Citation Nr: 1340420 Decision Date: 12/06/13 Archive Date: 12/20/13 DOCKET NO. 07-35 365 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to an increased evaluation for residuals, status-post right colectomy with ileo/ascending colon anastomosis, claimed as intestinal condition, removal of part of colon, bowel obstruction, and chronic diarrhea, initially evaluated as 10 percent disabling prior to July 14, 2011, and 30 percent disabling thereafter. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD L. Jeng, Counsel INTRODUCTION The Veteran had active service from July 1994 to August 1998. He also had active service in the Georgia Army National Guard from February 2003 to June 2004, including service in support of Operation Enduring/Iraqi Freedom from March to July 2003. This matter came before the Board of Veterans' Appeals (Board) on appeal from a January 2007 decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. The Veteran was also awarded service connection for kidney stones, claimed as kidney problems, in the January 2007 rating decision currently on appeal. The RO evaluated this disability as non-compensably disabling under 38 C.F.R. § 4.118, Diagnostic Code 7508, effective October 25, 2006. The Veteran was notified of this decision, provided his appellate rights, and perfected this appeal. A subsequent rating decision dated July 2008 increased the Veteran's disability rating to 10 percent under Diagnostic Code 7508, effective May 11, 2007. The Veteran thereafter submitted a statement dated July 2008 in which he expressed disagreement with the effective date of the 10 percent disability rating for kidney stones. However, the Veteran also stated "I agree with your assessment and my rating as it pertains to my kidney stones." Accordingly, the issue pertaining to the rating assigned to the kidney stones is no longer before the Board. With respect to the Veteran's earlier effective date claim for the award of 10 percent for kidney stones, the RO issued a statement of the case (SOC) on this issue in March 2009, but there is no indication that the Veteran perfected an appeal on this issue. Therefore, the earlier effective date claim is not before the Board. In June 2011, the Board remanded this matter for further development which has been completed, and the case has been returned to the Board for appellate consideration. Along with the claim currently on appeal, in the June 2011 remand the Board also addressed the issue of service connection for hair loss, to include as secondary to service-connected residuals, status-post right colectomy with ileo/ascending colon anastomosis, which had been perfected for appeal. During the pendency of this appeal in a September 2012 rating decision, the Appeals Management Center (AMC) granted service connection for hair loss (alopecia areata) and assigned a non-compensable evaluation effective October 25, 2006. This represents a full grant of the claim for service connection. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997) (noting that a grant of service connection extinguishes appeals before the Board). The Board notes that, in addition to the paper claims file, there is a Virtual VA electronic claims file associated with the Veteran's claim. The Board has reviewed the documents in both the paper claims file and the electronic claims file. In his August 2011 statement, the Veteran raised the issues of service connection for headaches, a back disorder, and a neck disorder as well as an increased rating for his service-connected shoulder disability, which have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over these issues, and they are REFERRED to the AOJ for appropriate action. The appeal is REMANDED to the RO via the AMC, in Washington, DC. VA will notify the Veteran if further action is required. REMAND Pursuant to the Board's June 2011 remand, the Veteran was afforded an examination for his service-connected gastrointestinal disability in July 2011. In various statements, the Veteran indicated that the July 2011 examination was inadequate stating that the evaluation was "cursory at best and only consisted of a verbal examination and the measurement of [his] abdominal incision from 2004." See August 2011 statement. The Veteran further stated that he did "not feel that enough effort has not been made to thoroughly and comprehensively understand [his] ongoing digestion condition and all of its related repercussions." Id. Additionally, the Veteran indicated that his symptoms have worsened and his disability affects his employment. See August 2012 statement. In this regard, the Board notes that the VA examiner found that the disability had no significant effects on the Veteran's occupation. Based on the Veteran's contentions and the current evidence of record, the Board finds that another examination is warranted. To the extent that the Veteran indicates that his disability affect his employment, the Board infers a request for extra-schedular consideration. The Board notes that an extra-schedular rating under 38 C.F.R. § 3.321(b) (1) is based on the fact that the schedular ratings are inadequate to compensate for the average impairment of earning capacity due to the Veteran's disability. Exceptional or unusual circumstances, such as frequent hospitalization or marked interference with employment, are required. Based on the Veteran's assertions, the Board will refer the Veteran's claim to the Under Secretary for Benefits or Director of Compensation and Pension Service for an extra-schedular evaluation. Accordingly, the case is REMANDED for the following actions: 1. Obtain VA treatment records pertaining to the Veteran that date from March 2011. 2. Schedule the Veteran for a VA examination to assess the nature and severity of his currently service-connected gastrointestinal disability. The examiner should note in the examination report that the claims file has been reviewed. Any appropriate evaluations, studies, and testing deemed necessary by the examiner should be conducted at this time, and included in the examination report. In particular, the examiner is asked to provide information concerning the nature and severity of the Veteran's service-connected gastrointestinal disability. Given the varied and complex nature of the Veteran's disability and its accompanying symptoms, the examiner is asked to use the following disability examination worksheets when conducting the examination: (1) digestive conditions, miscellaneous; (2) intestines; and (3) stomach, duodenum, and peritoneal adhesions. The examiner must complete all of the above referenced examination worksheets. The examiner is also asked to distinguish, if possible, those symptoms that are related to the Veteran's service-connected disability and those symptoms, if any, that are related to a non-service-connected disability. If the examiner is unable to distinguish the symptoms, the examiner should indicate as such. The examiner should also provide an opinion concerning the impact of the Veteran's disability on his industrial pursuits. The examiner must provide a complete rationale for any stated opinion. 3. After the requested examination has been completed, review the examination reports to ensure that they comply with the directives of this remand. The examination report should be returned to the examiner if it is deficient in any manner. 4. Refer the Veteran's case to the Under Secretary for Benefits or Director of Compensation for consideration of whether an extra-schedular rating is warranted for the service-connected disability under 38 C.F.R. § 3.321(b). The response from the Under Secretary for Benefits or the Director of Compensation must be associated with the claims file or Virtual VA/VBMS. 5. Thereafter, ensure that the development above has been completed in accordance with the remand instructions, undertake any other development action that is deemed warranted, and readjudicate the Veteran's claim to include based upon the response from the Under Secretary for Benefits or the Director of Compensation. If the benefit sought on appeal remains denied, the Veteran and his representative should be provided a supplemental statement of the case (SSOC). An appropriate period of time should be allowed for response before the case is returned to the Board. The Veteran 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 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). _________________________________________________ S.S. TOTH 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).