Citation Nr: A25035803 Decision Date: 04/18/25 Archive Date: 04/18/25 DOCKET NO. 210910-184182 DATE: April 18, 2025 REMANDED Entitlement to service connection for irritable bowel syndrome (IBS) is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Navy from August 1985 to August 1990. This matter comes before the Board of Veterans' Appeals (Board) from an August 2021 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In the September 2021 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran elected the Evidence Submission docket. Therefore, the Board may only consider the evidence of record at the time of the August 2021 agency of original jurisdiction (AOJ) decision on appeal, as well as any evidence submitted by the Veteran (or her representative) with, or within 90 days from receipt of, the VA Form 10182. 38 C.F.R. § 20.303. If evidence was submitted either (1) during the period after the AOJ issued the decision on appeal and prior to the date the Board received the VA Form 10182, or (2) more than 90 days following the date the Board received the VA Form 10182, the Board did not consider it in its decision. 38 C.F.R. §§ 20.300, 20.303, 20.801. However, because the Board is remanding the claim of service connection for IBS, any evidence the Board could not consider will be considered by the AOJ in the adjudication of the claim. 38 C.F.R. § 3.103(c)(2)(ii). Service connection for IBS. The Board's jurisdiction to remand is limited to correction of (1) duty to assist errors occurring prior to the date of the AOJ decision on appeal (i.e., pre-decisional duty to assist errors) and (2) AOJ errors in satisfying regulatory statutory duty, if correction of such error would have a reasonable possibility of aiding in substantiating the Veteran's claim. Here, the Board finds there were two pre-decisional duty to assist errors. First, the Veteran received a VA examination in June 2021, however, a nexus opinion was not provided. See Barr v. Nicholson, 21 Vet. App. 303 (2007) (before a VA examination or opinion can be assigned probative weight, it must also be determined that it is adequate for the purposes of adjudication). Accordingly, a remand is warranted to obtain a medical opinion regarding the connection, if any, between the Veteran's diagnosed IBS and her time in service. Additionally, the Board finds the matter on appeal requires remand prior to adjudication because the AOJ has not fulfilled its pre-decisional duty to assist the Veteran in developing the evidence necessary to substantiate her claims, including the absence of an individual longitudinal exposure record (ILER) and toxic exposure risk activity (TERA) memorandum, due to her rate of Dental Technician. During the pendency of this appeal, in August 2022, the Sergeant First Class Heath Robinson Honoring our Promise to Address Comprehensive Toxics Act of 2022 (PACT Act) became law. 38 U.S.C. § 1168. The PACT Act directs that in certain circumstances, when a veteran is found to have been involved in a TERA during service, VA must provide the veteran with a medical examination and obtain an opinion addressing whether there is a nexus between a disability and the TERA. 38 U.S.C. § 1168. The additional procedural rights for veterans with claimed TERA include review of the ILER for documentation of known TERA. In this case, the Veteran's file does not include an ILER or TERA memorandum documenting whether the Veteran had exposures that constitute a TERA. As such, remand is necessary to obtain an ILER and TERA memorandum, correcting the pre-decisional duty to assist omission. 38 C.F.R. § 20.802(a). Given the results of any development on remand, additional development may be requested for the Veteran's claim. While the Board is remanding this matter at this time, it is mindful of the holding in Smith v. Wilkie, 32 Vet. App. 332 (2020), and the impact of implicit credibility determinations within remand orders. The Board does not at this time make any determinations regarding the credibility of any evidence currently of record with regard to the Veteran's claim, to include those described in this remand. The Board also notes that a remand is not a final Board decision. See Clark v. McDonough, 25 Vet. App. 217 (2022) (final Board decision is one where benefits are granted or denied (not remanded) and the claimant is adversely affected by the decision). The matter is REMANDED for the following action: 1. Generate a TERA memorandum that includes all conceded TERAs during service, prepare an ILER for the Veteran, and associate both documents with the claims file. 2. Schedule the Veteran for an examination to determine the nature and etiology of her IBS disability. (a.) The evidentiary record, including a copy of this remand, must be made available to and reviewed by the examiner. The opinion should include a notation that this record review took place. (b.) The VA examiner is requested to answer whether it is at least as likely as not (likelihood is approximately balanced or nearly equal if not higher) that the Veteran's IBS was incurred in, or is otherwise related to, the Veteran's active military service. Attention is directed to the August 2021 rating decision with a favorable finding of a diagnosis of IBS. The examiner is advised that the lack of documented treatment in service, or a long period after, while probative, cannot serve as the sole basis for a negative finding. A detailed explanation is requested for all opinions provided. (By law, the Board is not permitted to rely on any conclusion that is not supported by a thorough explanation. Providing an opinion or conclusion without a thorough explanation will delay processing of the claim and may also result in a clarification being requested). If an opinion cannot be provided without resort to mere speculation, indicate whether the need to speculate is due to a deficiency in the state of general medical knowledge (i.e., no one could respond given medical science and the known facts), a deficiency in the record (i.e., additional facts are required), or the examiner does not have the requisite knowledge or training. S. CHARLES NEILL Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Schwingler, 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.