Citation Nr: 1322512 Decision Date: 07/15/13 Archive Date: 07/24/13 DOCKET NO. 05-36 771A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUES 1. Entitlement to service connection for irritable bowel syndrome, to include due to a qualifying chronic disability under 38 C.F.R. § 3.317. 2. Entitlement to service connection for a thoracolumbar back disorder claimed as scoliosis of the low back. REPRESENTATION Appellant represented by: Puerto Rico Public Advocate for Veterans Affairs ATTORNEY FOR THE BOARD S. Lipstein INTRODUCTION The Veteran had verified active duty from September 1977 to September 1980; and from September 27, 1990 to April 14, 1991, including service in the Southwest Asia theater of operations from December 1990 to May 1991. He also had additional service in the U.S. Army Reserve. This matter came before the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, the Commonwealth of Puerto Rico, which denied the benefits sought. The Board remanded the Veteran's claim in March 2012. The Board also remanded the issue of entitlement to service connection for an acquired psychiatric disorder in March 2012. The RO granted service connection for depressive disorder and posttraumatic stress disorder (PTSD) in an October 2012 rating decision, and assigned a 70 percent disability rating effective May 3, 2006. Thus this issue is no longer on appeal. The issue of entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) has been raised by the record at the March 2012 VA mental disorders examination which reflected that the Veteran has total occupational and social impairment due to all mental disorders, but the TDIU issue has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. 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 VA treatment records dated in November 2009 reflect that the Veteran indicated that he receives Social Security Administration (SSA) benefits for psychiatric and physical conditions. The record does not reflect sufficient attempts to obtain SSA records. Under the law, VA must attempt to obtain these records. See Golz v. Shinseki, 590 F.3d 1317, 1323 (Fed. Cir. 2010). Thus, the Board has no discretion and must remand this case to attempt to obtain any outstanding SSA records. Although the Veteran underwent VA back and gastrointestinal examinations in accordance with the March 2012 Board remand, after the SSA records are requested and obtained on remand, following the receipt of the outstanding records, supplemental VA opinions should be obtained. See Stefl v. Nicholson, 21 Vet. App. 120, 125 (2007) (an adequate VA medical examination must consider the Veteran's pertinent medical history). Additionally, at a July 2006 VA psychiatric examination, the examiner noted that the Veteran complained of gastritis with production of diarrhea and loss of weight. As noted above, service connection for depressive disorder and PTSD was granted in an October 2012 rating decision. The Board finds that on remand the VA examiner should determine whether a gastrointestinal disability is proximately due to or the result of service-connected depressive disorder and PTSD. On remand, pertinent, outstanding records should be physically or electronically associated with the claims folder. Accordingly, the case is REMANDED for the following actions: 1. The RO should provide the Veteran appropriate notice pursuant to the Veterans Claims Administration Act (VCAA) under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), that includes the criteria required for secondary service connection. 2. The RO should notify the Veteran that he may submit lay statements from individuals who have first-hand knowledge, and/or were contemporaneously informed of his in-service and post-service gastrointestinal and back symptomatology. The Veteran should be provided an appropriate amount of time to submit this lay evidence. 3. Relevant treatment records dating from March 2012 to the present from the San Juan VA Medical Center should be obtained. 4. Request, directly from the SSA, complete copies of any determination on a claim for disability benefits from that agency, together with the medical records that served as the basis for any such determination. All attempts to fulfill this development should be documented in the claims file. If the search for these records is negative, that should be noted and the Veteran must be informed in writing. 5. Then send the claims folder to the examiners who conducted the March 2012 VA back and gastrointestinal examinations, or if the examiners are no longer available, a suitable replacement, to request that the examiners prepare an addendum to the reports. The Veteran need not be re-examined unless an examination is deemed necessary. If a physical examination is deemed necessary, all indicated testing should be accomplished. The claims file should be made available to and reviewed by the examiner. In offering opinions, the respective examiners must acknowledge and discuss the Veteran's reports of a recurrence of relevant symptoms since service, and any current relevant symptoms and diagnosis regarding the claimed conditions. Gastrointestinal Symptomatology: Discuss any reports of a recurrence of symptoms since service and indicate whether it is at least as likely as not that any gastrointestinal symptoms can be attributed to a known clinical diagnosis. A diagnosis of irritable bowel syndrome must be ruled in or excluded. If the examiner attributes any gastrointestinal symptoms to a known clinical diagnosis (other than irritable bowel syndrome), the examiner must then state whether it is at least as likely as not that any such condition is related to or had its onset in service. If not, the examiner must state whether it is at least as likely as not that any such condition was caused OR aggravated by the Veteran's service-connected depressive disorder and PTSD. A rationale must be provided for any opinion expressed. If an opinion cannot be provided without resort to mere speculation, the examiner must explain why the opinion cannot be provided without resort to mere speculation. Thoracolumbar Spine Disorder to include Scoliosis: For any thoracolumbar spine disorder identified, to include dextroscoliosis, opine as to whether it is at least as likely as not related to the Veteran's service. The examiner should comment on a diagnosis of "mild scoliosis" contained in an August 1977 service enlistment examination report; and provide an opinion as to whether, during the period of service from September 1977 to September 1980. The examiner should state the likelihood that any back disability found to be present existed prior to service. If the examiner concludes that back disability found to be present existed prior to service, the examiner should indicate that likelihood that the disability worsened during service. If the examiner diagnoses the Veteran as having back disability that did not pre-exist service, the examiner must opine as to whether it is at least as likely as not that the condition is related to or had its onset during service., and state the likelihood that a preexisting condition was aggravated by service. A rationale must be provided for any opinion expressed. If an opinion cannot be provided without resort to mere speculation, the examiner must explain why the opinion cannot be provided without resort to mere speculation. 5. Then readjudicate the appeal. If a claim is denied, issue a supplemental statement of the case to the Veteran and his representative, and provide an opportunity to respond, before the case is returned to the Board. The appellant has the right to submit additional evidence and argument on the 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). _________________________________________________ STEVEN D. REISS 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).