Citation Nr: 1601529 Decision Date: 01/14/16 Archive Date: 01/21/16 DOCKET NO. 09-26 038 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois THE ISSUE Entitlement to an initial rating in excess of 10 percent for irritable bowel syndrome. REPRESENTATION Appellant represented by: Military Order of the Purple Heart of the U.S.A. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD S. Kim, Associate Counsel INTRODUCTION The Veteran served on active duty from July 2003 to December 2007. This appeal to the Board of Veterans' Appeals (Board) arose from an April 2009 rating decision in which the RO granted service connection for irritable bowel syndrome and assigned a 10 percent rating, effective December 18, 2007. In May 2009, the Veteran filed a notice of disagreement (NOD). In June 2009, the RO issued a statement of the case (SOC), and the Veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals) in July 2009. Because the Veteran has disagreed with the initial rating assigned following the award of service connection for irritable bowel syndrome, the Board characterized this claim in light of the distinction noted in Fenderson v. West, 12 Vet. App. 119, 126 (1999) (distinguishing initial rating claims from claims for increased ratings for already service-connected disability). In November 2015, the Veteran testified during a Board video-conference hearing before the undersigned Veterans Law Judge. A transcript of that hearing is of record. Thereafter, the Veteran submitted additional evidence with a waiver of initial RO consideration. See 38 C.F.R. § 20.1304 (2015). The Board notes that while the RO in St. Louis, Missouri was the host of the November 2015 video-conference hearing, the record reflects that the appeal is within the jurisdiction of the RO in Chicago, Illinois. This appeal has been processed utilizing the Veterans Benefits Management System (VBMS) and Virtual VA paperless, electronic claims processing systems. For reasons expressed below, the claim on appeal is being remanded to the agency of original jurisdiction (AOJ). VA will notify the Veteran when further action, on her part, is required. REMAND The Board's review of the claims file reveals that further AOJ action in this appeal is warranted. The Veteran was last afforded a VA examination of irritable bowel syndrome in October 2008. However, since that time, the Veteran has indicated a worsening of her service-connected disability. Specifically, during the November 2015 video-conference hearing, the Veteran testified that her irritable bowel syndrome symptoms have worsened. She testified that it has been difficult to find specific food items that trigger her irritable bowel syndrome symptoms and that her weight has decreased from 156 pounds to 115 pounds since she filed her claim, even though she does not want to lose weight. The Veteran further reported that over-the-counter medications have not helped her symptoms, which was not noted by the October 2008 VA examiner. In light of the Veteran's statements, the time period since the October 2008 VA examination, and the possible worsening of her irritable bowel syndrome, the Veteran should be afforded a new VA examination to determine the current nature and severity of her service-connected irritable bowel syndrome. See Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994); VAOPGCPREC 11-95 (1995). The Veteran is hereby advised that failure to report to the scheduled examination, without good cause, may result in denial of the claim. See 38 C.F.R. § 3.655 (2015). Examples of good cause include, but are not limited to, the illness or hospitalization of the claimant and death of an immediate family member. Prior to arranging for the Veteran to undergo VA examination, to ensure that all due process requirements are met, and the record is complete, the AOJ should undertake appropriate action to obtain and associate with the claims file all outstanding, pertinent records. As for VA records, the claims file reflects that the Veteran has been receiving treatment for her disability from the St. Louis VA Medical Center (VAMC) and that records from that facility dated through May 2012 are associated with the claims file; however, more recent VA medical records may exist. The Board emphasizes that records generated by VA facilities that may have an impact on the adjudication of a claims are considered constructively in the possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file. See Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). Therefore, the AOJ should obtain from the St. Louis VAMC all pertinent, outstanding records of treatment of the Veteran dated since May 2012 following the current procedures prescribed in 38 C.F.R. § 3.159(c) with regard to requests for records from Federal facilities. The AOJ should also give the Veteran another opportunity to provide additional information and/or evidence pertinent to the claims on appeal (to include pertaining to private (non-VA) treatment), explaining that he has a full one-year period for response. See 38 U.S.C.A § 5103(b)(1); but see also 38 U.S.C.A. § 5103(b)(3) (clarifying that VA may make a decision on a claim before the expiration of the one-year notice period). Thereafter, the AOJ should attempt to obtain any additional evidence for which the Veteran provides sufficient information, and, if needed, authorization, following the current procedures prescribed in 38 C.F.R. § 3.159. The actions identified herein are consistent with the duties imposed by the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. §§ 5103, 5103A (West 2014); 38 C.F.R. § 3.159 (2015). However, identification of specific actions requested on remand does not relieve the AOJ of the responsibility to ensure full compliance with the VCAA and its implementing regulations. Hence, in addition to the actions requested above, the AOJ should also undertake any other development and/or notification action deemed warranted by the VCAA prior to adjudicating the claim on appeal. Accordingly, this matter is hereby REMANDED for the following action: 1. Obtain from the St. Louis VAMC all relevant, outstanding records of evaluation and/or treatment of the Veteran dated since May 2012. Follow the procedures of 38 C.F.R. § 3.159 (2015) as regards requesting records from Federal facilities. All records and/or responses should be associated with the claims file. 2. Send to the Veteran and her representative a letter requesting that the Veteran provide sufficient information, and if necessary, authorization to obtain any additional evidence pertinent to the claim on appeal that is not currently of record. Specifically request that the Veteran furnish, or furnish appropriate authorization to obtain, all outstanding, pertinent private (non-VA) records. Clearly explain to the Veteran that she has a full one-year period to respond (although VA may decide the claim within the one-year period). 3. If the Veteran responds, obtain all identified records following the procedures set forth in 38 C.F.R. § 3.159. All records and responses received should be associated with the claims file. If any records sought are not obtained, notify the Veteran and her representative of the records that were not obtained, explain the efforts taken to obtain them, and describe further action to be taken. 4. After all records and/or responses received from each contacted entity have been associated with the claims file, arrange for the Veteran to undergo VA examination by an appropriate physician. The contents of the entire, electronic claims file (in Virtual VA and VBMS), to include a complete copy of this REMAND, must be made available to the designated physician, and the examination report should include discussion of the Veteran's documented history and lay assertions. All indicated tests and studies should be accomplished (with all results made available to the examiner prior to the completion of his or her report) and all clinical findings should be set forth, in detail. The examiner should identify, and comment on the nature, frequency, and/or severity (as appropriate) of all current irritable bowel syndrome symptoms. He or she should discuss those findings in relation to the pertinent evidence of record, particularly the Veteran's previous VA examination conducted in October 2008, and any lay and/or clinical evidence suggesting that her irritable bowel syndrome symptoms have worsened, resulting in severe symptoms of diarrhea, or alternating diarrhea and constipation, with more or less constant abdominal distress. Additionally, based on the examination findings/testing results, and review of the Veteran's documented medical history and assertions, the examiner should indicate whether, at any time since the December 2007 effective date of the award of service connection, the Veteran's irritable bowel syndrome has changed in severity; and if so, the approximate date(s) of any such change(s), and the extent of severity of the disability at each stage. All examination findings/testing results, along with complete, clearly-stated rationale for the conclusions reached, must be provided. 5. To help avoid future remand, ensure that all requested actions have been accomplished (to the extent possible) in compliance with this REMAND. If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken. See Stegall v. West, 11 Vet. App. 268 (1998). 6. After completing the requested actions, and any additional notification and/or development deemed warranted, adjudicate the claim on appeal in light of all pertinent evidence and legal authority (to include consideration of whether staged rating of the disability, pursuant to Fenderson (cited above) is appropriate). 7. If the benefit sought on appeal remains denied, furnish the Veteran and her representative an appropriate supplemental statement of the case that includes clear reasons and bases for all determinations, and afford them the appropriate time period for response. The purpose of this REMAND is to afford due process and to accomplish additional development and adjudication; it is not the Board's intent to imply whether the benefits requested should be granted or denied. The Veteran need take no action until otherwise notified, but she may furnish additional evidence and/or argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999). This REMAND must be afforded expeditious treatment. The law requires that all claims 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). _________________________________________________ JACQUELINE E. MONROE 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 the appeal. 38 C.F.R. § 20.1100(b) (2015).