Citation Nr: 1338025 Decision Date: 11/20/13 Archive Date: 12/06/13 DOCKET NO. 10-00 018 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for a stomach disability to include gastritis, a hiatal hernia, and irritable bowel syndrome. 2. Entitlement to an initial disability rating in excess of 30 percent for posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD M. Harrigan Smith, Counsel INTRODUCTION The Veteran served on active duty from August 2002 to December 2002 and from January 2003 to January 2005. This claim comes before the Board of Veterans' Appeals (Board) on appeal from an August 2008 rating decision of the Department of Veterans Affairs' (VA) Regional Office (RO) in St. Petersburg, Florida. The Board has recharacterized the service connection claim as it appears on the first page of this decision so as to best reflect the Veteran's intent when filing her claim. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). In September 2010, the Veteran presented testimony before the undersigned; a transcript of her hearing has been associated with the record. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 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 As to the claim of service connection for a stomach disability, a review of the record on appeal reveals that the Veteran has been diagnosed with gastritis, a hiatal hernia, and irritable bowel syndrome. Moreover, the Veteran claims that her stomach disabilities started while on active duty and/or are due to the anxiety caused by her service connected PTSD. Additionally, the Board finds that not only is the Veteran competent to report on the observable symptomatology of her stomach disabilities (i.e., nausea, pain, vomiting, etc. . .) even when not documented in her medical records (see Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009)) but a private esophagogastroduodenoscopy (EGD) dated in May 2004 diagnosis her with gastritis while on active duty. Furthermore, while the Veteran was provided with a VA examination in May 2008, that examiner neither considered the Veteran's competent lay claims regarding her observable adverse symptomatology in-service and since that time nor the May 2004 diagnosis of gastritis. The May 2008 VA examiner also did not provide an opinion as to whether any current stomach disability including gastritis, a hiatal hernia, and irritable bowel syndrome was caused or aggravated by the Veteran's service connected PTSD. 38 C.F.R. § 3.310 (2013); Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). Therefore, the Board finds that this issue must be remanded to obtain a needed medical opinion as to whether the Veteran has a current stomach disorder related to service or to her service-connected PTSD. See 38 U.S.C.A. § 5103A(d)(West 2002); Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). As to the claim for an initial disability rating in excess of 30 percent for PTSD, at her hearing the Veteran testified, in substance, that her adverse PTSD symptomatology has become worse since the last August 2008 VA examination. As such, VA is required to afford the Veteran a contemporaneous VA examination to assess the current nature, extent, and severity of her PTSD. See Snuffer v. Gober, 10 Vet. App. 400, 403 (1997); see also VAOPGCPREC 11-95 (1995), 60 Fed. Reg. 43186 (1995). Thus, the Board has no discretion and must remand this claim. Also at her personal hearing, the Veteran testified, in substance, that she receives ongoing VA as well as private treatment for her PTSD and ongoing VA treatment for her stomach disability. However, the most recent medical records in the claims file are from August 2010. Therefore, while the appeal is in remand status her contemporaneous treatment records should be obtained and associated with the claims file. See 38 U.S.C.A. § 5103A(d) (West 2002); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992); Ivey v. Derwinski, 2 Vet. App. 320, 323 (1992) (holding that when reference is made to pertinent medical records, VA is on notice of their existence and has a duty to assist the veteran to attempt to obtain them). Accordingly, the appeal is REMANDED to the RO/AMC for the following actions: 1. Associate with the claims file, physically or electronically, all of the Veteran's post-August 2010 treatment records from the Bay Pines VA Medical Center. All actions to obtain the requested records should be documented fully in the claims file. 2. After obtaining authorizations from the Veteran, associate with the claims file, physically or electronically all of her post-August 2010 private treatment records. All actions to obtain the requested records should be documented fully in the claims file. 3. After undertaking the above development to the extent possible, the RO/AMC shall schedule the Veteran for a VA gastrointestinal examination to ascertain the diagnoses as well as the onset and/or etiology of all stomach disabilities including gastritis, a hiatal hernia, and irritable bowel syndrome. The claims file must be made available to and reviewed by the examiner and all necessary tests should be conducted. The examiner is requested to identify all stomach disabilities found to be present or that were diagnosed during and since service. Diagnoses of gastritis, a hiatal hernia, and irritable bowel syndrome should be ruled in or excluded. As to each diagnosed stomach disability, the examiner must opine as to whether it is at least as likely as not related to or had its onset in service. As to each diagnosed stomach disability, the examiner must opine as to whether it was (a) caused by or (b) is aggravated (permanently worsened) by any of the Veteran's service-connected disabilities including PTSD as well as the medications she takes for these disabilities. If aggravation is present, the clinician should indicate, to the extent that is possible, the approximate level of disability (i.e., a baseline) before the onset of the aggravation. The examiner in the report must be specifically acknowledged and considered the May 2004 EGD that diagnosis the Veteran with gastritis while on active duty. The examiner is also advised that the Veteran is competent to report her 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 disability in the Veteran's service treatment records cannot, standing alone, serve as the basis for a negative opinion. 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. A complete rationale with citation to relevant evidence found in the claims file must be provided for each opinion offered. 4. After undertaking the above development to the extent possible, provide the Veteran with a VA examination to determine the severity of her PTSD. The claims file should be provided to the examiner in connection with the examination. The examiner shall conduct all indicated tests and studies and all clinical findings should be reported in detail. The examiner is to thereafter provide a detailed review of the Veteran's history, current complaints, and the nature and extent of her PTSD. In this regard, the examiner should provide an opinion as to the level of social and occupational impairment caused by her PTSD and provide a global assessment of functioning (GAF) score based on her PTSD. In providing the above information, the examiner should comment on and/or take note of the fact that the claimant is competent and credible to report on the observable symptoms of her disability. A complete rationale with citation to relevant evidence found in the claims file must be provided for each opinion offered. 5. After undertaking any other needed development, readjudicate the claims. If any benefit sought on appeal is not granted in full, the Veteran should be provided a supplemental statement of the case (SSOC) that includes notice of all relevant the laws and regulations as well as citation to all evidence received since the issuance of the most recent supplemental statement of the case. A reasonable period of time should be allowed for response before the appeal is returned to the Board. The appellant 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). These claims 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. 2012). _________________________________________________ NEIL T. WERNER Acting 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).