Citation Nr: 1319925 Decision Date: 06/20/13 Archive Date: 07/02/13 DOCKET NO. 07-17 286 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUE Entitlement to an evaluation in excess of 30 percent for Crohn's disease. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD K. Fitch, Counsel INTRODUCTION The Veteran had active duty service from November 1989 to August 1993. This matter comes before the board of Veterans' Appeals (Board) from a January 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri, that denied an increased rating for service-connected Crohn's disease. Jurisdiction of the claim was returned to the Pittsburgh, Pennsylvania RO immediately after the January 2007 rating decision. In September 2011, this matter was remanded for additional development. The Board notes that, in addition to the paper claims file, the Veteran also has a Virtual VA paperless claims file, which is a highly secured electronic repository that is used to store and review documents involved in the claims process. The Board has reviewed the contents of the paperless file as well as the Veteran's claims file and will proceed with review of the claim based upon all relevant evidence. 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 Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. VA has a duty to make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A(a); 38 C.F.R. § 3.159(c), (d). In this case, the Veteran's claim was remanded by the Board in September 2011 in part in order to provide the Veteran with a VA examination so that the current severity of his disability could be assessed. The remand reminded the Veteran of his responsibility to report for the examination and that the consequence of failure to report for such examination without good cause may result in the denial of the claim. 38 C.F.R. § 3.158, 3.655. An examination was requested for September 2011. An undated note in the Veteran's claims file indicates that the Veteran was originally scheduled for an examination at the Altoona VA Medical Center, but that he actually lived a few miles closer to the Erie VA Medical Center and would prefer to have his examination there. Another examination was then scheduled for October 2011. However, the Veteran failed to report for the examination. The Veteran's claims file does not contain notice letters indicating when and where to report for either examination. In this case, it appears from the information in the claims file that the Veteran was willing to report for the examination and specifically requested the Erie VA Medical Center. While the claims file appears to indicate that the Veteran had notice regarding the first examination, there is no similar evidence that he was aware of the date and time of the second examination. Without more information regarding the type of notice provided to the Veteran, the Board finds that the benefit of the doubt should be afforded and he should be scheduled for another examination. As such, the Board finds that this matter should be remanded and the Veteran should again be scheduled for the referred examination and provided adequate notice of the time and place of such examination. Evidence of such notice should be included in the Veteran's claims file. The Veteran should also be specifically notified that the purpose of the examination requested is to obtain information or evidence (or both) which may be dispositive of the appeal and placed on notice that, pursuant to 38 C.F.R. § 3.655, failure to cooperate by attending a requested VA examination may result in an adverse determination. See Connolly v. Derwinski, 1 Vet. App. 566, 569 (1991). In this regard, the Board notes that the "duty to assist is not always a one-way street. If a Veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence." Wood v. Derwinski, 1 Vet. App. 190, 192 (1991). Upon remand, the Veteran should also be afforded an opportunity to submit additional medical evidence in connection with his claim. The Veteran's VA treatment records should also be updated. In this regard, the Board notes that records generated by VA facilities that may have an impact on the adjudication of a claim are considered to be constructively in the possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file. See Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). Pursuant to the VCAA, VA must obtain outstanding VA and private records. See 38 U.S.C.A. § 5103A(b-c); 38 C.F.R. § 3.159(c). Accordingly, the case is REMANDED for the following action: 1. Take appropriate steps to contact the Veteran and request that he identify all VA and non-VA health care providers, other than those already associated with the claims file, that have treated him since service for his claimed disability. This should specifically include updated treatment records from VA. The aid of the Veteran in securing these records, to include providing necessary authorization(s), should be enlisted, as needed. If any requested records are not available, or if the search for any such records otherwise yields negative results, that fact should clearly be documented in the claims file, and the Veteran should be informed in writing. The Veteran may submit medical records directly to VA. 2. Schedule the Veteran for a VA examination to determine the current level of impairment due to his service-connected Crohn's disease. The claims folder should be made available to the examiner for review prior to the examination and the examiner should acknowledge such review in the examination report. Adequate notice of the time and place of the examination should be provided to the Veteran and evidence of such notice should be included in the Veteran's claims file. In this regard, the Veteran should be specifically notified that the purpose of the examinations requested is to obtain information or evidence (or both) which may be dispositive of the appeal and placed on notice that, pursuant to 38 C.F.R. § 3.655, failure to cooperate by attending a requested VA examination may result in an adverse determination. See Connolly v. Derwinski, 1 Vet. App. 566, 569 (1991). The examiner should include a comprehensive history of the Veteran's symptoms along with their severity. The examiner must then address whether the Veteran's Crohn's disease is (i) moderately severe, with frequent exacerbations, (ii) severe, with numerous attacks per year and malnutrition, the health only fair during remissions, or (iii) pronounced, resulting in marked malnutrition, anemia, and general debility, or with serious complication as liver abscess. A complete rationale should be given for all opinions and conclusions expressed. The examiner should also provide an opinion concerning the impact of the service-connected disability on the Veteran's ability to work. 3. After undertaking any additional development deemed appropriate in addition to that requested above, re-adjudicate the issues remaining on appeal. If any benefit sought on appeal remains denied, provide the Veteran and his representative a supplemental statement of the case. 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). The purpose of the examination requested in this remand is to obtain information or evidence (or both) which may be dispositive of the appeal. Therefore, the Veteran is hereby placed on notice that, pursuant to 38 C.F.R. § 3.655, failure to cooperate by attending a requested VA examination may result in an adverse determination. See Connolly v. Derwinski, 1 Vet. App. 566, 569 (1991). 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). _________________________________________________ Eric S. Leboff 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).