Citation Nr: 1122907 Decision Date: 06/15/11 Archive Date: 06/28/11 DOCKET NO. 07-35 365 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to an initial evaluation in excess of 10 percent for residuals, status-post right colectomy with ileo/ascending colon anastomosis, claimed as intestinal condition, removal of part of colon, bowel obstruction, and chronic diarrhea. 2. Entitlement to service connection for hair loss, to include as secondary to service-connected residuals, status-post right colectomy with ileo/ascending colon anastomosis. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD David Traskey, Associate Counsel INTRODUCTION The Veteran had active service from July 1994 to August 1998. He also had active service in the Georgia Army National Guard from February 2003 to June 2004, including service in support of Operation Enduring/Iraqi Freedom from March to July 2003. This matter came before the Board of Veterans' Appeals (Board) on appeal from a January 2007 decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. The Veteran was also awarded service connection for kidney stones, claimed as kidney problems, in the January 2007 rating decision currently on appeal. The RO evaluated this disability as non-compensably disabling under 38 C.F.R. § 4.118, Diagnostic Code 7508, effective October 25, 2006. The Veteran was notified of this decision, provided his appellate rights, and perfected this appeal. A subsequent rating decision dated July 2008 increased the Veteran's disability rating to 10 percent under Diagnostic Code 7508, effective May 11, 2007. The Veteran thereafter submitted a statement dated July 2008 in which he expressed disagreement with the effective date of the 10 percent disability rating for kidney stones. However, the Veteran also stated "I agree with your assessment and my rating as it pertains to my kidney stones." Accordingly, the issue pertaining to the rating assigned to the kidney stones is no longer before the Board. With respect to the Veteran's earlier effective date claim for the award of 10 percent for kidney stones, the RO issued a statement of the case (SOC) on this issue in March 2009, but there is no indication that the Veteran perfected an appeal on this issue. Therefore, the earlier effective date claim is not before the Board. 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 Veteran was originally awarded service connection for residuals, status-post right colectomy with ileo/ascending colon anastomosis, claimed as intestinal condition, removal of part of colon, bowel obstruction, and chronic diarrhea, in the January 2007 rating decision on appeal. The RO evaluated the Veteran's gastrointestinal disability as 10 percent disabling under 38 C.F.R. 4.114, Diagnostic Code 7399-7319, effective October 25, 2006. The Veteran's particular disability is not listed in the rating schedule. However, 38 C.F.R. § 4.27 (2010) provides that unlisted disabilities can be rated analogously with the first two digits selected from that part of the rating schedule most closely identifying the part or system of the body involved, and the last two digits "99." See also, 38 C.F.R. § 4.20 (2010) (outlining principles related to analogous ratings). The RO determined that the most closely analogous Diagnostic Code was 7319, irritable colon syndrome. The RO also denied the Veteran's service connection claim for hair loss. The Veteran was notified of this decision, provided his appellate rights, and perfected this appeal. VA has a duty to assist veterans to obtain evidence needed to substantiate a claim. 38 U.S.C.A. § 5103A (West 2002); 38 § C.F.R. § 3.159 (2010). This duty to assist includes providing a thorough and contemporaneous medical examination. Green v. Derwinski, 1 Vet. App. 121, 124 (1991). The United States Court of Appeals for Veterans Claims (Court) has held that when a veteran claims that a disability is worse than when originally rated, and the available evidence is too old to adequately evaluate the current state of the condition, VA must provide a new examination. Olson v. Principi, 3 Vet. App. 480, 482 (1992) (citing Proscelle v. Derwinski, 2 Vet. App. 629, 632 (1992)). Here, the Veteran was afforded a VA Compensation and Pension (C&P) intestines examination to assess his gastrointestinal disability in January 2007. Subsequently, however, the Veteran indicated that the condition of his disability worsened. See statement dated October 2007; see also, representative's November 2009 statement. Therefore, the Board finds that a new VA examination is needed to assess the severity of his service-connected gastrointestinal disability. With respect to the Veteran's hair loss claim, he indicated in February 2007 that there were "definite symptoms" of hair loss upon discharge from his first period of active service (i.e., August 1998). He further alleged that his hair loss accelerated during his bout with a gastrointestinal illness which occurred in his second period of active service. According to the Veteran, "[d]uring this period of time large volumes of hair were noticeable in my headgear on a daily basis and my appearance was dramatically different upon my return from combat service." In the Board's opinion, the Veteran's February 2007 statement can be construed to be a claim not only for service connection for hair loss on a direct basis, but also as secondary to his service-connected gastrointestinal disability. On remand, therefore, the Veteran should be provided with a duty-to-inform notice regarding his service connection claim that complies with the Veterans Claims Assistance Act (VCAA). Thus, the AMC should provide the Veteran with complete VCAA notification and inform him of the type of information and evidence needed to substantiate his service connection claim on direct, presumptive, and secondary bases. Although the Veteran's service treatment records (STRs) are negative for a diagnosis of and treatment for a condition manifested by hair loss, the Board notes that the Veteran has not been afforded a VA examination to determine the nature and etiology of this claimed condition and its relationship to service or a service-connected disability, if any. See Green, 1 Vet. App. at 124. In light of the Veteran's lay statements regarding the onset of the claimed hair loss, the Board finds that a VA examination is necessary in this case. See Davidson v. Shinseki, 581 F.3d. 1313, 1315 (Fed. Cir. 2009). The Veteran also receives medical care through VA. VA is required to make reasonable efforts to help the Veteran obtain records relevant to his claim, whether or not the records are in Federal custody. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159(c) (2010); Bell v. Derwinski, 2 Vet. App. 611 (1992). Therefore, the RO should request all VA medical records pertaining to the Veteran from October 27, 2007. In addition, the Veteran should be contacted and asked to identify any VA and non-VA sources of treatment for his claimed hair loss and his service-connected gastrointestinal disability that are not already of record. Accordingly, the case is REMANDED for the following action: 1. Contact the Veteran and request that he identify any and all VA and non-VA sources of treatment for his claimed hair loss and his service-connected gastrointestinal disability that are not already of record. In particular, the Veteran should provide, or authorize VA to obtain, any such pertinent private records, which are not already of record. All efforts to obtain these records should be fully documented. If these records do not exist or cannot be obtained, the Veteran should be notified pursuant to 38 C.F.R. § 3.159(e) (2010). 2. In addition, send a duty-to-inform notice to the Veteran pursuant to the Veterans Claims Assistance Act. The notice letter must provide information about the type of evidence necessary to establish service connection for hair loss on direct, presumptive, and secondary bases (to include as secondary to a service-connected gastrointestinal disability). 3. Associate with the claims file relevant VA medical treatment records pertaining to the Veteran from October 27, 2007. If there are no VA medical records dated after October 27, 2007, this finding should be documented in the claims folder. 4. After all of the above development is completed, schedule the Veteran for a VA examination to assess the nature and severity of his currently service-connected gastrointestinal disability. The examiner should note in the examination report that the claims file has been reviewed. Any appropriate evaluations, studies, and testing deemed necessary by the examiner should be conducted at this time, and included in the examination report. In particular, the examiner is asked to express an opinion as to the severity of the Veteran's service-connected gastrointestinal disability. Given the varied and complex nature of the Veteran's disability and its accompanying symptoms, the examiner is asked to use the following disability examination worksheets when conducting the examination: (1) digestive conditions, miscellaneous; (2) intestines; and (3) stomach, duodenum, and peritoneal adhesions. The examiner must complete all of the above referenced examination worksheets. The examiner is also asked to distinguish, if possible, those symptoms that are related to the Veteran's service-connected disability and those symptoms, if any, that are related to a non-service-connected disability. If the examiner is unable to distinguish the symptoms, the examiner should indicate as such. The examiner must provide a complete rationale for any stated opinion. 5. Schedule the Veteran for a VA examination to assess the nature and etiology of his claimed hair loss condition. The examiner should note in the examination report that the claims file has been reviewed. Any appropriate evaluations, studies, and testing deemed necessary by the examiner should be conducted at this time, and included in the examination report. In particular, the examiner is asked to indicate whether the Veteran has a condition manifested by hair loss. If so, the examiner is asked to indicate whether this condition at least as likely as not (i.e., 50 percent or greater possibility) began in or is related to the Veteran's period(s) of active service. The examiner should consider the Veteran's complaints of continuity of symptoms since discharge from service. See Veteran's February 2007 statement. In the alternative, the examiner is asked to express an opinion as to whether the Veteran's condition manifested by hair loss is proximately due to, the result of, or caused by the Veteran's service-connected gastrointestinal disability. If not, the examiner is then asked to express an opinion as to whether the condition manifested by hair loss is aggravated (i.e., permanently worsened) beyond its natural progression by the service-connected gastrointestinal disability. The examiner must provide a complete rationale for any stated opinion. 6. After the requested examinations have been completed, the examination reports should be reviewed to ensure that they are in complete compliance with the directives of this remand. The examination reports should be returned to the examiner if they are deficient in any manner. 7. Thereafter, ensure that the development above has been completed in accordance with the remand instructions, undertake any other development action that is deemed warranted, and readjudicate the Veteran's claims. If the benefits sought on appeal remain denied, the Veteran and his representative should be provided a supplemental statement of the case (SSOC). An appropriate period of time should be allowed for response before the case is returned to the Board. The Veteran has the right to submit additional evidence and argument on the 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. 2010). _________________________________________________ S.S. TOTH 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) (2010).