Citation Nr: 1632728 Decision Date: 08/17/16 Archive Date: 08/24/16 DOCKET NO. 14-16 454 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New York, New York THE ISSUE Entitlement to a rating in excess of 10 percent for fistula of the anus from June 28, 2007, to March 4, 2010, and in excess of 30 percent thereafter. REPRESENTATION Veteran represented by: New York State Division of Veterans' Affairs ATTORNEY FOR THE BOARD David A. Brenningmeyer, Counsel INTRODUCTION The Veteran served on active duty in the U.S. Air Force from July 1968 to September 1969. He also had service in the Army National Guard. By a decision entered in October 2008, the Department of Veterans Affairs (VA) Regional Office (RO) in New York, New York, increased the Veteran's rating for fistula of the anus from zero (0) to 10 percent, effective June 28, 2007. Following the receipt of additional, relevant evidence within one year, the RO, in August 2010, denied entitlement to a still-higher rating. See 38 C.F.R. §§ 3.159(b), 20.302(a) (2015). Thereafter, the Veteran perfected an appeal to the Board of Veterans' Appeals (Board). In November 2015, the Board remanded the matter on appeal to the agency of original jurisdiction (AOJ) for additional development. After taking further action, the AOJ, in February 2016, increased the rating for fistula of the anus to 30 percent, effective March 5, 2010. The prior 10-percent rating was otherwise confirmed and continued, and the case was returned to the Board. The matter presently for appellate consideration is as set forth above, on the title page. See, e.g., Hart v. Mansfield, 21 Vet. App. 505 (2007); AB v. Brown, 6 Vet. App. 35 (1993). In a January 2016 report, a VA examiner opined that it was at least as likely as not that the Veteran's service-connected fistula of the anus may have contributed to the worsening of his hemorrhoids (which have thus far not been service connected). If the Veteran wishes to pursue a claim for service connection for hemorrhoids under that (or any other) theory, he should file a formal application with the AOJ so that appropriate action can be taken. See 38 C.F.R. §§ 3.1(p), 3.155, 3.160 (2015). This appeal is being processed utilizing the paperless, electronic Veterans Benefits Management System (VBMS) and Virtual VA claims processing systems. For the reasons set forth below, the appeal must again being REMANDED to the AOJ. VA will notify the Veteran if further action is required on his part. REMAND The expanded record reflects that the Veteran is in receipt of disability benefits from the Social Security Administration (SSA). See, e.g., VA treatment record dated in May 2013. Thus far, it does not appear that any attempt has been made to obtain a complete copy of the medical records underlying the SSA's award. Because the records from SSA could contain information pertinent to the issue on appeal, efforts should be made to procure them. See 38 U.S.C.A. § 5103A (West 2014); 38 C.F.R. § 3.159(c) (2015). The record contains a large volume of VA treatment records. However, it appears that they may be incomplete. Presently, there are no reports of record from the VA Medical Center (VAMC) in Bronx, New York, dated between July 2009 and February 2010. In addition, a February 2016 supplemental statement of the case (SSOC) makes reference to treatment reports from the Bronx VAMC, dated in February 2016, the report(s) of which are not of record. Because such records, if obtained, could bear on the outcome of the Veteran's appeal, efforts must be made to procure them. 38 U.S.C.A. § 5103A (West 2015); 38 C.F.R. § 3.159(c) (2015). See also Bell v. Derwinski, 2 Vet. App. 611 (1992) (holding that VA is charged with constructive notice of medical evidence in its possession). In a January 2016 report, a VA examiner offered an opinion in response to directives in the Board's November 2015 remand, asking an examiner to indicate whether symptoms of the Veteran's service-connected fistula of the anus could be differentiated from those associated with hemorrhoids. The examiner opined, in part, that it was "likely" that tenderness the Veteran exhibited at the anal verge on digital rectal examination was due to internal hemorrhoids, but that further testing could aid in making that determination; noting, specifically, that a colonoscopy scheduled for later that month "should be able to confirm." If, as a result of the foregoing development, additional evidence is received that bears on the etiology of the Veteran's anorectal complaints-to include, but not necessarily limited to, records of any recent colonoscopies-the AOJ should make arrangements to have the January 2016 VA examiner review the expanded record and provide a supplemental report regarding the extent to which, if any, the additional evidence impacts on his prior opinions; specifically, with respect to the aforementioned differentiation of symptoms. For the reasons stated, this case is REMANDED for the following actions: 1. Ask the SSA to provide copies of any records in its possession pertaining to its consideration of the Veteran's application for SSA disability benefits, to include any medical records considered in making that award, following the procedures set forth in 38 C.F.R. § 3.159. Efforts to obtain the evidence should be fully documented, and should be discontinued only if it is concluded that the evidence sought does not exist or that further efforts to obtain the evidence would be futile. 38 C.F.R. § 3.159(c)(2). The evidence obtained, if any, should be associated with the record. 2. Obtain copies of records pertaining to any relevant treatment the Veteran received at the VAMC in Bronx, New York, between July 2009 and February 2010, and since January 2016, following the procedures set forth in 38 C.F.R. § 3.159. Efforts to obtain the evidence should be fully documented, and should be discontinued only if it is concluded that the evidence sought does not exist or that further efforts to obtain the evidence would be futile. 38 C.F.R. § 3.159(c)(2). The evidence obtained, if any, should be associated with the record. 3. If, as a result of the foregoing development, additional evidence is received that bears on the etiology of the Veteran's anorectal complaints-to include, but not necessarily limited to, records of any recent colonoscopies-the AOJ should make arrangements to have the January 2016 VA examiner review the expanded record. After reviewing the expanded record, the examiner should prepare a supplemental report indicating the extent to which, if any, the additional evidence impacts on his prior opinions; specifically, with respect to which of the Veteran's symptoms are at least as likely as not (i.e., 50 percent or more likely) due to the service-connected fistula of the anus, and which are more likely associated with his hemorrhoids. If the January 2016 examiner is no longer employed by VA, or is otherwise unable to provide the opinion requested, arrange to obtain the requested information from another qualified examiner. The need for another examination and/or telephonic or video interview of the Veteran is left to the discretion of the examiner selected to offer the requested opinion. A complete rationale for all opinions expressed must be provided. 4. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran's claim should be readjudicated based on the entirety of the evidence. If any benefit sought remains denied, the Veteran and his representative should be issued an SSOC. An appropriate period of time should be allowed for response. After the Veteran and his representative have been given an opportunity to respond to the SSOC, the record should be returned to this Board for further appellate review. No action is required by the Veteran until he receives further notice, but he may furnish additional evidence and argument while the case is in remand status. Kutscherousky v. West, 12 Vet. App. 369 (1999); Booth v. Brown, 8 Vet. App. 109 (1995); Quarles v. Derwinski, 3 Vet. App. 129, 141 (1992). The purposes of this remand are to procure clarifying data and to comply with governing adjudicative procedures. The Board intimates no opinion, either legal or factual, as to the ultimate disposition of this appeal. This matter 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). _________________________________________________ MARJORIE A. AUER 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 this appeal. 38 C.F.R. § 20.1100(b) (2015).