Citation Nr: 1302686 Decision Date: 01/24/13 Archive Date: 01/31/13 DOCKET NO. 06-18 553 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to service connection for a gastrointestinal disorder, also claimed as gastroesophageal reflux disease (GERD) and nausea, to include as secondary to medications for service-connected disabilities. 2. Entitlement to service connection for a disability manifested by diarrhea, to include as secondary to medications for service-connected disabilities. 3. Entitlement to an initial evaluation in excess of 20 percent for lumbar spine spondylolisthesis and spondylolysis with a history of scoliosis from November 2, 2005 to July 22, 2010. 4. Entitlement to an initial evaluation in excess of 40 percent for lumbar spine spondylolisthesis and spondylolysis with a history of scoliosis since July 23, 2010. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Stephanie L. Caucutt, Counsel INTRODUCTION The Veteran served on active duty from March 1982 to September 2003. These matters initially came before the Board of Veterans' Appeals (Board) on appeal from September 2004 and April 2008 rating decisions of a Regional Office (RO) of the Department of Veterans Affairs (VA) in Roanoke, Virginia. The September 2004 rating decision granted service connection for a lumbar spine disability and assigned a noncompensable (zero percent) disability rating, effective October 1, 2003. The Veteran timely appealed the initial rating assigned. The RO also denied, inter alia, service connection for diarrhea. Thereafter, in an April 2006 decision, the RO granted an increased, 20 percent rating for the lumbar spine disability, effective November 2, 2005. An April 2008 rating decision denied service connection for a gastrointestinal disorder, to include nausea and GERD. This issue had been initially considered in the September 2004 rating decision, but although the Veteran filed a timely notice of disagreement with the denial, the issue was not listed as part of the appeal of that decision. The Veteran offered personal testimony at a September 2009 hearing held before the undersigned at the Board's offices in Washington, DC. A transcript of the hearing is associated with the claims file. In March 2010, the Board denied entitlement to an initial compensable rating for the lumbar spine disability prior to November 2, 2005. It then remanded the remaining issues on appeal (including an initial evaluation greater than 20 percent since November 2, 2005) to the RO via the Appeals Management Center (AMC), in Washington, DC, for further development. Following some development, the AMC granted an increased, 40 percent evaluation for lumbar spine disability, effective July 23, 2010. It then continued its denial of the Veteran's claims (as reflected in a February 2012 supplemental statement of the case) and returned this appeal to the Board. Although the RO awarded an increased rating in February 2012, the Veteran has not indicated that he is satisfied with the ratings currently assigned, and the issue of entitlement to higher initial ratings therefore remains pending before the Board. AB v. Brown, 6 Vet. App. 35, 38 (1993). The Board's decision addressing the matters of higher evaluations for a lumbar spine disability is set forth below. The remaining claims on appeal - entitlement to service connection for a gastrointestinal disorder and a disability manifested by diarrhea - are addressed in the remand following the order. They are once again being REMANDED to the RO via the AMC, in Washington, DC. VA will notify the Veteran if further action is required. FINDINGS OF FACT 1. For the period from November 2, 2005 to July 22, 2010, the Veteran's lumbar spine disability has not more nearly approximated forward flexion of 30 degrees or less, or ankylosis, and the weight of the evidence is against any compensable associated objective neurologic abnormalities or intervertebral disc syndrome (IVDS) manifested by incapacitating episodes. 2. Since July 23, 2010, the Veteran's lumbar spine disability has not more nearly approximated unfavorable ankylosis of any segment of the spine, and the weight of the evidence is against any compensable associated objective neurologic abnormalities or IVDS manifested by incapacitating episodes. CONCLUSIONS OF LAW 1. The criteria for an initial evaluation in excess of 20 percent for lumbar spine spondylolisthesis and spondylolysis with a history of scoliosis, from November 2, 2005 to July 22, 2010, are not met. 38 U.S.C.A. §§ 1155, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5239 (2012). 2. The criteria for an initial evaluation in excess of 40 percent for lumbar spine spondylolisthesis and spondylolysis with a history of scoliosis, since July 23, 2010, are not met. 38 U.S.C.A. §§ 1155, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5239 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA's Duties of Notify and Assist VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). Here, however, the matter of entitlement to higher evaluations of the lumbar spine arises from the Veteran's disagreement with the initial evaluation following the grant of service connection. Once service connection is granted, the claim is substantiated, additional notice is not required, and any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). No additional discussion of the duty to notify is therefore required on that issue. VA also has a duty, however, to assist the Veteran in the development of his claim. This duty includes assisting the Veteran in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. In this case, the Veteran has supplied copies of relevant post-service private treatment records and VA, consistent with the Board's March 2010 remand, obtained additional relevant post-service treatment records. Additionally, VA has provided repeated VA examinations to evaluate the current status of the low back disability, including the most recent examination dated in July 2010, which resulted in reports containing sufficient evidence by which to the evaluation the Veteran's disability. In sum, the Veteran was provided the opportunity to meaningfully participate in the adjudication of his claim and did in fact participate. See Washington v. Nicholson, 21 Vet. App. 191 (2007). The RO/AMC also complied with the Board's remand instructions by obtaining the identified records and affording the Veteran an adequate examination, as shown by the discussion below. Stegall v. West, 11 Vet. App. 268, 271 (1998). Analysis The RO granted entitlement to service connection for spondylolisthesis and spondylolysis of the lumbosacral spine with history of scoliosis in a September 2004 rating decision. The Veteran appealed the initial rating assigned (zero percent) and this appeal ensued. As noted above, in March 2010, the Board denied entitlement to an initial compensable rating for the lumbar spine disability prior to November 2, 2005, and remanded the issue of entitlement to a rating greater than 20 percent since November 2, 2005. Thereafter, the RO awarded a 40 percent rating, effective July 23, 2010. The Veteran did not indicate satisfaction with this award. Given the foregoing history, this decision is limited to whether higher evaluations are warranted for the period since November 2, 2005. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (rating schedule), found in 38 C.F.R. Part 4. Disability ratings are intended to compensate impairment in earning capacity due to a service-connected disorder. 38 U.S.C.A. § 1155. Evaluation of a service-connected disorder requires a review of the Veteran's entire medical history regarding that disorder. 38 C.F.R. §§ 4.1, 4.2 (2012); Schafrath v. Derwinski, 1 Vet. App. 589 (1991). When a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3 (2012). If there is a question as to which evaluation to apply, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2012). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Separate ratings may be assigned for separate periods of time based on the facts found, however. This practice is known as 'staged ratings.' Fenderson v. West, 12 Vet. App. 119, 126-127 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran's low back disability is evaluated under the General Rating Formula for Diseases and Injuries of the Spine (for Diagnostic Codes 5235 to 5243, unless 5243 is evaluated under the Formula for IVDS Based on Incapacitating Episodes). Ratings under the General Rating Formula for Diseases and Injuries of the Spine are made with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease. Specifically, Diagnostic Code 5239, for spondylolisthesis or segmental instability, is assigned. The relevant criteria, contained in the General Rating Formula for Diseases and Injuries of the Spine, provide a 20 percent disability rating be assigned for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent disability rating is assigned for forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent disability rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent disability rating is assigned for unfavorable ankylosis of entire spine. 38 C.F.R. § 4.71a. Further, evaluation of a service-connected disability involving a joint rated on limitation of motion requires adequate consideration of functional loss due to pain under 38 C.F.R. § 4.40 and functional loss due to weakness, fatigability, incoordination or pain on movement of a joint under 38 C.F.R. § 4.45. DeLuca v. Brown, 8 Vet. App. 202 (1995). The provisions of 38 C.F.R. § 4.40 state that disability of the musculoskeletal system is primarily the inability, due to damage or inflammation in parts of the system, to perform normal working movements of the body with normal excursion, strength, speed, coordination and endurance. Functional loss may be due to the absence of part, or all, of the necessary bones, joints and muscles, or associated structures. It may also be due to pain supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. 38 C.F.R. § 4.40. The factors of disability affecting joints are reduction of normal excursion of movements in different planes, weakened movement, excess fatigability, swelling and pain on movement. 38 C.F.R. § 4.45. 38 C.F.R. § 4.59 also provides that the intent of the Rating Schedule is to recognize painful motion with joint or periarticular pathology as productive of disability, and that crepitation should be noted carefully as points of contact which are diseased. A November 2005 VA examination report reflects that the Veteran complained of constant low back pain with occasional radiation of pain to the legs. He indicated that pain increased with activity and that he frequently took an over-the-counter pain reliever, such as Motrin, to alleviate his symptoms. Physical examination of the spine revealed normal posture and gait, tenderness on palpation, muscle spasm, and flexion limited to 60 degrees by pain. The examiner noted that neurological examination was normal, there was no evidence of any intervertebral disc syndrome (IVDS) or ankylosis, and no associated neurological impairment (including any bowel or bladder disorder or erectile dysfunction) was present. The assessment was spondylolisthesis with segmental instability with functional effects of tenderness and restricted range of motion. Treatment records show that in March 2006 the Veteran began a course of twice-weekly physical therapy treatments for his low back disability. Such records echo his complaints of continued low back pain with occasional (once per month) radiation of pain to the legs. Examination dated March 2006 revealed spasm in the lumbar spine. There was also evidence of lordosis, and tenderness to palpation. Treatment records show the Veteran reported decreasing pain throughout treatment, which consisted of exercises, stretching, heat therapy, and traction. In July 2006, the Veteran indicated that his pain remained constant, but that it had decreased to 2 out of 10. He was placed on a home plan to see if further treatment was necessary. Thereafter, the Veteran complained to his primary care physician in September 2006 of increased pain (5 out of 10) and requested a home traction device to help alleviate pain. He continued to deny weakness and bowel or bladder problems. Examination showed limited range of flexion and extension due to pain; neurological evaluation was normal. The conclusion was lumbago. An April 2007 primary care note reflects the Veteran's report that his low back pain exacerbations were no longer being controlled by conservative measures. Although he complained of pain which now radiated to his buttocks, he continued to deny any radicular symptoms, weakness, or sensory disturbances. The Veteran was reevaluated by VA in October 2007 at which time he reiterated his complaints of pain (measuring 4 out of 10) travelling to his buttocks and the backs of his legs. The examiner observed that posture and gait were normal and that there was no objective evidence of any radiating pain on movement. The Veteran's flexion had diminished to 45 degrees; pain was still the only limiting factor. Conclusion included no evidence of IVDS, ankylosis, and/or neurological impairment. Treatment records show that the Veteran continued to be followed by pain management and that he was prescribed Tramadol and Demerol with "good" results. See April 24, 2008 Pain Clinic Note. Records also continued to indicate that no neurological symptoms were present. A June 2008 MRI report revealed stable L5 spondylolysis with grade I anterolisthesis; the assessment was no significant changes since December 2006. The Veteran was evaluated by an orthopedic surgeon in September 2008 at which time he reported a dull, constant low back pain (measuring 2 to 4 out of 10) that increased with prolonged driving and sitting. He indicated that the pain was mostly nonradiating, but identified a single episode of left leg numbness in recent history. The Veteran was able to heel/toe walk during the physical examination, albeit with pain. Strength was full, but sensation was diminished on the right L5 and left S1 dermatones. Pain was observed with flexion and extension. The assessment was low back pain, mostly nonradiating. An orthotic insert and lumbar support brace were recommended to alleviate pain. The orthopedic surgeon also suggested an electromyography (EMG) study to rule out radiculopathy, but there is no indication that any further testing was completed. Subsequently dated treatment records, including an April 2009 primary care note, show the Veteran reporting "stable" low back pain. Following the Board's March 2010 remand, on July 23, 2010, the Veteran underwent further examination by VA. The examination report indicates that he reported pain (measuring 2 to 3 out of 10) radiating from his low back to his left side. Functionally, the Veteran noted that he could not stand more than 30 to 40 minutes or sit more than 45 to 60 minutes without increasing pain (measuring 4 out of 10). He also reported more severe pain (9 out of 10) with stairs. Although no notation is found in the contemporaneous evidence of record, the Veteran reported a history of urinary and fecal incontinence. He also indicated that he experienced erectile dysfunction and leg/foot weakness. Regarding his occupational functioning, the Veteran stated that he had missed only one day of work due to low back symptoms, but that he had rearranged his schedule so that he could work from home part-time. The July 2010 examiner noted the Veteran's report that he walked with a limp, but stated in the examination report that posture and gait were observed to be normal. Further, although pain was observed with movement, and limited flexion to 20 degrees and extension to zero degrees, the examiner indicated that the Veteran's complaints appeared exaggerated and that he demonstrated "more generous" routine movement during other parts of the examination. Neurologically, the examiner found no sensory or motor abnormalities, and the rectum (including sphincter tone) was normal. The final assessment was lumbosacral degenerative joint disease without evidence of ankylosis. Regarding the Veteran's neurological complaints, the examiner did not diagnose any specific impairments. Additionally, she noted that, if substantiated, the Veteran complaints were unlikely related to his lumbar spine disability given the level of lumbar involvement shown on X-ray and MRI. Given the foregoing evidence, the Board finds the criteria for an evaluation greater than 20 percent are not met for the period of the appeal dated from November 2, 2005 to July 22, 2010. Range of motion did not more nearly approximate limitation of flexion to 30 degrees or less, in fact, the range of motion findings in November 2005 and April 2007 were of flexion to 60 and 45 degrees, respectively. There was also no evidence of ankylosis and the presence of pain and the examination findings reflect that the other DeLuca factors did not cause additional functional limitation resulting in range of motion more nearly approximating flexion of the thoracolumbar spine to 30 degrees or less. See Mitchell v. Shinseki, 25 Vet. App. 32, 43 (2011) ("pain itself does not rise to the level of functional loss as contemplated by VA regulations applicable to the musculoskeletal system." Similarly, the Board finds the criteria for an evaluation greater than 40 percent are not met for the period since July 23, 2010 because although there is evidence of decreased range of motion in the thoracolumbar spine sufficient to warrant higher rating, there is still no indication that the Veteran's spine is characterized by ankylosis, a finding essential for ratings greater than 40 percent. The Board acknowledges that the July 2010 examiner's report of zero degrees of extension might be interpreted as equivalent to (or more nearly approximating) favorable ankylosis. See 38 C.F.R. § 4.71a, Note (5) (fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis). See also 38 C.F.R. § 4.7. However, the relevant rating criteria specifically provide that a 40 percent evaluation should be assigned for favorable ankylosis of the thoracolumbar spine. 38 C.F.R. § 4.71a. Higher ratings thus require evidence of unfavorable ankylosis, which is not shown here. The Board notes that it has considered application of other Diagnostic Codes for evaluation of the low back disability. However, Diagnostic Code 5239 reflects the diagnosed lumbar spine disability. Further, the other applicable spine Diagnostic Codes all utilize the same set of evaluation criteria, and hence a change of Diagnostic Code would not change the analysis of the claim. The Veteran has argued for application of Diagnostic Code 5243, which applies to IVDS, and which includes additional criteria based on the occurrence of incapacitating episodes. However, as shown above, the competent medical evidence reflects that the Veteran does not have IVDS. Dr. Macalanda referred in her August 2008 letter to degenerative disc disease, but had earlier indicated a diagnosis of degenerative joint disease with multi-level spondyloarthropathy involving the lumbosacral area, and her reference to degenerative disc disease appears to have been meant as a reference to the previously diagnosed degenerative joint disease. Moreover, neither the Veteran nor his representative are competent to render a diagnosis of IVDS as opposed to another disability of the spine, which is the type of internal medical process which extends beyond an immediately observable cause-and-effect relationship that is of the type that the courts have found to be beyond the competence of lay witnesses. Compare Jandreau v. Nicholson, 492 F.3d 1372, 1376 (Fed. Cir. 2007) (lay witness capable of diagnosing dislocated shoulder); Barr v. Nicholson, 21 Vet. App. 303, 308-9 (2007) (lay testimony is competent to establish the presence of varicose veins); Falzone v. Brown, 8 Vet. App. 398, 403 (1995) (lay person competent to testify to pain and visible flatness of his feet); with Clemons v. Shinseki, 23 Vet. App. 1, 6 (2009) ("It is generally the province of medical professionals to diagnose or label a mental condition, not the claimant"); Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (unlike varicose veins or a dislocated shoulder, rheumatic fever is not a condition capable of lay diagnosis); Jandreau, 492 F.3d at 1377, n.4 ("sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer"). See also Colantonio v. Shinseki, 606 F.3d 1378, 1382 (Fed. Cir.2010) (recognizing that in some cases lay testimony "falls short" in proving an issue that requires expert medical knowledge). Moreover, the Veteran testified during his Board hearing that he has not been prescribed bed rest for his lumbar spine disability, and he therefore has not met the definition of incapacitating episodes in Note (1) to the Formula for rating IVDS, i.e., a period of acute signs and symptoms of IVDS 'that requires bed rest prescribed by a physician and treatment by a physician.' Dr. Macalanda's August 2008 letter indicating generally that the Veteran has tried conservative management that included bed rest that did not help is not to the contrary, as it did not indicate that she had specifically prescribed bed rest for incapacitating episodes of IVDS. The Board therefore need not consider rating the Veteran's lumbar spine disability under the Formula for rating IVDS, as it is not potentially applicable. See Schafrath, 1 Vet. App. at 593 (Board must consider all regulations that are potentially applicable). The Board has also considered whether the record reflects any additional functional impairment, including neurological abnormalities, associated with the Veteran's lumbar spine disability which warrant consideration for separate ratings. See 38 C.F.R. § 4.71a, Note (1). Initially, the Board notes that service connection is already in effect for erectile dysfunction. Thus, regardless of the evidence of record, it need not consider whether a separate rating is warranted for this disability. In addition, the Veteran at times complained of symptoms possibly relating to neurologic abnormalities. However, Note 1 requires associated objective neurologic abnormalities and the weight of the competent evidence reflects that there were none. November 2005 and September 2006 neurological examinations were normal, April 2007 examination indicated no objective evidence of any radiating pain on movement and no evidence of neurological impairment. The September 2008 examination was inconclusive, with single episode of left leg numbness in recent history noted, mostly non-radiating, and suggestion of EMG study to rule out radiculopathy but no study completed, and July 2010 examination finding no sensory or motor abnormalities, with rectum (including sphincter tone) normal and a finding that even if substantiated, the Veteran neurologic complaints were unlikely related to his lumbar spine disability given the level of lumbar involvement shown on X-ray and MRI. While the Veteran is competent to report observable symptoms, the Board finds the multiple specific findings of trained health care professionals of a lack of neurologic abnormalities to be of greater probative weight than the Veteran's more general lay assertions on this question, and to warrant a finding that there were no associated objective neurologic abnormalities warranting any separate ratings under Note 1 to the General Rating Formula. The Board acknowledges the Veteran's lay assertions that he is entitled to higher ratings for his service-connected lumbar spine disability. However, the Board must consider the entire evidence of record when analyzing the criteria laid out in the Rating Schedule. His lay statements have already been discussed above, especially with regard to how pain has impacted his functionality, and the Board finds that such evidence does not support ratings in excess of those assigned herein for the reasons stated above. See Hayes v. Brown, 5 Vet. App. 60, 69-70 (1993). The above determination is based upon application of the Rating Schedule to the Veteran's service-connected disability. However, in some cases a disability may present exceptional or unusual circumstances with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321(b) (2010). In these cases, a referral for consideration of an extraschedular rating is warranted. Id. The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Therefore, initially, there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability. If the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. Thun v. Shinseki, 573 F.3d 1366 (Fed. Cir. 2009). With respect to the first prong of Thun, the evidence in this case does not show such an exceptional disability picture that the available schedular rating for lumbar disabilities is inadequate. Rather, a comparison between the level of severity and symptomatology of the Veteran's disability with the established criteria found in the Spine Rating Formula shows that the rating criteria reasonably describes the Veteran's disability level and symptomatology. As discussed above, the rating criteria focuses on limitation of motion with consideration of functional loss due to such factors as pain. As this reasonably describes the primary effects of the Veteran's lumbar spine disability, the assigned schedular evaluation is adequate, and no referral for extraschedular evaluation is in order. Id. As for higher ratings due to unemployability, evidence indicates that the Veteran has continued working throughout this appeal. Thus, there is no basis for inferring a claim for entitlement to a total disability evaluation based on unemployability. See Rice v. Shinseki, 22 Vet. App. 447 (2009). In reaching these conclusions, the benefit of the doubt doctrine was considered. As a preponderance of the evidence is against these claims, however, this doctrine is not for application. 38 U.S.C.A. § 5107. ORDER Entitlement to an initial evaluation in excess of 20 percent for lumbar spine spondylolisthesis and spondylolysis with a history of scoliosis from November 2, 2005 to July 23, 2010 is denied. Entitlement to an initial evaluation in excess of 40 percent for lumbar spine spondylolisthesis and spondylolysis with a history of scoliosis since July 23, 2010 is denied. REMAND The Board sincerely regrets further delay to the service connection issues remaining on appeal. However, review of the record reveals that further action on these claims is warranted. Where VA undertakes the effort to provide an examination when developing a service connection claim, even if not statutorily obligated to do so, it must provide one that is adequate for purposes of the determination being made. Barr, 21 Vet. App. at 311. Furthermore, a remand confers on a claimant, as a matter of law, the right to compliance with the remand order. Stegall v. West, 11 Vet. App. 268 (1998). The Veteran asserts that he developed GERD and chronic diarrhea as a result of significant and chronic use of non-steroidal anti-inflammatory drugs (NSAIDs) for treatment of service-connected low back pain. Consistent with the Board's March 2010 remand, the Veteran was scheduled for VA examination for the purpose of obtaining medical opinions regarding the existence and etiology of his claimed gastrointestinal disorder and diarrhea. As discussed in the Board's remand, treatment records and medical literature of record discussed the role of medications in regards to the Veteran's complaints, but were inconclusive. Pertinent to the reasons for this remand, the Board finds the resultant July 2010 VA examination report inadequate for making a determination as to either service connection issue on appeal. As regards his claimed gastrointestinal disorder (i.e., GERD and nausea), the VA examiner opined that "[i]t is doubtful intermittent NSAIDs given over the years without GERD symptoms during active service would be responsible for GERD after leaving active service." Significantly, the examiner's opinion does not address whether post-service NSAID use (for the treatment of service-connected low back and plantar fasciitis pain) could have resulted in the development of GERD post-service or, alternatively, whether such drug use aggravated, as opposed to caused, GERD. The Board notes that a June 2008 gastrointestinal consult indicates that NSAID use may cause overlapping symptoms with GERD. Such evidence, coupled with evidence that the Veteran used NSAIDs regularly until March 2007 and since February 2011, suggests that aggravation is a plausible theory of entitlement. Finally, medical evidence shows that the Veteran was diagnosed with Barrett's esophagus in July 2008, yet the July 2010 VA examiner does not provide any opinion regarding this gastrointestinal disability. The Board specifically requested an opinion addressing whether any currently diagnosed gastrointestinal disorder is related to service or a service-connected disability. As a complete opinion was not provided, the Board must therefore remand the claim for a new opinion. As for the Veteran's claimed diarrhea, the July 2010 VA examination report reflects a conclusion that the Veteran does not have a currently diagnosed disorder manifested by diarrhea. This conclusion, however, is not supported by any explanation and does not appear to take into account relevant lay and medical evidence indicating a possible disability. Specifically, the examiner did not address the Veteran's own lay statements that he experiences watery stools (i.e., diarrhea) unless he takes Fibercon as prescribed by his physician. The examiner also did not discuss the significance, if any, of medical evidence indicating that the Veteran has been treated with a stool stabilizer for symptoms of alternating constipation and diarrhea since service with an assessment of possible irritable bowel syndrome (IBS). Absent further explanation, additional examination and opinion is required. Prior to obtaining these medical opinions, to ensure that all due process requirements are met, and that the record is complete, the RO/AMC should undertake appropriate action to obtain and associate with the claims file all outstanding, pertinent records. Such action should include providing the Veteran another opportunity to present information and/or evidence pertinent to the claims remaining on appeal. Thereafter, the RO/AMC should attempt to obtain any additional evidence for which the Veteran provides sufficient information, and, if needed, authorization, following the current procedures prescribed in 38 C.F.R. § 3.159. Accordingly, the claims for entitlement to service connection for a gastrointestinal disorder and a disability manifested by diarrhea are REMANDED for the following action: 1. Contact the Veteran to request the names and addresses of all medical care providers who have treated him for his claimed gastrointestinal disabilities, including GERD, Barrett's esophagus, diarrhea, and possible IBS. After the Veteran has signed the appropriate releases, those records should be obtained and those records not already associated with the claims file should be associated with the claims file. The Veteran and his representative are to be notified of unsuccessful efforts in this regard, in order to allow him the opportunity to obtain and submit records for VA review. All attempts to procure records should be documented in the file. If records identified by the Veteran cannot be obtained, a notation to that effect should be inserted in the file. 2. After all records and/or responses received are associated with the claims file, the RO/AMC should schedule the Veteran for a VA gastrointestinal examination for opinions regarding his claimed GERD, Barrett's esophagus, and diarrhea. All necessary tests should be conducted. Access to the claims file, Virtual VA, and a copy of this remand must be made available to the examiner for review. The examiner must first identify any current gastrointestinal disorder(s), including GERD, Barrett's esophagus, and any disability manifested by diarrhea, including IBS. Then, with respect to each diagnosed disability, the examiner should opine as to: (a) Whether it is as least as likely as not (50 percent probability or more) that this disorder was caused by any service-connected disability, to include any medications taken for low back pain and/or plantar fasciitis (i.e., NSAIDs). (b) Whether it is at least as likely as not that this disorder was aggravated, i.e., permanently worsened, by any service-connected disability, to include any medications taken for low back pain and/or plantar fasciitis (i.e., NSAIDs). If the answer to this question is in the affirmative, the examiner should indicate the baseline level of the severity of the disorder prior to aggravation, or at the earliest possible date, as established by medical evidence. (c) Whether it is at least as likely as not that the disorder is otherwise related to service, to include any gastrointestinal complaints during service following return from Nicaragua in 1999. In rendering the requested opinions, the examiner should consider and discuss all pertinent medical and lay evidence of record, including the Veteran's competent lay assertions of chronic diarrhea without a stool stabilizer since service, medical evidence indicating possible IBS, and medical evidence (to include internet literature) discussing a relationship between NSAID-use and GERD, diarrhea, and heartburn. 3. To help avoid future remand, the RO/AMC must ensure that all requested actions have been accomplished (to the extent possible) in compliance with this REMAND. If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken. Stegall v. West, 11 Vet. App. 268 (1998). 4. The Veteran is to be notified that it is his responsibility to report for the examination and to cooperate in the development of his remaining claim. The consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2012). In the event that the Veteran does not report for the aforementioned examination, documentation should be obtained which shows that notice scheduling the examination was sent to the last known address. It should also be indicated whether any notice that was sent was returned as undeliverable. 5. After completing the requested actions, and any additional notification and/or development deemed warranted, the RO/AMC should readjudicate the claims remaining on appeal in light of pertinent evidence (to particularly include all that added to the record since the RO's last adjudication of the claim), and legal authority. If any benefit sought on appeal remains denied, the RO must furnish to the Veteran and his representative an appropriate supplemental statement of the case that includes clear reasons and bases for all determinations, and afford them the appropriate time period for response before the claims file is returned to the Board for further appellate consideration. The appellant has the right to submit additional evidence and argument on the matter or 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. 2012). ______________________________________________ J. HAGER Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs