Citation Nr: 1335994 Decision Date: 11/05/13 Archive Date: 11/13/13 DOCKET NO. 05-17 632 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to service connection for a stomach disorder. ATTORNEY FOR THE BOARD L. Kirscher Strauss, Counsel INTRODUCTION The Veteran had active service from January 1955 to January 1957. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2004 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO), in Nashville, Tennessee, that declined the Veteran's application to reopen a previously denied claim of service connection for a stomach disorder. In June 2008, the Board denied the Veteran's application to reopen his claim for service connection for a stomach disorder. The Veteran subsequently appealed that decision to the United States Court of Appeals for Veterans Claims (Court). In February 2009, a Joint Motion for an Order Vacating the Board Decision (Joint Motion) was brought before the Court. In an Order dated that same month, the Court vacated the June 2008 Board decision and remanded the case to the Board for readjudication consistent with the directives of the Joint Motion. In June 2009, the Board remanded this issue to the RO for further evidentiary development. In February 2011, the Board reopened the claim of service connection for a stomach disorder and remanded the claim to the RO for additional development. After the appeal was re-certified to the Board by the RO, the Veteran's attorney advised VA in a signed statement that he had withdrawn as the Veteran's representative in October 2013. The attorney cited the Veteran's request for such withdrawal as the cause. The attorney certified that a copy of the motion was sent by first-class mail, postage prepaid, to the Veteran at his address. See 38 C.F.R. § 20.608 (2013). The Board finds good cause for the withdrawal has been shown. There is no record of the Veteran having designated another representative (despite asking his previous representative to withdraw). The Board deems the Veteran to represent himself. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2013). 38 U.S.C.A. § 7107(a)(2) (West 2002). 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 The Veteran contends that he was treated for gastrointestinal complaints at Brooke Army Medical Center in May 1955, and that he continued to have a gastrointestinal or stomach disorder since separation from service until the present. In the February 2009 Joint Motion, the parties agreed that treatment records related to stomach problems from the Baptist Memorial Hospital dated from 1987 to 1993 had not been requested by the RO. Duplicate treatment records dated from June 1993 to January 1995 were obtained from Baptist Memorial Hospital; however, treatment records dated from 1987 to 1993 have not been specifically requested. The RO/AMC should ask the Veteran to submit treatment records related to his claimed stomach disorder from Baptist Memorial Hospital dated from 1987 to 1993 or to complete and return an Authorization and Consent to Release Information (VA Form 21-4142) to allow VA to obtain those records on his behalf. The Board also finds that an additional VA examination is required to determine whether the Veteran has a current stomach or gastrointestinal disorder that began in service or is otherwise related to service. In this regard, in a March 2010 letter addressed to the Veteran's VA physician, Dr. Brown, a colleague of the Veteran's former attorney representative requested a medical opinion regarding the claimed stomach disorder. The attorney enclosed six exhibits, which were records from the Veteran's claims file, for Dr. Brown's review. In an April 2010 hand-written letter, Dr. Brown indicated that she reviewed old records of the Veteran's. She stated, It appears to me that his gastrointestinal problems started while he was on active duty. Although he was not originally [diagnosed] with [peptic ulcer disease], an ulcer could have produced the [symptoms] described in 1957. Since stress can cause or exacerbate [peptic ulcer disease] stress while in [the] military could have caused his disease. In the February 2011 remand, the Board explained that a VA examination was required to determine the nature and etiology of the Veteran's claimed gastrointestinal or stomach disorder(s). For any gastrointestinal disorder(s) found, the examiner was instructed to provide an opinion as to whether there is a 50 percent or greater probability that it had its clinical onset in service or is otherwise related to the Veteran's active service. The examiner was asked to reconcile any opinion rendered with the Veteran's February 1967 application for VA compensation benefits (describing gastrointestinal disability manifested by diarrhea with a reported onset in January 1958); a March 1967 letter from Dr. J. Crupie, indicating he treated the Veteran for epigastric complaints of nausea, vomiting, stomach cramps, weakness, and dizziness in the spring of 1957; Dr. Brown's April 2010 medical opinion that the Veteran's intestinal problems, which could have been undiagnosed peptic ulcer disease caused by stress, appeared to start while on active duty; and the Veteran's current description of gastrointestinal symptomatology since service. A July 2012 VA examination report reflects that the examining physician did not diagnose a current stomach or gastrointestinal disorder. However, the examiner checked a box, opining that the "claimed condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service (injury, event, or illness)." The examiner noted various diagnoses in clinic notes, listed particular records from the claims file that were reviewed in detail, and stated that "there appears to be an increased incidence of peptic ulcer disease in [patients] with anxiety and stress," which the Veteran appeared to have prior to service, and observed that abdominal complaints were not found among the Veteran's service treatment records. In September 2012 correspondence, the colleague of the Veteran's former attorney representative stated that he believed citation to medical literature was required to support the July 2012 VA examiner's explanation regarding an increased incidence of peptic ulcer disease in patients with anxiety and stress. Moreover, the attorney asserted that there "is absolutely no service or post-service records suggesting that eneuresis," which was noted among service treatment records as a problem since childhood, "led or could have caused [the Veteran's] current stomach or gastrointestinal problems, or that any mild neurosis, inadequate personality, or anxiety reaction could have caused a stomach condition or gastrointestinal disease." The attorney also believed that the July 2012 VA opinion was inadequate because the examiner "failed to discuss the evidence showing that [the Veteran] had been treated for his stomach-related condition since service," "improperly relied on the absence of service treatment records," and did not comply with the Board's remand instructions because the examiner "merely list[ed] some of the evidence he apparently considered" rather than "reconcile and address the evidence with the opinion reached." The Board finds that the July 2012 VA examination report is unclear as to whether the Veteran currently has one or more stomach or gastrointestinal disorders. Moreover, to the extent that the Veteran may currently have peptic ulcer disease, the medical opinion that it is less likely than not related to service requires further explanation. Therefore, as the April 2010 opinion from Dr. Brown was based on only six records selected from the Veteran's claims file and a summary of the evidence by a colleague of the Veteran's former attorney, and the July 2012 VA examination report requires clarification and a more detailed explanation regarding the relationship between any current gastrointestinal disabilities and the Veteran's active service, the Veteran should be provided with an additional VA examination to obtain medical information and opinion evidence necessary to decide the claim on appeal. Prior to arranging for a VA examination, the RO/AMC should request and associate with the claims file ongoing treatment records from the Memphis VA Medical Center (VAMC) pertinent to the claim for a stomach disorder dated from March 2013 to the present. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2013). Expedited handling is requested.) 1. The RO/AMC shall attempt to obtain and associate with the claims file treatment records from the Memphis VAMC dated from March 2013 to the present, and private treatment records from Baptist Memorial Hospital dated from 1987 to 1993 for stomach-related problems. All attempts to procure records should be documented in the file. If the RO/AMC cannot obtain records identified by the Veteran or determines that any records are unavailable, a notation to that effect should be inserted in the file. The Veteran is to be notified of unsuccessful efforts in this regard to allow him the opportunity to obtain and submit those records for VA review. 2. Thereafter, the RO/AMC shall schedule the Veteran for a VA examination to determine the precise nature and etiology of his asserted stomach or gastrointestinal disability. The Veteran's claims file, to include a complete copy of this REMAND, must be provided to the examiner designated to examine the Veteran, and the report of examination should note review of the claims file. All necessary special studies or tests should be accomplished and the reports associated with the examination report. The examiner is requested to identify all stomach or gastrointestinal disabilities found on examination. For each diagnosed gastrointestinal disability, the examiner shall opine as to whether it as likely as not had its clinical onset in service or is otherwise related to the Veteran's active service. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinions. If the examiner rejects the Veteran's reports of symptomatology, he or she must provide a reason for doing so. The absence of evidence of treatment for a stomach of gastrointestinal disorder in the Veteran's service treatment records cannot, standing alone, serve as the basis for a negative opinion. In addition, to comply with the February 2011 REMAND (and to support any medical opinions rendered), the VA examiner's medical opinion must include a discussion of: (a) the service treatment records; (b) the Veteran's application for compensation received in February 1967 (describing gastrointestinal disability manifested by diarrhea with a reported onset in January 1958); (c) the March 1967 letter from Dr. J. Crupie indicating the Veteran was treated for epigastric complaints of nausea, vomiting, stomach cramps, weakness, and dizziness in spring of 1957; (d) Dr. Brown's April 2010 opinion suggesting the Veteran's gastrointestinal problems began in service due to military stress causing or exacerbating peptic ulcer disease; and (e) the Veteran's current description of gastrointestinal symptomatology since service. If the examiner is unable to provide an opinion without resort to speculation, he or she should explain why this is so and what if any additional evidence would be necessary before an opinion could be rendered. The examiner must provide a rationale for each opinion given. 3. The RO/AMC will then review the Veteran's claims file and ensure that the foregoing development actions have been conducted and completed in full, and that no other notification or development action, in addition to those directed above, is required. If further action is required, it should be undertaken prior to further claim adjudication. 4. The RO/AMC will then readjudicate the Veteran's claim. If the benefit sought on appeal remains denied, the Veteran shall be provided with a Supplemental Statement of the Case. An appropriate period of time should be allowed for response. Thereafter, if appropriate, the case is to be returned to the Board, following applicable appellate procedure. The Veteran need take no action until he is so informed. He 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). The purposes of this remand are to obtain additional information and comply with all due process considerations. No inference should be drawn regarding the final disposition of this claim as a result of this action. 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). _________________________________________________ DEMETRIOS G. ORFANOUDIS 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) (2013).