Citation Nr: 1124490 Decision Date: 06/28/11 Archive Date: 07/06/11 DOCKET NO. 06-11 916 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUES 1. Entitlement to service connection for a gastrointestinal disability, to include hiatal hernia with reflux and gastritis. 2. Entitlement to a compensable disability evaluation for urinary tract infections. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Terrence T. Griffin, Associate Counsel INTRODUCTION The Veteran had active service from May 1976 to September 1982. This matter came before the Board of Veterans' Appeals (BVA or Board) on appeal from a June 2005 decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi, which denied entitlement to a compensable disability evaluation for a urinary tract infection and declined to reopen a service connection claim for a hiatal hernia with reflux and gastritis. In a January 2009 decision, the Board, among other things, denied the Veteran's application to reopen a claim of service connection for hiatal hernia with reflux and gastritis, as well as her claim seeking a compensable evaluation for a urinary tract infection. The Veteran appealed the Board's January 2009 decision to the United States Court of Appeals for Veterans Claims (Court), which, in a December 2010 memorandum decision, reversed the Board's finding that new and material evidence had not been received and remanded the service connection claim for hiatal hernia with reflux and gastritis to the Board for de novo review. The Court also vacated and remanded the Board's denial of entitlement to a compensable evaluation for urinary tract infections. However, the Court affirmed the Board's denials of the Veteran's bilateral knee disability, migraine headaches, posttraumatic stress disorder (PTSD), nasal fracture, and total disability rating based on individual unemployability due to service-connected disabilities (TDIU) claims and thus they are no longer before the Board. In August 2007, the Veteran testified at a hearing before a Veterans Law Judge who is no longer employed by the Board. In March 2011, the Board sent a letter to the Veteran advising her that she could testify at another Board hearing; however, in a March 2011 statement, she waived her right to an additional hearing and requested the Board consider her claims based on the evidence of record. Thus, the Board may properly evaluate the Veteran's claims. In October 2010, the Veteran filed another TDIU claim. In an October 2010 statement, she also raised claims to reopen service connection claims for a (i) bilateral knee disorder and (ii) PTSD; and increased rating claims for (iii) migraine headaches, rated 50 percent disabling; and (iv) nose fracture residuals, rated 10 percent disabling. As these five claims have not been adjudicated by the Agency of Original Jurisdiction (AOJ), the Board does not have jurisdiction over them. Thus, the claims are referred to the AOJ for appropriate action. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND The Veteran seeks service connection for a gastrointestinal disability, to include hiatal hernia with reflux and gastritis. At her August 2007 Board hearing, the Veteran provided competent sworn testimony that her gastrointestinal symptoms had their onset in service. See Board Hearing Trans., pp. 41-42, Aug. 29, 2007; Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006); see also Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Veteran's testimony also competently addressed her in- and post-service symptomatology. Id. As the Court held in the December 2010 memorandum decision, the Veteran has provided a competent account of in-service injury/treatment and symptomatology, within lay observation, which must be considered in the evaluation of her claim. See Buchanan, supra; see also Jandreau, supra. What is more, the evidence of record confirms her in-service treatment for gastrointestinal symptomatology and post-service evidence reflects the presence of currently diagnosed gastrointestinal conditions. In light of the foregoing, the Board finds that a remand for an appropriate VA examination is necessary to determine if the Veteran's claimed condition had its onset in and/or was caused by, and/or is related, to service. McLendon v. Nicholson, 20 Vet. App. 79 (2006). The Veteran's urinary tract infections are rated pursuant to 38 C.F.R. § 4.115b, Diagnostic Code 7504, which rates the disability pursuant to the criteria for renal dysfunction and urinary tract infection, whichever is predominant. In the January 2009 decision, however, the Board also considered the criteria for voiding dysfunction and for urinary frequency, and in the December 2010 decision, the Court agreed that those criteria were pertinent to this appeal. Indeed, in vacating the Board's determination, the Court held that, on remand, VA must also consider the voiding dysfunction and urinary frequency criteria in rating this condition. In light of the Court's decision, VA must afford the Veteran another VA examination that addresses these criteria. Stegall v. West, 11 Vet. App. 268 (1998). Further, the Board notes that additional treatment records relevant to the Veteran's claims may exist. Specifically, she receives VA treatment for her gastrointestinal disability and urinary tract infections; however, VA records, dated since August 2007, have not been associated with the claims folder. Further, the evidence of record suggests the Veteran also receives regular private treatment for these conditions, but no records since October 2001 are of record. Under the law, VA must obtain these records. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159(c) (2010). On remand, the RO must attempt to obtain any pertinent, outstanding records. Accordingly, the case is REMANDED for the following action: 1. Ask the Veteran to identify all sources of private and VA treatment for gastrointestinal and genitourinary problems, dated since August 2003. The RO should attempt to associate any such pertinent, outstanding records. 2. Then schedule the Veteran for an appropriate VA examination in order to determine the nature and etiology of any gastrointestinal disability found to be present, to include hiatal hernia with reflux and gastritis. The claims folder should be made available to and reviewed by the examiner, with such review noted in the examination report. The examiner should record the full history of the condition, to include the Veteran's competent account regarding the onset and chronicity of her gastrointestinal symptoms. The examiner should diagnose all gastrointestinal disability found to be present, to include hiatal hernia with reflux and gastritis. Then, with respect to each diagnosis, the examiner must opine whether it is at least as likely as not that the condition (I) had its onset in service; (II) was caused by service; and (III) was caused or aggravated by any service-connected condition. The examiner should provide clear medical reasoning and analysis for all provided opinions. The examination report must also reflect the examiner's consideration of the pertinent evidence of record, medical and lay, to include the (a) Veteran's competent account of her symptomatology; (b) an August 1976 service treatment; (c) a February 1978 service treatment record; and (d) a March 1982 service treatment record. All necessary tests and studies should be conducted and associated with the claims file. All findings and conclusions should be set forth in a legible report. 3. The Veteran must also be afforded an appropriate VA examination to determine the current nature, extent and severity of her urinary tract infection. The claims folder must be made available to and reviewed by the examiner. The examiner must record the full history of the disorder, including the Veteran's account of symptomatology. The examiner is asked to describe all signs and symptoms of the Veteran's urinary tract infection condition. The examiner should specifically detail the nature, extent and severity of the Veteran's: (I) renal dysfunction; (II) urinary tract infection (the frequency and severity of the condition, as well as whether medication and/or inpatient treatment was necessary); (III) voiding dysfunction, noting the need for an appliance and/or the use absorbent materials. If absorbent materials are necessary, please state the frequency such materials must be changed. If absorbent materials are not used for any reason but appear necessary, please estimate the frequency with which they should be changed. (IV) urinary frequency, noting the frequency of both daytime and nighttime voiding intervals. In offering each of these impressions, the examiner must acknowledge and discuss the pertinent evidence of record, medical and lay, to include the Veteran's competent and credible account of voiding dysfunction and urinary frequency. All necessary tests and studies should be conducted and associated with the claims file. All findings and conclusions should be set forth in a legible report. 4. Then readjudicate the appeal. If the benefits sought on appeal remain denied, the Veteran and her representative should be provided with a Supplemental Statement of the Case (SSOC). An appropriate period of time should be allowed for response. 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). ________________________________________________ STEVEN D. REISS 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).