Citation Nr: 0401538 Decision Date: 01/15/04 Archive Date: 01/28/04 DOCKET NO. 02-22 283 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUES 1. Entitlement to an increased rating for irritable bowel syndrome, currently evaluated as 10 percent disabling. 2. Entitlement to an increased rating for a generalized anxiety disorder, currently evaluated as 10 percent disabling. 3. Entitlement to service connection for diverticulosis. 4. Entitlement to service connection for circulatory problem of the legs. 5. Entitlement to service connection for a back disorder. 6. Entitlement to service connection for a heart disorder. 7. Entitlement to service connection for residuals of cold injury to the hands and feet. 8. Entitlement to service connection for post-traumatic stress disorder. 9. Entitlement to a total rating based on individual unemployability due to service-connected disability (TDIU). REPRESENTATION Appellant represented by: Paralyzed Veterans of America, Inc. WITNESS AT HEARING ON APPEAL Appellant, his spouse, and his son ATTORNEY FOR THE BOARD Robert E. P. Jones, Counsel INTRODUCTION The veteran served on active duty from September 1943 to October 1945. The veteran was a prisoner of war (POW) in German custody from June 1944 to May 1945. This matter is before the Board of Veterans' Appeals (Board) on appeal from March and October 2002 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan. The October 2002 rating action denied the veteran's claim for an increased rating for irritable bowel syndrome, and denied the veteran's claims for service connection for diverticulosis, a circulatory problem of the legs, a back condition, and a heart condition. The RO issued a statement of the case with respect to these issues in March 2003. In June 2003, the veteran's representative submitted a VA Form 646. On this form the representative listed each of the issues discussed in the March 2003 statement of the case, and stated that the veteran wished to have those claims reviewed by the Board. The Board finds that this June 2003 submission by the veteran's representative acts as an adequate and timely substantive appeal with respect to the veteran's irritable bowel syndrome, diverticulosis, circulatory problem of the legs, back condition, and heart condition claims. See 38 C.F.R. § 20.200 (2003). Accordingly, each of these issues is currently in appellate status before the Board. REMAND On November 9, 2000, the President signed into law the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002)). VCAA includes an enhanced duty on the part of VA to notify a claimant of the information and evidence necessary to substantiate a claim for VA benefits and which evidence, if any, the claimant is expected to obtain and submit, and which evidence will be retrieved by VA. See 38 U.S.C.A. § 5103(a) and (b) (West 2002). Also see Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The RO sent the veteran a VCAA notice letter in September 2001. However, this letter indicated to the veteran that the RO was considering the veteran's claims for an increased rating for stomach (diverticulosis), heart, cold injury, and post-traumatic stress disorder disabilities. The veteran, however, is seeking service connection for those disabilities. While this letter properly notified the veteran that the RO was considering the veteran's claims for an increased rating for a generalized anxiety disorder and for an increased rating for residuals of irritable bowel syndrome, the letter did not inform the veteran of the information and evidence necessary to substantiate those claims. The veteran was sent a second VCAA notice letter in May 2002. This letter referred to the veteran's claims for service connection for a back disorder, for diverticulosis, for a heart disorder, and for a circulatory problem of the legs. Additionally, the Board notes that VA has not provided the veteran notice of the information and evidence necessary to substantiate a claim for a total rating based on individual unemployability due to service-connected disability, and which evidence, if any, the claimant is expected to obtain and submit, and which evidence will be retrieved by VA. The RO must send the veteran such notice. See Quartuccio, supra. The Board notes that the veteran has not had recent VA examinations for his service-connected irritable bowel syndrome and generalized anxiety disorder. Current VA examination findings that indicate the current nature and extent of these service-connected disabilities are indicated. Accordingly, this case is REMANDED to the RO for the following development: 1. The RO must review the claims file and ensure that all VCAA notice obligations have been satisfied in accordance with the decision in Quartuccio v. Principi, 16 Vet. App. 183 (2002), as well as 38 U.S.C.A. §§ 5102, 5103, and 5103A (West 2002), and any other applicable legal precedent. In particular, the RO should issue a VCAA notice letter to the appellant addressing each of the issues on the title page of this decision, to particularly include the increased rating claims and TDIU claim, and properly setting forth the specific information and evidence necessary to substantiate each issue on appeal, and notifying the appellant of which specific evidence, if any, the appellant is expected to obtain and submit, and which specific evidence will be retrieved by VA. 2. The RO should contact the veteran and request the names, addresses, and dates of treatment and/or examination, of all health care providers, VA and non-VA, who have provided recent treatment for the disabilities at issue. After obtaining any necessary authorization, the RO should request copies of the records of such identified treatment or examinations which are not currently of record. This should include requesting copies of all VA medical records from the VA Medical Center Saginaw, Michigan dated from September 2001 to present. All records obtained should be associated with the veteran's claims file. 3. When the above action has been completed, the veteran should be scheduled for VA psychiatric, gastrointestinal, and general medical examinations. All indicated tests and studies should be performed. The gastrointestinal examiner should comment on the severity of the veteran's irritable bowel syndrome, and indicate whether the veteran has diverticulosis, and if so, whether it is at least as likely as not that such disability is related to the veteran's service. The psychiatric examiner should comment on the nature and extent of the veteran's service-connected generalized anxiety disorder. The general medical examiner should comment on the nature, extent, and etiology of any back and circulatory problems of the legs that are present. The general medical examiner should express an opinion as to whether it is at least as likely as not that any such disorders found are related to the veteran's military service. The claims folder must be made available to the examiners for review prior to the examinations. 4. If any benefit sought on appeal is not granted to the veteran's satisfaction or if a timely notice of disagreement is received with respect to any other matter, the veteran and his representative, if any, should be provided a supplemental statement of the case on all issues in appellate status and be afforded the appropriate opportunity to respond. The Board intimates no opinion as to the ultimate outcome of this case. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded to the RO. Kutscherousky v. West, 12 Vet. App. 369 (1999). _________________________________________________ U. R. POWELL Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2003).