BVA9501752 DOCKET NO. 93-01 016 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Manchester, New Hampshire THE ISSUES 1. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for constipation, a duodenal ulcer, and gastritis, claimed as a digestive disorder. 2. Entitlement to an increased rating for post-traumatic stress disorder (PTSD), currently evaluated as 10 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD P. M. Lynch, Associate Counsel INTRODUCTION The veteran's active military service extended from August 1943 to May 1946. This matter comes before the Board of Veterans' Appeals (Board) on appeal from September 1992 and March 1994 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Manchester, New Hampshire. The September 1992 rating decision denied the veteran's petition to reopen his claim for service connection for constipation, a duodenal ulcer, and gastritis, claimed as a digestive disorder. The March 1994 rating decision denied entitlement to an increased rating for the veteran's service connected PTSD, rated as 10 percent disabling. REMAND The veteran's claims are "well grounded" within the meaning of 38 U.S.C.A. § 5107(a) (West 1991). That is, he has presented claims which are plausible. However, for the reasons that follow, it appears that the statutory duty to assist the veteran mandated by 38 U.S.C.A. § 5107(a) has not yet been fully met. The veteran contends that the RO committed error in denying his claim of entitlement to service connection for a digestive disorder. Specifically, he maintains that he initially developed a digestive disorder during active service. He further maintains that he has continued to suffer from stomach problems since his discharge from service, and therefore, service connection is warranted. Service medical records dated in May 1945 indicate that the veteran was hospitalized for complaints of cramping pain in the lower left abdomen and vomiting. He was diagnosed as having constipation, acute, cause and type unknown. On his discharge examination in May 1946, it was noted that he had a history of constipation. He filed his original claim for service connection for constipation in May 1946. In a rating decision in June 1946, the RO denied service connection for constipation on the grounds that the condition was not shown on recent examination. The veteran subsequently submitted additional evidence, and was denied service connection by rating decisions in August 1947 and November 1950. In April 1992, the veteran submitted a request to reopen his claim for entitlement to service connection for a digestive disorder. Evidence submitted in conjunction with the claim included a report of hospitalization from the Faulkner Hospital dated in December 1979. The report revealed that he was admitted complaining of left lower quadrant pain. He was diagnosed as having acute sigmoid diverticulitis with pericolic abscess and underwent a sigmoid colectomy. VA has a duty to assist the veteran in the development of facts pertinent to his claim. 38 U.S.C.A. § 5107(a) (West 1991); 38 C.F.R. § 3.103(a) (1993). The duty to assist applies even where the additional evidence submitted by a claimant is inadequate to reopen the claim. See Ivey v. Derwinski, 2 Vet.App. 320 (1992) A review of the record reveals that the veteran was treated by Nicholas J. King, M.D. for a duodenal ulcer in June 1946; by F.W. Beering, M.D. for chronic gastritis and neurasthenia in June 1948; and at the Commonwealth of Massachusetts Soldiers' Home for stomach pain and gastritis in May 1949. It is noted that these complete medical records are not currently associated with the claims file. These records should be obtained as the duty to assist the veteran includes obtaining all medical evidence pertinent to his claim. See Littke v. Derwinski, 1 Vet.App. 90 (1990) and Ferraro v. Derwinski, 1 Vet.App. 326, 334 (1991). The veteran stated in his informal claim dated in April 1992 that he has had stomach problems since his discharge from service. Given the fact that he may have sought additional medical treatment for the claimed disorder, further development in this respect is also appropriate. Moreover, in his substantive appeal dated in December 1992, the veteran averred that he should have been afforded a VA examination. VA's duty to assist includes the duty to conduct a thorough and contemporaneous medical examination. 38 C.F.R. § 3.326 (1993); See Green v. Derwinski, 1 Vet.App. 121 (1991). Therefore, VA examination is desirable in this case to meet the statutory duty to assist the veteran in developing his claim. It is also noted that the veteran testified at his personal hearing in July 1994 that he experiences gastrointestinal distress when he gets upset, presumably in conjunction with his PTSD. Therefore, a medical opinion should be obtained as to whether any gastrointestinal disorder is related to PTSD. The veteran has also filed a claim for an increased rating for PTSD. In his appeal dated in June 1994, he stated that a statement from his psychiatrist would be submitted for consideration at his personal hearing at the RO. It does not appear that this statement is currently of record. The United States Court of Veterans Appeals (Court) has held that the duty to assist the veteran in obtaining available facts and evidence to support his claim includes obtaining medical records to which the veteran has referred, adequate VA examinations, records in the possession of the VA, and pertinent evidence that applies to all relevant facts. See Sanders v. Derwinski, 1 Vet.App. 88 (1990); Murphy v. Derwinski, 1 Vet.App. 78 (1990); Littke v. Derwinski, 1 Vet.App 90 (1990); and Seavey v. Derwinski, 2 Vet.App. 262 (1992). Therefore, the RO should also obtain any statement prepared by the veteran's psychiatrist. To ensure that VA has met its duty to assist the claimant in developing the facts pertinent to the claim and to ensure full compliance with due process requirements, the case is REMANDED to the RO for the following development: 1. The RO should contact the veteran and request that he provide the names and addresses of all health care providers who have treated him for a psychiatric disorder since his discharge from service. The Board is particularly interested in any statement prepared by the veteran's psychiatrist in anticipation of his personal hearing at the RO in July 1994 and in treatment received at the VA Medical Center in Manchester, New Hampshire. 2. The RO should also request the veteran to furnish the names and addresses of all health care providers who might have treated him for a gastrointestinal disorder since his discharge from active service. These records include, but are not limited to, records of treatment rendered by Nicholas J. King, M.D.; F.W. Beering, M.D.; the Commonwealth of Massachusetts Soldier's Home; and the Faulkner Hospital. The Board is aware that some of this treatment was rendered more than 40 years ago. Consequently, the RO should attempt to obtain the veteran's records from the successors to these physicians, if such evidence is still available. If such records are no longer available, that fact and the reasons should be noted. 3. After obtaining the appropriate releases, all treatment reports and hospital treatment folders pertaining to the veteran should be obtained and associated with the claims folder. If these records are unavailable, that fact should be annotated in the claims folder. All efforts in obtaining the above evidence must be documented. 4. Following the above, the veteran should be afforded a VA gastrointestinal examination to determine the nature and extent of the claimed gastrointestinal disorder. The report of examination should be comprehensive and should include a detailed account of all manifestations of any gastrointestinal disorder found to be present. All necessary tests should be conducted and the examiner should review the results of any testing prior to completion of the report. The claims folder and a copy of this remand must be made available to and reviewed by the examiner prior to the examination. The specialist should provide complete rationale for all conclusions reached. The examiner should specifically furnish opinions as to the following: a. Whether there is any medical probability that any current gastrointestinal disorder is related to the episodes in service. b. Whether any chronic gastrointestinal pathology was caused or is in any way the result of the veteran's PTSD. c. In particular, the examiner must specifically indicate whether the veteran's PTSD caused the documented sigmoid diverticulitis and a pericolic abscess. 5. The RO should schedule the veteran for a comprehensive VA psychiatric examination to be conducted by an examiner who has never previously examined or treated the veteran. The study is to be conducted in accordance with the VA Physician's Guide for Disability Evaluation Examinations. All indicated tests, including appropriate psychological studies with applicable subscales, are to be conducted. The claims file must be made available to and reviewed by the examiner prior to the requested study. The examiner must assign a Global Assessment of Functioning Score consistent with the American Psychiatric Association's DIAGNOSTIC AND STATISTICAL MANUAL FOR MENTAL DISORDERS (3d ed. rev., 1987), and explain what the assigned score represents. The examiner should provide a comprehensive report. 6. The RO should review the examination reports and determine if they are adequate for rating purposes and in full compliance with this Remand. If not, the report(s) should be returned to the examiner(s) for corrective action. Following completion of these actions and, if the decision remains unfavorable, the veteran and his representative should be provided with a supplemental statement of the case and afforded a reasonable period of time in which to respond. Thereafter, in accordance with the current appellate procedures, the case should be returned to the Board for completion of appellate review. No action is required of the veteran until further notice is issued. JOAQUIN AGUAYO-PERELES Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___ (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Veterans Appeals. 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) (1993).