Citation Nr: 1303176 Decision Date: 01/30/13 Archive Date: 02/05/13 DOCKET NO. 06-31 970A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Manila, the Republic of the Philippines THE ISSUES 1. Entitlement to service connection for peptic ulcer disease. 2. Entitlement to service connection for irritable bowel syndrome ("IBS"). 3. Entitlement to service connection for an anxiety disorder, characterized by insomnia. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD T. Y. Hawkins, Counsel INTRODUCTION The Veteran served on active duty, including recognized Philippine guerilla service, from September 1944 to March 1945. These matters come before the Board of Veterans' Appeals ("Board") on appeal from an August 2004 rating decision issued by the Department of Veterans Affairs ("VA") Regional Office ("RO") in Manila. In April 2010, the Veteran testified at a personal Travel Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the Veteran's claims folder. The Board has previously considered these issues. In September 2010, the Board remanded the Veteran's appealed claims in order to afford him a VA examination and opinion regarding whether any of his claimed disorders are the result of military service. Although the claims folder indicates that the Veteran was notified of the scheduled examination, he failed to appear. The Manila RO subsequently issued two Supplemental Statements of the Case ("SSOC"), whereby it continued to deny the appellant's claims. The claims folder has been returned to the Board for further appellate proceedings. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 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 on his part. REMAND The Veteran contends that he suffers from peptic ulcer disease, IBS and anxiety disorder, characterized by insomnia, as a result of active duty service. After a thorough review of the claims folder, the Board has determined that additional development is necessary prior to the adjudication of the claims. In order to establish entitlement to compensation for a present disability, a veteran must show: "(1) the existence of a present disability; (2) the in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service"- the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Under the Veteran's Claim Assistance Act ("VCAA"), VA has a duty, when appropriate, to conduct a thorough and contemporaneous examination of the Veteran. See Green v. Derwinski, 1 Vet. App. 121 (1991). In addition, where the evidence of record does not reflect the current state of the Veteran's disability, a VA examination must be conducted. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. § 3.327(a) (2012). In November 2010, the Veteran was scheduled for a December 2010 VA compensation and pension examination. However, the Veteran failed to report for the examination or notify the RO that he would not be there. Review of the VA compensation and pension (C&P) request form, however, reveals two addresses. In the General Remarks section it was noted that the Veteran's address/telephone number provided by VBA (Veterans Benefits Administration) differed from the VHA (Veterans Health Administration) database; a request was included to please verify the Veteran's address for accuracy before mailing the examination notification letter. The Board notes further that one letter from the Veteran received in February 2010 contains yet a third address for the Veteran and letters received in September 2010 and in November 2010 contains one of the addresses listed in the C&P examination request. This address is also contained in a VA Form 21-686c (Declaration of Status of Dependents). Several subsequent letters to the Veteran were returned as undeliverable, and previous letters were sent to various addresses. The record also contains a September 2012 Report of Contact in which it was reported that the RO attempted to call the Veteran at two contact numbers to verify his address; the attempts were unsuccessful. It was reported further that the last letter sent to the Veteran which was a supplemental statement of the case (SSOC) dated in June 2012 was sent to the Veteran's last address of record pursuant to his correspondence based on a review of the record. The Board notes that the June 2012 SSOC was sent to one of the addresses listed on the C&P examination request and in subsequent correspondence received by and sent to the Veteran. The Board also notes that the most recent correspondence sent to this address was returned as undeliverable. However, the Board notes that a September 2012 SSOC was sent to another address; it was not returned as undeliverable. Thus, it appears that the address contained in the September 2012 SSOC is the Veteran's most recent address of record. Based on the foregoing, and since the Veteran previously cooperated with VA and appeared for a prior examination, the Board finds that he should be provided with an additional opportunity to appear for an examination(s) pursuant to the claims on appeal. Nonetheless, the Board cautions the Veteran concerning his own responsibility to cooperate with VA in this matter. The United States Court of Appeals for Veterans Claims has held that "[t]he duty to assist is not always a one-way street. If a veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence." Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Under VA regulations, it is incumbent upon the Veteran to submit to a VA examination if he is applying for, or in receipt of, VA compensation or pension benefits. See Dusek v. Derwinski, 2 Vet. App. 519 (1992). He must be prepared to meet his obligations by cooperating with VA efforts to provide an adequate medical examination. See Olson v. Principi, 3 Vet. App. 480 (1992). Moreover, individuals for whom examinations have been authorized and scheduled are required to report for such examinations. 38 C.F.R. § 3.326(a) (2012). Finally, the Board observes that where VA has constructive and actual knowledge of the availability of pertinent reports in the possession of the VA, an attempt to obtain those reports must be made. See Bell v. Derwinski, 2 Vet. App. 611 (1992) (holding that documents which were not actually before the adjudicators but had been generated by VA employees or submitted to VA by claimant were, "in contemplation of law, before the Secretary and the Board and should be included in the record"). Because the most recent VA treatment reports of record are dated November 2008, an attempt should be made to obtain all records since that period pertaining to treatment for peptic ulcer, IBS and an anxiety disorder. 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) (2012). Expedited handling is requested.) 1. Obtain all available VA treatment records pertaining to the Veteran's claimed peptic ulcer, IBS and anxiety disorder since November 2008. Any records obtained must be associated with the claims folder. Any negative response must also be included in the claims folder. 2. Contact the Veteran to verify his current mailing address. All development in this regard should be documented in the record. Please note that the most recent address of record appears to be that to which the September 2012 SSOC was sent. 3. Thereafter, the Veteran should be scheduled for appropriate examinations to determine whether he currently has (or had at anytime during the period on appeal) a peptic ulcer, IBS or an anxiety disorder characterized by insomnia. Any tests deemed necessary should be conducted, and all clinical findings should be reported in detail. The complete claims folder must be provided to the examiner for review of pertinent documents therein in conjunction with the examination, and the examiner must note that the claims folder has been reviewed. The examiner should also elicit from the Veteran a personal history concerning his claimed symptomatology (both during and after military service) and treatment and note that, in addition to the medical evidence, the Veteran's statements have been taken into consideration in the examiner's opinion. For each of the claimed disorders, the VA examiner should opine as to whether it is as likely as not (50 percent or greater degree of probability) that the diagnosed condition began during service or is causally linked to any incident of active duty service. The examiner is also advised that the term "as likely as not" does not mean within the realm of possibility. Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is medically sound to find in favor of causation as to find against causation. "More likely" and "as likely" support the contended causal relationship; "less likely" weighs against the claim. The Veteran is advised of the importance of reporting to the scheduled examinations and of the possible adverse consequences, to include the denial of his claims, of failing to so report. See 38 C.F.R. § 3.655 (2012). If the Veteran does not report for the examination(s), a copy of the examination notification letter (or documentation of the address to which such notification was sent) should be placed in the claims file, if possible, with a notation that he failed to appear. 4. Thereafter, review the claims folder to ensure that the foregoing requested development has been completed. If any benefit sought on appeal is not granted, the Veteran and his representative should be provided with a SSOC and afforded the opportunity to respond thereto. The matter should then be returned to the Board, if in order, for further appellate process. 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). _________________________________________________ S. L. Kennedy 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) (2012).