Citation Nr: 1314559 Decision Date: 05/02/13 Archive Date: 05/15/13 DOCKET NO. 06-18 787 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE Entitlement to service connection for peptic ulcer disease. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD T. S. Willie, Counsel INTRODUCTION The Veteran served on active duty from February 2003 to April 2004. He also had active duty for training from June to September 1998 and additional duty in the United States Army National Guard. This case comes before the Board of Veterans' Appeal (Board) on appeal of a rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. This case was remanded by the Board for further development in July 2010 and October 2012. 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 Veteran appeals the denial of service connection for peptic ulcer disease. When this issue was before the Board in October 2012, it was determined that a VA examination was needed. Specifically, the VA examiner was asked to provide an etiology opinion. The examiner was also directed to specify in his report that the claims file and Virtual VA records had been reviewed. The Veteran was afforded a VA examination in November 2012. While the examiner provided an opinion, he did not document whether he reviewed the Virtual VA records as requested. It was indicated that the claims file was reviewed, but no other records were noted to have been reviewed. As the VA examiner has not completely complied with the remand directives of October 2012 the matter must be returned. It is noted that that medical records in Virtual VA appear to all be from Capri. Thus, if the examiner has access to the records in Capri and those were reviewed, or can be reviewed as part of the action below, that would be sufficient if access to Virtual VA is not easily accomplished. Additionally, the record reveals that several attempts have been made to ascertain the status of duty on January 13, and March 31, 1988. While it is not completely clear, from pay and other records obtained it appears that the Veteran was not on active duty for training status on either of those dates, and that any duty performed would have been inactive duty for training. Appellant has been so instructed in documents from the RO and has not indicated otherwise. It is unclear what additional attempts could be made to clarify these two periods, and in the absence of other data they are found to not be periods of active duty for training. If appellant has information, orders, or other data to the contrary, he is free to submit it while the case is otherwise undergoing development. The Court has held that a remand by either the Court or the Board confers on the appellant, as a matter of law, a right to compliance with the remand instructions, and imposes upon VA a concomitant duty to ensure compliance with the terms of the remand. Stegall v. West, 11 Vet. App. 268, 271 (1998). Accordingly, the claim is again remanded. Accordingly, the case is REMANDED for the following action: 1. The RO should contact the examiner who conducted the November 2012 VA examination, if available, and request that he document whether Virtual VA (or Capri) records were reviewed during the November 2012 examination. If not, the examiner should review the records as be asked for an addendum as to whether any part of the opinion entered would be different following review of the records. If the examiner who conducted the November 2012 examination is no longer available, another examiner should be consulted. If the November 2012 examiner or another examiner deems another examination is necessary, schedule the Veteran for a VA examination. After records review or examination, the examiner should specifically comment as to whether the Veteran currently has a chronic, clinically-identifiable peptic ulcer disease and, if so, whether such pathology is at least as likely as not proximately due to, the result of, or aggravated (permanently made worse) by medication (including nonsteroidal anti-inflammatory medication), taken and/or prescribed for the Veteran's service-connected orthopedic disabilities. As noted, if the original examiner reviews the records, it may be indicated whether any part of the original opinion would be changed. A complete rationale must be provided for any opinion offered, and all information and opinions, once obtained, must be made a part of the Veteran's claims folder. The claims folder must be made available to and reviewed by the examiner prior to completion of the examination. Moreover, the examiner must specify in his report that the claims file to include Virtual VA records have been reviewed. 2. The RO should then review the examination report to ensure that it is in complete compliance with the directives of this REMAND and that the examiner has documented his consideration of all records. If the reports are deficient in any manner, the RO/AMC must implement corrective procedures. 3. The RO should then readjudicate the Veteran's claim for service connection (on both a direct and secondary basis) for peptic ulcer disease. Should the benefit sought on appeal remain denied, the Veteran and his representative should be provided with a Supplemental Statement of the Case (SSOC). The SSOC must contain notice of all relevant action taken on the claim for benefits since the issuance of the most recent SSOC in February 2013. An appropriate period of time should be allowed for response. 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). _________________________________________________ MICHAEL D. LYON 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).