Citation Nr: 1542851 Decision Date: 10/06/15 Archive Date: 10/13/15 DOCKET NO. 11-14 075 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to an increased evaluation in excess of 60 percent for ulcerative colitis with history of anemia and cholecystectomy. 2. Entitlement to service connection for a sleep disorder, to include as due to ulcerative colitis. 3. Entitlement to service connection for obesity, to include as due to ulcerative colitis. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD J. L. Wolinsky Associate Counsel INTRODUCTION The Veteran had active military service from September 1993 to August 1997. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The Board has recharacterized the issue of entitlement to service connection for sleepiness to more broadly include entitlement to service connection for a sleep disorder pursuant to Clemons v. Shinseki, 23 Vet. App. 1 (2009) (holding that when a claimant makes a claim, they are seeking service connection for symptoms regardless of how those symptoms are diagnosed or labeled). In August 2015, the Veteran testified at a travel Board hearing conducted before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing has been associated with the claims file. This appeal was processed using the Veterans Benefits Management System (VBMS) paperless claims processing system. Accordingly, any future consideration of this Veteran's case should take into consideration the existence of this electronic record. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The Board finds that further development is required prior to adjudicating the Veteran's claims. 38 C.F.R. § 19.9 (2015). The Veteran has alleged that her ulcerative colitis with history of anemia and cholecystectomy has worsened since her last VA examination. When the Veteran was examined in November 2008 for her ulcerative colitis, she stated that she experienced a gastrointestinal attack once every few months. At the Veteran's travel Board hearing she stated that the condition has worsened and she has a gastrointestinal attack weekly. Thus, a new VA examination is necessary to evaluate the severity of the Veteran's ulcerative colitis. See 38 C.F.R. §§ 3.326, 3.327; Snuffer v. Gober, 10 Vet. App. 400, 403 (1997). Regarding the claims of service connection for a sleep disorder and obesity, the Veteran stated that she has trouble sleeping, and was gaining weight both due to her ulcerative colitis. All potential theories of entitlement raised by the Veteran or the record must be considered. Robinson v. Shinseki, 557 F.3d 1355 (Fed. Cir. 2009); Szemraj v. Principi, 357 F.3d 1370 (Fed. Cir. 2004). The Veteran should be provided a medical examination to obtain a medical opinion as to the etiology of the Veteran's sleep disorder, and obesity, and determine whether or not the Veteran's ulcerative colitis, caused or aggravated the condition. See McLendon v. Nicholson, 20 Vet. App. 79 (2006); See also Allen v. Brown, 8 Vet. App. 374 (1995). The Veteran has not been provided with notice of the laws and regulations pertinent to claims brought under the theory of secondary service connection as per 38 C.F.R. § 3.310 and the Court's holding in Allen v. Brown, 8 Vet. App. 374 (1995). Therefore, on remand, the Veteran must be provided with proper notice of the applicable regulations pertaining to claims brought under a theory of secondary service connection. The Veteran stated that she continues to received VA medical care, updated VA treatment records should be obtained as well. Bell v. Derwinski, 2 Vet. App. 611 (1992). Accordingly, the case is REMANDED for the following action: 1. Obtain any outstanding VA treatment records. All efforts to obtain these records must be documented in the claims file. 2. Provide the Veteran with corrective notice with regard to her claim for service connection for a sleep disorder, and obesity, containing notice of the criteria necessary to substantiate a claim under the theory of secondary service connection. 3. Schedule the Veteran for a VA examination to determine the severity of her ulcerative colitis. The claims folder should be made available to and reviewed by the examiner. All necessary tests should be performed. All pertinent symptomatology and findings must be reported in detail, including whether the Veteran has: infrequent exacerbations; frequent exacerbations; numerous attacks a year and malnutrition, the health only fair during remissions; or marked malnutrition, anemia, and general debility, or with serious complication as liver abscess. The severity of the disability should be characterized as moderate, moderately severe, severe, or pronounced. The examiner should also ascertain whether the Veteran's complaints of sleep impairment, and obesity are manifestations and symptoms of the Veteran's ulcerative colitis, or if they are separate and distinct disabilities. 4. Schedule the Veteran for a sleep impairment examination to determine if the Veteran has a sleep disability; and if so, the etiology of that condition. The claims folder must be made available to and be reviewed by the examiner. All appropriate tests and studies should be accomplished and all clinical findings should be reported in detail. a. Based on the evidence of record, can it be determined with a reasonable degree of medical certainty that the Veteran has a diagnosable sleep impairment? If the Veteran has developed any such disorder, is it at least as likely as not (50 percent or greater probability) that this disorder had its onset during service, or was otherwise caused by any incident that occurred during service, to include complaints of sleep disturbance in-service? b. Is it at least as likely as not (50 percent or greater probability) that the Veteran's ulcerative colitis is the cause of any currently diagnosed sleep impairment? c. Is it at least as likely as not (50 percent or greater probability) that the Veteran's ulcerative colitis caused a worsening of any currently diagnosed sleep impairment, beyond the normal progress of that disease? d. If such aggravation is found, the examiner should determine: (1) the baseline manifestations of the Veteran's sleep impairment; and (2) the increased manifestations that are proximately due to the Veteran's service-connected ulcerative colitis. The examiner should explain the reasons and bases for each opinion provided. In this regard, a discussion of the facts and medical principles involved would be of considerable assistance to the Board. 5. Schedule the Veteran for an examination to determine if the Veteran suffers from obesity or related endocrine disability; and if so, the etiology of that condition. The claims folder must be made available to and be reviewed by the examiner. All appropriate tests and studies should be accomplished and all clinical findings should be reported in detail. a. Based on the evidence of record, can it be determined with a reasonable degree of medical certainty that the Veteran suffers from obesity or a related endocrine disability? If the Veteran has developed any such disorder, is it at least as likely as not (50 percent or greater probability) that this disorder had its onset during service, or was otherwise caused by any incident that occurred during service? b. Is it at least as likely as not (50 percent or greater probability) that the Veteran's ulcerative colitis is the cause of any currently diagnosed obesity or related endocrine disability? c. Is it at least as likely as not (50 percent or greater probability) that the Veteran's ulcerative colitis caused a worsening of any currently obesity or related endocrine disability, beyond the normal progress of that disease? d. If such aggravation is found, the examiner should determine: (1) the baseline manifestations of the Veteran's obesity or related endocrine disability; and (2) the increased manifestations that are proximately due to the Veteran's service-connected ulcerative colitis. The examiner should explain the reasons and bases for each opinion provided. In this regard, a discussion of the facts and medical principles involved would be of considerable assistance to the Board. 6. Thereafter, readjudicate the claims on appeal. If the benefits sought on appeal remains denied, the Veteran and his representative should be issued a supplemental statement of the case, and given an 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 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 2014). _________________________________________________ WAYNE M. BRAEUER Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), 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) (2014).