Citation Nr: 1338159 Decision Date: 11/20/13 Archive Date: 12/06/13 DOCKET NO. 08-35 141 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Honolulu, Hawaii THE ISSUES 1. Entitlement to service connection for a gastric disability. 2. Evaluation of bilateral hearing loss disability, rated as 0 percent disabling prior to October 8, 2008. 3. Evaluation of bilateral hearing loss disability, currently rated as 10 percent disabling. REPRESENTATION Appellant represented by: Vietnam Veterans of America ATTORNEY FOR THE BOARD J. Smith, Counsel INTRODUCTION The Veteran served on active duty from December 1973 to December 1976. The Veteran's claim comes before the Board of Veterans' Appeals (Board) on appeal from a July 2007 rating decision of the Department of Veterans Affairs' (VA) Regional Office (RO) in Honolulu, Hawaii. In January 2012 and May 2013 the Board partially adjudicated the appeal, and remanded the above-captioned claims for additional development. This appeal was processed using the Virtual VA paperless claims processing system. Accordingly, any future consideration of this appellant's case should take into consideration the existence of this electronic record. This 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 After having carefully considered the case, and for the following reasons, the Board believes that the appeal must be remanded for further development of the record. In May 2013, the Board remanded the above-captioned claims in order to obtain additional medical opinions necessary for appellate adjudication. With regard to the claim for a gastric disability, the Board found that the April 2012 VA examination that had been conducted was inadequate. The examiner found that a gastric condition was noted upon entry into service. However, the Board noted that Veteran's December 1973 entrance examination was normal for his abdomen, viscera, anus, and rectum, and that the Veteran had denied a history of all related symptomatology at that time. Additionally, the Board found the examiner failed to discuss a May 1975 service treatment record showing that the Veteran complained of blood in his bowel movements. The Board further found the examination inadequate because it did not address all of the Veteran's current gastric diagnoses, which were noted to include abdominal distention, esophagitis, mild chronic gastritis, ulcers in the duodenum, and duodenitis. The Veteran's claim was one for a gastric condition, which the Board interpreted to include all related diagnoses reasonably raised by the record. In May 2013, an addendum VA medical opinion was obtained from the April 2012 examiner. The examiner's response to the Board's remand questions is confusing and contradicting. In response to the inquiry as to whether it was clear and unmistakable that the disorder preexisted service, the examiner determined that it was "at least as likely as not" that the Veteran entered service with a gastric disorder. However, later in the report, the examiner stated that such a disorder "clearly and unmistakably" was present prior to service. This point must be clarified as the "clear and unmistakable" standard is the only one applicable in the determination. Next, the examiner found that the preexisting disorder was "clearly and unmistakenly [sic] not aggravated beyond its natural progression by an inservice injury, event or illness as there are no documented complaints or evaluations of a gastric condition during service." The examiner further found it less likely than not that the Veteran's current gastric disabilities were related to service because "records do not document any gastric complaints during service" and the first available documentation of gastric problems was dated from 1980. Significantly, in reaching these determinations the examiner made no mention of the May 1975 service treatment record showing that the Veteran complained of blood in his bowel movements. If the Veteran did enter service with a preexisting gastric disability, this record must be addressed in order to ascertain whether the disability underwent any increase in disability, and if it did, whether the increase was due to the natural progression of the condition. For any current gastric disability that did not preexist service, the record must be addressed in determining whether the present conditions could be related to service. With regard to the claims involving the Veteran's hearing loss disability, in May 2013 the Board noted that in its last remand, the AMC was to contact the private audiologist who conducted February 2007, October 2008, and May 2010 examinations to determine whether the Maryland CNC word test was used and to provide numerical values for the pure tone thresholds that were reported on charts. See VA Examination, received June 12, 2007 (contains February 2007 examination); Medical Treatment Records - Non Government Facility, received November 28, 2008 (contains October 2008 examination); Medical Treatment Records - Non Government Facility, received May 27, 2010 (contains May 2010 examination). The Board noted that AMC had not done this, or requested a release from the Veteran as to this matter. In the remand directive, the Board further requested that numerical values be provided for the pure tone thresholds, in decibels, at each of the frequencies 1000, 2000, 3000, and 4000 Hertz. The Board also requested the average of these scores from the cited examinations. Again, the AMC did not secure this information. As pointed out by the Veteran's representative, in the July 2013 supplemental statement of the case (SSOC), the AMC listed as evidence only the VA examinations completed in July 2007 and March 2012 (which were of record at the time of the last remand), and the May 2013 addendum opinion pertaining to the gastric disability on appeal. In the SSOC, the AMC stated that a VA examiner had been consulted, who apparently found that the 2007 private audiologist employed the Maryland CNC word test. Numerical values were provided for the 2007 VA examination. However, the Board cannot point to documentation of this consultation anywhere in the record, including in the VBMS electronic file or the Virtual VA file. Additionally, the requested information as to the October 2008 and May 2010 examinations was not obtained. Accordingly, the case is REMANDED for the following action: 1. Request clarification from D.T., the audiologist that conducted the February 2007, October 2008, and May 2010 private medical examinations. Ask whether the speech recognition scores were determined using the Maryland CNC list or another list. Also, request that numerical values be provided for the pure tone thresholds, in decibels, at each of the frequencies 1000, 2000, 3000, and 4000 Hertz, as well as the average of these scores from the above examinations. If D.T. is unavailable, request that a VA audiologist review the records and determine whether he or she can answer the questions posed above. If so, the information sought should be clearly provided. Document for the claims file all correspondence and responses received. 2. Afford the Veteran a VA gastrointestinal examination to address the nature and likely etiology of his gastric disabilities. The examiner is to be provided access to the claims folder and Virtual VA as needed. Any and all indicated studies deemed necessary by the examiner should be accomplished. The examiner is requested to review all pertinent records associated with the claims file and offer comments and an opinion addressing the following questions: (a.) Is it clear and unmistakable (i.e., obvious, manifest, or undebatable) that the Veteran had a gastric disorder prior to his entry into active duty in December 1973? (b.) If so, on the basis of all the evidence of record pertaining to the manifestations of the Veteran's gastric disorder prior to, during, and subsequent to service, is it clear and unmistakable that the Veteran's preexisting gastric disorder either (1) underwent no increase in disability during either period of service, or (2) that any increase in disability during either period of service was due to the natural progression of the condition? (c.) Is it as least as likely as not that any current gastric disorder is causally related to any incident of the Veteran's service or to aggravation of any preservice gastric disorder during service? In responding to these questions, the examiner must address the May 1975 service treatment record showing that the Veteran complained of blood in his bowel movements. The examiner is asked to address all diagnoses given in the record since he filed his claim in July 2006, which includes GERD, abdominal distention, esophagitis, mild chronic gastritis, ulcers in the duodenum, and duodenitis. All opinions should be supported by a clear rationale, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. 3. The Veteran should be notified that it is his responsibility to report for any examination and to cooperate in the development of the claims. The consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2013). 4. After the completion of any action deemed appropriate, the appellant's claims should be readjudicated. If any benefit sought remains denied, the appellant should be provided a supplemental statement of the case and given the opportunity to respond. 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). 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. 2012). _________________________________________________ H. N. SCHWARTZ 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).