Citation Nr: 0815222 Decision Date: 05/08/08 Archive Date: 05/14/08 DOCKET NO. 06-25 939 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUES 1. Entitlement to an initial disability rating in excess of 10 percent for service-connected gastroenteritis. 2. Entitlement to an initial disability rating in excess of 20 percent for service-connected discogenic disease at L4-L5 and at T11-T12 and T10-T11. ATTORNEY FOR THE BOARD B.R. Mullins, Associate Counsel INTRODUCTION The veteran had active service from June 2002 to October 2002 and from February 2003 to April 2004. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2005 rating decision of the Department of Veterans Affairs Regional Office (RO) in San Juan, Puerto Rico, which granted the veteran service- connection for gastroentitis (rated at 10 percent disabling) and discogenic disease at L4-L5 and at T11-T12 and T10-T11 (rated at 20 percent disabling), effective May 1, 2004. The 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. REMAND The evidence of record indicates that the veteran needs to undergo a gastrointestinal examination for his service- connected gastroentitis, which was diagnosed while the veteran was in active service, before appellate review may proceed. VA outpatient medical records that are dated after the rating decision on appeal indicate a potential worsening of the veteran's symptoms. September 2005 outpatient treatment records reveal symptoms such as the presence of blood in the veteran's stool and feelings of weakness with abdominal distension. It is unclear whether this indicates a worsening of the veteran's symptoms since the July 2005 rating decision. Therefore, a VA examination is necessary to determine whether these symptoms are related to the veteran's service-connected gastroentitis, or a nonservice-connected disorder; if the symptoms reflected in the VA treatment records are related to the service-connected gastrointestinal disability, then the current severity of the symptoms should be evaluated. Further, the veteran's last VA spinal examination took place in March 2005, which is more than three years ago. In the veteran's June 2006 appeal to the Board, the veteran's statements suggested that his disorder was worsening in severity at that time. An October 2005 VA outpatient treatment record also reveals the veteran rating his pain as a "10," which was classified as "worst pain." This further indicates that there may be a worsening of the veteran's service-connected back disability. However, such a medical conclusion may not be made by the Board, nor is the Board able to determine the level of severity. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). Therefore, before appellate review may proceed, a VA examination must be conducted to determine the current disability level of the veteran's spinal disorder. Accordingly, the case is REMANDED to the AMC for the following action: 1. The veteran's current VA medical records from October 2005 to the present should be obtained (to the extent there are any). 2. The veteran should be afforded a gastrointestinal examination to determine the severity of his service-connected gastroentitis. The examiner should be provided with a copy of the Remand and the veteran's claims file. The examiner should review the relevant documents in conjunction with the examination. All necessary tests and studies should be accomplished, and complaints and clinical manifestations should be reported in detail, including, but not limited to, the veteran's frequency of bowel disturbance, the severity of his diarrhea or constipation, and the frequency and degree of the veteran's general abdominal distress. The examiner should be asked to describe the current severity of the service- connected gastrointestinal disability in detail, and should be asked whether the current severity represents an increase or decrease in severity compared to the prior VA examination of February 2005. If the level of severity of the gastrointestinal disability has increased or decreased during the period since the veteran submitted the claim for service connection in January 2005, the examiner should provide an opinion as to the date of onset of the increase or decrease. The examiner should provide a rationale for any opinion offered. 3. The veteran should also be afforded a VA orthopedic examination to determine the severity of his service-connected discogenic disease at L4-L5 and at T11-T12 and T10-T11. The examiner should be provided with a copy of the Remand and the veteran's claims file. The examiner should review the relevant documents in conjunction with the examination. All necessary tests and studies should be accomplished, and complaints and clinical manifestations should be reported in detail, including, but not limited to, the veteran's thoracolumbar range of motion, any ankylosis of the thoracolumbar spine, and whether there is additional limitation of motion due to pain. The examiner should be asked to describe the current severity of the service- connected back disability in detail, and should be asked whether the current severity represents an increase or decrease in severity compared to the prior VA examination of February 2005. If the level of severity of the back disability has increased or decreased during the period since the veteran submitted the claim for service connection in January 2005, the examiner should provide an opinion as to the date of onset of the increase or decrease. The examiner should provide a rationale for any opinion offered. 4. After completion of the above and any additional development deemed necessary, the expanded record should be reviewed and it be determined if the veteran's claims can be granted. The veteran's appeal for a higher initial evaluation for his gastrointestinal disability and his back disability requires consideration of "staged ratings," that is, successive ratings reflecting variations in the disability's severity since the date of service connection. Fenderson v. West, 12 Vet. App. 119, 126 (1999). The AMC should document its consideration of whether "staged ratings" are appropriate in this case. The veteran and his representative should be furnished an appropriate supplemental statement of the case (SSOC) and be afforded an opportunity to respond. Thereafter, the case should be returned to the Board for appellate review. The veteran 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). _________________________________________________ J. A. MARKEY 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).