Citation Nr: 1124909 Decision Date: 06/30/11 Archive Date: 07/06/11 DOCKET NO. 10-28 155 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical and Regional Office Center in Fargo, North Dakota THE ISSUE Entitlement to service connection for ulcerative colitis. ATTORNEY FOR THE BOARD Arif Syed, Associate Counsel INTRODUCTION The Veteran served on active duty for training (ACDUTRA) as a member of the senior Reserve Officers Training Corps (ROTC) from June 3, 2008 to July 5, 2008. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Fargo, North Dakota. On his VA Form 9 dated in July 2010, the Veteran requested a hearing at VA Central Office in Washington, D.C. before a Veterans Law Judge. However, in September 2010 the Veteran withdrew his request for a hearing. See 38 C.F.R. § 20.704(e) (2010). The issues of entitlement to service connection for an acquired psychiatric disorder, to include depression, as well as entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) have been raised by the record in June and July 2010 statements from the Veteran, but have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over them, and they 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 Veteran if further action is required. REMAND The law provides that VA shall make reasonable efforts to notify a claimant of the evidence necessary to substantiate a claim and requires VA to assist a claimant in obtaining that evidence. 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2010). Such assistance includes providing the claimant a medical examination or obtaining a medical opinion when such an examination or opinion is necessary to make a decision on a claim. 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2010). In this case, the Board finds that a VA medical opinion is necessary with respect to the Veteran's claim of entitlement to service connection for ulcerative colitis prior to further appellate consideration. 38 C.F.R. § 3.159(c)(4). In particular, the Board initially notes that the Veteran's treatment records during his period of ACDUTRA are absent any complaints of or findings of ulcerative colitis or symptomatology associated therewith. However, the first complaint or diagnosis of ulcerative colitis is dated in September 2008, two months after the Veteran's separation from service. The Board notes that for certain chronic disorders, including ulcers, service connection may be presumed to have been incurred in service if the disease becomes manifest to a compensable degree within one year following separation from service. See 38 U.S.C.A. §§ 1101, 1110, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.307, 3.309(a) (2010). However, the provisions set forth in sections 3.307 and 3.309 only apply to veterans who served 90 days or more of active, continuous service during a war period. See § 3.307(a)(1). As evidenced by the claims folder, the Veteran's ACDUTRA is from June 3, 2008 to July 5, 2008. As such, §§ 3.307 and 3.309 are not for application. In any event, on Remand, the RO should verify the dates of the Veteran's period of ACDUTRA and inactive duty for training (INACDUTRA) and request copies of any pertinent service treatment during these periods of service not currently associated with the claims folder. It is unclear from the record as to whether the Veteran's ulcerative colitis symptomatology documented in September 2008 is related to his period of ACDUTRA. Although R.L., M.D., concluded in a private treatment report dated in August 2009 that "[t]he chronological development of the symptoms indicates that the [ulcerative colitis] first developed during the training camp when [the Veteran] was in the ROTC training," it appears that in rendering his opinion, Dr. R.L. relied exclusively on the Veteran's reported in-service complaints of constipation and chronic diarrhea. As discussed above, the Veteran's service treatment records are absent any complaints of or treatment for ulcerative colitis or symptomatology associated therewith. The Court has held on a number of occasions that a medical opinion premised upon an unsubstantiated account of a claimant is of no probative value. See, e.g., Swann v. Brown, 5 Vet. App. 229, 233 (1993) [generally observing that a medical opinion premised upon an unsubstantiated account is of no probative value, and does not serve to verify the occurrences described]; Reonal v. Brown, 5 Vet. App. 458, 461 (1993) [the Board is not bound to accept a physician's opinion when it is based exclusively on the recitations of a claimant]. Pertinently, there is no other evidence currently associated with the Veteran's VA claims folder that offers an opinion as to a possible causal relationship between the Veteran's ulcerative colitis and his period of military service. In light of the ambiguities above, the Board is of the opinion that a VA examination would be probative in ascertaining whether the Veteran's current ulcerative colitis is etiologically related to his active military service. See Charles v. Principi, 16 Vet. App. 370 (2002); McLendon v. Nicholson, 20 Vet. App. 79 (2006); see also 38 C.F.R. § 3.159(c)(4) (2010) (holding a medical examination or opinion is necessary if the information and evidence of record does not contain sufficient medical evidence to decide the claim). An additional factor that needs to be considered is the Court's holding in McClain v. Nicholson, 21 Vet App 319 (2007) that the requirement that a current disability be present is satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim, even though the disability resolves prior to the adjudication of the claim. The Board cannot exclude the possibility that the Veteran exhibited ulcerative colitis during the pendency of this appeal that had resolved. In the event that the VA examination does not show a current diagnosis of ulcerative colitis, the type of scenario addressed under McClain must be addressed on examination as well. Accordingly, the case is REMANDED for the following action: 1. The RO should verify all periods of the Veteran's ACDUTRA and INACDUTRA and obtain service treatment records covering such periods of service not currently associated with the claims folder. 2. Thereafter, the Veteran should be afforded an appropriate VA examination to determine the nature and etiology of his ulcerative colitis disability. The Veteran's claims folder must be made available to the examiner prior to the examination. The examiner should specifically consider the chronicity and onset of the Veteran's ulcerative colitis disability. Consideration of this evidence should be reflected in the examination report. All tests and studies deemed necessary by the examiner should be performed. Based on a review of the claims folder and the clinical findings of the examination, the examiner must: a) Identify a current ulcerative colitis disability; b) If an ulcerative colitis disability is diagnosed, provide an opinion, as to whether it is at least as likely as not (i.e. 50 percent or greater probability) that the disability is related to the Veteran's period of ACDUTRA. The examiner should indicate in his/her report that the claims file was reviewed. A rationale for all opinions expressed should be provided. A report should be prepared and associated with the Veteran's VA claims folder. In providing the requested opinion, the examiner should be advised that the term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of a certain conclusion as it is to find against it. 3. When the development requested has been completed, the case should be reviewed by the RO on the basis of additional evidence. If the benefits sought are not granted, the Veteran should be furnished a supplemental statement of the case (SSOC) and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded. See 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). _________________________________________________ DAVID L. WIGHT 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).