Citation Nr: 1334105 Decision Date: 10/28/13 Archive Date: 11/06/13 DOCKET NO. 07-31 965 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to service connection for a gastrointestinal disorder, to include as due to an undiagnosed illness or other qualifying chronic disability. 2. Entitlement to service connection for a joint pain and arthralgia, to include as due to an undiagnosed illness or other qualifying chronic disability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Brian J. Milmoe, Counsel INTRODUCTION The Veteran served on active duty from May 1978 to October 1991. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision entered in July 2006 by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. The issues now on appeal, in addition to entitlement to service connection for an acquired psychiatric disorder, were previously before the Board in September 2011, at which time they were remanded to the RO through the VA's Appeals Management Center (AMC) in Washington, DC, so that additional development could be undertaken. While the case remained in remand status, the AMC by its rating determination of August 2012 granted service connection for an anxiety disorder, thereby removing the issue of service connection for an acquired psychiatric disorder from the Board's appellate jurisdiction. Following the AMC's attempts to complete the other actions sought, this case was returned to the Board for further review. Received by the Board in February and April 2013 were additional statements of the Veteran in support of his appeal, along with certain other documentary evidence consisting of medical reports. The Veteran's representative in his appellate brief of September 2013 specifically waived RO review of the foregoing, and, as such, no further action in this regard is necessary. The appeal is REMANDED to the RO via the AMC. VA will notify the appellant if further action is required on his part. REMAND By its September 2011 remand, the Board, among other things, directed the AMC to afford the Veteran VA examinations regarding his claimed gastrointestinal and musculoskeletal complaints. In addition, the AMC was asked to obtain medical opinions as to whether there were present objective indications of the claimed symptoms and, if so, whether such were attributable to a known clinical diagnosis and whether the symptoms or any clinically identified disability were attributable to military service of the Veteran, inclusive of his service in the Persian Gulf. On remand, VA examinations were conducted in October 2011. One such examination yielded a diagnosis of gastroesophageal reflux disease (GERD), and on the basis of a reported review of the record, including service treatment records, the VA examiner opined that the Veteran's GERD was not present prior to 2006. Noted to be present were signs and symptoms involving recurring episodes of severe gastrointestinal symptoms occurring two times yearly for less than a day. There was a notation by the examiner that no other pertinent findings, complaints, conditions, signs, or symptoms related to the diagnosis were present, but without any opinion as to the existence or non-existence of signs and symptoms of any undiagnosed illness or multi-system disability. Also, no reference was made, nor was consideration seemingly afforded the Veteran's complaint of heartburn and frequent indigestion at the time of a separation medical examination in 1991 or his history of nightly reflux and reported use of heartburn medication when seeking VA medical treatment in March 2001. Moreover, at the time of a VA Gulf War examination in September 2001, a diagnosis of reflux disease was entered, with further notation of use by the Veteran of heartburn medication. This, too, was not referenced by the VA examiner. On the basis of the foregoing, full consideration of the record by that VA examiner does not appear to have occurred and further input as to the existence of any undiagnosed or other illness involving gastrointestinal signs and symptoms is deemed necessary. Corrective actions are thus required. See Stegall v. West, 11 Vet. App. 268, 270, 71 (1998). Similarly, the VA joints examination conducted in October 2011 was limited to the Veteran's knees, without entry of a diagnosis excepting that communicated by way of the examiner's medical opinion that a strain of the knees was not caused by or the result of military service. The rationale for the opinion appears to be based largely on the Veteran's report that his knee problems started in 1995, following a fracture of his right ankle in 1994. In support of that opinion, the examiner indicated that an April 1991 complaint of joint swelling, as reflected on a separation questionnaire, was according to the Veteran related to his elbows. In fact, although not indicated by the VA examiner, service records include medical questionnaires completed at the time of service examinations in March 1982 and also in March and/or July 1991, when the Veteran complained of swollen or painful joints, a painful or trick shoulder or elbow, and/or and recurrent back pain and, in addition, those complaints were accompanied by the attending medical professionals' statements in March 1982 and in March, April 1991, and/or July 1991 that there was present then or in the past a muscle pull of the left elbow, bilateral tennis elbow, and/or low back strain or back pain. Service treatment records otherwise reference treatment for complaints of leg and neck pain, diagnosed as muscle strain and torticollis, respectively. Despite the foregoing, the VA medical opinion furnished in October 2011 was limited to the knees alone, without reference to the Veteran's inservice musculoskeletal complaints or findings involving the knees or legs, spine, or elbows, and did not address the question of undiagnosed illness or other qualifying chronic disability. On that basis, the opinion is found to lack the proper foundation based on a complete review of the claims folder and remand to ensure that a fully informed opinion is obtained is necessary. Stegall, supra; see Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Accordingly, this case is REMANDED for the following actions: 1. Obtain for inclusion in the Veteran's VA claims folder, virtual or otherwise, all pertinent VA treatment reports not already on file. 2. Afford the Veteran VA joints and gastrointestinal examinations in order to ascertain the nature and etiology of his pertinent complaints and related disability. Those examinations should entail a complete medical history, clinical evaluation, and any diagnostic testing deemed necessary by the examiners. Provide the Veteran's VA claims folder to the VA examiners for his/her review. All pertinent diagnoses relating to existing joints/musculoskeletal and gastrointestinal disorders should be specifically identified. The VA joints examiner is asked to furnish medical opinions and the rationales therefor, inclusive of specific reference to the evidence of record, including service treatment records, as to the following: a) Is it at least as likely as not (50 percent or greater probability) that any diagnosed joint or musculoskeletal disorder now present, including that of either knee, any portion of the spine, or either elbow, originated in military service or is otherwise attributable to that service? b) Is arthritis of any joint or any portion of the spine shown to have been manifested within one year of the Veteran's discharge from service, and, if so, how and to what degree was any such arthritis manifested? c) Are there any other symptoms or manifestations of joint or spinal disease which are not encompassed by any current diagnosis, and, if so, is it at least as likely as not (50 percent or greater probability) that any such symptoms or manifestations are the result of undiagnosed or chronic multi-symptom illness of service origin? The VA gastrointestinal examiner is asked to furnish medical opinions and the rationales therefor, inclusive of specific reference to the evidence of record, including service treatment records, as to the following: a) Is it at least as likely as not (50 percent or greater probability) that any diagnosed gastrointestinal disorder now present originated in military service or is otherwise attributable to that service? b) Is a peptic ulcer shown to have been manifested within one year of the Veteran's discharge from service, and, if so, how and to what degree was any such ulcer manifested? c) Are there any other symptoms or manifestations of gastrointestinal disease present which are not encompassed by any current diagnosis, and, if so, is it at least as likely as not (50 percent or greater probability) that any such symptoms or manifestations are the result of undiagnosed or chronic multi-symptom illness of service origin? 3. Lastly, readjudicate the remaining issues on appeal and if any benefit sought remains denied, provide the Veteran with a supplemental statement of the case. He should then be afforded a reasonable period in which to respond, prior to a return of the case to the Board for further review. 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. 2013). _________________________________________________ MICHAEL MARTIN 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) (2013).