Citation Nr: 1328030 Decision Date: 09/03/13 Archive Date: 09/10/13 DOCKET NO. 07-23 854 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to service connection for depression with sleep problems. 2. Entitlement to service connection for diabetes mellitus, type II. 3. Entitlement to service connection for a stomach disorder, to include diarrhea. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD T. Blake, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1973 to July 1977. The Veteran subsequently served in the United States Army Reserves from 1978 to 1984. This case comes before the Board of Veterans' Appeals (Board) on appeal from a September 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. In a March 2011 decision, the Board remanded the claims for additional development and adjudicative action. The case has been returned to the Board for further appellate review. The Board has not only reviewed the physical claims file but also the file on the "Virtual VA" system to ensure a total review of the evidence. The appeal is REMANDED to the RO, via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required. REMAND A remand is required in this case to ensure there is a complete record upon which to decide the issues on appeal. VA has a duty to make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the claim for the benefits sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A(a) (West 2002); 38 C.F.R. § 3.159(c), (d) (2012); Ascherl v. Brown, 4 Vet. App. 371, 377 (1993). With regard to the issue of service connection for a stomach disorder, review of the evidentiary record shows a post-service diagnosis of chronic diarrhea in November 2006 and November 2007 VA outpatient treatment records. A July 2005 VA outpatient treatment record also note a history of guiac positive stool. Service treatment records show complaints and treatment for diarrhea in April 1976, August 1976, and January 1977. He was assessed with acute gastroenteritis due to unknown cause in April 1976, and with gastroenteritis in June 1976, August 1976, November 1976, January 1977, and April 1977. At the time of separation from service, a June 1977 examination report noted the Veteran "had frequent episodes of gastroenteritis attributed to eating in Mess Hall. No problems this exam[ination]." At the November 2006 VA outpatient treatment session, the Veteran reported having problems with diarrhea since service and for about 20 years. The Board acknowledges the Veteran is competent to report that he has continued to experience stomach symptoms, such as diarrhea. See Barr v. Nicholson, 21 Vet. App. 303, 307-08 (2007) (holding that lay testimony is competent to establish the presence of observable symptomatology); see also Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. Sept. 14, 2009). Competent testimony is limited to that which the witness has actually observed and is within the realm of his personal knowledge; such knowledge comes to a witness through use of his senses-that which is heard, felt, seen, smelled, or tasted. Layno v. Brown, 6 Vet. App. 465 (1994). Thus, the Board finds the Veteran's assertion of such continuous symptoms suggests that he may have a stomach disorder that may be related to his military service. As a result, this case presents insufficient competent medical evidence of record to make a decision on the claim, and there is a certain medical question that cannot be answered by the Board and is not addressed by the evidence of record. See McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006); Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010); Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). Specifically, this question concerns a relationship, if any, between a current stomach disorder, to include chronic diarrhea, and active service, to include the documented in-service treatment for diarrhea and assessments of gastroenteritis and the Veteran's assertions of continuous symptoms of diarrhea since separation from service (if this recollection is accurate). This question should be addressed by the appropriately qualified medical professional. See Charles v. Principi, 16 Vet. App. 370 (2002); see also 38 C.F.R. § 3.159(c)(4) (a medical examination or opinion is necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim). A VA examination with medical nexus opinion will assist in determining the nature and etiology of the Veteran's claimed stomach disorder. Furthermore, pursuant to the March 2011 remand instructions, the RO obtained and associated with the physical claims file the Veteran's VA outpatient treatment records from October 1999 to October 2011. However, in the May 2012 supplemental statement of the case, it was stated that VA outpatient treatment records from the VA Medical Center (VAMC) in Central Alabama from October 2011 to April 2012 were reviewed; however, treatment records from November 2011 through April 2012 were neither associated with the claims file nor posted to Virtual VA. Since VA records are considered part of the record on appeal, they are within VA's constructive possession and must be considered in deciding all issues on appeal. Accordingly, the case is REMANDED for the following action: 1. Obtain and associate with the claims file (physical and/or on the "Virtual VA" system) the Veteran's VA outpatient treatment records from the VAMC in Central Alabama from November 2011 to present. 2. Next, schedule the Veteran for an appropriate VA examination. The Veteran's claims file should be provided. The examiner should determine whether the Veteran has a current stomach disorder, to include as manifested by chronic diarrhea. Then, if a stomach disorder is diagnosed, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater) that such a disability either began during or was otherwise caused by the Veteran's active military service (July 1973-July 1977). In doing so, the examiner should specifically address the documented in-service treatment for diarrhea and assessments of gastroenteritis and the Veteran's assertions of continuous symptoms of diarrhea since separation from service from. A complete rationale should be provided for all opinions and conclusions expressed and should not be solely based on the absence of treatment records during or after service. If an opinion cannot be rendered without resorting to speculation, the VA examiner should explain why it would be speculative to respond. 3. Thereafter, the issues on appeal should be readjudicated. If the benefits sought on appeal are not granted, the Veteran and his representative should be provided with a supplemental statement of the case (SSOC) and afforded the appropriate time period within which to respond thereto. The Veteran and representative have the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). The Veteran is advised to appear and participate in any scheduled VA examination, as failure to do so may result in denial of the claim. See 38 C.F.R. § 3.655 (2012). These claims 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). _________________________________________________ Matthew W. Blackwelder Acting 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).