Citation Nr: 1800360 Decision Date: 01/04/18 Archive Date: 01/19/18 DOCKET NO. 14-10 170 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Salt Lake City, Utah THE ISSUE Entitlement to service connection for a gastrointestinal disability. ATTORNEY FOR THE BOARD A. Arnold, Associate Counsel INTRODUCTION The Veteran served on active duty from May 2003 to May 2007. This matter came before the Board of Veterans Appeals (Board) on appeal from an August 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles California. Jurisdiction was subsequently transferred to the RO in Salt Lake City, Utah. In January 2015, the Veteran's attorney withdrew from representation. In a November 2015 letter, the Board advised the Veteran's attorney that his withdrawal was ineffective as the appeal had already been certified to the Board. 38 C.F.R. § 20.608(b). The Veteran's attorney submitted another withdrawal letter just after the Board issued its decision in March 2016. As the second withdrawal was submitted prior to recertification of the case to the Board, notice was provided to the Veteran and the Veteran has not objected, withdrawal was effective. 38 C.F.R. § 14.631. Since the private attorney withdrew in March 2016, the Veteran has not appointed a new attorney, agent or representative and is thus unrepresented. In its March 2016 decision, the Board remanded this matter for de novo consideration by the RO, as the Veteran had submitted a notice of disagreement within one year of the original rating decision and that decision was therefore not final. 38 U.S.C. § 7105. The Board also ordered further evidentiary development. The RO issued a Supplemental Statement of the Case (SSOC) in August 2016 denying entitlement to service connection for the issue on appeal. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The Board's March 2016 remand found that a new VA gastrointestinal examination was necessary in order to properly adjudicate the issue on appeal. The Board's review of the claim file indicates that the issue on appeal must be remanded again to ensure compliance with the duty to assist, so that there is a complete record upon which to decide the Veteran's claim and he is afforded every possible consideration. 38 U.S.C. § 5103A (2012); 38 C.F.R. § 3.159 (2017). The August 2016 SSOC cited the Veteran's failure to attend the VA examination as the basis for proceeding with adjudication of the issue on appeal. The SSOC specifically states that a VA letter dated June 13, 2016 notified the Veteran of the scheduled examination. However, the Board's review of the record indicates that the June 2016 letter actually advised the Veteran that he would be contacted by his local VA medical facility to schedule the examination. The record does not include any letter advising the Veteran of a scheduled examination date. The record shows that the examination request was cancelled after unsuccessful attempts to contact the Veteran. The August 2016 SSOC states that the Salt Lake VA Medical Center (VAMC) notified the RO that the examination was cancelled after the Veteran failed to respond to scheduling requests. The record contains a screenshot showing that VAMC staff called the Veteran on August 10, 2016 and left a message. The notes indicate that a letter was also mailed to the Veteran, but that letter has not been associated with the claim file. The record also shows that a second attempt to contact the Veteran by phone was made on August 24, 2016, but that the staff member was unable to leave a message. The record indicates that the VAMC discontinued its attempts to schedule the Veteran for an examination the following day, without making additional attempts to reach the Veteran. The Board's review of the record also indicates that the Veteran notified the RO of an address change in August 2016. The June 2016 VA letter referenced in the August 2016 SSOC was sent to the Veteran at 1644 Merlin Street, and after noting a change of address in the file on August 25, 2016, the RO mailed the SSOC to the Veteran at a new address at 1644 W 1750 N. As the letter referenced in the VAMC notes is not associated with the claim file, the Board cannot be certain it was sent to the correct address. The Board also notes that the record of VA attempts to schedule the examination identifies the examination type as "DBQ Psych Mental disorders," rather than as the gastrointestinal examination that was requested in the Board's March 2016 remand. The Board therefore cannot be sure that attempts were made to schedule the Veteran for the gastrointestinal examination requested by the remand. The Board therefore finds that in order to ensure compliance with the duty to assist, as well as with the March 2016 remand orders, another attempt should be made to schedule the Veteran for a VA examination. See 38 U.S.C. § 5103A (2012); 38 C.F.R. § 3.159 (2017); see also Stegall v. West, 11 Vet. App. 268 (1998). Accordingly, the case is REMANDED for the following action: 1. Obtain any outstanding VA treatment records and associate them with the claim file. 2. Schedule the Veteran for an appropriate VA gastrointestinal examination to determine the nature and likely etiology of any current gastrointestinal disability, and to particularly assess whether or not it is related to (was caused or aggravated by) his service-connected anxiety disorder. Any attempts to schedule the examination, including copies of letters sent to the Veteran, should be clearly documented in the claim file. The examiner should review the claim file and provide a complete rationale for all opinions expressed. The examiner should provide opinions responsive to the following: (a) Identify (by diagnosis) each gastrointestinal disability found (including GERD, peritoneal adhesions, IBS, small bowel intussusception, acute pancreatitis, enteroenteric fistula, biliary dyskinesia, and gall bladder removal). The examiner should also consider and address whether a thickened jejunum and mesenteric lymphadenopathy are considered disabilities for VA purposes, and if so, identify the manifestations of each. All pertinent diagnoses of record must be addressed. (b) For any disability diagnosed, render an opinion whether it is at least as likely as not (a 50% or greater probability) that the disability was incurred in or aggravated by the Veteran's active service, to include as due to exposure to chemicals. The examiner should specifically consider and address any pertinent findings in the Veteran's service treatment records, as well as his lay statements alleging that his exposure to certain chemicals in service caused his gastrointestinal disability. (c) If not, is it at least as likely as not (a 50% or greater probability) that any disability found was caused by the Veteran's service-connected anxiety disability? (d) If not, is it at least as likely as not (a 50% or greater probability) that any disability found was aggravated (permanently worsened) by the Veteran's service-connected anxiety disability? If so, please specify, to the extent possible, the degree of disability (pathology/impairment) that is due to such aggravation. 3. If a VA examination cannot be scheduled, please forward the claim file to an appropriate medical professional for a new medical opinion based upon a review of the record. Based upon a review of the claim file, the opinion should address the questions listed above to the extent possible. If a question cannot be answered without resorting to speculation, it should be explained why a response would be speculative. 4. After completing the foregoing development to the extent possible, the examination reports must be reviewed to ensure they are in complete compliance with the directives of this remand. If a report is deficient in any manner, the AOJ must implement corrective procedures. 5. If upon completion of the above action the appeal remains denied, the case should be returned to the Board after compliance with appellate procedures. 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 matter must be afforded expeditious treatment. The law requires that all issues 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). _________________________________________________ E. I. VELEZ 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).