Citation Nr: 0813903 Decision Date: 04/28/08 Archive Date: 05/08/08 DOCKET NO. 05-01 568 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New York, New York THE ISSUES 1. Entitlement to service connection for a gastrointestinal disorder, to include irritable bowel syndrome. 2. Entitlement to service connection for a cervical spine disorder. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Thomas D. Jones, Counsel INTRODUCTION The veteran served on active duty from August 1957 to May 1960. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2003 rating decision of a Regional Office (RO) of the Department of Veterans Affairs (VA), which denied the benefits sought on appeal. In December 2007, he testified before the undersigned Acting Veterans Law Judge, seated at the RO. At the hearing, and by letter dated in April 2008, his motion for advancement of his appeal on the Board's docket was granted. 38 C.F.R. § 20.900(c). The issue of entitlement to service connection for a gastrointestinal disorder, to include irritable bowel syndrome, is addressed in the REMAND, following the ORDER below. That issue is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. FINDING OF FACT By written statement signed by the veteran in December 2007, and presented to the undersigned at the December 2007 hearing, the veteran expressed his wish to withdraw his appeal for service connection of a cervical spine disorder. CONCLUSION OF LAW The criteria for withdrawal of a Substantive Appeal by the veteran as to the issue of entitlement to service connection for a cervical spine disorder have been met. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002); 38 C.F.R. §§ 20.202, 20.204 (2007). REASONS AND BASES FOR FINDING AND CONCLUSION Under 38 U.S.C.A. § 7105, the Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. A Substantive Appeal may be withdrawn in writing at any time before the Board promulgates a decision. 38 C.F.R. § 20.202 (2007). Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 20.204 (2007). The veteran, by statement signed and submitted to VA in December 2007, has withdrawn the appeal as to the issue of entitlement to service connection for a cervical spine disorder, and, hence, there remain no allegations of errors of fact or law, with regard to this particular issue, for appellate consideration. Accordingly, the Board does not have jurisdiction to review the appeal for service connection for a cervical spine disorder and it is dismissed. ORDER The appeal as to service connection for a cervical spine disorder is dismissed. REMAND The veteran perfected an appeal as to service connection for irritable bowel syndrome. Upon review of the record, the Board finds that the issue is more appropriately characterized as entitlement to service connection for a gastrointestinal disorder, to include irritable bowel syndrome, as the veteran complains of various gastrointestinal symptoms. Specifically, the veteran contends that since an episode in the Philippines, when he was stationed there on temporary duty, he has experienced lower gastrointestinal symptoms, including flatulence, pressure, mucus discharge, and occasional bleeding. (See December 2007 Hearing Transcript, at 3). Notably, the veteran is a retired physician. Service connection may be awarded for a current disability arising from a disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2007). In the present case, the veteran was periodically seen during active military service with complaints of gastrointestinal problems, including mucus in the stool, diarrhea, abdominal cramps, anorexia, and epigastric burning. In an August 1959 proctology examination, the diagnosis was "undetermined." He underwent a gastrointestinal (GI) series in May 1960, which was normal. In June 2006, the veteran underwent a VA medical examination, in which "no symptoms of irritable bowel syndrome" were evident on objective examination; it was noted that the veteran had refused a colonoscopy. However, a subsequent September 2006 VA outpatient clinical notation indicated "mild irritable bowel type symptoms." At the December 2007 Board hearing, the veteran stated that he has experienced gastrointestinal symptoms since his time in active service. He stated that he has experienced the symptoms continuously since service, to a certain extent; he indicated that he had not had to seek medical attention for the symptoms. The veteran's representative requested a new VA examination based on the veteran's reported symptoms over the years. Based on the complaints of gastrointestinal problems that are documented in the veteran's service medical records, along with the veteran's testimony about his current symptoms (and his symptoms since service), as well as the notation in the September 2006 VA treatment record, the Board finds that there is sufficient medical evidence to trigger the duty to assist for another examination. 38 U.S.C.A. § 5103A (West 2002 & Supp. 2007). VA's duty to assist includes providing a medical examination and/or obtaining a medical opinion when such an examination becomes necessary to substantiate the claim. 38 U.S.C.A. § 5103A(d) (West 2002 & Supp. 2007). The examiner should be requested to identify the presence of any current gastrointestinal disorder, and, if one is present, whether it is causally related to an incident of the veteran's active service. Accordingly, the case is REMANDED for the following action: 1. The veteran should be afforded a VA gastrointestinal examination to determine the presence or absence of a current gastrointestinal disorder, to include irritable bowel syndrome. The claims file must be furnished to the examiner for review in connection with the examination. All necessary diagnostic tests, as determined by the examiner, should be completed and all pertinent symptomatology and findings should be reported in detail. After fully examining the veteran and reviewing his medical history, the examiner should identify any current disabilities of the appellant's lower gastrointestinal system, to include irritable bowel syndrome. Based on a review of the claims file and the examination findings, and in light of the veteran's medical history, the examiner should indicate whether it is at least as likely as not (i.e. 50 percent or greater chance) that any current gastrointestinal disability is causally related to an in- service disease or injury, including the complaints of gastrointestinal problems documented in the veteran's service medical records. The examiner should provide a complete rationale for all medical conclusions reached. 2. After undertaking any additional development deemed appropriate, and giving the appellant full opportunity to supplement the record, please adjudicate the veteran's pending service connection claim for a gastrointestinal disorder, to include irritable bowel syndrome, in light of the VA examination findings and any additional evidence added to the record. If the benefit sought on appeal remains denied, the veteran and his representative should be furnished with a supplemental statement of the case and be afforded the applicable opportunity to respond before the record is returned to the Board for further review. The Board offers no opinion regarding the ultimate outcome of this claim at this time. The appellant has the right to submit additional evidence and argument on the matter or matters 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). _________________________________________________ LAURA H. ESKENAZI Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs