Citation Nr: 1333092 Decision Date: 10/22/13 Archive Date: 10/24/13 DOCKET NO. 05-16 278 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE Entitlement to service connection for a gastrointestinal disorder, to include as due to in-service herbicide exposure. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD L. Barstow, Counsel INTRODUCTION The Veteran had active military service from July 1967 to May 1969, including service in the Republic of Vietnam for which he was awarded the Combat Infantryman Badge among other decorations and awards. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2005 rating decision of the VA Regional Office (RO) in Columbia, South Carolina. A Board decision in January 2012 denied entitlement to service connection for headaches, a skin disorder, and a gastrointestinal disorder. The Veteran thereafter appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In a Memorandum Decision dated in May 2013, the Court affirmed the appeal of the headache and skin disorder service connection claims and vacated the Board's denial of the gastrointestinal disorder service connection claim and remanded the case for readjudication in accordance with the decision. In a September 2013 statement, the Veteran reported having filed a claim for service connection for diabetes mellitus, type II. It does not appear that this issue has 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. Furthermore, in the January 2012 decision, the Board again referred the issues of service connection for a psychiatric disorder and a heart disorder, initially referred in a September 2010 Board remand. Although service connection for a psychiatric disorder has been granted, it does not appear that service connection for a heart disorder has yet been adjudicated. Therefore, the issue of service connection for a heart disorder is again 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 Veteran if further action is required. REMAND Regrettably, a remand is necessary for further evidentiary development. The Veteran's service treatment records (STRs) show that he complained of vomiting and stomach cramps and was treated for intestinal parasites in December 1968. In his March 2005 notice of disagreement, he reported continuing to experience nausea. The Veteran was afforded a VA examination in March 2009. The examiner opined that they could find no evidence of a debilitating condition regarding nausea. No clinical and diagnostic testing was done. The examiner also opined that it was less likely than not that any disability could be attributed to complaints or findings noted in the STRs or otherwise related to service. The rationale was that the Veteran did have some minor complaints, but in general admitted that he functioned very well and there was no evidence of debilitating condition. A colonoscopy in June 2010 showed that the Veteran had asymptomatic sigmoid diverticulosis; in March 2012, abdominal X-rays revealed nonspecific air-fluid levels, which might be seen in gastroenteritis. In this case, the evidence is unclear as to whether the Veteran's reported symptoms are attributable to a diagnosed gastrointestinal disorder. The examiner found no evidence of a "debilitating condition," which does not necessarily mean that the Veteran does not have a stomach disorder. In light of additional records since then suggesting a gastrointestinal disorder, the Board finds that a remand is necessary to afford the Veteran a new VA examination. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). Also, as the Veteran appears to receive continuing treatment from T.G., M.D. and from the Carolinas Hospital System, additional treatment records should be obtained on remand. Accordingly, the case is REMANDED for the following action: 1. After obtaining the appropriate release of information forms where necessary, procure records of post-service gastrointestinal treatment that the Veteran has received. The Board is particularly interested in records of such treatment that the Veteran may have received from Dr. T.G., Carolinas Hospital System, and any other providers identified by the Veteran. If any such records identified by the Veteran are not available, he should be so informed, and notations as to the unavailability of such records and as to the attempts made to obtain the documents should be made in the claims file. All such available reports should be associated with the claims folder. 2. Then, accord the Veteran an appropriate VA examination to determine the nature, extent, and etiology of any diagnosed gastrointestinal disorder. The Veteran's claims file, including a copy of this remand, must be made available to the examiner for review in connection with the examination. All indicated should be conducted, and the reports of any such studies should be incorporated into the examination report to be associated with the claims file. The examiner is requested to obtain a detailed history of the Veteran's symptoms as observed by him and others since service, review the record, and offer an opinion as to whether it is more likely than not (i.e., probability greater than 50 percent), at least as likely as not (i.e., probability of approximately 50 percent), or less likely than not (i.e., probability less than 50 percent) that any diagnosed gastrointestinal disorder had its clinical onset in service or is otherwise related to service, to include being due to in-service herbicide exposure. The examiner should discuss the Veteran's in-service gastrointestinal complaints in December 1968. In determining whether the Veteran has a gastrointestinal disorder, the examiner should address the June 2010 colonoscopy results and March 2012 abdominal X-rays. A complete rationale should be given for all opinions and conclusions expressed. If the examiner must resort to speculation to render the requested opinion, he/she must state what reasons, with specificity, that this question is outside the scope of a medical professional conversant in VA practices. 3. Ensure that the examination report complies with (answer the questions posed in) this Remand. If the report is insufficient, it should be returned to the examiner for corrective action, as appropriate. 4. Then, readjudicate the issue on appeal. If the benefit remains denied, the Veteran and his representative should be provided a supplemental statement of the case and given an appropriate opportunity to respond. The case should then be returned to the Board for further consideration. 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 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). _________________________________________________ ROBERT E. SULLIVAN 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).