Citation Nr: 1754163	
Decision Date: 11/28/17    Archive Date: 12/07/17

DOCKET NO.  07-37 883A	)	DATE
	)
	)

Received from the
Department of Veterans Affairs Regional Office in Baltimore, Maryland


THE ISSUES

1.  Entitlement to service connection for a gastrointestinal (GI) disability, to include as due to an undiagnosed illness and/or as secondary to service-connected posttraumatic stress disorder (PTSD).

2.  Entitlement to an initial disability rating in excess of 30 percent prior to October 3, 2012, and in excess of 70 percent as of October 3, 2012, for PTSD. 


REPRESENTATION

Veteran represented by:	John S. Berry, Esq.


ATTORNEY FOR THE BOARD

M. Moore, Counsel


INTRODUCTION

The Veteran served on active duty in the U.S. Army from September 2001 to November 2004 with service in Iraq from November 2003 to February 2004.

These matters come before the Board of Veterans' Appeals (Board) on appeal from August 2007 and June 2012 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Newark, New Jersey.  The case is currently under the jurisdiction of the VA RO in Baltimore, Maryland.

The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ).  VA will notify the Veteran if further action on his part is required.


REMAND

Although the Board regrets the delay, remand is necessary to ensure that there is a complete record on which to decide the Veteran's claims.  

With regard to the GI claim, the Veteran has been afforded two VA examinations and opinions to address this claim.  Both examiners found that the Veteran did not have a diagnosable GI disorder.  However, neither examiner provided an opinion on whether the Veteran's undiagnosed complaints of diarrhea and pain could be part of an undiagnosed illness related to his service in the Persian Gulf.  This claim must be remanded for a new examination and opinion.  See Barr v. Nicholson, 21 Vet. App. 303 (2007).

With regard to the PTSD claim, subsequent to the most recent supplemental statement of the case (SSOC) in April 2016, a new PSTD VA examination report, dated in July 2017, has been associated with the claims file.  VA sent the Veteran and his attorney a letter in inquiring whether they wish to waive AOJ review of this new evidence.  The Veteran responded in September 2017 that he wanted his claim remanded to the AOJ for initial consideration.  In these circumstances, the law requires that the Board return the appeal to the AOJ for initial consideration of the new evidence.  See Disabled American Veterans, et al. v. Secretary of Veterans Affairs (DAV), 327 F.3d 1339 (Fed. Cir. 2003); 38 U.S.C. § 7104 (West 2014); 38 C.F.R. § 20.1304(c) (2017).

As the claims are being remanded, the Board will take the opportunity to obtain updated VA treatment records.

Accordingly, the case is REMANDED for the following actions:

1.  Obtain and associate with the claims file any outstanding VA treatment records from the Washington VA Medical Center and any other VA facility identified by the Veteran.  All attempts to obtain these records should be documented in the claims file.  

2.  Thereafter, schedule the Veteran for a VA examination with an appropriate examiner to address the nature and etiology of his claimed GI disability.  The examiner must review pertinent documents in the Veteran's claims file in conjunction with the examination.  This must be noted in the examination report.  The examiner should obtain a thorough history from the Veteran on the onset, course, and current state of his GI symptoms.  Any necessary testing should be performed.

The examiner should address the following:

a. Please identify any diagnosed disorders manifested by diarrhea, abdominal pain, and/or any other GI symptoms, including any that may have resolved during the appeals period (May 2007 to the present).  For each diagnosed disorder, please state whether it is at least as likely as not (a 50 percent probability or greater) that such a disorder had its onset in service or was otherwise etiologically related to active service, or whether it was caused or aggravated (made worse) by his service-connected PTSD.

b. If an underlying cause/etiology of the Veteran's reported diarrhea, abdominal pain, and any other GI symptoms cannot be identified, please state whether these symptoms are a manifestation of an undiagnosed illness or unexplained chronic multi-symptom illness, to include irritable bowel syndrome.

Rationale for all requested opinions shall be provided.  If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so.  In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s).

3.  After completing the above actions and reviewing all evidence added to the claims file since the April 2016 supplemental statement of the case, the Veteran's claims should be readjudicated.  If either of the claims remains denied, a supplemental statement of the case should be provided to the Veteran and his attorney.  After they have had an adequate opportunity to respond, all issues properly on appeal should be returned to the Board for further appellate review.

The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded.  See Kutscherousky v. West, 12 Vet. App. 369 (1999).

These claims 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.  38 U.S.C. §§ 5109B, 7112 (West 2014).



_________________________________________________
A. S. CARACCIOLO
Veterans Law Judge, Board of Veterans' Appeals

Under 38 U.S.C. § 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 your appeal.  38 C.F.R. § 20.1100(b) (2017).



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