Citation Nr: 1313982 Decision Date: 04/26/13 Archive Date: 05/03/13 DOCKET NO. 06-21 452 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in North Little Rock, Arkansas THE ISSUE Entitlement to service connection for a gastric disorder, claimed as stomach problems. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD M. Purdum, Counsel INTRODUCTION The Veteran had active service from May 1975 to June 1976. This matter comes before the Board of Veterans' Appeals (Board) from a January 2006 rating decision of the above Regional Office (RO) of the Department of Veterans Affairs (VA) which denied service connection for gastritis. Most recently, in September 2012, the Board remanded this case for additional development. The case was also remanded in July 2009 and January 2010. The file has now been returned to the Board for further consideration. 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 Although the Board sincerely regrets the additional delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2012). As a preliminary matter, the Board notes that the most recent VA treatment records associated with the claims file are dated in March 2009. There is no evidence that the Veteran has ceased VA treament, in fact, in his January 2013 statement, he asserted that he was currently undergoing treatment for irritable bowel syndrome (IBS). The VA treament records already associated with the claims file were printed by the VA Medical Center (VAMC) in Shreveport, Louisiana. It appears that the Veteran obtains treatment at the Texarkana Community Based Outpatient Clinic (CBOC) in Texarkana, Arkansas. Because VA is on notice that there are additional records that may be applicable to the Veteran's claim and because these records may be of use in deciding the claim, these records are relevant and should be obtained. Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). A VA examiner recently submitted an opinion, dated in October 2012, responding to the Board's inquiries as to the etiology of any current gastric or stomach disorder, specifically considering the Veteran's competent and credible lay statements as to a continuity of gastric and stomach symptoms since service. The VA examiner simply reported that he "acknowledged the Veteran's competence to report a continuity of gastric and stomach symptoms since service." While the examiner opined that the Veteran's gastroesophageal reflux disease (GERD) was not related to his in-service acute gastritis and reasoned that such are separate conditions, he did not comment in any way as to the Veteran's competent and credible lay statements of continuous gastric and stomach symptoms since service. Stegall v. West, 11 Vet. App. 268 (1998) (finding that a remand by the Board confers on the appellant the right to compliance with its remand orders). In this regard, the Board specifically advised the examiner that an indication that there was no treatment for a chronic gastric or stomach condition after service as the basis for the opinion is insufficient. Further, the examiner did not provide an etiological opinion as to the gastritis, duodenitis, and IBS diagnosed on prior VA examinations in December 2005 and February 2010. Once 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 an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Based on the foregoing, that the examiner did not sufficiently consider the Veteran's competent and credible lay statements as to a continuity of gastric and stomach symptoms since service, as well as his omission of an etiological opinion as to the Veteran's other diagnoses recorded during the current appellate period, gastritis, duodenitis, and IBS; an additional VA opinion is required prior to adjudication of the claim. Accordingly, the case is REMANDED for the following action: 1. Obtain and associate with the claims file the Veteran's VA treatment records maintained by the VA Medical Center (VAMC) in Shreveport, Louisiana, dated from March 2009 to the present, considering possible locations of treament in Louisiana and Arkansas, including the Texarkana CBOC. If no such records are available or do not exist or the search for them yields negative results and it is determined that further attempts to obtain these records would be futile, then this should be clearly documented in the claims file and the Veteran appropriately notified. See 38 C.F.R. § 3.159(c)(2), (c)(3) and (e)(1). 2. After the development described above is completed, forward the claims file, to include a copy of this remand, to the VA examiner who provided the October 2012 opinion. Request that the examiner review the claims file again, and to note that such review has been accomplished. If the prior examiner is not available, or is unable to provide a supplemental opinion, forward the claims folder and a copy of this remand to another appropriate examiner in order to render the requested medical opinions noted below. The examiner is requested to opine as to whether it is at least as likely as not (i.e., to a 50-50 or greater degree of probability) that any gastric or stomach disorder diagnosed during the current appellate period, including, but not limited to, GERD, gastritis, duodenitis, and IBS, had an onset in or is causally related to the Veteran's active service, during which he underwent treatment for acute gastritis. In offering any opinions, the examiner must acknowledge and discuss the Veteran's competent and credible report of a continuity of gastric or stomach symptoms he has experienced since service. The examiner also should be advised that an indication that there was no treatment for a chronic gastric or stomach condition immediately after service as the basis for the opinion is insufficient, especially in light of the Veteran's competent and credible report of ongoing symptoms since service. The examiner must explain the rationale for any opinions given, and if unable to provide the requested opinions without resorting to speculation, it should be so stated, the examiner should clearly and specifically so specify, along with an explanation as to why that is so. 3. Once the above-requested development has been completed, readjudicate the Veteran's claim under all applicable laws to include 38 C.F.R. § 3.309 given the Veteran's allegations of herbicide exposure in Korea following the Vietnam era. If any decision remains denied, the Veteran and his representative must be provided with a Supplemental Statement of the Case, as well as an opportunity to respond. The case must then be returned to the Board for further appellate consideration, if otherwise in order. 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). _________________________________________________ K. PARAKKAL 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).