Citation Nr: 1318966 Decision Date: 06/11/13 Archive Date: 06/21/13 DOCKET NO. 06-06 281 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Diego, California THE ISSUE Entitlement to a disability rating in excess of 10 percent for service-connected residuals of an appendectomy and cholecystectomy. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Michael Wilson, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1989 to October 1989 and from April 1990 to April 1994. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a September 2005 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California, which, in relevant part, denied entitlement to a compensable disability rating for the Veteran's service-connected residuals of an appendectomy and cholecystectomy. In his February 2006 VA Form 9, the Veteran indicated that he would like to be scheduled for a hearing before a Veteran's Law Judge (VLJ) of the Board at his local VA office. However, the record reflects that he failed to appear to a Board hearing scheduled in July 2009. An October 2006 supplemental statement of the case (SSOC) reflected that the disability rating for the Veteran's service-connected residuals of an appendectomy and cholecystectomy was increased to 10 percent, effective April 14, 2005. A separate 10-percent rating was additionally granted for a residual scar. In May 2010 and April 2012, the Board remanded the Veteran's increased rating claim on appeal for further evidentiary development. For the reasons described below, the appeal is again REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required on his part. REMAND Unfortunately, yet an additional remand is required in this case. Although the Board sincerely regrets the further delay, it is necessary to pursue additional development to ensure that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. In compliance with the Board's April 2012 remand directives, the Veteran was afforded a new and contemporaneous VA examination to determine the current severity of his service-connected residuals of an appendectomy and cholecystectomy in July 2012. During the examination, the Veteran indicated that since the time of his surgery to remove his gall bladder, he has been experiencing frequent diarrhea with abdominal discomfort after eating meat or fatty foods. He indicated that he had not had any medical evaluation for this condition, except for frequent visits to the emergency room. He had not, however, been to a physician for evaluation of the etiology of his abdominal discomfort. Additionally, a July 2012 VA communication indicated that the Veteran had been noted to have received treatment at a VA hospital in May 2012. He was also specifically noted to have visited the Baltimore VA Medical Center (VAMC) in July 2012. After a thorough review of the record, the Board notes that the treatment records associated with the Veteran's visit to a VA hospital in May 2012 and to the Baltimore VAMC in July 2012, and additional VA treatment records dated since July 2008, to include any additional emergency room treatment for his abdominal discomfort, have not been associated with the claims file. Under the law, VA must obtain these records in order to fairly adjudicate his increased rating claim. See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159(c) (2012); see also Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). As the case is being remanded for the foregoing reason, the Board additionally finds that the Veteran should be afforded a new VA examination to assess the current severity of his service-connected residuals of an appendectomy and cholecystectomy, and to identify and describe all associated residual disability. In this regard, the Board notes that the July 2012 examiner indicated that the etiology of the Veteran's abdominal discomfort had not been determined, and thus appeared to indicate that such discomfort may not necessarily have been related to his service-connected disability. Additionally, it is unclear from the examination report whether the symptoms associated with the Veteran's service-connected disability can be described as mild or severe. Accordingly, the case is REMANDED for the following action: 1. Obtain a complete copy of the Veteran's VA treatment records from the Loma Linda VAMC, the Baltimore VAMC, and any other indicated VA treatment facility, dated since July 2008, to specifically include any VA hospital records dated in May 2012 and treatment records from the Baltimore VAMC dated in July 2012. All reasonable attempts should be made to obtain such records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C.A. § 5103A(b)(2) (West 2002) and 38 C.F.R. § 3.159(e) (2012). 2. Thereafter, schedule the Veteran for an appropriate VA examination to assess the severity of his service-connected residuals of an appendectomy and cholecystectomy. The claims file and a complete copy of this REMAND must be made available to and reviewed by the examiner in conjunction with the examination. The VA examination report should indicate that this has been accomplished. All necessary studies and tests should be conducted. The examiner should identify any and all residual manifestations found to be associated with the Veteran's service-connected disability, and should fully describe the extent and severity of those manifestations. In doing so, the examiner should determine if the Veteran's reported frequent abdominal discomfort is associated with his service-connected disability. The examiner should specifically indicate whether the symptoms associated with the Veteran's service-connected disability are of a severe or mild nature. 3. Thereafter, review the claims file to ensure that the foregoing requested development has been completed. In particular, thoroughly review the VA examination report to ensure that it is responsive to and in compliance with the directives of this remand and if not, implement corrective procedures. See Stegall v. West, 11 Vet. App. 268 (1998). 4. Finally, readjudicate the Veteran's increased rating claim on appeal. If the benefit sought on appeal is not granted to the Veteran's satisfaction, provide him and his representative with a supplemental statement of the case, and after they have had an adequate opportunity to respond, return this appeal to the Board for further appellate review. The Veteran 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). _________________________________________________ M. G. MAZZUCCHELLI Acting 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. See 38 C.F.R. § 20.1100(b) (2012).