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).