Citation Nr: 1225367 Decision Date: 07/20/12 Archive Date: 07/30/12 DOCKET NO. 09-02 408 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to service connection for a gastrointestinal disorder. REPRESENTATION Veteran represented by: Vietnam Veterans of America WITNESSES AT HEARING ON APPEAL Veteran and his wife ATTORNEY FOR THE BOARD L. B. Yantz, Counsel INTRODUCTION The Veteran served on active duty with the United States Marine Corps from October 1965 to October 1968 and from September 1971 to October 1988. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2008 rating decision by the Nashville, Tennessee, Regional Office (RO) of the United States Department of Veterans Affairs (VA). In April 2010, the Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge. A transcript of this hearing is associated with the claims file. In February 2011, the Board remanded the issues of entitlement to service connection for a gastrointestinal disorder and a neuropsychological disability to the RO via the Appeals Management Center (AMC), in Washington, DC, for further evidentiary development. In an April 2012 rating decision, the AMC granted service connection for cognitive disorder with mood disorder and anxiety disorder. As that decision represents a full grant of benefits sought with regard to this issue, it is no longer a part of the current appeal. In February 2011, the Board dismissed the issue of entitlement to service connection for a right hip disability; denied the issue of entitlement to service connection for posttraumatic stress disorder (PTSD); and granted the issues of entitlement to service connection for coronary artery disease and entitlement to service connection for major depressive disorder (MDD). Because a final Board decision was rendered with regard to these four issues, they are no longer a part of the current appeal. In June 2012, the Veteran submitted a waiver of initial RO consideration for additional evidence that he submitted in July 2012. See 38 C.F.R. § 20.1304 (2011). 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 AMC. VA will notify the Veteran if further action is required. REMAND The Veteran contends that he has a gastrointestinal disorder that is related to service. He has consistently given a history of amoebic dysentery that began while he was stationed in Vietnam. Service treatment records show that the Veteran complained of nausea and vomiting and was diagnosed with viremia in September 1968, shortly after returning from Vietnam. He was treated for gastroenteritis in December 1976. He was treated for diarrhea, which was assessed as a probable viral syndrome, in October 1978. He complained of an upset stomach and diarrhea in March 1980. He was assessed with a viral illness and irritable bowel in August 1980. He was treated for an abscess to the abdominal area in October 1987. He reported occasional diarrhea in August 1988. On an August 1988 dental health questionnaire, he was noted to have a past medical history of amoebic dysentery. Private treatment records dated in November 1998 show that the Veteran was hospitalized for abdominal pain and acute diverticulitis. His past medical history included amoebic dysentery when he was in Vietnam in the 1960s. Post-service VA treatment records dated in June 2007 and October 2007 show diagnoses of abdominal pain, gastroesophageal reflux disease (GERD), gastritis, gastroduodenitis, esophagitis, terminal ileitis, cholecystitis, and rule out biliary disease and pancreatitis. In June 2007, the Veteran reported his history of amoebic dysentery in the 1960s in Vietnam as well as occasional febrile illnesses which resolved on their own. In October 2007, the Veteran reported that he had had similar abdominal pain while living in Nicaragua and was scoped and allegedly diagnosed with amoebic dysentery at that earlier time. In November 2009, the Veteran reported having a near fatal dysentery infection in 2006 when living in South America. At his April 2010 hearing, the Veteran testified that he still has the dysentery that he had in service. He stated that a Naval physician had told him that dysentery is a disorder that stays permanently in the intestines. Pursuant to the Board's February 2011 remand, the Veteran underwent a VA stomach, duodenum, and peritoneal adhesions examination in April 2011. The examiner opined that the Veteran's current GERD with history of gastritis and gastroduodenitis is less likely as not (less than 50/50 probability) caused by or a result of in-service GI diagnoses. The examiner based this opinion on two factual inaccuracies: first, he stated that no diagnosis of amoebic infection was noted in service (while an August 1988 in-service dental health questionnaire does note that the Veteran had a past medical history of amoebic dysentery); and second, he stated that the Veteran did not have any chronic GI symptoms between the time he left military service until 2007 when he received VA treatment for GERD, gastritis, and gastroduodenitis (while private treatment records do show that the Veteran was hospitalized in November 1998 for abdominal pain and acute diverticulitis). VA treatment records dated as recently as April 2012 reflect that the Veteran's GERD is controlled. In a June 2012 statement, the Veteran described his history of gastrointestinal problems, including amoebic dysentery while in a combat area in Vietnam (when he says no medical records were maintained due to the risk of destruction); rectal bleeding while in service in 1976 (when he says he was told that there was a strong possibility of remaining amoebic presence in his lower intestines); similar stomach and intestinal problems in 1989 (when he says he was examined by a private doctor who is now deceased); diverticulitis in 1998, a stomach intestinal infection that persisted for over a year beginning in 2005 (while living in Nicaragua); and VA treatment in 2006 and 2007. The Veteran is to be scheduled for a new VA gastrointestinal examination to determine the nature of any current gastrointestinal disorder, and to obtain an opinion as to whether there is a relationship between each such disability and any incident of his military service. Updated VA treatment records are to be obtained, and updated private treatment records are to be requested. The record reflects that the Veteran is receiving disability benefits from the Social Security Administration (SSA). A request must be made to the SSA for all records pertaining to the Veteran, including any decisions and any medical evidence relied upon in making those decisions. See Murincsak v. Derwinski, 2 Vet. App. 363 (1992). Accordingly, the case is REMANDED for the following: (This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2011). Expedited handling is required.) 1. Obtain updated treatment records from the VA Tennessee Valley Healthcare System, and all associated clinics, as well as any other VA facility identified by the Veteran or in the record. Request any VA treatment records dating prior to 2007. If such records do not exist or are unavailable, then a negative reply must be obtained and associated with the claims file, and the Veteran must be so notified. 2. Request a properly executed VA Form 21-4142, Authorization and Consent to Release Information to the Department of Veterans Affairs, from the Veteran for each private medical facility from which he has sought treatment for the claimed disability. Upon receipt of such, take appropriate action to contact the identified provider(s) and obtain all available records related to treatment of the Veteran. Any negative response must be noted in the record and communicated to the Veteran, and the Veteran is to be informed that in the alternative he may obtain and submit the records himself. 3. Contact the SSA and request copies of all records pertaining to the Veteran, including any decisions and any medical evidence relied upon in making those decisions. If provided by disc, print out the records and associate the copies with the claims file. Any negative search result is to be noted in the record and communicated to the Veteran. 4. Schedule the Veteran for a VA gastrointestinal examination to determine the current nature and likely etiology of the claimed gastrointestinal disability. The entire claims file (i.e., both the paper claims file and any medical records contained in Virtual VA) is to be made available to and be reviewed by the examiner in conjunction with the examination. If the examiner does not have access to Virtual VA, any treatment records contained in the Virtual VA file must be printed and associated with the paper claims file so they can be available to the examiner for review. Based on the examination and review of the record, the examiner is to address the following: (a) The examiner is to determine the nature of any current gastrointestinal disability. All necessary tests are to be performed, including fecal testing and a colonoscopy, and all findings are to be reported in detail. The examiner is to specifically comment on whether the Veteran currently has amoebic dysentery or any residuals thereof. (b) For each diagnosed gastrointestinal disability, is it at least as likely as not (a 50 percent or greater probability) that such disability is related to any incident of the Veteran's military service. The examiner is to specifically consider and address the relevant findings documented in the Veteran's service treatment records (including the August 1988 in-service dental health questionnaire which noted that the Veteran had a past medical history of amoebic dysentery), the Veteran's allegations of continuity of symptomatology since service, and the relevant post-service medical evidence. A complete rationale for all opinions expressed must be provided. If the examiner feels that the requested opinions cannot be rendered without resorting to speculation, the examiner is to state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e., no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e., additional facts are required, or the examiner does not have the needed knowledge or training). 5. Review the claims file to ensure that all of the foregoing development is completed, and arrange for any additional development indicated. Then readjudicate the claim on appeal. If the benefit sought remains denied, issue an appropriate supplemental statement of the case and provide the Veteran and his representative the requisite period of time to respond. The case is to then be returned to the Board for further appellate review. The Veteran 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 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. 2011). _________________________________________________ RONALD W. SCHOLZ 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).