is at least as likely as not (ie., the likelihood is at least approximately balanced or nearly equal, if not higher) that the Veteran's resection of small intestine; mesenteric ischemic thrombosis; and/or sigmoid colon ischemic colitis is/are related directly to his service (as due to disease or injury, by onset, or any toxic exposure risk activities therein, if applicable) to include as related to in-service experience of blood in his stool? Why do you say so? (b.) In order to comply with the Court decision, examiner must clarify: whether the following symptoms described by the Veteran during his August 2021 Board hearing testimony, were early indications of the current resection of small intestine; mesenteric ischemic thrombosis; and/or sigmoid colon ischemic colitis? Why do you say so? The symptoms described by the Veteran during his August 2021 Board hearing testimony include: " observing blood in his stool during boot camp for almost a month, for which he was discouraged to seek treatment" " that he did not observe blood in his stool until three years after service when it became recurrent every two to three years until his surgery." NOTE: In order to comply with the Court decision, in providing answers to the above question the examiner should provide a medical reasoning for accepting or rejecting the lay claims regarding his observable in-service and post-service adverse symptomatology. NOTE: The examiner shall consider the total potential exposure through all applicable TERAs of the Veteran and the synergistic, combined effect of all toxic exposure risk activities of the Veteran. All opinions must include rationale. If an opinion requested cannot be provided without resort to mere speculation state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given the state of medical science and the known facts), a deficiency in the record (additional facts are required, if so identify them), or the examiner (does not have the requisite knowledge or training). MICHAEL A. HERMAN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Smith, Associate 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.