Citation Nr: 1337889 Decision Date: 11/19/13 Archive Date: 12/06/13 DOCKET NO. 09-43 974 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Entitlement to service connection for a gastrointestinal disorder, to include recurrent gastritis. REPRESENTATION Appellant represented by: Robert C. Brown, Jr., Attorney at Law ATTORNEY FOR THE BOARD M. Peters, Associate Counsel REMAND The RO has indicated that the Veteran had active duty service from January 1971 to December 1972. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO), which, in pertinent part, denied service connection for gastritis. This case was previously before the Board in June 2013, when it denied service connection for dyslipidemia and erectile dysfunction. At that time, the Board also remanded the gastritis claim for further development. Pursuant to the Board's remand, the Veteran underwent a VA examination in July 2013, which in pertinent part revealed that the Veteran has a diagnosis of chronic gastritis, not dyspepsia or peptic ulcer disease (PUD). As an initial matter, the Board notes that the Appeals Management Center (AMC) thereafter continued the denial of service connection in part on the basis that the Veteran's diagnosed gastritis had not been confirmed by a gastroscope; however, it should be noted that only one of the gastritis diagnoses listed in the Rating Schedule requires such a confirmation. Moreover, the Board notes that there are several other types of gastritis-more than the two that are listed in the VA rating schedule-and notes that 38 C.F.R. §§ 4.20 and 4.27, allowing for analogous ratings and use of hyphenated Diagnostic Code numbers, implicitly provide for awards of service connection for diseases beyond those listed in the rating schedule. The July 2013 examiner opined that the Veteran's PTSD did not cause his chronic gastritis disorder, but "the anxiety, as a symptom of the [Veteran]'s PTSD has as likely as not caused an aggravation of the Veteran's gastritis beyond the normal progression of the disease." Such appears to provide a starting point for an award of secondary service connection for gastritis based on aggravation under 38 C.F.R. § 3.310. The provisions of 38 C.F.R. § 3.310 require that VA ". . . not concede that a nonservice-connected disease or injury was aggravated by a service-connected disease or injury unless the baseline level of severity of the nonservice-connected disease or injury is established by medical evidence created before the onset of aggravation or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity of the nonservice-connected disease or injury." The VA examiner does not discuss the baseline level of severity of the Veteran's chronic gastritis in the July 2013 examination report. Thus, service connection may not be awarded based on such comments by an examiner until a baseline level of severity is assessed, and based on that baseline level of severity, the VA examiner can legitimately point to an increased level of disability due to the anxiety caused by PTSD. The Board realizes that the regulation establishes a very unusual evidentiary burden, but the regulation nevertheless requires such an analysis. Accordingly, a remand is necessary in order to obtain an addendum from the July 2013 examiner with regards to baseline level of severity of the Veteran's gastritis. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007); see also Kowalski v. Nicholson, 19 Vet. App. 171, 179 (2005). Ongoing private and VA treatment records should also be obtained. See 38 U.S.C.A. § 5103A(b), (c); 38 C.F.R. § 3.159(b); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim). Accordingly, the case is REMANDED to the agency of original jurisdiction (AOJ) for the following action: 1. Obtain any relevant VA treatment records from the Oklahoma City VA Medical Center, or any other VA medical facility that may have treated the Veteran since July 2013 and associate those documents with the claims file. 2. Ask the Veteran to identify any private treatment that he may have had for a gastrointestinal disorder, which is not already of record. After securing the necessary releases, attempt to obtain and associate those identified treatment records with the claims file. If any identified records cannot be obtained and further attempts would be futile, such should be noted in the claims file and the Veteran should be notified so that he can make an attempt to obtain those records on his own behalf. 3. Furnish the Veteran's claims file to the July 2013 VA examiner in order to obtain an addendum to the July 2013 VA examination report. After reviewing the claims file, the examiner should address what the baseline severity of the Veteran's gastritis was prior to the aggravation by symptoms due to PTSD, and identify all medical evidence on which she relies to identify that baseline. (If a baseline cannot be established before the onset of aggravation, one may be established between the onset of aggravation and receipt of evidence showing current level of disability.) The examiner should also discuss whether articulating such a baseline of severity and the particular medical evidence that she relies on to establish that baseline of severity substantially changes her opinion that the Veteran's PTSD symptoms aggravate his gastritis beyond the normal progression of the disease. All opinions must be accompanied by a clear explanation. If the examiner opines that any of the above questions cannot be resolved without resorting to speculation, then a detailed medical explanation as to why this is so must be provided. (If the July 2013 VA examiner is unavailable to respond, a comparably qualified examiner should be asked to provide an addendum that addresses the above. If the July 2013 VA examiner or any other examiner cannot respond without examination of the Veteran, the Veteran should be schedule for an examination.) 4. Following any additional indicated development, the agency of original jurisdiction should review the claims file and readjudicate the Veteran's claim of service connection for a gastrointestinal disorder, to include recurrent gastritis. If a 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 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) (2013).