Citation Nr: 1321491 Decision Date: 07/03/13 Archive Date: 07/12/13 DOCKET NO. 06-09 768 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUE Entitlement to service connection for a gastrointestinal disorder, to include as secondary to service-connected residual scar, status-post appendectomy. REPRESENTATION Appellant represented by: Vietnam Veterans of America WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Robert E. P. Jones, Counsel INTRODUCTION The Veteran served on active duty from November 1971 to November 1973. This matter comes before the Board of Veterans' Appeals (Board) from an October 2005 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, the Commonwealth of Puerto Rico. A review of the Veteran's virtual VA folder reveals that all documents in that folder have already been considered by the RO in adjudicating the Veteran's claim. The Veteran testified at a hearing before a Decision Review Officer (DRO) in May 2006. A transcript of the hearing is contained in the Veteran's claims file. The Veteran's claim was remanded by the Board for further development in October 2009, September 2011, and September 2012. It is noted that the RO issued a rating decision dated in June 2009, which denied entitlement to special monthly pension, and one in June 2011 which considered multiple issues. By way of letters dated in July 2009 and August 2011, the RO wrote to the Veteran and informed him that his notices of disagreement had been received. The RO further informed the Veteran that it would attempt to resolve his disagreement through the post-decision review process which could result in the development of additional evidence and if the benefits could not be granted as a result of this review a statement of the case would be issued. This differs from the situation in Manlincon v. West, 12 Vet. App. 238 (1999), where VA had not acknowledged a notice of disagreement. As the RO acknowledged receipt of notices of disagreement in this case and currently has jurisdiction over those claims, Manlincon v. West is not applicable in this case. 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 At his May 2006 DRO hearing the Veteran asserted that he has had gastroesophageal reflux disease (GERD) symptoms ever since service and that he sought treatment for his GERD at VA soon after discharge from service. He maintains that he is entitled to service connection for a gastrointestinal disability, to include hiatal hernia with GERD on a direct basis, or alternatively, as secondary to his February 1973 appendectomy and service-connected residual scar. Volume I of the claims file contains a November 1982 letter from the Social Security Administration (SSA) indicating that the Veteran was receiving SSA disability benefits. The letter stated that the Veteran's condition would be reviewed in September 1983. The Veteran's virtual VA file contains many SHARE Print Screens indicating that the Veteran was in receipt of SSA disability benefits. These were used by VA to determine the proper amount of the Veteran's VA pension benefits. However, a review of the claims file, including the virtual VA file, reveals that the SSA disability award decision, and the medical records upon which the award was based, are not of record and have not been requested. The Court of Appeals for Veterans Claims has held that VA's duty to assist encompasses obtaining medical records that supported an SSA award of disability benefits as they may contain information relevant to VA claims. See Murincsak v. Derwinski, 2 Vet. App. 363, 369-70 (1992). Those records should be requested, and associated with the Veteran's claims file. The Board notes for future reference that an October 2011 VA medical opinion discusses a "February 3, 2003" VA examination report. The Board notes that the Veteran was not provided a VA examination on February 3, 2003. Additionally, from a review of the October 2011 VA physician's description of the report, it is clear that the physician was actually discussing a February 3, 2010 VA examination report. The February 3, 2010 VA examination report is currently contained in the claims file in a manila folder identified as "Temp File Vol. #3." The Veteran's most recent VA treatment records of record are dated October 10, 2012. The Veteran's more recent VA treatment records should be obtained and considered. In addition, it is noted that the Veteran was hospitalized in service for his appendicitis from February 1973 to March 1973. As the records from the hospitalization may provide additional information relevant to the claim, those records should be obtained on remand. It is also noted that the Veteran's VA treatment records reflect a diagnosis of diverticulosis. The VA examiner has not yet considered whether this disorder, which appears to be covered by the symptoms reported by the Veteran, is related to service or is secondary to the service-connected disability. In addition, additional service treatment records may be obtained on remand. Accordingly, an addendum opinion should be obtained. Finally, it does not appear that the Veteran has been provided with notice concerning how to substantiate his claim for service connection as directly related to service pursuant to 38 C.F.R. § 3.159. This should be accomplished on remand. Accordingly, the case is REMANDED for the following action: 1. Notify the Veteran as to how he can substantiate his claim for service connection as directly related to service pursuant to 38 C.F.R. § 3.159. 2. Obtain and associate with the claims file any outstanding VA treatment records dated from October 10, 2012 to present. 3. Obtain the clinical (inpatient) records from the Veteran's hospitalization during service from February 1973 to March 1973. All attempts to fulfill this development should be documented in the claims file. If after continued efforts to obtain the records it is concluded that it is reasonably certain they do not exist or further efforts to obtain them would be futile, the AMC must notify the Veteran and (a) identify the specific records the AMC is unable to obtain; (b) briefly explain the efforts that the AMC made to obtain those records; (c) describe any further action to be taken by the AMC with respect to the claim; and (d) inform the Veteran that he is ultimately responsible for providing the evidence. The Veteran must then be given an opportunity to respond. 4. Request, directly from the SSA, complete copies of any determination on a claim for disability benefits from that agency as well as the records, including medical records, considered in adjudicating the claim. All attempts to fulfill this development should be documented in the claims file. If after continued efforts to obtain the records it is concluded that it is reasonably certain they do not exist or further efforts to obtain them would be futile, the AMC must notify the Veteran and (a) identify the specific records the AMC is unable to obtain; (b) briefly explain the efforts that the AMC made to obtain those records; (c) describe any further action to be taken by the AMC with respect to the claim; and (d) inform the Veteran that he is ultimately responsible for providing the evidence. The Veteran must then be given an opportunity to respond. 5. After the above has been completed, the AMC/RO must arrange for review of the Veteran's claims files by VA physician who provided the opinion in December 2012. If the reviewer is not available, the AMC/RO will obtain an opinion from another appropriate medical professional. If the reviewer determines that additional examination of the Veteran is necessary to provide a reliable opinion, such examination should be scheduled. However, the Veteran should not be required to report for another examination as a matter of course, if it is not found to be necessary. The following considerations will govern the opinion: a. The claims folder must be made available to the examiner, and the examiner must specify in the examination report that the claims file was reviewed. It is noted that the RO has been asked to obtain records from the Veteran's hospitalization in service for appendicitis as he reports the current symptoms started during service. b. After reviewing the claims files, the reviewer is again asked to provide an opinion regarding whether it is as least as likely as not (50 percent probability or more) that the Veteran's current hiatal hernia with GERD began in or is related to the Veteran's military service, to include his February 1973 appendectomy. Please provide a complete explanation for the opinion. c. Is it as least as likely as not (50 percent probability or more) that the Veteran's current diverticulosis began in or is related to the Veteran's military service, to include his February 1973 appendectomy. Please provide a complete explanation for the opinion. The examiner/reviewer is requested to specifically consider, and address as necessary, the Veteran's lay assertions of continuity of gastrointestinal problems beginning shortly after his appendectomy and continuing to the present, as well as the additional medical and lay evidence noting symptoms and complaints of gastrointestinal problems prior to 1989. The Veteran's lay statements include gastrointestinal complaints during psychiatric evaluation in November 1982, during his January 1983 RO hearing, during hospitalization for psychiatric problems in September and October 1986, during VA psychiatric hospitalization in January 1988, and at his May 2006 RO hearing. d. Is it is as least as likely as not (50 percent probability or more) that the Veteran's current diverticulosis is due to or caused by the service-connected appendectomy scar. Please provide a complete explanation for the opinion. e. Is it is as least as likely as not (50 percent probability or more) that the Veteran's current diverticulosis is aggravated (i.e., worsened) beyond the natural progress by the service-connected status-post appendectomy scar. Please provide a complete explanation for the opinion. It would be helpful if the reviewer would use the following language, as may be appropriate: "more likely than not" (meaning likelihood greater than 50%), "at least as likely as not" (meaning likelihood of at least 50%), or "less likely than not" or "unlikely" (meaning that there is a less than 50% likelihood). The term "at least as likely as not" does not mean "within the realm of medical possibility." Rather, it means 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 that conclusion as it is to find against it. 6. Upon completion of the above requested development, conduct any other development that is deemed warranted and readjudicate the Veteran's claim. If the benefit sought on appeal is denied, the Veteran and his representative should be provided a supplemental statement of the case and afforded the appropriate opportunity to respond before the case is returned to the Board. The appellant 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). _________________________________________________ S. S. TOTH 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).