Citation Nr: 21067372 Decision Date: 11/04/21 Archive Date: 11/04/21 DOCKET NO. 17-25 788 DATE: November 4, 2021 REMANDED Entitlement to service connection for stomach pain is remanded. REASONS FOR REMAND The Veteran served honorably on active duty from September 1971 to May 1981. The period of service from May 29, 1981, through February 10, 1984, was determined to be dishonorable for VA purposes in administrative decisions in January 2010 and June 2010. This appeal comes to the Board of Veterans' Appeals (Board) from a February 2015 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In December 2019, the Board remanded this matter for additional evidentiary development including obtaining outstanding relevant service records. VA has since obtained additional service personnel records, which includes documentation supporting the Veteran's contentions that he was hospitalized for months beginning in 1972 for an appendectomy and residuals thereof. The Board finds this evidence is relevant to establishing that the Veteran experienced persistent residuals of the surgery including stomach pain, which was an unsubstantiated element of the previously denied claim in a prior March 2011 rating decision. The Board finds the additional service records are relevant within the meaning of 38 C.F.R. § 3.156(c), and the Board will reconsider the claim associated with the March 2011 denial. See Kisor v. McDonough, 995 F.3d 1347 (Fed. Cir. 2021). In the December 2019 remand order, the Board also found it did not have jurisdiction over a motion for revision of a March 2011 rating decision based on clear and unmistakable evidence (CUE). However, as the Board inconsistently indicated it was remanding the issue on the first page of the remand order, VA issued a Supplemental Statement of the Case (SSOC) on the issue in July 2020 instead of issuing an initial rating decision. While the Board still lacks jurisdiction over the CUE issue in the absence of a timely Notice of Disagreement with a rating decision on the issue, the issue appears moot as the Board is reconsidering the claim from the March 2011 rating decision under 38 C.F.R. § 3.156(c). After reviewing the totality of the evidence, the Board finds additional evidentiary development is necessary. In the December 2019 remand order, the Board noted VA must attempt to obtain outstanding records addressing an appendectomy performed in 1972 including from Gibs [sic] Kaserne, 97th General Hospital in Frankfurt, Germany. While VA's Appeals Management Center submitted a request for additional development for the records in December 2019 and received a negative response, the Board finds the request is inadequate. The request lists "FRANK" using a very limited date range instead of "Frankfurt, Germany" using the dates provided in the service personnel records for the hospitalization. The response to the request only indicates that a search of the requested facility using the information VA provided yielded negative results. As the Veteran's service personnel records corroborate the Veteran's accounts of treatment for an appendectomy in 1972-1973, VA should make additional attempts to locate the outstanding medical records documenting the Veteran's treatment. Efforts to obtain those records shall continue until the records are obtained unless it is reasonably certain that such records do not exist or that further efforts to obtain those records would be futile. See 38 U.S.C. § 5103A(c)(2). If VA determines additional efforts would be futile, it should issue a formal finding on the unavailability of the records. After obtaining all outstanding relevant records, VA should afford the Veteran a VA examination of his claim based on stomach pain, which the Veteran attributes to an appendectomy and stomach pain documented in his service records. See Saunders v. Wilkie, 886 F.3d 1356 (2018); McLendon v. Nicholson, 20 Vet. App. 79 (2006); October 2014 Statement in Support of Claim. VA should ensure the examiner identifies all symptoms and diagnoses associated with the Veteran's claim. The examiner should opine whether each symptom that results in functional impairment of earning capacity at least as likely as not (an approximate balance of negative and positive evidence) manifested during or was otherwise caused by events during the Veteran's military service. The examiner should address the Veteran's contention that his stomach pain is a residual of the appendectomy mentioned in his service personnel records. The examiner should consider the Veteran's statements about continuity of relevant symptoms over time including the stomach pain mentioned in the Veteran's service records. The Board REMANDS this matter for the following actions: 1. VA should contact the Veteran and all current representatives and request their assistance in identifying any outstanding relevant records. VA should make reasonable attempts to obtain all identified outstanding records and associate them with the Veteran's claims file. 2. VA should make additional attempts to locate outstanding medical records documenting the Veteran's appendectomy including records from Gibs [sic] Kaserne, 97th General Hospital in Frankfurt, Germany and other sources as indicated by the service personnel records, which mention treatment for an appendectomy. Efforts to obtain those records shall continue until the records are obtained unless it is reasonably certain that such records do not exist or that further efforts to obtain those records would be futile. See 38 U.S.C. § 5103A(c)(2). If VA determines additional efforts would be futile, it should issue a formal finding on the unavailability of the records. 3. After obtaining all outstanding relevant records, VA should afford the Veteran a VA examination of his claim. VA should provide the examiner with a complete copy of the claims file and ensure the examiner addresses the following concerns: (a.) The VA examiner should identify all stomach disabilities based on a review of the record and further examination of the Veteran if necessary. For the purpose of the examination, "disabilities" include all functional impairments of earning capacity, to include as due to stomach pain. See Saunders v. Wilkie, 886 F.3d 1356 (2018). (b.) The examiner should opine whether each stomach symptom that results in functional impairment at least as likely as not (an approximate balance of negative and positive evidence) manifested during or was otherwise caused by events during military service. The examiner should address the Veteran's contention that his stomach pain is a residual of the appendectomy mentioned in his service personnel records. See, e.g., October 2014 Statement in Support of Claim. The examiner should consider lay statements about continuity of relevant symptoms over time including stomach pain. K.A. KENNERLY Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Michael Duffy The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.