Citation Nr: 0812335 Decision Date: 04/14/08 Archive Date: 05/01/08 DOCKET NO. 94-18 158A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boston, Massachusetts THE ISSUE Entitlement to a higher initial rating for irritable bowel syndrome, currently rated as 10 percent disabling. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD J. W. Kim, Associate Counsel INTRODUCTION The veteran had active service from November 1989 to August 1992. This appeal arises from a November 1993 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky, that granted entitlement to service connection for irritable bowel syndrome (IBS) and assigned an initial 10 percent evaluation effective from August 1992. The veteran testified before an RO hearing officer in February 1997. In March 2001, the Board remanded the appeal for further development. During the appeal period the claims file was transferred to various ROs and is currently within the jurisdiction of the Boston RO. This appeal is REMANDED to the RO via the Appeals Management Center (AMC) in Washington, DC. VA will notify the veteran if further action is required on his part. REMAND Unfortunately, the Board observes that further development is again required prior to adjudicating the veteran's claim. The last VA examination for the veteran's IBS was performed over 5 years ago in November 2002. Accordingly, the veteran was scheduled for a new examination. However, the examination notification letter was returned as undeliverable. Furthermore, in a February 2008 statement, the veteran's representative indicated that the veteran's IBS has worsened since the November 2002 examination. Given that the most current VA examination is over 5 years old, the veteran did not receive notice of the recently scheduled VA examination and the representative indicated that the disability has worsened since the last examination, the Board finds that the veteran should be scheduled for another VA examination. The Board notes that the veteran's current address appears to be 21 Woodland Avenue, Chicopee, MA 01020. In addition, the Board observes that further development is required under the Veterans Claims Assistance Act of 2000 (VCAA), codified in part at 38 U.S.C.A. §§ 5103, 5103A (West 2002), and implemented at 38 C.F.R. § 3.159 (2007). During the pendency of this appeal, the United States Court of Appeals for Veterans Claims (Court) issued a decision in the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2007), which held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim, including the degree of disability and effective date of an award. In this case, the veteran was provided with notice of the type of information and evidence needed to substantiate his claim for an increased rating, but he was not provided with notice of the type of evidence needed to establish an effective date for the disability on appeal. Thus, corrective notice can be provided on remand. Ongoing medical records should also be obtained. 38 U.S.C.A. § 5103A(c) (West 2002); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim). Accordingly, the case is REMANDED for the following actions: 1. Using the updated address noted above, send the veteran and his representative a corrective VCAA notice under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) that includes an explanation of the information and evidence needed to establish a disability rating and an effective date. Dingess/Hartman. 19 Vet. App. 473. 2. Obtain and associate with the claims file any relevant VA medical records dating since August 2002 from the Northampton VA Medical Center. 3. Schedule the veteran for a VA examination to determine the current severity of his service-connected irritable bowel syndrome. The claims file must be made available to and reviewed by the examiner. All indicated tests should be performed and all findings should be reported in detail. 4. After the above development has been completed to the extent possible, readjudicate the claim. If the benefit sought on appeal remains denied, the veteran and his representative should be issued a supplemental statement of the case and given an opportunity to respond. Thereafter, the case should be returned to the Board, if in order. The Board intimates no opinion as to the ultimate outcome of this case. The veteran need take no action unless otherwise notified. The veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2007). _________________________________________________ K. A. BANFIELD 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) (2007).