Citation Nr: 1322035 Decision Date: 07/10/13 Archive Date: 07/18/13 DOCKET NO. 07-39 800 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for a gastrointestinal disorder. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD S. Keyvan, Associate Counsel INTRODUCTION The Veteran had active service from December 1977 to February 1986. This matter comes before the Board of Veterans' Appeals (Board) on appeal from the January 2007 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In his original claim, the Veteran sought entitlement to service connection for a stomach condition, and the January 2007 rating decision denied the Veteran's claim for gastritis, claimed as a stomach condition. The Board notes, however, that medical evidence also shows treatment for colon polyps, and a diagnosis of an incarcerated umbilical hernia. During the pendency of this appeal, the United States Court of Appeals for Veterans Claims (the Court) addressed the scope of a claim in regard to a claimed disability. Clemons v. Shinseki, 23 Vet. App. 1 (2009). In Clemons the Court held that, in determining the scope of a claim, the Board must consider the Veteran's description of the claim, symptoms described, and the information submitted or developed in support of the claim. Id. at 5. In light of the Court's decision in Clemons and the varying diagnoses recounted above the Board has recharacterized the issue as stated on the title page of this decision. This will provide the most favorable review of the Veteran's claim in keeping with the Court's holding in Clemons. In September 2011, the Board remanded the Veteran's claim for further evidentiary development. Specifically, the Board requested that the Agency of Original Jurisdiction (AOJ) obtain any outstanding private treatment records pertaining to the Veteran's gastrointestinal disorder and schedule the Veteran for a VA examination to determine the nature and etiology of any gastrointestinal disorder that he may have. The Veteran's private treatment records have since been obtained and associated with his claims file. In December 2011, the Appeals Management Center (AMC) initiated a request to have the Veteran scheduled for a VA examination. The examination was completed in January 2012, and a copy of the VA examination report has been associated with the Veteran's claims file. Unfortunately, and for reasons which will be explained in greater detail below, the Board does not find the January 2012 medical examination to be adequate. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance.) For the reasons set forth below, the appeal is REMANDED to the RO via the AMC, in Washington, DC. VA will notify the Veteran if further action is required. The Board sincerely regrets further delay caused by this remand; however, in light of the January 2012 medical opinion, the Board finds that further development of this issue is necessary prior to a final adjudication of the claim. REMAND The law provides that VA shall make reasonable efforts to notify a claimant of the evidence necessary to substantiate a claim and requires VA to assist a claimant in obtaining that evidence. 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2012). Such assistance includes providing the claimant a medical examination or obtaining a medical opinion when such an examination or opinion is necessary to make a decision on a claim. 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2012). The Veteran contends that he has a gastrointestinal disorder that was incurred in service. The Veteran's service treatment records document his complaints of stomach pain in August 1978. The Veteran was diagnosed with possible gastritis and prescribed medication. Additionally, the Veteran's treatment records continued to show complaints of, and treatment for abdomen pain. Furthermore, a scan performed in December 1985 revealed a 2.3 centimeter (cm) sclerotic border lesion in the left iliac bone. The post-service treatment records include an October 2006 operative report issued at the Dothan Surgery Center, which reflects that the Veteran underwent reparative surgery of an incarcerated umbilical hernia. A September 2011 operative report from the Dothan Surgery Center reflects that the Veteran underwent a colonoscopy with polypectomy times two. Biopsies of the polyps revealed findings of tubular adenoma in one, and benign hyperplastic colonic mucosa consistent with hyperplastic colon polyp in the other. Pursuant to the September 2011 remand instructions, the Veteran was afforded a VA examination in January 2012 to determine the nature and etiology of any gastrointestinal disorder present. Based on her review of the claims file, as well as her discussion with and evaluation of, the Veteran, the VA examiner determined that the Veteran did not have any stomach or duodenum condition. According to the VA examiner, a review of the in-service abdominal examinations was clear for any documentation of an umbilical hernia. She noted that the Veteran required surgical repair of an umbilical hernia in October 2006 and that his physician, J.S., M.D., evacuated a 1 cm by 1 cm umbilical abscess. She further noted that the September 2011 colonoscopy performed by Dr. S., wherein two benign polyps were removed, was shown to be normal. According to the VA examiner, results from the Veteran's current abdominal examination were shown to be normal, and documentation supporting the Veteran's claim that he has a current stomach condition related to his military service was not provided during this visit. However, she did detect signs of granulation tissue, less than 1 cm in size, on the Veteran's umbilicus with no evidence of infection. She noted in her report that the Veteran should follow-up about this with his physician. VA has a duty to obtain a medical examination when the record contains competent evidence of a current disability or symptoms of a current disability; evidence establishing that an event, injury, or disease occurred in service; an indication that the disability or persistent or recurrent symptoms of a disability may be associated with service or a service-connected disability; and insufficient evidence to decide the case. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c)(4). See also McLendon v. Nicholson, 20 Vet. App. 79 (2006). If the VA undertakes the effort to provide a veteran with a medical examination, it must ensure that such examination is an adequate one. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). The Board does not find the January 2012 medical opinion to be complete. Although the Veteran's examination results were shown to be normal, and he did not exhibit any signs of a gastrointestinal disorder at the time of the examination, the evidence of record reflects that the Veteran was diagnosed with, and treated for an incarcerated umbilical hernia in October 2006. In McClain v. Nicholson, the Court held that the requirement of a current disability is satisfied when the claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim and that a claimant may be granted service connection even though the disability resolves prior to the Secretary's adjudication of the claim). See 21 Vet. App. 319, 321 (2007). As such, the fact that problems associated with the Veteran's umbilical hernia had resolved prior to the date of the examination does not relieve the examiner of his or her obligation to address the Veteran's medical history and determine the nature and etiology of this disability since service and during the pendency of her claim. Moreover, the January 2012 VA examiner detected granulation tissue that was less than 1 cm in size in the Veteran's umbilicus. While she noted no evidence of infection, she still advised the Veteran to follow up about this with his physician. Based on this assessment, as well as the VA examiner's recommendation that the Veteran seek follow up treatment for the detected granulation tissue, the Board remains unclear as to the clinical significance of granulation tissue in the umbilicus and whether such findings are possible manifestations of a gastrointestinal disorder. Where a determinative issue involves medical causation or a medical diagnosis, competent medical evidence is required. See Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). As the evidence of record as it currently stands remains unclear as to whether the Veteran has a gastrointestinal disorder that was incurred in service, another remand is necessary for a clarifying VA medical opinion. Accordingly, the case is REMANDED for the following action: 1. Refer the Veteran's claims file to the same VA examiner who conducted the January 2012 VA examination. The claims folder and all records on Virtual VA must be made available to the examiner in conjunction with the examination. The examiner should specifically take into consideration the October 2006 operative report which documents the Veteran's preoperative diagnosis of incarcerated umbilical hernia Following a review of the record, the examiner should identify any gastrointestinal disorder(s) present and provide diagnoses for all identified disability(ies). In answering this question, the examiner should address the clinical significance of the granulation tissue detected in the Veteran's umbilicus, and discuss whether granulation tissue could be a sign or manifestation of a potential gastrointestinal disorder. For any gastrointestinal disorder diagnosed on examination, and/or during the pendency of the appeal which has resolved at the time of the examination, the examiner should provide an opinion as to whether it is at least as likely as not (i.e., a 50 percent or greater probability) that such disability had its clinical onset in service or is otherwise related to the Veteran's military service, to include her in-service treatment for gastritis. If the examiner finds that the Veteran's disability(ies) is(are) not related to his service, then he or she must provide a complete rationale upon which his or her opinion is based, and must include a discussion of the medical principles as applied to the medical evidence and facts used in establishing his or her opinion. If the examiner determines that he/she cannot provide an opinion without resorting to speculation, the examiner should explain the inability to provide an opinion, identifying precisely what facts could not be determined. In particular, he/she should comment on whether an opinion could not be provided because the limits of medical knowledge have been exhausted or whether additional testing or information could be obtained that would lead to a conclusive opinion. Jones v. Shinseki, 23 Vet. App. 382, 389 (2010). (The AOJ should ensure that any additional evidentiary development suggested by the examiner be undertaken so that a definite opinion can be obtained.) 2. After completing the above, readjudicate the issue on appeal. If the benefit sought on appeal is not granted, the Veteran and his representative should be provided with a supplemental statement of the case. An appropriate period of time should be allowed for response before the case is returned to the Board. The Veteran 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 or by the United States Court of Appeals for Veterans Claims (Court) 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). _________________________________________________ J. A. MARKEY 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).