Citation Nr: 0723707 Decision Date: 08/01/07 Archive Date: 08/15/07 DOCKET NO. 05-16 473 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to an increased rating for gastroesophageal reflux disease (GERD) with a femoral hernia, currently evaluated as 30 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD David Traskey, Associate Counsel INTRODUCTION The veteran had active service from October 1961 to October 1963 and from February 1991 to March 1991. The veteran also had service in the Alabama Air National Guard from January 1975 to July 1998. This matter came before the Board of Veterans' Appeals (Board) on appeal from decisions of September 2004 and March 2005 by the Department of Veterans Affairs (VA) Montgomery, Alabama, Regional Office (RO). The veteran requested a hearing before a decision review officer. The hearing was scheduled and subsequently held at the RO in February 2005. The veteran testified on his own behalf at this hearing. The hearing transcript is of record. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the veteran if further action is required. REMAND In this current case, the veteran claims entitlement to an increased disability rating for GERD with a femoral hernia. The veteran initially sought service connection for esophagitis, however, the RO denied service connection for esophageal spasms with a sliding hiatal hernia in a May 2000 Rating Decision. The veteran appealed. A Board of Veterans' Appeals (BVA) decision of May 2003 re- phrased the issue on appeal from entitlement to service connection for esophageal spasms with a sliding hiatal hernia to entitlement to service connection for gastroesophageal reflux disease (GERD) and granted the veteran service connection. The BVA opinion also referred the issue of entitlement to service connection for a femoral hernia, raised during the veteran's November 2001 Travel Board hearing, to the RO for further development. In a May 2003 Rating Decision, the RO evaluated the veteran's GERD at ten percent disabling at that time, effective June 25, 1999. The veteran's femoral hernia claim was denied by the RO in a January 2004 Rating Decision. The veteran filed a timely notice of disagreement and in September 2004, the RO granted the veteran's service connection claim for a femoral hernia. However, the RO combined the veteran's previous service connection award for GERD with the service connection award for a femoral hernia and continued to evaluate the veteran as ten percent disabled, effective June 25, 1999. The veteran filed an appeal with the rating assigned to his service-connected femoral hernia. The veteran testified at a hearing in February 2005, which was held before a decision review officer. A Rating Decision dated March 2005 evaluated the veteran's GERD with a femoral hernia as 30 percent disabling, effective November 5, 2001. VA has a duty to assist veterans to obtain evidence needed to substantiate a claim. 38 U.S.C.A. § 5103A; 38 § C.F.R. § 3.159. This duty to assist includes providing a thorough and contemporaneous medical examination. Green v. Derwinski, 1 Vet. App. 121, 124 (1991). However, where a medical examination does not contain sufficient detail to decide the claim on appeal, the Board must return the report as inadequate for evaluation purposes. Hayes v. Brown, 9 Vet. App. 67, 73 (1996); 38 C.F.R. § 4.2. In September 2004, VA conducted a Compensation and Pension Examination (C&P). However, the veteran's claims file was not made available for review at the time of the examination. Based largely on a medical history provided by the veteran, the examiner diagnosed the veteran as having a "(1) history of femoral hernia and right direct and right indirect inguinal hernias status post repairs with laparoscopic mesh placement, currently healing well; (2) gastroesophageal reflux disease on treatment with Protonix." Furthermore, the C&P examination did not provide any information concerning the severity of the veteran's GERD or femoral hernia. Accordingly, there is insufficient information of record to make an informed determination. It is noted in that regard that the veteran's representative has asserted that the C&P examination was inadequate. The representative has also argued that separate evaluations are warranted for the post-operative scarring. The Board also notes that there are indications that additional private medical records exist. The Board notes that the veteran provided a waiver asking VA to obtain private medical records from Dr. Zev-David Nash on October 19, 2004. This waiver authorized VA to obtain records for the period 2003-present. These records were not included in the claims file and it is unclear whether the RO made any attempts to obtain the records. Accordingly, the case is REMANDED for the following action: 1. The RO should contact Dr. Zev-David Nash and obtain the private medical records for the period 2003-present, provided that the veteran supplies an updated authorization form. All efforts to obtain these records should be fully documented, and Dr. Nash should be requested to provide a negative response if no such records exist. 2. The RO should make arrangements with the appropriate VA medical facility for the veteran to undergo a gastroenterological examination. The examiner must assess the severity of the femoral hernia, and include a discussion as to whether the femoral hernia is large, postoperative, recurrent, not well supported under ordinary conditions and not readily reducible, and if it is considered inoperable. The examiner must provide a complete rationale for any stated opinion. The examiner must also assess the severity of the GERD as well as the presence or lack of any of the following symptoms: pain, vomiting, material weight loss and hematemesis or melena with moderate anemia. The examiner is asked to express an opinion as to which of the symptoms listed above, if any, are attributed to the GERD, and which symptoms, if any, are attributed to a different disability. The examiner must provide a complete rationale for any stated opinion. The claims folder should be made available to the examiner for review. The examiner should also set forth the severity and extent of the post-operative scar(s) related to the service-connected disability. The examiner should state whether the scar(s) is deep (i.e., associated with underlying soft tissue damage) or superficial (i.e., not associated with underlying soft tissue damage), and whether it causes limitation of motion. The size of the scar(s) should also be set forth in the examination report. If the scar is superficial, the examiner should state whether it is unstable (i.e., the scar frequently loses its covering of skin) or painful on examination. 3. The RO must notify the veteran that it is his responsibility to report for any scheduled examination and to cooperate in the development of the claim, and that the consequences of the failure to report for a VA examination without good cause may include denial of the claim. In the event that the veteran does not report for any scheduled examination, documentation must be obtained which shows that notice scheduling the examination was sent to the last known address and the RO should also indicate whether any notice that was sent was returned as undeliverable. 4. Thereafter, the RO should readjudicate the veteran's claim. The RO should consider the application of Esteban v. Brown, 6. Vet. App. 259 (1994) in this instance and whether the post-operative scarring is ratable as a separate disability. If the benefit sought on appeal remains denied, the veteran should be provided a Supplemental Statement of the Case (SSOC). The SSOC must contain notice of all relevant actions taken on the claim for benefits, to include a summary of the evidence and applicable laws and regulations considered pertinent to the issue currently on appeal. The SSOC should also include a discussion of any and all relevant evidence submitted by the veteran's representative. An appropriate period of time should be allowed for response. The veteran 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 claim must be afforded expeditious treatment. The law requires that all claims 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.A. §§ 5109B, 7112 (West Supp. 2006). _________________________________________________ S.S. TOTH Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), 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) (2006).