Citation Nr: 1337774 Decision Date: 11/19/13 Archive Date: 12/06/13 DOCKET NO. 11-02 231 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUE Entitlement to an increased rating for status post sigmoidectomy for diverticulosis, currently rated as 10 percent disabling. ATTORNEY FOR THE BOARD Michael Sanford, Associate Counsel REMAND The Veteran had active military service from April 1980 to June 2001. He served as a member of an Army National Guard unit from June 1976 to April 1980, which service included a period of active duty for training from July to November 1976. This case comes before the Board of Veterans' Appeals (Board) on appeal of a September 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Pittsburgh, Pennsylvania. The instant appeal must be remanded so that the agency of original jurisdiction (AOJ) can first consider newly submitted evidence. Additionally, the Veteran must be provided a new VA examination, given the apparent increase in severity of his service-connected disability since his last VA examination. After the Veteran's appeal was certified to the Board in March 2011, the Veteran submitted a statement and doctor's note concerning his diverticulitis. This evidence, having been submitted after his appeal was certified to the Board, was not considered by the AOJ. Unless there is good cause for filing new evidence more than 90 days from the date the file was transferred to the Board, the general rule is that Board cannot accept it. See 38 C.F.R. § 20.1304(b) (2013). Here, the Board finds there is good cause to accept the additional evidence, which relates to his service-connected disability because the evidence submitted was not prepared until September 2012 and was submitted to the RO immediately thereafter. While the evidence was not submitted directly to the Board, the Veteran made some attempt to timely submit the evidence as the evidence was received by the RO some seven days after it was created. Good cause having been found, and the Veteran having not waived his right to have the new evidence considered by the AOJ, further consideration of the evidence is required. See 38 C.F.R. § 20.1304(c) (2013). The Veteran submitted to a VA examination in October 2010. At that examination, the examiner described the Veteran's symptoms as "[the Veteran] has no complaints of any type: no abdominal pains, no diarrhea, no constipation." Since then, the Veteran has asserted that at the time of his October 2010 "VA examination, [he] had no abdominal pain, diarrhea or constipation however [he] had some episodes since then." January 2011 VA Form 9. As a result of the Veteran's VA examination, the examiner diagnosed the Veteran as having "abating diverticulitis." October 2010 VA Examination Report. However, since that examination, the Veteran was apparently treated in September 2012 for diverticulitis. See September 2012 Treatment Record. In light of this evidence, the Board finds that another VA examination is warranted to assess the current severity of the Veteran's disability. 38 U.S.C.A. § 5103A (d) (West 2002); 38 C.F.R. § 3.159(c) (4) (2013). The Veteran is entitled to another VA examination where there is evidence (including his statements) that the condition has worsened since the last examination. Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994); VAOPGCPREC 11-95 (1995). VA's duty to assist a veteran includes providing a thorough and contemporaneous examination when the record does not adequately reveal the current state of the Veteran's disability. Hart v. Mansfield, 21 Vet. App. 505, 508 (2007). Accordingly, in order to assess accurately the severity of the Veteran's status post sigmoidectomy for diverticulosis, another examination is required. Accordingly, the case is REMANDED for the following action: 1. Contact the Veteran and request that he provide information as to the dates of any treatment received for his service-connected status post sigmoidectomy for diverticulosis since June 2009, and to furnish signed authorizations for the release to VA of private medical records in connection with each non-VA source he identifies. Copies of the medical records not already in the claims folder should be requested from all sources. All records obtained should be added to the claims folder, and any translation to English that may be necessary should be undertaken. 2. Thereafter, schedule the Veteran for a VA examination to determine the current severity of his service-connected status post sigmoidectomy for diverticulosis. The claims file, including a copy of this remand, must be made available to the examiner for review. Any testing necessary to determine the severity of and the symptomatology associated with the Veteran's service-connected status post sigmoidectomy for diverticulosis must be completed. The examiner should specifically comment on the severity of the Veteran's service-connected status post sigmoidectomy for diverticulosis and any current symptomatology associated with that disability. Symptoms should be characterized by the examiner as being slight, moderate, or severe. 3. The AOJ must ensure that all requested actions have been accomplished in compliance with this remand. If any action is not undertaken, or is completed in a deficient manner, appropriate corrective action should be undertaken. See Stegall v. West, 11 Vet. App. 268 (1998). 4. Thereafter, the AOJ should re-adjudicate the Veteran's claim for a higher rating on the basis of all evidence of record and all applicable laws and regulations. If the benefit sought remains denied, the Veteran should be furnished a supplemental statement of the case (SSOC), which includes a summary of additional evidence submitted, and any additional applicable laws and regulations. The SSOC must provide reasons and bases for the decision reached. Thereafter, the Veteran should be given the opportunity to respond before the case is returned to the Board. 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 case must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board 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). ________________________________ MARK F. HALSEY Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board 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).