Citation Nr: 1329878 Decision Date: 09/18/13 Archive Date: 09/25/13 DOCKET NO. 08-32 594 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to service connection for chronic dumping syndrome with symptoms manifested by fatigue, dizziness and near syncope spells. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant and Observer, J.R.M. ATTORNEY FOR THE BOARD K. Gielow, Counsel INTRODUCTION The Veteran served on active duty from January 2007 to September 2007. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an April 2008 rating decision of the Nashville, Tennessee Department of Veterans' Affairs (VA) Regional Office (RO). The Veteran testified at a Travel Board hearing before the undersigned Veterans' Law Judge in March 2010. A transcript of that hearing has been associated with the claims file. In June 2010, the Board remanded this appeal for additional development. 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 any further delay is regrettable, the Board finds that a remand is necessary for additional development. As an initial matter, after the issuance of the most recent supplemental statement of the case in May 2011 but prior to the transfer of this case to the Board, the Veteran submitted several statements in June 2013 regarding the post-service severity of his chronic dumping syndrome. Specifically, he explained that he experienced infrequent, periodic (only once or twice each year) flare-ups prior to service and constant flare-ups both in service and after service (approximately 24 times per year). He also explained that he has "been to the emergency room four or five times since the military due to this condition with many other medical visits." Because this case involves the application of the presumption of soundness, this new evidence is relevant and non-duplicative of other evidence of record. Therefore, to accord the Veteran all due process, this evidence must be considered by the agency of original jurisdiction (AOJ) in the first instance. 38 C.F.R. § 19.37(a) (if additional evidence is received by the AOJ prior to the transfer of records to the Board, a supplemental statement of the case will be furnished to the appellant and his or her representative unless the additional evidence received duplicates evidence previously of record which was discussed a prior supplemental statement of the case or the additional evidence is not relevant to the issue, or issues, on appeal); see also 38 U.S.C.A. § 7104(a) (all decisions by the Secretary "shall be subject to one review on appeal to the Secretary). Further, the Veteran's statements identify the existence of potentially relevant private treatment records that have not yet been associated with the claims file. In this regard, the Board notes that the only post-service treatment records of record are those from Dr. C. from December 2008 through January 2009, which show treatment for acute gastroenteritis and currently asymptomatic hiatal hernia-not his chronic dumping disorder. Moreover, the existing records reference only a single hospitalization in December 2008. Thus, with any necessary assistance from the Veteran, the AOJ should attempt to attain any additional records that he identifies on remand. Lastly, the Board also finds that there is insufficient competent medical evidence of record in this case to ascertain whether the second prong of the presumption of soundness has been rebutted. As previously stated in the Board's June 2010 remand, the evidence includes the following: treatment for gastrointestinal problems prior to the Veteran's entry into active service, service treatment records reflecting treatment for and diagnoses of chronic dumping syndrome and post gastrectomy syndrome; post-service evidence of chronic dumping syndrome manifested by diarrhea, fatigue, dizziness and near syncopy; and the opinions by the private and VA physicians that this condition was aggravated by the Veteran's active service. Additionally, on remand, the AOJ obtained another VA opinion in July 2010 regarding the preexistence and aggravation of the Veteran's chronic dumping syndrome. The July 2010 examiner determined that the increased frequency of dumping syndrome symptoms in service, including diarrhea, weakness, and dizziness, "were temporary and not a permanent change in his medical condition. This was more likely than not associated with the overall environment within which he was functioning and not a permanent change in his medical condition." (Emphasis added). Legal jurisprudence has made clear that the rebuttal of the second prong of the presumption of soundness requires "the Secretary to provide lack of aggravation by clear and unmistakable evidence." Horn v. Shinseki, 25 Vet. App. 231, 240 (2012). This can be established by showing that there was no increase in disability or that any increase was due to the natural progress of the disease. Id. (citing Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). Development of clear and unmistakable evidence may involve obtaining an opinion from a VA physician when a veteran is discharged from service for medical reasons or when pre-service medical records identify a veteran's condition prior to service. Id. at p. 242-43. "Such evidence, when evaluated by a competent physician, may enable the establishment of a pre[-]service medical baseline for the condition for which service connection is sought. The comparison of the pre[-]service baseline with the condition soon after service could be a reliable and straightforward method of proving lack of aggravation." Id. at 243. Alternatively, lacking the evidence to establish such a baseline, the Secretary may attempt to carry his evidentiary burden with a post-service medical opinion the nature of a preexisting disease or injury, which may imply an extremely low likelihood of aggravation by a limited period of even intense physical training. Id. If a physician is able to support such a conclusion with a suitable medical explanation, supported by extant medical knowledge and the facts of record, such an opinion might constitute or contribute to clear and unmistakable evidence of lack of aggravation. Id. Here, the July 2010 VA examiner's opinion indicated that he felt that there was no permanent increase in service. However, the examiner used a "more likely than not" standard for determining that the Veteran's service environment caused a non-permanent change in his dumping disorder. As the Board must evaluate whether this opinion, taken in conjunction with the other evidence of record, contributes to clear and unmistakable evidence of a lack of aggravation in this case, the Board finds that it would be helpful if the examiner provided an addendum opinion. Specifically, the examiner is requested to compare the pre-service and post-service baselines of the disorder and offer an opinion as to whether the disorder clearly and unmistakably either did not undergo a permanent increase in service or than any such increase was due to the natural progression of the disease. See Horn, 25 Vet. App. at 243 (noting that the U.S. Court of Appeals for Veterans Claims "has given VA wide latitude in developing evidence to rebut presumptions."). Accordingly, the case is REMANDED for the following actions: 1. Request the Veteran provide his consent to release records relating to all outstanding post-service treatment for chronic dumping disorder, including records associated with his emergency room visits. See June 2011 statement. The claims file should be clearly document VA's efforts to obtain these records, and, if unavailable, the Veteran should be provided with notification of their unavailability in accordance with 38 C.F.R. § 3.159(e)(1). 2. After obtaining any records identified in step (1), return the claims file to the VA examiner who previously provided an examination and opinion in this case in July 2010. If the VA examiner is unavailable, arrange to obtain the requested information from another qualified examiner. The need for another examination is left to the discretion of the examiner selected to offer the requested opinion. Following a review of the claims file, the examiner is requested to provide an opinion as to whether the Veteran's chronic dumping syndrome clearly and unmistakably either (1) did not undergo a permanent increase in service or (2) any increase was due to the natural progression of the disorder. In providing such an opinion, the examiner is requested to ascertain the pre-service and post-service baselines attributable to the disorder. All opinions provided must be thoroughly explained, and an adequate rationale for any conclusions reached must be provided. If any requested opinion cannot be provided without resort to speculation, the examiner should so state and explain why an opinion cannot be provided without resort to speculation. 3. After the development requested above has been completed to the extent possible, the issue of entitlement to service connection for chronic dumping syndrome should be readjudicated. If the benefit sought on appeal remains denied, the Veteran and his representative should be furnished a supplemental statement of the case and given the opportunity to respond thereto. The case should then be returned to the Board for further appellate consideration. 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). _________________________________________________ DEBORAH W. SINGLETON 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).