Citation Nr: 1222467 Decision Date: 06/27/12 Archive Date: 07/10/12 DOCKET NO. 07-21 574 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUE Entitlement to a rating in excess of 40 percent for postgastrectomy syndrome (with GERD). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD K.S. Hughes, Counsel INTRODUCTION The appellant is a Veteran who served on active duty from November 1955 to June 1958. This matter is before the Board of Veterans Appeals (Board) on appeal from an October 2005 rating decision by the Oakland, California Department of Veterans Affairs (VA) Regional Office (RO) that continued a 20 percent rating for postgastrectomy syndrome. An April 2007 DRO decision granted an increased rating of 40 percent, effective May 31, 2005 (the date of claim for increase), and expanded the characterization of the service connected entity to include gastroesophageal reflux disease (GERD) (see April 2007 statement of the case (SOC) for explanation). Because that rating is less than the maximum provided under the applicable criteria (and as the Veteran has not indicated he is satisfied with the award), the matter remains on appeal. See AB v. Brown, 6 Vet. App. 35 (1993). The case was before the Board in October 2010 and January 2012, when it was remanded for additional development. The Board's October 2010 and January 2012 remands referred to the RO for appropriate action the matter of service connection for residuals of colon cancer. The record does not reflect any action in response to the referral. The Board does not have jurisdiction in the matter; it is once again referred to the RO for any appropriate action. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2011). 38 U.S.C.A. § 7107(a)(2) (West 2002). 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 In the January 2012 Remand the Board noted that the April 2011 addendum to the January 2011 VA gastroenterology examination (pursuant to the October 2010 Board remand) noted "a January 2011 EGD showed a 'very small gastric ulcer, bx (biopsy) - high grade dysplasia' and that the Veteran 'was referred to surgery clinic for further evaluation for this finding and this care and evaluation is currently ongoing with surgery clinic referral to an outside expert for possible endoscopic mucusal resection (EMR)'". The Board noted that VA treatment records show the EMR was done on March 29, 2011 and the surgical/laboratory results are noted; however, records from the outside expert had not been secured. As records of such treatment are pertinent evidence with respect to the issue on appeal, the RO was instructed (with assistance from the Veteran) to secure complete copies of these records. The March 2012 VA examination report notes review of another EGD (in January 2012) and of records of ongoing VA treatment; records of such ongoing VA and private treatment are not associated with the claims file, and are pertinent evidence in the matter at hand. January 2012 correspondence to the Veteran from the RO sought authorization from him for VA to secure the March 2011 EMR records. He did not provide the authorization. Records of updated VA treatment also have not been associated with the claims file (the most recent VA records therein are dated in April 2007). The Veteran is advised that under 38 C.F.R. § 3.158(a), where evidence (to include identifying information and releases for VA to obtain private records) requested in connection with a claim for VA benefits is not received within a year of the request, the claim is to be considered abandoned. The January 2012 Board remand also noted that another examination to address further unanswered medical questions (i.e., regarding whether the criteria for a 60 percent rating are met or approximated) was necessary. The examiner was to be provided a copy of the criteria in 38 C.F.R. § 4.114 (and specifically Diagnostic Codes 7308, 7346) and was asked to respond to specific questions posed. A VA examination was conducted in March 2012; however, the examination report associated with the record appears incomplete (as it ends abruptly on page 4). In that report the examiner responded to a checklist on a standard form, but did not respond to the specific questions posed (answers to which are necessary for proper adjudication of the Veteran's claim). Consequently, another examination to secure the information sought is necessary. As action ordered in the Board's prior Remand was not completed, but remains necessary for proper adjudication of this claim, the case must be remanded, once again, for completion of the development previously sought, and for further adjudicatory action. See Stegall v. West, 11 Vet. App. 268 (1998)(a remand by the Board confers on the appellant, as a matter of law, a right to compliance with the remand orders). The Board notes that this case has been advanced on its docket due to the Veteran's age, and that inherent in a remand is a delay of the final determination. However, it is his lack of co-operation (nonresponse to requests for releases of private records) that has, in part, caused at least some of the delay. He is advised that unless he provides releases for the private records sought, development of his claim/appeal cannot proceed any further (as any opinions offered would be based on an incomplete record, and therefore inadequate). Therefore, if he fails to provide the authorizations for releases of private records sought, his claim/appeal would have to be dismissed as abandoned (as 38 C.F.R. § 3.158(a) requires). Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2011). Expedited handling is requested.) 1. The RO should ask the Veteran to identify the providers of any and all gastrointestinal treatment and evaluations he has received since October 2010 ( i.e., the Board's initial remand) and to provide any releases necessary for VA to secure records of any such private treatment (including the March 2011 EMR). The RO should secure copies of complete clinical records from all identified sources (to specifically include all pertinent VA records outstanding). If a private provider does not respond to the RO's request for records, the Veteran should be so notified, and advised that ultimately it is his responsibility to ensure that such records are received. If the Veteran does not provide the releases sought (within the time afforded by regulation), the RO should not proceed with further development, but should process this claim under 38 C.F.R. § 3.158(a). 2. If the records sought above are secured, the RO should arrange for the Veteran to be examined by a gastroenterologist or general surgeon to assess the current severity of his service-connected postgastrectomy syndrome with GERD. A copy of the criteria in 38 C.F.R. § 4.114 (to specifically include Codes 7308, 7346) should be provided to the examiner (along with the Veteran's claims file) for review in conjunction with the examination (and the findings reported must be sufficiently detailed for consideration of all criteria mentioned in those Codes). Based on review of the record and examination of the Veteran, the examiner should respond to the following: (a) Describe in detail the nature and severity of all current symptoms (and all associated functional impairment) of the Veteran's postgastrectomy syndrome with GERD. The examiner should specifically comment on whether there is evidence of severe dumping, postprandial or preprandial syncope, and periprandial nausea and/or vomiting. To the extent possible, the examiner should differentiate symptoms of the service connected disability entity (postgastrectomy syndrome with GERD) from any attributable solely to the Veteran's colectomy or other co-existing (and not service-connected pathology). (b) Regarding the finding of high grade dysplasia on ulcer biopsy in January 2011 EGD, the examiner should note whether any malignancy was found and, if so, whether it is related to the Veteran's service connected postgastrectomy syndrome with GERD. The examiner must explain the rationale for all opinions, citing to supporting factual data and/or medical texts/treatises, as appropriate. 3. The RO must ensure that the development sought is completed (there is an appropriate response to each request), and should then re-adjudicate the claim. If it remains denied (or is dismissed as abandoned under 38 C.F.R. § 3.158(a)), the RO should issue an appropriate supplemental SOC and afford the Veteran and his representative the opportunity to respond. The case should then be returned to the Board. The appellant has the right to submit additional evidence and argument on the matter 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 for additional development or other appropriate action must be handled in an expeditious manner. _________________________________________________ George R. Senyk 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) (2011).