Citation Nr: 1317565 Decision Date: 05/30/13 Archive Date: 06/06/13 DOCKET NO. 09-42 098A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in White River Junction, Vermont THE ISSUE Entitlement to service connection for a gastrointestinal disability. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD M. Riley, Counsel INTRODUCTION The Veteran served on active duty from December 1984 to December 1988 and from November 1990 to May 1991. This case comes before the Board of Veterans' Appeals (Board) on appeal from a May 2007 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Providence, Rhode Island. Jurisdiction over the claims file is currently held by the RO in White River Junction, Vermont. The Veteran's January 2008 notice of disagreement also initiated an appeal with respect to the May 2007 denial of a claim for entitlement to service connection for asthma. Service connection for this disability was granted in a March 2010 rating decision with an initial 30 percent evaluation assigned effective January 18, 2007. The award of service connection for asthma constitutes a complete grant of the benefits sought on appeal with respect to this issue. In December 2012, the Veteran filed claims for entitlement to an increased rating for asthma and entitlement to a permanent and total rating for pension purposes. These issues have been raised by the record, but have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over them and they are referred to the AOJ for appropriate action. 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 Board finds that additional development is necessary before a decision may be rendered in this case. The claims file currently contains records of VA treatment from the Providence and North Hampton VA facilities dated through December 2008. On the November 2009 substantive appeal, the Veteran reported receiving additional treatment at the White River Junction VA Medical Center (VAMC) and the VA community based outpatient clinic in St. Johnsbury. The claims file does not contain any records from these facilities (other than VA compensation examination reports). The procurement of potentially pertinent VA medical records referenced by the Veteran is required. 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). Upon remand, efforts must be made to obtain any records of VA treatment not associated with the claims file. Additionally, the Board finds that the Veteran must be provided a VA examination to determine the nature and etiology of the claimed gastrointestinal disorder. The record contains lay and medical evidence of symptoms during service; service treatment records document a complaint of upset stomach due to a possible gastrointestinal virus in April 1992. A March 2009 statement from a friend who served with the Veteran also notes that they both experienced symptoms of diarrhea during deployment overseas. The Veteran and his wife have also provided statements describing his current gastrointestinal difficulties. Lay evidence is competent to establish the presence of observable symptomatology and "may provide sufficient support for a claim of service connection." Layno v. Brown, 6 Vet. App. 465, 469 (1994). As the record contains competent evidence of a current disability and a possible association with military service, a VA examination and medical opinion are required by VA's duty to assist. 38 U.S.C.A. § 5103A(d) (West 2002); Wells v. Principi, 326 F.3d 1381 (Fed. Cir. 2003) (the evidence of a link between current disability and service must be competent). Accordingly, the case is REMANDED for the following action: 1. Obtain any records of treatment from the Providence and North Hampton VAMCs for the period beginning December 2008 and complete records of treatment from the White River Junction VAMC and the St. Johnsbury CBOC. Associate these records with the Veteran's paper or virtual claims file. 2. Afford the Veteran a VA examination to determine the nature and etiology of the claimed gastrointestinal disability. The Veteran's claims file must be reviewed by the examiner in conjunction with the examination. All tests and studies deemed necessary by the examiner should be performed. Based on a review of the claims file, including the service treatment records and the Veteran's own lay history, the examiner is requested to offer an opinion as to whether it is more likely than not (i.e., probability greater than 50 percent), at least as likely as not (i.e., probability of 50 percent), or less likely than not (i.e., probability less than 50 percent), that any currently present gastrointestinal disability is etiologically related to any incident of active duty service, to include the Veteran's complaints of upset stomach in April 1992 and the lay reports of diarrhea during service. A complete rationale should be provided for all expressed opinions. 3. Readjudicate the claim on appeal. If the benefit sought on appeal is not fully granted, issue a supplemental statement of the case before returning the case to the Board, 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). _________________________________________________ MICHAEL MARTIN 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).