Citation Nr: 1305666 Decision Date: 02/15/13 Archive Date: 02/21/13 DOCKET NO. 08-13 050A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Entitlement to an evaluation in excess of 10 percent for psychoneurosis, gastrointestinal disturbance. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Robert E. P. Jones, Counsel INTRODUCTION The appellant had active service from November 1943 to April 1946. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. The case was previously before the Board in July 2010 at which time the Board denied the benefits sought on appeal. The appellant appealed the Board's July 2010 decision to the U.S. Court of Appeals for Veterans Claims (Court). In March 2011, his representative and VA's Office of General Counsel, representing the Secretary of VA, filed a Joint Motion requesting that the Court vacate the Board's decision and remand the case for readjudication in compliance with directives specified. The Court issued an order in April 2011, granting the Joint Motion, and returned the case to the Board. In September 2011, and again in July 2012, the Board remanded the case for additional development. Please note that 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. REMAND The appellant seeks an increased rating for his service-connected psychoneurosis, gastrointestinal disturbance. An August 2011 Fostoria Hospital record indicates that in August 2011 the Appellant was seen in the emergency room for gastrointestinal bleed and that he was transferred to the Blanchard Valley Hospital. The records of treatment at the Blanchard Valley Hospital have not been requested or obtained. These records must be obtained if possible. 38 C.F.R. § 3.159(c)(1). The July 2012 remand order requested that the examiner discuss any gastrointestinal conditions identified in any new records obtained and provide an opinion regarding whether any such conditions were a part of the appellant's service-connected disability or whether any such conditions were caused or aggravated by the Appellant's service-connected disability. The new records obtained included records of June 2010 treatment at Fostoria Hospital for intractable nausea and vomiting, and records of the August 2011 Fostoria Hospital emergency room note regarding gastrointestinal bleed. The VA reviewer did not discuss these events. Moreover, as noted above, the records of treatment for the gastrointestinal bleed at Blanchard Valley Hospital were not of record for the examiner to review. Consequently, the August 2012 VA medical opinion is inadequate for the purpose of rating the Veteran's disability. A new VA medical opinion, that discusses the new medical evidence of gastrointestinal disability and which includes a complete review of the medical evidence must be obtained. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). 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 the Appellant's VA treatment records dated from April 2012 to present. If VA is unable to secure the above referenced records, it must notify the Veteran and (a) identify the specific records VA is unable to obtain; (b) briefly explain the efforts that VA made to obtain those records; (c) describe any further action to be taken by VA with respect to the claims; and (d) notify him that he is ultimately responsible for providing the evidence. 38 U.S.C.A. § 5103A(b)(2) (West 2002); 38 C.F.R. § 3.159(e)(1) (2012). 2. The appellant should be requested to identify all sources of medical treatment for symptoms related to his service-connected psychoneurosis, gastrointestinal disturbance. After obtaining the necessary waivers, as appropriate, the AOJ should attempt to obtain all the identified records that are not presently part of the evidence and associate them with the claims file. These records should include, but are not limited to, those pertaining to his hospitalization at Blanchard Valley Hospital in August, and possibly September, 2011, for gastrointestinal bleed. If VA is unable to secure the above referenced records, it must notify the Veteran and (a) identify the specific records VA is unable to obtain; (b) briefly explain the efforts that VA made to obtain those records; (c) describe any further action to be taken by VA with respect to the claims; and (d) notify him that he is ultimately responsible for providing the evidence. 38 U.S.C.A. § 5103A(b)(2) (West 2002); 38 C.F.R. § 3.159(e)(1) (2012). 3. After any records obtained have been associated with the claims file, arrange for a health care provider with appropriate expertise to review the appellant's VA claims folder. The examiner should discuss each of the conditions that the Appellant has experienced since May 2005, which include gastrointestinal symptoms. This should include discussion of the June 2010 treatment at Fostoria Hospital for vomiting and the August 2011 treatment at Fostoria Hospital and Blanchard Valley Hospital for gastrointestinal bleed. The examiner should provide an opinion, with supporting rationale, as to: Whether it is at least as likely as not any of these conditions are part of the appellant's service-connected psychoneurosis, gastrointestinal disturbance. Whether it is at least as likely as not any of these conditions are caused or aggravated by the service-connected psychoneurosis, gastrointestinal disturbance. A discussion of the reasons behind all opinions expressed must be included in the examination report, to include reference to pertinent evidence where appropriate. If the examiner is unable to offer any of the requested opinions, it is essential that the examiner offer a rationale for the conclusion that an opinion cannot be provided without resort to speculation, together with a statement as to whether there is additional evidence that might enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. 4. The Veteran is hereby notified that it is his responsibility to report for any examination, and to cooperate in the development of the 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. 5. Upon completion of the examinations ordered above, review the examination reports to ensure that they address the questions presented. Any inadequacies should be addressed prior to recertification to the Board. 6. Readjudicate the Veteran's claim, with application of all appropriate laws, regulations, and case law, and consideration of any additional information obtained as a result of this remand. If the decision remains adverse to the Veteran, he and his representative should be furnished a supplemental statement of the case and afforded an appropriate period of time within which to respond thereto. 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 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. K. BARONE 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).