Citation Nr: 1314565 Decision Date: 05/02/13 Archive Date: 05/15/13 DOCKET NO. 09-08 865 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to service connection for irritable bowel syndrome (IBS) manifested by stomach pains. WITNESS AT HEARING ON APPEAL The Appellant-Veteran ATTORNEY FOR THE BOARD M. Zawadzki, Counsel INTRODUCTION The Veteran served on active duty from April 1969 to February 1973. This appeal to the Board of Veterans' Appeals (Board/BVA) is from a January 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In support of this and other claims he also had appealed, the Veteran testified at a hearing at the RO in August 2009 before the undersigned Veterans Law Judge of the Board (Travel Board hearing). In August 2010 the Board denied three of the claims he had appealed, for service connection for an acquired psychiatric disorder, including depression, and for gout and hypertension. However, the Board granted his claim for service connection for a skin disorder. Whereas the Board, instead, remanded the remaining claims for service connection for IBS/stomach pains and a low back disorder to the RO via the Appeals Management Center (AMC) in Washington, DC, for further development and consideration. This additional development especially included trying to obtain medical treatment records from the VA Medical Center (VAMC) in Dublin, Georgia, pertaining to treatment the Veteran said he had received there for stomach-related complaints during 1976 or thereabouts, and having a VA compensation examiner or other designee clarify a medical opinion concerning the etiology or onset of the Veteran's low back disorder. In April 2012, after receiving the file back from the AMC, the Board denied the claim for service connection for a low back disorder. But the Board again remanded the remaining claim for service connection for IBS/stomach pains to the RO via the AMC in Washington, DC, for still further development and consideration. This additional development again consisted of trying to obtain treatment records from the Dublin VAMC dated in 1976. After making additional attempts to obtain these records, the AMC continued to deny this claim (as reflected in a February 2013 supplemental statement of the case (SSOC)), so this claim is again before the Board. This claim yet again must be remanded, however, since there still has not been the required compliance with the prior remand directives concerning this claim. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (A Veteran is entitled to compliance with remand directives, and the Board itself commits error, as a matter of law, in failing to ensure compliance). As a final preliminary matter, in March 2013 the Veteran submitted a response to the February 2013 SSOC, stating that he was submitting evidence indicating he had completed substance abuse treatment, adding that he used substances to combat stress and depression, which, according to VA, had not existed. He said a VA nurse practitioner had stated that his lower back pain was service connected. He further stated that he had not been given a rating on his skin rashes, although, as mentioned, the Board granted this claim in its prior August 2010 decision. He acknowledged these conditions did not occur during his military service, but nonetheless happened as he was trying to readjust to civilian lifestyle. The Board however sees that, in a November 2010 rating decision, implementing the Board's August 2010 decision, the AMC granted service connection for allergic dermatitis and tinea versicolor, claimed as skin rashes, and assigned an initial 0 percent (noncompensable) rating for this disability retroactively effective from January 2, 2004. So the Veteran does in fact have a rating for this disability, just not a compensable rating. Nevertheless, his March 2013 statement - especially when construed liberally - can be read as indicating his desire to reopen his claims for service connection for an acquired psychiatric disorder, including depression, and for a low back disorder, and as requesting a compensable rating for his service-connected skin disability. But although these claims have been re-raised by the record, they have not since been adjudicated by the RO as the Agency of Original Jurisdiction (AOJ). The Board therefore does not presently have jurisdiction over these claims so is referring them to the RO as the AOJ for appropriate action. See Godfrey v. Brown, 7 Vet. App. 398 (1995) (the Board generally does not have jurisdiction over an issue not yet adjudicated by the RO). REMAND The Board sincerely regrets the additional delay that inevitably will result from this additional remand of the claim for service connection for IBS manifested by stomach pains, but it is necessary to ensure there is a complete record to fairly decide this claim and so the Veteran is afforded every possible consideration. As was discussed in the Board's prior April 2012 remand, during a July 2004 VA examination the examiner indicated the Veteran had a history of IBS, but that it had begun some 3 years after his discharge from service so, ultimately, was unrelated to his service. However, in his application for benefits and during his hearing he had reported receiving treatment for stomach-related complaints at the VAMC in Dublin, Georgia, in 1976. The Board therefore earlier had remanded this claim to the AMC in August 2010 primarily to try and obtain these additional VA medical treatment records. See Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992) (VA-generated records are in constructive, if not actual, possession of the agency and therefore, if potentially relevant, must be obtained and considered). Subsequent to the Board's August 2010 remand, the AMC attempted to obtain these additional medical treatment records from this VAMC, but the attempts ultimately were unsuccessful. And in a January 2011 memorandum, the AMC made a formal finding on the unavailability of these records and explained what had been done to try and obtain them. The Veteran also was notified of this in the November 2011 SSOC. 38 C.F.R. § 3.159(c)(2) and (e)(1). In a December 2011 statement, however, he responded to the AMC's November 2011 SSOC, stating that he had personally gone to the Dublin VAMC and obtained these records, himself, and then had mailed them to the Atlanta RO. In other words, he did not mail them to the AMC, which had possession of his claims file when these records were requested, but instead mailed them to the RO. Therefore, the Board again remanded this claim in April 2012 to associate with the claims file these additional treatment records from the Dublin VAMC, which as mentioned apparently had been obtained by the Veteran, himself. The April 2012 remand instructed the AMC to contact the Atlanta RO and obtain these records of the Veteran's treatment during 1976 at the VAMC in Dublin, Georgia. If the records could not be obtained from the Atlanta RO, the AMC was to contact the Veteran personally and ask that he re-mail these records to the AMC (rather than to the Atlanta RO). Following the Board's April 2012 remand, the AMC made numerous attempts to obtain these outstanding treatment records from the Dublin VAMC. Indeed, the same month, the AMC e-mailed the Atlanta RO trying to obtain these 1976 records from the Dublin VAMC. A second request for these records was made in June 2012. The Atlanta RO responded that the Veteran had a temporary file at that RO, but that there were no treatment records in it, so including these records. The Veteran was advised of this response in a June 2012 letter. He resultantly was asked to provide any records he had in his personal possession. In response to this letter, he reiterated that he had mailed his 1976 treatment records from the Dublin VAMC to the Atlanta RO, and he indicated that he did not keep a copy of these records for himself. He added that he had, again, gone to the Dublin VAMC and had signed an information release form, but was told the records were no longer stored at that complex, instead, were stored at a federal records building. Later in June 2012, the AMC requested treatment records dated from January 1976 to the present directly from the Dublin VAMC. The AMC informed the Veteran in a June 2012 letter that it had requested his treatment records dated from January 1976 to the present from the Dublin VAMC, also that it could take a few weeks to obtain these records. A July 2012 Report of General Information indicates that someone at the VAMC called the AMC to advise that she would be faxing medical records from microfiche that had been printed at that facility, showing the Veteran was an inpatient there from August 26, 1976 through November 1, 1976. She added that no paper records existed. The treatment records provided by the Dublin VAMC in July 2012, however, are dated from November 1996 to September 2011. The cover page accompanying these records indicates that VAMC had verified through microfiche that the Veteran was hospitalized at that facility from August 26, 1976 through November 1, 1976, but that no paper records were available. In August 2012, the AMC contacted the VAMC and asked that the information on microfiche pertaining to the Veteran's hospitalization from August 26, 1976 through November 1, 1976 be printed and those records sent to the AMC to be included in his file. A second request for these records was made later that month. The chief of the Health Information Management Service (HIMS) advised the AMC that microfiche was not kept on site, but was stored at an off-site record center. He added that, once the record center was able to locate the microfiche, it would be forwarded to the VAMC, and the VAMC would then look into identifying whether the dates of treatment being sought were in its possession. A Report of General Information dated later in August 2012 indicates the AMC called the Atlanta RO (although it appears that the person contacted was actually at the Dublin VAMC). In any event, the person advised the AMC that she would have to speak with her director to see whether the microfiche could be mailed to the AMC, as she could not print from it. The AMC advised her that the records could be printed at the AMC, with the microfiche mailed back to the VAMC, if necessary. In an e-mail sent on the same day, however, the chief of the HIMS advised the AMC that he could not release the original microfiche to the AMC as it also contained information pertaining to other Veterans. The chief stated that the release of the original microfiche to the AMC would be a breach of privacy without consent from all Veterans who were identified on the microfiche. He concluded by stating that he was attempting to find a way to print only the information needed for the Veteran's claim. As the moment, the claims file includes just a single record, an admission card, apparently dated in August 1976, which appears to have been printed from microfiche. Although difficult to decipher, this admission card appears to reflect that the Veteran was admitted to the Dublin VAMC from August 26, 1976 and released on November 1, 1976. It is unclear when this record was received at the AMC, although it appears to have been included with the records furnished in July 2012. In any event, an October 2012 deferred rating decision indicates the Veteran's records from the Dublin VAMC had not been obtained, stating that, while they provided a copy of his admission card, they did not indicate it was the only record available. The case was deferred so the microfiche containing his information could be obtained. The AMC indicated it would fully redact any information not related to him prior to including any records in the claims file, so as not to violate the privacy of any other Veterans. In November 2012, the AMC made another request for records from the Dublin VAMC, asking that paper copies of all microfiche hospitalization records dated from August 26, 1976 to November 1, 1976, including all archived records, be provided. The AMC advised the VAMC that any information not pertaining to the Veteran would be redacted. In the February 2013 SSOC, the AMC indicated that, subsequent to the Board's April 2012 remand, treatment records from the Dublin VAMC, dated from November 1996 to August 2009 had been obtained, and one microfiche record dated August 3, 1976 was received separately. [Parenthetically, the reference to the date of August 3, 1976 appears to be a typographical error, as the only record dated in 1976 currently of record is the admission card discussed above.] After issuance of the February 2013 SSOC, the Dublin VAMC responded in January 2013 that they had no records that were responsive to the request for records from the 1970s. Despite the obvious numerous and seemingly exhaustive attempts the AMC has made thus far to try and obtain the records pertaining to the Veteran's 1976 hospitalization at the Dublin VAMC, the Board finds that still further attempts are required. In obtaining records such as these that are in the custody of a Federal department or agency, VA will make as many requests as are necessary to obtain these relevant records, and VA will end its efforts to obtain these records only if it concludes the records sought do not exist or that further efforts to obtain them would be futile. 38 C.F.R. § 3.159(c)(2) (2012). Cases in which VA may conclude that no further efforts are required include those in which the Federal department or agency advises VA that the requested records do not exist or the custodian does not have them. Id. If VA is unable to obtain the records, the Veteran must be notified of this. This notice must identify the records that VA was unable to obtain, the efforts that VA made in attempting to obtain them, and any further action VA will take on the claim. 38 U.S.C.A. § 5103A(b)(2) (West 2002). See also Dunn, 11 Vet. App. at 466-67; Bell, 2 Vet. App. at 613. Here, the Dublin VAMC has furnished a copy of the Veteran's admission card, printed from microfiche, reflecting that he was hospitalized in that facility from August 26, 1976 to November 1, 1976. The VAMC has not indicated this is the only record available regarding his treatment during this time period. Indeed, to the contrary, the August 2012 e-mail from the chief of the HIMS indicates he was attempting to find a way to print only the information needed for the Veteran's claim (as the microfiche also included information pertaining to other Veterans), suggesting that additional records are available and that the only real concern at this point is how to get these additional records into the file without compromising the confidential information or identity of the other Veterans also listed. Moreover, the Veteran has reported mailing records, as opposed to a single record, to the Atlanta RO in support of his claim. Thus, despite already expending significant efforts to try and obtain records regarding the Veteran's 1976 hospitalization at the Dublin VAMC, the Board cannot yet conclude that additional records do not exist or that further efforts to obtain them would be futile. See 38 C.F.R. § 3.159(c)(2). Accordingly, on remand, the AMC/RO must again contact the Dublin VAMC to attempt to obtain any and all outstanding records pertaining to the Veteran's 1976 hospitalization. Specifically, the VAMC must clarify whether there are any records, including records contained in an off-site storage facility and/or on microfiche, other than the admission card that was previously submitted, even if these records contain confidential information regarding other Veterans. Unless it is determined that the 1976 admission card is the only record in existence pertaining to the Veteran's admission, the VAMC must provide the AMC/RO copies of any and all other treatment records regarding the Veteran's hospitalization from August to November 1976. The VAMC and/or the AMC/RO must ensure that any information pertaining to other Veterans included in these records is redacted prior to the records being placed in the claims file or Virtual VA e-folder, to ensure that the privacy of those other Veterans is protected as required by law. If the VAMC determines the admission card that was previously furnished is the only record pertaining to the Veteran, to include records contained in an off-site storage facility and/or on microfiche, this must be clearly documented, in writing, and the Veteran must be provided written notice of this fact. Finally, the June 2012 response from the Atlanta RO indicates there is a temporary file pertaining to the Veteran at that facility. No temporary file is currently available for the Board's review. So, also on remand, the AMC/RO should associate all temporary files in VA's possession with the permanent claims file. Accordingly, this claim is again REMANDED for the following action: 1. Again contact the Dublin VAMC to again attempt to obtain any and all outstanding records pertaining to the Veteran's hospitalization there from August to November 1976. The VAMC must clarify whether there are any additional records, including records contained in an off-site storage facility and/or on microfiche, other than the admission card that was previously submitted, even if these records contain information regarding other Veterans. Unless it is determined that the 1976 admission card is the only record in existence pertaining to the Veteran, the VAMC must furnish to the AMC/RO copies of any and all other treatment records regarding the Veteran's hospitalization from August to November 1976. The VAMC and/or the AMC/RO must ensure that any information pertaining to other Veterans included in these records is not compromised, so redacted prior to the records being placed in the claims file or Virtual VA e-folder to ensure that the privacy of the other Veterans is protected. If the VAMC determines the admission card that was previously furnished is the only record pertaining to the Veteran's inpatient admission, to include records contained in an off-site storage facility and/or on microfiche, this must be clearly documented, in writing, and the Veteran appropriately notified. 2. Also associate all temporary files in VA's possession with the remainder of the record on appeal to further ensure the completeness of the record. 3. Conduct any other appropriate development deemed necessary. Then readjudicate this claim in light of this and all other additional evidence. If this claim is not granted to the Veteran's satisfaction, send him another SSOC and give him time to submit additional evidence and/or argument in response before returning the file to the Board for further appellate consideration of this claim. He has the right to submit additional evidence and argument concerning this claim the Board is remanding. 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). _________________________________________________ KEITH W. ALLEN 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).