Citation Nr: 21070760 Decision Date: 11/26/21 Archive Date: 11/26/21 DOCKET NO. 15-07 746 DATE: November 26, 2021 REMANDED Entitlement to service connection for a gastrointestinal disorder, initially claimed as irritable colon syndrome, is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from May 1989 to May 1993, including service in Saudi Arabia. The claim on appeal comes before the Board of Veterans' Appeals (Board) on appeal of a May 3, 2011 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Pittsburgh, Pennsylvania. With respect to the May 3, 2011 rating decision on appeal, the Veteran returned a timely and valid Notice of Disagreement specifically as to two issues only: the gastrointestinal disorder herein and tinnitus. See NOD (rec'd May 3, 2012). Later, the Veteran returned a timely and valid VA Form 9, see VA Form 9 (rec'd Mar. 5, 2015), requesting a hearing as to both issues. See also VA Form 8 (July 17, 2015). On July 17, 2015, the Board received a statement from the Veteran's representative saying "We have no further argument in this case as the Veteran acknowledges via (Notification from VAMC [Location Redacted]) [date redacted], that he canceled his last medical examination thereby withdrawing this particular claim." See VA Form 646 (rec'd July 17, 2015 ). Nevertheless, the Veteran was scheduled for a hearing on September 16, 2015, see Correspondence (Aug. 21, 2015), but his request to have the hearing rescheduled was received on September 4, 2015, see Correspondence (rec'd Sept. 4, 2015). This request was honored as the Veteran stated that he would be unavailable on his hearing date because of mandatory training for his employment. The Veteran's hearing was rescheduled for April 4, 2019. The Veteran's representative stated that no evidence of this rescheduled date is within the claims file, notwithstanding any notation in Veterans Appeals Control and Locator System (VACOLS). See Appellate Brief ( May 7, 2021 ). As such, the Veteran's hearing was once again rescheduled to October 13, 2021. See BVA Letter ( Aug. 17, 2021 ). The Board notes that the August 2021 mailing (communicating the new October 13, 2021 date) was sent to the Veteran's address of record, which is the return address listed when the Veteran rescheduled his first hearing prior to September 16, 2015, and that the Veteran failed to appear for the scheduled hearing without explanation. As such, the Board concludes that the Veteran failed to attend his hearing on October 13, 2021, and there has been no good cause shown as to why the hearing should be rescheduled once again. On November 19, 2021, the Veteran's representative submitted an informal hearing presentation (IHP) stating simply, "We invite your attention to the Veteran's VA Form 9 scanned into his VBMS file on March 5, 2015. The Veteran has indicated that he is requesting a BVA hearing by live video conference hearing. There is no indication that the Veteran has canceled this request." See Appellate Brief (rec'd Nov. 19, 2021). By requesting a new hearing date, and by receiving the new hearing date, but by failing to attend the rescheduled hearing and also by failing to show good cause as to why the hearing was missed, the Board finds that the Veteran's hearing request is cancelled. The Board proceeds accordingly. Entitlement to service connection for a gastrointestinal disorder, initially claimed as irritable colon syndrome, is remanded. A VA examination is required when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, (2) evidence establishing that an event, injury, or disease occurred in service, or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service or with another service-connected disability, but (4) there is insufficient competent medical evidence on file for the Secretary to make a decision on the claim. McLendon v. Nicholson, 20 Vet. App. 79 (2006). See also 38 U.S.C. § 5103A(d)(2), 38 C.F.R. § 3.159(c)(4)(i). There is no VA examination nor etiological opinion on file as to whether the Veteran's gastrointestinal disorder is at least 50 percent likely attributable to active duty service. A VA examination conducted in November 2010 about the Veteran's lumbar spine merely mentions that his acetaminophen interferes with his gastrointestinal disorder. See VA Examination ( Nov. 5, 2010 ), Page 4. Meanwhile, the Veteran's service treatment records confirm blood in stool as early as September 5, 1989, other suspected stomach issues with diarrhea on November 8, 1989, and subjective constipation on January 19, 1993. See, e.g.: STR (Sept. 5, 1989; Nov. 8, 1989; Jan. 19, 1993; Mar. 15, 1993) (rec'd Sept. 10, 2014). For these reasons alone, the Board could conclude that a VA examination is warranted under McLendon and 38 C.F.R. § 3.303. Additionally, the Board concludes that there is also no Persian Gulf War examination present in the claims file; therefore, that examination should also be conducted to determine whether he may be entitled to presumptive service connection under 38 C.F.R. § 3.317. See also 38 U.S.C. § 7104(d)(1). The Board sincerely regrets additional delay that may be incurred, but the Board cannot escape the conclusion that it is precluded from issuing a final determination as to the remaining claim on appeal. It is therefore remanded. The matter is REMANDED for the following action: 1. The Veteran should be given the opportunity to identify any outstanding private or VA treatment records relevant to the claim on appeal. After obtaining any necessary authorization from the Veteran, all outstanding records should be obtained, to include updated VA treatment records. For private treatment records, make at least two (2) attempts to obtain records from any identified sources. If any such records are unavailable, inform the Veteran and his representative and afford him an opportunity to submit any copies in their possession. For federal records, all reasonable attempts should be made to obtain such records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). The Board notes that the Veteran's first name appears to have been spelled two different ways throughout his service treatment records; therefore, both spellings as listed on the title page should be investigated by the Agency of Original Jurisdiction (AOJ) in pursuit of any missing medical records. There do not appear to be any discrepancies in an incorrect social security number or in spelling his last name. 2. Following the receipt of outstanding records, schedule the Veteran for a VA examination to determine the nature and etiology of his gastrointestinal disorder. The need for an in-person examination is left to the discretion of the examiner. After reviewing the record, considering the lay evidence, and any recommended testing, the examiner should address the following: (A) Is it at least as likely as not (50 percent or greater probability) that such gastrointestinal disorder had its initial onset in service or is otherwise etiologically related to the Veteran's active service? The examiner should specifically address the relevance or lack thereof of service treatment records dated September 5, 1989; November 8, 1989; January 19, 1993; and March 15, 1993. (B) If the Veteran's symptoms of a gastrointestinal disorder cannot be ascribed to any known clinical diagnosis, specify whether the Veteran has objective indications of a chronic disability resulting from an undiagnosed illness, as established by history, physical examination, and laboratory tests, that have either (1) existed for six months or more, or (2) exhibited intermittent episodes of improvement and worsening over a six-month period. (C) If the Veteran's symptoms of a gastrointestinal disorder cannot be ascribed to any known clinical diagnosis, then is it at least as likely as not that the Veteran's symptoms represent a "medically unexplained chronic multisymptom illness" (MUCMI)? Such is defined as a diagnosed illness without conclusive pathophysiology or etiology, that is characterized by overlapping symptoms and signs and has features such as fatigue, pain, disability out of proportion to physical findings, and inconsistent demonstration of laboratory abnormalities. The examiner should specifically consider the Veteran's reports of environmental hazard exposure during his service in Southwest Asia. The examiner is reminded that the Veteran's exposure to environmental hazards during his service in Southwest Asia is presumed. The examiner should be sure to address the Veteran's lay statements and contentions regarding the onset and continuity of gastrointestinal symptoms. The examiner is reminded that the absence of diagnosis and treatment for a gastrointestinal disorder during service cannot be the sole basis for finding that the claimed disorder is not etiologically related to active service. A rationale should be provided for all opinions offered. If it is not possible to provide a specific opinion regarding the above questions, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). The medical opinions must support the conclusions reached with an analysis that is adequate for the Board to consider and weigh against other evidence of record; medical opinions must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. If an opinion cannot be expressed without resort to speculation, ensure that the clinician so indicates and discusses why an opinion is not possible, to include whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. 3. A copy of the notification letter for the scheduled examination must be included in the claims file and must reflect that it was sent to the Veteran's last known address of record. The notice must state that it is the Veteran's responsibility to report for any scheduled examination and to cooperate in the development of the claim, and that the consequences for failure to report for an examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655. KRISTY L. ZADORA Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Michael B. Engle, Associate Counsel 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.