Citation Nr: 1448522 Decision Date: 10/31/14 Archive Date: 11/05/14 DOCKET NO. 05-16 553 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUE Entitlement to service connection for a gastrointestinal disability, claimed as secondary to service-connected disabilities. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD James A. DeFrank, Counsel INTRODUCTION The Veteran served on active duty from March 1966 to December 1969. This matter comes before the Board of Veterans' Appeals ("Board") on appeal from an April 2005 rating decision issued by the Department of Veterans Affairs ("VA") Regional Office ("RO") in Lincoln, Nebraska which, in part, granted service connection for an adjustment disorder with depressed mood and assigned a 30 percent rating, and denied service connection for gastrointestinal disability and sexual dysfunction. The Veteran subsequently perfected an appeal of the denials of service connection for a gastrointestinal disability and sexual dysfunction, as well as the disability rating assigned for his adjustment disorder. In a July 2007 decision, the Board denied service connection for a gastrointestinal disability and sexual dysfunction, and denied the Veteran's increased rating claims for a low back disability and adjustment disorder with depressed mood. The Veteran subsequently appealed the Board's decision to the United States Court of Appeals for Veterans Claims ("Court"). Thereafter, in a June 2009 Memorandum Decision, the Court vacated the July 2007 Board decision and remanded the case to the Board for further proceedings consistent with its memorandum. In an October 2010 decision, the Board denied service connection for a gastrointestinal disability and sexual dysfunction, and remanded the issues of increased ratings for a service-connected adjustment disorder with depressed mood, and service-connected type II diabetes mellitus. The Veteran appealed the Board's decision to the Court. In a March 2011 Joint Motion for Partial Remand, the Court vacated the October 2010 Board decision denying service connection for a gastrointestinal disability and sexual dysfunction, secondary to service-connected disabilities; and remanded the matters to the Board for further action. The Board observes that in the October 2010 remand/decision, it also denied an increased rating for service-connected left lower extremity paresthesia, and service-connected right lower extremity peripheral neuropathy to include the various staged evaluations therein. However as noted in the Joint Motion for Partial Remand, the parties noted that the Veteran does not contest these issues. Therefore, these issues are not before the Board. In an October 2011 decision, the Board, in part, remanded the issues of service connection for a gastrointestinal disability and sexual dysfunction, and increased ratings for service-connected low back disability and an adjustment disorder with depressed mood. In a December 2012 decision, the Board granted service connection for sexual dysfunction and denied the Veteran's claims of entitlement to service connection for a gastrointestinal disability and entitlement to a rating in excess of 40 percent for a low back disability and a rating in excess of 30 percent for adjustment disorder with depressed mood. The Veteran appealed the denial of the claim for service connection to a gastrointestinal disability to the Court. In an April 2014 Memorandum decision, the Court vacated and remanded this issue for further action. 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. A review of the documents in the electronic file reveals additional evidence that will be considered by the Board in this appeal. The Board again notes that the record shows that the Veteran has a diabetic foot ulcer. As the Veteran has been service-connected for diabetes mellitus, a claim for service connection for a diabetic foot ulcer has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND Following a review of the Veteran's claims file, the Board finds that further development is required prior to the adjudication of the claim for entitlement to service connection for a gastrointestinal disability, claimed as secondary to service-connected disabilities. The Board notes that in its June 2009 Memorandum decision, the Court determined that an August 2005 VA examination was inadequate as it only discussed the Veteran's gastrointestinal disability on a secondary basis. The March 2011 Joint Motion for Partial Remand indicated that the Board, in its October 2010 denial, failed to adequately consider whether the medical evidence of record was adequate. The Joint Motion also determined that a May 2010 VA examination was inadequate and that another examination was necessary to determine the etiology of the Veteran's current gastrointestinal disability. The Veteran subsequently underwent VA examinations in May 2011 and December 2011. However, the April 2014 Joint Motion determined that the December 2012 Board decision which relied on the May 2011 and December 2011 VA examinations, focused on whether the Veteran was entitled to benefits on a secondary basis and failed to address whether the Veteran was entitled to benefits on a direct basis. Accordingly, the Joint Motion specifically instructed the Board to obtain a medical examination which addressed whether the Veteran was entitled to benefits for service connection for a gastrointestinal disability on a direct basis. As a result, an additional comprehensive medical examination is needed to specifically determine if the Veteran has a current gastrointestinal disability on a direct basis. The Federal Circuit has determined that a claimant is not precluded from establishing service connection with proof of direct causation. See Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994); 38 C.F.R. § 3.303(d). Accordingly, the case is REMANDED for the following action: 1. The Veteran should be requested to provide the names, addresses and approximate dates of treatment of all medical care providers, VA and non-VA, who have treated him for the disability on appeal. After the Veteran has signed the appropriate releases, those records should be obtained and associated with the claims folder. Appropriate efforts must be made to obtain all available VA treatment records. All attempts to procure records should be documented in the file. If the AMC/RO cannot obtain records identified by the Veteran, a notation to that effect should be inserted in the file. The Veteran is to be notified of unsuccessful efforts in this regard, in order to allow him the opportunity to obtain and submit those records for VA review. 2. Schedule the Veteran for a VA examination to determine the existence, and if so, etiology of the claimed gastrointestinal disability. Based on a review of the record and an examination of the Veteran, the physician should offer an opinion as to whether the Veteran has a gastrointestinal disability and if so, whether it is at least as likely as not (50 percent probability or greater) that the gastrointestinal disability is related to service. The examiner should also determine whether any gastrointestinal disability and/or irritable bowel syndrome found on examination was caused by, or is aggravated by any of the Veteran's service-connected disabilities (low spine disability, adjustment disorder, diabetes mellitus, tinnitus, bilateral hearing loss, left lower extremity paresthesia, right lower extremity peripheral neuropathy or erectile dysfunction), or treatment thereof to include any medication prescribed. If any of the service-connected disabilities aggravate (i.e., permanently worsen) the gastrointestinal disability and/or irritable bowel syndrome, the examiner should identify the percentage of disability which is attributable to the aggravation. All indicated tests and studies are to be performed. Prior to the examination, the claims folder must be made available to the physician for review of the case. A complete rationale for any opinion expressed should be provided. 3. Ensure that the addendum/examination report complies with this remand and answers the questions presented herein. If any report is insufficient, it should be returned to the examiner for necessary corrective action, as appropriate. 4. Then, after ensuring any other necessary development has been completed, readjudicate the Veteran's claim. If any benefit sought remains denied, the Veteran and his representative should be furnished an appropriate supplemental statement of the case and be afforded the opportunity to respond. Thereafter, the case should be returned to the Board for appellate review. 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. 2013). _________________________________________________ J. K. BARONE Acting 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).