Citation Nr: 1003301 Decision Date: 01/22/10 Archive Date: 02/01/10 DOCKET NO. 08-07 686 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to an increased evaluation for irritable bowel syndrome with reflux and hiatal hernia, currently assigned a 30 percent disability evaluation. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL The appellant ATTORNEY FOR THE BOARD Jessica J. Wills, Counsel INTRODUCTION The Veteran served on active duty from October 1989 to December 2002. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from an April 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. That decision granted service connection for a hiatal hernia and assigned a 10 percent disability evaluation effective from November 30, 2006. The Veteran appealed that decision to BVA, and the case was referred to the Board for the appellate review. During the pendency of the appeal, a rating decision was issued in January 2008 in which the RO found that there had been clear and unmistakable error (CUE) in the April 2007 rating decision. In particular, it was noted that the Veteran was already assigned a 30 percent disability evaluation for irritable bowel syndrome with reflux and that a separate evaluation for a hiatal hernia was prohibited by law. The RO determined that the Veteran's service-connected hiatal hernia should have instead been combined with his service-connected irritable bowel syndrome with reflux. As such, the issue on appeal was recharacterized as entitlement to an evaluation in excess of 30 percent for irritable bowel syndrome with reflux and hiatal hernia. A hearing was held on August 31, 2009, in Waco, Texas, before Kathleen K. Gallagher, a Veterans Law Judge, who was designated by the Chairman to conduct the hearing pursuant to 38 U.S.C.A. § 7107(c), (e)(2) and who is rendering the determination in this case. A transcript of the hearing testimony is in the claims file. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND Reasons for Remand: To provide the Veteran proper notice and to afford him a VA examination. The law provides that VA shall make reasonable efforts to notify a claimant of the evidence necessary to substantiate a claim and requires the VA to assist a claimant in obtaining that evidence. 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2009). Such assistance includes providing the claimant a medical examination or obtaining a medical opinion when such an examination or opinion is necessary to make a decision on a claim. 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2009). The United States Court of Appeals for Veterans Claims (Court) has held that the failure by the BVA to enforce compliance with the requirements of 38 U.S.C.A. § 5103(a) for the VA to inform a claimant of the information or evidence necessary to substantiate a claim, as well as to inform a claimant of which evidence the VA would seek to provide and which evidence the claimant is to provide, is remandable error. In this case, it does not appear that the appellant has been adequately notified in connection with his claim for an increased evaluation for irritable bowel syndrome with reflux and hiatal hernia. In this regard, the record contains a letter dated in December 2006, which indicated what the evidence must show to establish service connection on a secondary basis. However, that letter did not notify the appellant of what evidence was necessary to substantiate a claim for an increased evaluation. The Court has indicated that such specific notice is required to comply with the law. Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). Moreover, during the pendency of this appeal, the Court and Federal Circuit issued decisions holding that the law requires VA to notify the claimant that, to substantiate a claim, the claimant must provide, or ask VA to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), vacated and remanded sub nom. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). The claimant must be notified that, should an increase in disability be found, a disability rating will be determined by applying relevant Diagnostic Codes, which typically provide for a range in severity of a particular disability from noncompensable to as much as 100 percent (depending on the disability involved), based on the nature of the symptoms of the condition for which disability compensation is being sought, their severity and duration. Finally, the notice must provide examples of the types of medical and lay evidence that the Veteran may submit (or ask the VA to obtain) that are relevant to establishing her or his entitlement to increased compensation. However, the notice required by section 5103(a) need not be specific to the particular Veteran's circumstances; that is, VA need not notify a Veteran of alternative diagnostic codes that may be considered or notify of any need for evidence demonstrating the effect that the worsening of the disability has on the particular Veteran's daily life. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). Nevertheless, the Board notes that the Veteran has not been provided proper notice in connection with his claim for an increased evaluation in accordance with Vazquez- Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). Thus, the case must be remanded for the purpose of providing the Veteran proper notice. In addition, the Board observes that the Veteran was afforded a VA examination in January 2007. However, the Veteran has repeatedly refuted the findings of that examination. In this regard, he indicated in a March 2007 letter that the examiner had misstated his responses to questions. He also submitted a statement in May 2007 reiterating his contention that there were discrepancies in the examination report, and in a December 2007 statement, he once again questioned the January 2007 VA examination. The Veteran further asserted in his February 2008 VA Form 9 that the examination was inadequate and had been performed by a disgruntled examiner. Moreover, the Veteran and his representative contended at the August 2009 hearing that a separate evaluation should be assigned for the hiatal hernia. However, the January 2007 VA examination did not address whether the Veteran has any symptomatology attributable to his hiatal hernia that is distinct and separate from his symptomatology resulting from the irritable bowel syndrome with reflux. Additionally, the Veteran asserted at the August 2009 hearing that his acid reflux and regurgitation had worsened. VA's General Counsel has indicated that when a claimant asserts that the severity of a disability has increased since the most recent rating examination, an additional examination is appropriate. VAOPGCPREC 11-95 (April 7, 1995); see also Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994). Therefore, based on the foregoing, the Board finds that a VA examination is necessary for the purpose of ascertaining the current severity and manifestations of the Veteran's service-connected irritable bowel syndrome with reflux and hiatal hernia. Therefore, in order to give the Veteran every consideration with respect to the present appeal and to ensure due process, it is the Board's opinion that further development of the case is necessary. Accordingly, the case is REMANDED for the following actions: 1. The RO should send the Veteran a notice letter in connection with his claim for an increased evaluation for irritable bowel syndrome with reflux and hiatal hernia. The letter should state what evidence is necessary to substantiate a claim for an increased evaluation. In particular, the letter should notify him that, to substantiate a claim, he must provide, or ask VA to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability. The letter should also inform him that, should an increase in disability be found, a disability rating will be determined by applying relevant Diagnostic Codes, which typically provide for a range in severity of a particular disability from noncompensable to as much as 100 percent (depending on the disability involved), based on the nature of the symptoms of the condition for which disability compensation is being sought, their severity and duration. Finally, the notice must provide examples of the types of medical and lay evidence that the Veteran may submit (or ask the VA to obtain) that are relevant to establishing his entitlement to increased compensation. 2. The Veteran should be afforded a VA examination to ascertain the severity and manifestations of his service- connected irritable bowel syndrome with reflux and hiatal hernia. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file and to comment on the severity of the Veteran's service- connected disability. The examiner should report all signs and symptoms necessary for rating the Veteran's disability under the rating criteria. In particular, the examiner should indicate whether the Veteran has persistently recurrent epigastric distress with dysphagia, pyrosis, and regurgitation accompanied by substernal or arm or shoulder pain productive of considerable impairment of health; symptoms of pain, vomiting, material weight loss and hematemesis or melena with moderate anemia; or, other symptom combinations of severe impairment of health. The examiner should also comment on the severity and frequency of bowel disturbances and abdominal distress. If possible, the examiner should indicate whether there is any symptomatology that is attributable to the Veteran's hiatal hernia that is separate and distinct (not duplicative or overlapping) from his irritable bowel syndrome with reflux. If it is not possible to differentiate between the symptomatology resulting from the hiatal hernia and from the irritable bowel syndrome with reflux, the examiner should state so in the report. A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Since it is important "that each disability be viewed in relation to its history [,]" 38 C.F.R. § 4.1 (2009), copies of all pertinent records in the appellant's claims file, or in the alternative, the claims file, must be made available to the examiner for review. When the development requested has been completed, the case should be reviewed by the RO on the basis of additional evidence. The RO should also undertake any other development it determines to be indicated. If the benefit sought is not granted, the Veteran and his representative should be furnished a Supplemental Statement of the Case and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. The purpose of this REMAND is to obtain additional development, and the Board does not intimate any opinion as to the merits of the case, either favorable or unfavorable, at this time. The appellant has the right to submit additional evidence and/or argument on the matter or matters the Board has remanded to the regional office. Kutscherousky v. West, 12 Vet. App. 369 (1999). No action is required of the appellant until he is notified. 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. 2009). _________________________________________________ KATHLEEN K. GALLAGHER 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) (2009).