Citation Nr: 1321917 Decision Date: 07/09/13 Archive Date: 07/18/13 DOCKET NO. 07-00 641 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUE Entitlement to service connection for a stomach disorder, diagnosed as gastroparesis, to include as due to an undiagnosed illness or other qualifying, chronic disability pursuant to 38 U.S.C.A. § 1117. REPRESENTATION Appellant represented by: Robert P. Walsh, Attorney-at-Law WITNESS AT HEARING ON APPEAL Veteran and his mother ATTORNEY FOR THE BOARD J.N. Moats INTRODUCTION The Veteran had active service from August 1989 to July 1992. This appeal comes before the Board of Veterans' Appeals (Board) from a January 2006 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan. A Board hearing before the undersigned Veterans Law Judge was held in July 2008 at the RO. The Board denied the claim in November 2008. The Veteran appealed that decision to the United States Court of Appeals for Veterans Claims (Court). The Office of General Counsel for the VA and the Veteran's representative (hereinafter "the parties) submitted a Joint Motion for Remand in November 2009 and the Court thereafter issued an Order which incorporated the Joint Motion and vacated the Board's 2008 decision. Subsequently, the Board remanded this case in August 2010 for compliance with the Joint Motion. In March 2013, the Veteran filed a motion for another Board hearing. However, as the Veteran had already been afforded a Board hearing, this motion was denied in June 2013. A review of the Veteran's Virtual VA electronic record does not reveal any additional documents pertinent to the appeal. 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 regrets further delaying appellate review, a review of the record indicates that further development is necessary. The claims file shows that the Veteran was afforded a VA examination in December 2005. After examining the Veteran and reviewing the claims file, the examiner determined that it was not as likely as not that the Veteran's gastroparesis was related to active duty service. However, he failed to provide any rationale for this opinion. Another VA medical opinion by a different examiner was prepared in July 2012. After reviewing the claims file, the examiner determined that the claimed condition was less likely than not incurred in or caused by the claimed in-service injury, event or illness. The examiner rationalized that the Veteran did not meet the criteria for an undiagnosed illness as the Veteran's abdominal pain had been determined to be caused by delayed gastric emptying, which was an established diagnosis. The examiner continued that risk factors for gastroparesis included diabetes, infection, medications (narcotics, antidepressants and calcium channel blockers), abdominal surgery, hypothyroidism, Parkinson's disease, bulimia, smoking and scleroderma. There was evidence that the Veteran was a smoker and had also been on antidepressant therapy. However, the examiner's rationale only addressed whether the Veteran met the criteria for an undiagnosed illness, pursuant to 38 U.S.C.A. § 1117, but failed to provide any rationale on why gastroparesis was not directly related to service. The Court has held that a medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. See Nieves- Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A]medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions"). Moreover, once VA undertakes the effort to provide an examination for a service connection claim, even if not statutorily obligated to do so, it must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided). Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Accordingly, given the lack of sufficient rationale in the examination reports, the Board finds that another VA examination should be afforded to the Veteran to determine the nature, extent and etiology of any stomach disorder. Lastly, in the prior August 2010 remand, the Board directed the RO to contact the Veteran to obtain any additional private treatment records, to specifically include records from Hurley Hospital as well current VA treatment from December 2005. The Veteran, through his representative, submitted private treatment records from Health Source Saginaw, Hurley Medical Center and Munson Medical Center. VA treatment records from the Saginaw, Michigan VA Medical Center (VAMC) and Battle Creek, Michigan (VAMC) dated to March 2010 were also submitted. A review of the Virtual VA claims processing system does not reveal any additional records. However, it appears that the Veteran receives continuous treatment at the VA for his stomach disorder. Thus, as VA medical records are constructively of record and must be obtained, the RO should obtain VA treatment records from March 2010 to the present. See 38 C.F.R. § 3.159; Bell v. Derwinski, 2 Vet. App. 611 (1992). Moreover, the Veteran should also be provided the opportunity to identify and/or submit any additional non-VA treatment records. Accordingly, the case is REMANDED for the following action: 1. Afford the Veteran an opportunity to identify and/or submit any other records of non-VA treatment for a stomach disorder that have not yet been associated with the claims file. 2. Obtain all of the Veteran's VA treatment records dated from March 2010 to the present. 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) and 38 C.F.R. § 3.159(e). 3. After all outstanding records have been associated with the claims file, schedule the Veteran for a VA examination by a medical professional with the appropriate expertise to determine the nature and etiology of the Veteran's claimed stomach disorder. The examiner must review the claims file before completing the examination report. The examiner should identify any objective evidence of the Veteran's claimed stomach disorder; render a diagnosis with respect to each claimed symptom which is due to a known clinical diagnosis; and, provide an opinion with respect to each currently diagnosed disorder as to whether it is at least as likely as not that the disorder is etiologically related to the Veteran's military service. The examiner should also specifically identify any objectively demonstrated symptoms that are not attributable to a known clinical diagnosis and whether such constitute a medically unexplained chronic multisymptom illness. The examiner should further indicate whether such disabilities existed for 6 months or more or whether they exhibit intermittent worsening over a 6 month period. The examiner should provide the supporting rationale for each opinion expressed with consideration of the medical and lay evidence of record. 4. In the interest of avoiding future remand, the RO should then review the examination report to ensure that the above questions have been clearly answered and a rationale furnished for all opinions. If not, appropriate action should be taken to remedy any such deficiencies in the examination report. 5. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the issue on appeal should be readjudicated based on the entirety of the evidence. If the claims remain denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. 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). 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). _________________________________________________ MARJORIE A. AUER 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).