Citation Nr: 1756031 Decision Date: 12/05/17 Archive Date: 12/15/17 DOCKET NO. 08-36 106 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUE Entitlement to a disability rating in excess of 50 percent for residuals of ulcerative colitis, to include colon (a.k.a. large bowel or large intestine) resection, to include on an extraschedular basis, prior to May 1, 2015. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD D. Cheng, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1987 to September 1991. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California. In December 2011, the Board remanded the claim for further development. In a June 2014 decision, the Board denied the increased rating claim. The Veteran appealed the decision to the United States Court of Appeals for Veterans Claims (Court). In December 2015, the Court vacated and remanded the Board's decision. In July 2016, the Board remanded the claim for further development. In a September 2017 rating decision, the RO granted an increased 100 percent disability rating for the Veteran's residuals of ulcerative colitis, effective from May 1, 2015. As this was not a full grant of the benefit sought on appeal, and the Veteran did not indicate that he agreed with the increased rating, his claim has remained on appeal. See AB v. Brown, 6 Vet. App. 35, 38-39 (1993). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). REMAND A review of the record discloses further development is needed with respect to the Veteran's claim. A May 2015 VA medical record reflects that the Veteran was a new patient to the VA system. The Veteran indicated to the VA physician that he would like FMLA (Family and Medical Leave) as he had a lot of stress due to ulcerative colitis. As there is indication that the Veteran had been treated at Kaiser Permanente as recent as February 2015, the Board considers the Veteran's medical records from Kaiser Permanente to be pertinent to the Veteran's claim. A review of the claims file indicates that the most recent medical records from Kaiser Permanente are from September 2007. An attempt has been made to obtain recent records from Kaiser Permanente in August 2016. On August 24, 2016, the Veteran completed VA Form 21-4142a, Authorization to Disclose Information to VA, for Kaiser Permanente medical records from "June 2001 to 25 Aug. 2016." VA made a request for the records on August 29, 2016 and followed-up with Kaiser Permanente regarding the records requested on December 1, 2016. The AMC (Appeals Management Center) noted on a Report of General Information dated December 1, 2016 that the Kaiser Permanente had been contacted and a representative, Patrick, had informed the AMC representative that the records department at Kaiser Permanente had to be contacted after 9PST for assistance. A subsequent fax request was sent to Kaiser Permanente on January 30, 2017. Kaiser Permanente responded in a January 31, 2017 correspondence that the request was unable to be processed because a valid authorization that complied with Federal and California State Law was not provided. Specifically, the authorization form did not give a description of the health information to be released and "June 2001 to 25 Aug. 2016" was not a valid time frame. Kaiser Permanente added "please submit a time frame in the format of MM/DD/YYYY-MM/DD/YYYY." There is no indication that VA followed-up or made subsequent efforts to obtain these pertinent medical records from Kaiser Permanente. Therefore, the claim must be remanded to once again attempt to obtain and associate the records with the claims file. The Veteran should be asked to furnish an authorization to enable VA to obtain, any additional private treatment records from providers who treated him for his service-connected residuals of ulcerative colitis. Further, the Board finds that additional development is necessary. During the April 2010 VA examination, the Veteran reported that as an x-ray technician he sometimes had to leave during x-ray sessions with patients to use the bathroom. The Veteran has contended numerous times, including in an August 2016 statement, that his residuals of ulcerative colitis have an impact on his employment. Specifically, the Veteran asserted that his constant need for a bowel movement caused a lot of stress, which lead to required time off from work. During a phone interview with a VA examiner in April 2017, the Veteran also reported that he must interrupt his work frequently, sometimes without warning, to have a bowel movement. The record indicates that the Veteran works as a radiology technician at Kaiser Permanente, however the Veteran has not specially reported how much time he had taken off work or how much of his day at work is interrupted due to his service-connected residuals of ulcerative colitis. The Board will request that the Veteran's employer complete a VA Form 21-4192, Request for Employment Information in Connection with Claim for Disability Benefits, for the Veteran's employment with Kaiser Permanente. The Veteran should supply VA with the name and address of his employer so that VA can contact the employer. The Board also finds that the Veteran should be afforded a VA examination, as the July 2016 Board remand directives instructed the RO to schedule the Veteran for a comprehensive VA gastrointestinal examination with a gastroenterologist. The April 2017 VA examination was completed by a gastroenterologist; however, the Veteran was not afforded a physical examination. Rather, the VA examiner indicated that in addition to reviewing the claims file, she also conducted a phone interview with the Veteran, which lasted approximately one hour. The Veteran should be afforded a VA examination for an examiner to physically examine him and consider his complaints, along with the new records to be obtained and associated with the claims file. Accordingly, the case is REMANDED for the following action: 1. The Veteran should be given an opportunity to identify any outstanding private or VA treatment records reflecting treatment for his service-connected residuals of ulcerative colitis. After obtaining any necessary authorization from the Veteran, all outstanding records, to include Kaiser Permanente medical records since June 2001, should be obtained and associated with the claims file. The RO is to ensure that the authorization forms are filled out properly and in accordance to Federal and California (or other) State Laws. Any negative response should be in writing and associated with the claims file. 2. Contact the Veteran and request that he provide the name and address of his employer (Kaiser Permanente) to allow VA to send the employer a VA Form 21-4192, Request for Employment Information in Connection with Claim for Disability Benefits. 3. Send the VA Form 21-4192 to Kaiser Permanente. Request that the employer complete the form in its entirety. The employer should also answer the following questions: a. What are the Veteran's job duties? b. What impact does the Veteran's residuals of ulcerative colitis have on performing his job duties? Please include a discussion on how often the Veteran is away from performing his job duties during a typical work day due to his residuals of ulcerative colitis, to include necessary trips to the restroom. 4. Schedule the Veteran for a VA examination with an appropriately qualified examiner to evaluate the severity of his service-connected residuals of ulcerative colitis. Any indicated evaluations, studies, and tests deemed to be necessary by the examiner should be performed. The rationale for all opinions expressed must be provided. Based on examination results and a review of the record the examiner should specifically identify any physical ailments proximately due to or aggravated by the Veteran's service-connected residuals of ulcerative colitis. The examiner is asked to answer the following questions: a. Does the Veteran currently have or previously demonstrated signs of malnutrition? b. If the answer to question "a." is no, is it abnormal for a similar patient (i.e. post colectomy in November 2002) to experience approximately fourteen (14) bowel movements per day and not present with malnutrition and weight loss? Please explain your answer, and please address both malnutrition and weight loss. A full rationale must be provided for all medical opinions given. If the examiner is unable to provide an opinion without resorting to mere speculation, he or she should explain why this is so. The examiner shall then explain whether the inability to provide a more definitive opinion is the result of a need for more information and indicate what additional evidence is necessary, or whether he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). 5. After the above is complete, readjudicate the Veteran's claim. If the claim remains denied, issue a supplemental statement of the case (SSOC) to the Veteran and his representative. An appropriate period of time should then be allowed for a response before the record is returned to the Board for further review. The appellant has the right to submit additional evidence and argument on the matter 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. §§ 5109B, 7112 (2012). _________________________________________________ A. P. SIMPSON Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (2012), 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) (2017).