Citation Nr: 1320846 Decision Date: 06/27/13 Archive Date: 07/05/13 DOCKET NO. 05-30 713 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New York, New York THE ISSUE Entitlement to service connection for residuals of a cholecystectomy, to include secondary to service-connected pelvis and back disabilities. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD S. M. Marcus, Counsel INTRODUCTION The Veteran served on active duty from August 1950 to December 1950 and again from May 1951 to November 1953. This matter originally came before the Board of Veterans' Appeals (Board) on appeal from a June 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in New York, New York. The claim was previously denied by the Board in an August 2009 Board decision. However, in accordance with a Joint Motion for Remand (Joint Motion) granted by the United States Court of Appeals for Veterans Claims (Court) in January 2010, the issue of entitlement to service connection for residuals of a cholecystectomy was remanded. Thereafter, the Board denied the issue of entitlement to service connection for residuals of a cholecystectomy in a July 2010 decision. In March 2012, the Court issued a memorandum decision, which vacated the Board's July 2010 decision and remanded the issue of entitlement to service connection for residuals of a cholecystectomy in accordance with their decision. In November 2012, the Board remanded the issue of entitlement to service connection for residuals of a cholecystectomy in accordance with the Court's Order. The case is once again before the Board for appellate consideration of the issue on appeal. This appeal has been advanced on the Board's docket. 38 U.S.C.A. § 7107(a)(2) (West 2002); 38 C.F.R. § 20.900(c) (2012). The appeal is remanded to the RO via the Appeals Management Center in Washington, DC. REMAND The claim must once again be remanded to ensure an adequate VA examination in compliance with the Court's March 2012 Decision and the Board's November 2012 Remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). It is well documented that the Veteran was in an in-service serious car accident sometime in 1953 where he fractured his pelvis and spine. He contends that he experienced internal abdominal damage as well, although no such treatment was rendered at the time. After service, the Veteran indicates he had episodic pain in the abdomen for many years. Ultimately, in 1992, he underwent gall bladder removal surgery, a cholecystectomy, and currently has chronic cholecystitis and chronic cholelithiasis. He asserts that this disorder is directly related to the 1953 motor vehicle accident or, at the very least, was caused or aggravated by his service-connected pelvis and lumbar disabilities. While the Veteran was afforded a new VA examination in January 2013, the examiner's opinion, did not address whether the Veteran's service-connected pelvis/spine disabilities aggravated his gall bladder disorder. 38 C.F.R. § 3.310 (2012) (indicating secondary service connection is established where a service-connected disability proximately caused or aggravated the claimed condition). Rather, the examiner's opinion focused on causation and not aggravation. Accordingly, a supplemental opinion must be obtained. The VA must also take this opportunity to obtain any and all current private or VA treatment records not currently in the evidence of record. Accordingly, the case is remanded for the following action: 1. The RO must contact the Veteran and afford him the opportunity to identify or submit any additional pertinent evidence in support of his claims, to include any VA or non-VA facilities at which he received treatment for his cholecystectomy, chronic cholecystitis, and chronic cholelithiasis since January 2013. Based on his response, the RO must attempt to procure copies of all records which have not previously been obtained from identified treatment sources. Regardless of his response, the RO must request all treatment records from the VA Medical Center in Albany, New York since January 2013. All attempts to secure this evidence must be documented in the claims file by the RO. If, after making reasonable efforts to obtain named records the RO is unable to secure same, the RO must notify the Veteran and (a) identify the specific records the RO is unable to obtain; (b) briefly explain the efforts that the RO made to obtain those records; (c) describe any further action to be taken by the RO with respect to the claim; and (d) that he is ultimately responsible for providing the evidence. The Veteran and his representative must then be given an opportunity to respond. 2. After all records are obtained to the extent available, the January 2013 VA examiner must provide an addendum to the prior opinion. Specifically, based on the January 2013 clinical examination, the evidence of record, and with consideration of the Veteran's statements, the examiner must state whether any degree of any of his gall bladder disorder was aggravated by the service-connected pelvis and lumbar spine disabilities. If the January 2013 VA examiner is not available, the Veteran must be afforded an appropriate VA examination to determine whether the Veteran's gall bladder disorder was aggravated by his service-connected pelvis and lumbar spine disabilities. Any indicated diagnostic tests and studies must be accomplished and all clinical findings must be reported in detail and correlated to a specific diagnosis. The claims file and all records on Virtual VA must be made available to the examiner, and the examiner must specify in the examination report that the claims file and Virtual VA records have been reviewed. The examiner must specify the dates encompassed by the Virtual VA records that were reviewed. A complete rationale for all opinions must be provided. If the examiner cannot provide the requested opinion without resorting to speculation, it must be so stated, and the examiner must provide the reasons why an opinion would require speculation. The examiner must indicate whether there was any further need for information or testing necessary to make a determination. Additionally, the examiner must indicate whether any opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner. The report prepared must be typed. 3. The RO must notify the Veteran that it is his responsibility to report for any examination and to cooperate in the development of the claim. The consequences for failure to report for a VA examination without good cause may include denial of a claim. 38 C.F.R. §§ 3.158, 3.655 (2012). In the event that the Veteran does not report for a scheduled examination, documentation must be obtained which shows that notice scheduling the examination was sent to the last known address. It must also be indicated whether any notice that was sent was returned as undeliverable. 4. After completing the above actions, and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the claim must be readjudicated. If the claim remains denied, a supplemental statement of the case must be provided to the Veteran and his representative. After the Veteran and his representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. No action is required by the Veteran until he receives further notice; however, he may present additional evidence or argument while the case is in remand status at the RO. Kutscherousky v. West, 12 Vet. App. 369 (1999). _________________________________________________ JOY A. MCDONALD 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).