Citation Nr: 1318879 Decision Date: 06/10/13 Archive Date: 06/21/13 DOCKET NO. 07-21 967 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas THE ISSUE Entitlement to service connection for a gastrointestinal disorder, claimed as irritable bowel syndrome (IBS). REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD Christopher Maynard, Counsel INTRODUCTION The Veteran had active service from February 1966 to January 1968, from January to May 1991, and from June 2004 to June 2005. The Veteran also had unspecified periods of active and inactive duty for training from 1978 to 2005. This matter initially came before the Board of Veterans' Appeals (Board) on appeal from a September 2006 decision by the RO which, in part, denied the benefits sought on appeal. The Board remanded the appeal for additional development in October 2009, November 2011, and October 2012. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required. REMAND Although further delay is regrettable, the Board finds that the evidence obtained from the most recent remand raises additional medical questions that can only be addressed by a qualified physician. Therefore, further development must be undertaken prior to appellate review. The Veteran contends that he has had chronic stomach problems for many years and believes that it is related to service. At a DRO hearing in September 2007, the Veteran testified that he has had chronic abdominal cramping and alternating diarrhea and constipation since the early 1970's. He also testified that he had some symptoms while on active duty in the Army reserves in 1995, but didn't seek any medical attention until some (unspecified) later date in 1995, when a private physician, Dr. Miller of Coatesville, performed an endoscopy at Baylor in Garland, Texas that revealed he had IBS. (Transcript p. 14-17). At this point, the Board notes that the Veteran has never been asked to provide VA with authorization to obtain the 1995 private endoscopy report, nor has he voluntarily submitted any treatment records associated with that procedure. Although the evidentiary record includes some more recent private medical reports since 2000 that include a diagnosis of IBS (or history of IBS), it appears that the diagnoses were based primarily on the Veteran's self-reported history that he was diagnosed with IBS by endoscopy. The evidence received subsequent to the October 2012 remand showed that the Veteran underwent several private diagnostic studies in 2009 and 2010, in an attempt to determine the nature and etiology of his abdominal complaints, including an upper endoscopy (EGD), CT scans and a colonoscopy. Significantly, a private EGD study in June 2010 was entirely normal except for some mild gastropathy and duodenitis. Similarly, the radiologist on a May 2009 CT scan stated that he did not see any gastric abnormality. Other possible causes for the Veteran's abdominal problems noted in the treatment records included suspected splenic flex syndrome (February 2008 private report), abdominal wall or possibly neuromuscular pain (June 2009 private report), and H. pylori. Although the Veteran was examined by VA in February 2013, the examiner's opinion that it less likely than not that the Veteran's abdominal disorder was related to service was somewhat inconsistent with his rationale that, based on the current evidence of record, he could not offer an opinion without resorting to speculation. (See March 2013 addendum report). While the examiner indicated that he reviewed the claims file, the only medical report he referred to was a "3/10/70" service treatment record (STR) for acute gastroenteritis. However, the Veteran was not in the service in 1970, nor has the Board been able to locate the referenced report. Moreover, the examiner made no mention of any of the recent negative diagnostic studies (discussed above), which raises the question not only of how extensive the examiner's review was, but whether the Veteran has IBS at present. To date, the development of the Veteran's claim has been focused primarily on his allegation that he had symptoms while on active (or inactive) duty for training in 1995, and his reported diagnosis of IBS at some later date in 1995. However, a longitudinal view of the Veteran's statements to various healthcare providers (VA and private) as well as his testimony at the DRO hearing was that his symptoms have been present since the early 1970's, and that he believes that it could be due to his service in Vietnam. The Board also notes, that in his substantive appeal, received in July 2007, the Veteran asserted that he believed his abdominal problems may be related to post traumatic stress disorder (PTSD). However, no action has been taken by the RO to develop the Veteran's alternative theory of entitlement on a secondary basis. While service connection has not been established for PTSD, the Veteran has been granted service connection for anxiety disorder. Therefore, in order to avoid piecemeal adjudication, all of the Veteran's theories of entitlement should be fully developed and adjudicated. While the Board is cognizant of the difficulty in rendering an opinion as to the nature and etiology of the Veteran's current stomach disorder, VA is required to attempt to obtain a clear and unambiguous medical opinion based on the available evidence of record. In this regard, the Veteran's description of his symptoms are accepted as credible. If, after review of all the pertinent evidence of record, the examiner is unable to render an opinion, he or she must include a discussion of all relevant facts and provide an explanation as to why an opinion would be speculative. In light of the discussion above and to ensure full compliance with due process requirements, the claim is REMANDED to the AMC for the following actions: 1. Appropriate steps should be undertaken to obtain the names and addresses of all health care providers who treated the Veteran for any stomach or abdominal problems since the onset of his symptoms in the early 1970's. Of particular interest are any private records from Dr. Miller for his treatment in 1995, and the records related to the sigmoidoscopy, including the pathology report conducted at Baylor in Garland, Texas in 1995. After the Veteran has signed the appropriate releases, all available outstanding, pertinent records should be obtained and associated with the claims folder. 2. After any additional records have been obtained, the Veteran should be scheduled for a VA gastroenterology examination. The claims folder and a copy of this remand must be made available to the examiner for review, and a notation to the effect that this record review took place should be included in the report. All appropriate testing should be undertaken in connection with this examination. If a chronic gastrointestinal disorder is identified, the examiner should provide a response to the following: a) Is it at least as likely as not that any identified disorder had its onset in military service or is otherwise related to service? b) If not, is it at least as likely as not that any identified disorder is proximately due to, the result of, or aggravated by the service-connected anxiety disorder? The clinical findings and reasons that form the basis of the opinion should be clearly set forth in the report. The examiner should discuss the particulars of this Veteran's medical history and the relevant medical science as applicable to this claim. If the examiner is unable to render an opinion without resorting to speculation, this should be noted and explained. In so doing, the examiner should identify the evidence required in order to render a non-speculative opinion, or indicate the inability to provide the opinion is based on the limits of medical knowledge. If the examiner is unable to render an opinion because of a lack of specified evidence, the AMC should attempt to obtain that evidence and return the claims file to the examiner for completion of the opinion. Note: The term "at least as likely as not" does not mean merely within the realm of medical possibility, but rather that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of causation as it is to find against it. Note: The term "aggravation" in the above context refers to a permanent worsening of the underlying condition, as contrasted to temporary or intermittent flare-ups of symptomatology which resolve with return to the baseline level of disability. 3. Following completion of the foregoing, the AMC should review the claims folder and ensure that all of the foregoing development has been conducted and completed in full. In particular, the AMC should determine whether the examiner has responded to all questions posed. If not, the report must be returned for corrective action. 38 C.F.R. § 4.2 (2012). 4. After the requested development has been completed, the AMC should readjudicate the claim. This should include consideration of whether any identified gastrointestinal disorder is proximately due to, the result of, or aggravated by the service-connected anxiety disorder. If the benefit sought on appeal remains denied, the Veteran and his representative should be furnished a Supplemental Statement of the Case and given the opportunity to respond thereto. Thereafter, subject to current appellate procedures, the case should be returned to the Board for further appellate consideration, if in order. The Board intimates no opinion as to the ultimate outcome of this case. The Veteran need take no action unless otherwise notified. The Veteran 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). _________________________________________________ M. E. LARKIN 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).