Citation Nr: 1320310 Decision Date: 06/24/13 Archive Date: 07/02/13 DOCKET NO. 09-02 392 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Newark, New Jersey THE ISSUE Entitlement to service connection for a disorder of the digestive system. REPRESENTATION Veteran represented by: Carolyn J. Kerr, Agent WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD C. Ferguson, Counsel INTRODUCTION The Veteran had active service from January 1952 to January 1954. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Newark, New Jersey. In January 2010, the Veteran presented testimony before the Board at a personal hearing held in Newark, New Jersey (Travel Board). A transcript of the hearing is of record. The Board previously denied the Veteran's claim for service connection of a disorder of the digestive system in January 2012. The Veteran appealed the decision to the U.S. Court of Appeals for Veterans' Claims (Court). In December 2012, the Court granted a Joint Motion for Remand (JMR or Joint Motion) and ordered that the Board's January 2012 decision denying the Veteran's claim be vacated and remanded for readjudication. The case has been returned to the Board following the Court Order. Due to the Veteran's advanced age, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). 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 In the December 2012 JMR, the parties agreed that the Board failed to provide adequate reasons and bases for its determination that the evidence failed to demonstrate that VA disability benefits were warranted for a disorder of the digestive system, to include on a secondary basis. According to the JMR, neither the Board nor the May 2011 VA medical examiner appeared to consider the January 2009 VA mental disorders examination report that the Veteran's gastrointestinal problems were likely the result of severe anxiety, which rendered the May 2011 VA medical opinion inadequate; therefore, the Board must address the inadequacy, the significance of the January 2009 VA mental disorders examination report, and determine whether a new medical examination is necessary. The Board has reviewed the record and considered whether further medical examination is needed. The Veteran was previously provided the opportunity to report any relevant medical history and past and current gastrointestinal symptoms and treatment at the May 2011 VA medical examination. The May 2011 VA medical examiner performed adequate examination of the Veteran at that time. There has been no allegation or indications of a material change in gastrointestinal condition since the May 2011 VA medical examination. In consideration thereof, the Board finds that a supplemental medical opinion, without further medical examination, is needed. The Board has also been directed by the JMR to address the Veteran's testimony that a physician had indicated that the gastrointestinal disorder was related to the service-connected psychiatric disorder and readdress its assessment of lay evidence offered by the Veteran during the Board hearing regarding gastrointestinal symptoms he has reportedly experienced since service; however, the Board finds that the evidentiary development ordered below must first be completed. Because this case is being remanded for reasons explained above, the Board finds that updated treatment records should be obtained, and the Veteran should clarify whether or not he is in receipt of social security disability benefits. See January 2009 VA mental health consult note (wherein the Veteran reported that he was now retired and supports himself with social security benefits). Accordingly, the case is REMANDED for the following actions: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) 1. Contact the Veteran and ask him to clarify whether he receives social security disability benefits. The response should be documented for the record. If, and only if, the Veteran reports receipt of social security disability benefits, request from the Social Security Administration all records related to the Veteran's claim for Social Security disability benefits, including all medical records and copies of any decisions or adjudications, and associate them with the record. Negative responses should be properly documented in the record, to include preparing a memorandum of unavailability and following the procedures outlined in 38 C.F.R. § 3.159(e). 2. Ask the Veteran to identify any VA or non-VA medical treatment he has received for his gastrointestinal disability since June 2010. After securing any necessary consent and authorization, obtain the identified treatment records, to include any records from the James J. Howard Community Clinic in Brick, New Jersey and associate them with the record. Any and all negative responses should be properly documented in the record, to include preparing a memorandum of unavailability and following the procedures outlined in 38 C.F.R. § 3.156(e). 3. After the actions (1) and (2) above have been completed, obtain a supplemental medical opinion from the May 2011 VA medical examiner, without further examination of the Veteran. If the May 2011 VA medical examiner is unavailable to provide the requested medical opinion, or the May 2011 VA medical examiner determines that another medical examination is needed in order to provide the requested opinion, schedule another medical examination for the Veteran. All relevant documents (i.e. the paper claims file and any medical records contained in Virtual VA, CAPRI, and AMIE) must be made available to and reviewed by the examiner in rendering the opinion. If the examiner does not have access to Virtual VA, any relevant treatment records contained in the Virtual VA file that are not available on CAPRI or AMIE must be printed and associated with the paper claims file so they can be available to the examiner for review. The examiner must confirm that the record was reviewed in the examination report. a. Based on review of the appropriate records, to include any additional records obtained since the May 2011 VA medical examination, the examiner should state, for each diagnosis of a gastrointestinal disability, whether or not it is at least as likely as not (i.e., to at least a 50 percent degree of probability) that any such disability had its onset during active military service or is otherwise causally or etiologically related to service. Provide a rationale for the medical opinion. In providing the medical opinion, consider the Veteran's service treatment records showing complaint of upset stomach in May 1952, complaint of "gas on the stomach" in June 1953, and the June 1953 G.I. series report. b. Based on review of the appropriate records, to include any additional records obtained since the May 2011 VA medical examination, the examiner should provide an opinion on whether or not it is at least as likely as not (i.e., to at least a 50 percent degree of probability or greater) that a current gastrointestinal disability was caused or aggravated (i.e., permanently worsened, as opposed to temporary or intermittent flare-ups of symptomatology) by the Veteran's service-connected psychiatric disability and/or the treatment (i.e., medication) related thereto. Provide a rationale for the medical opinion. If aggravation is found, attempt to identify the baseline level of severity of the gastrointestinal disability before the onset of aggravation. In providing the medical opinion, the examiner should address the following: (1) the significance of the opinion of the January 2009 VA mental disorders examiner that the Veteran's gastrointestinal disabilities are likely the result of severe anxiety/appear to be anxiety-related; (2) the August 2008 medical opinion of the Veteran's treating physician that the Veteran's IBS (irritable bowel syndrome) and gastroesophageal reflux disease (GERD) have post-traumatic components; (3) the medical article on the prevalence, incidence, morbidity and treatment patterns in a cohort of patients diagnosed with anxiety in the UK; (4) the medical article regarding the diagnosis and management of IBS; and (5) the medical article regarding the strong association between generalized anxiety disorder and IBS. The term "at least as likely as not" above 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 or aggravation as it is to find against it. A rationale should be provided for all opinions given, and the factors upon which each medical opinion is based must be set forth in the report. If the examiner cannot answer any question posed without resorting to unsupported speculation, the examiner should so state, and explain why that is so. 4. Thereafter, readjudicate the Veteran's claim. If any benefit sought on appeal remains denied, provide the Veteran and the agent with a supplemental statement of the case (SSOC), with an appropriate period of time for response by the Veteran and/or the agent. Thereafter, return the case to the Board for further consideration, if in order. 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). _________________________________________________ K. J. ALIBRANDO 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).