Citation Nr: 1604718 Decision Date: 02/08/16 Archive Date: 02/18/16 DOCKET NO. 08-15 027 ) DATE ) ) Received from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to service connection for a digestive system disability, including diverticulosis and anal fissures, to include due to a qualifying chronic disability under 38 C.F.R. § 3.317. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD J. Rothstein, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1968 to November 1971, from May 1975 to November 1976, and from November 1990 to May 1991 including service in the Southwest Asia Theater from January 1991 to May 1991. The Veteran also had over 18 years of service with a reserve component from 1968 to 1993. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. Jurisdiction over the appeal currently resides with the RO in Montgomery, Alabama. In March 2012, the Board remanded the appeal to the RO via the Appeals Management Center (AMC), in Washington, DC for further development. After completion of the requested actions, the AMC issued a November 2012 supplemental statement of the case (SSOC), continuing the denials of the Veteran's claims, and returned the appeal to the Board. In April 2014, the Board, among other things, again remanded the Veteran's claim of service connection for the issue listed above, along with the issue of service connection for fatigue, to include due to a qualifying chronic disability under 38 C.F.R. § 3.317, to the RO via the AMC to ensure compliance with the Board's March 2012 remand instructions. Thereafter, in a July 2015 rating decision, the AMC granted service connection for fatigue. As such, this issue is no longer before the Board. At the same time, in a July 2015 SSOC, the AMC continued the previous denial of the Veteran's claim of service connection for the issue listed above. Accordingly, the Veteran's VA claims file has now been returned to the Board for further appellate proceedings. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND A review of the Veteran's records reveals that some records pertinent to the issue on appeal may be missing from his claims file. Particularly, in a July 2015 SSOC, the AMC indicated review of private treatment records that have not been associated with the Veteran's claims file. The July 2015 SSOC specifically noted that the AMC conducted review of "Private Treatment Records, from February 6, 2003 through April 16, 2013." Regarding private treatment records, the claims file available for Board review only contains the following: treatment reports from Dr. M. from February 2003 to May 2003, treatment reports from Dr. B. from June 2003 to July 2003, and a letter from East Limestone Family Medicine dated as being received by the VA Claims Intake Center in February 2015. In addition, a May 2014 VA examination report noted and listed certain laboratory findings from February 2006. However, records of such laboratory findings are similarly absent from the claims file. Notably, such laboratory findings do not appear in the February 2006 VA examination report. Moreover, VA examination reports in February 2006, March 2012, and May 2014 discussed the Veteran's diagnosis of diverticulosis and/or diverticulitis. The February 2006 VA examiner noted that the Veteran was diagnosed with diverticulosis a year prior after taking an abdominal CT scan, and that he was followed by Dr. B. for this condition. Both VA examiners from March 2012 and May 2014 indicated that the Veteran was found to have diverticulosis and diverticulitis when he had "specialist workup" somewhere between 2007 and 2008. They also noted that the Veteran underwent multiple surgeries concerning these conditions. However, records relating to the Veteran's diagnosis of diverticulosis and/or diverticulitis as well as related surgeries do not appear in the claims file. Additionally, the May 2014 VA examination report indicated that the Veteran underwent a colonoscopy in 2012 which found no active diverticulitis. Similarly, records relating to a 2012 colonoscopy do not appear in the claims file. (Other than the VA examination reports discussed above and a March 2015 VA addendum medical opinion, the only VA medical records found in the claims file are from March 1993 to June 1998.) Thus, it is unclear whether all relevant records have been associated with the claims file. Because pertinent records may be missing from the claims file, a remand is required to attempt to locate and associate with the claims file any such records. Additionally, on remand, the Veteran should be given another opportunity to provide, or authorize VA to obtain, relevant records of the Veteran's treatment for his claimed digestive system disability that have not already obtained and associated with the claims file. Also, should additional relevant medical records be associated with the claims file, the VA examiner who provided the March 2015 opinion should be given the opportunity to supplement her report. Accordingly, the case is REMANDED to the AOJ for the following action: 1. Attempt to locate and associate with the claims file any missing claims file records, as appropriate, to include the "Private Treatment Records, from February 6, 2003 through April 16, 2013" that were reviewed by the AMC in issuing the July 2015 SSOC, the laboratory findings from February 2006 which were cited by the May 2014 VA examiner in making his report, and treatment records pertaining to diverticulosis and/or diverticulitis from January 2005 to December 2012. 2. Contact the Veteran and request that he identify the names, addresses, and approximate dates of treatment for all VA and non-VA health care providers who have treated him for his claimed digestive system disability since service. The AOJ should attempt to obtain copies of pertinent treatment records identified by the Veteran that have not been previously secured and associate them with the claims file. The Veteran should be requested specifically to sign the necessary authorization for release of medical records from Dr. B. to VA, and the AOJ should attempt to obtain any relevant records related to treatment of the Veteran from that physician. The AOJ should also associate with the claims file all relevant VA treatment records dated since June 1998. 3. If any additional relevant medical records are obtained (not previously associated with the claims file and/or reviewed by the March 2015 VA examiner), request that the March 2015 VA examiner review the claims file, including the newly associated medical records and a copy of this remand, and provide an addendum to her prior medical opinion. The examiner should opine as to whether it is at least as likely as not (50 percent probability or more) that any current digestive system disability, including diverticulosis and anal fissures, is related to or had its onset in service. If the Veteran does not have any post-service digestive system disabilities, the examiner should opine as to whether it is at least as likely as not (50 percent probability or more) that the Veteran has objective indications of a chronic disability resulting from an illness manifested by adverse digestive system symptomatology as established by history, physical examination, and laboratory tests, that has either (1) existed for 6 months or more, or (2) exhibited intermittent episodes of improvement and worsening over a 6 month period. 4. After undertaking any other development deemed appropriate, readjudicate the issue on appeal. If the benefit sought is not granted, the Veteran should be furnished with a SSOC and afforded an opportunity to respond before the record is returned to the Board for further review. The Veteran 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 or by the United States Court of Appeals for Veterans Claims (Court) for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). _________________________________________________ THOMAS J. DANNAHER Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), only a decision of the Board is appealable to the Court. 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) (2015).