Citation Nr: 1034541 Decision Date: 09/14/10 Archive Date: 09/21/10 DOCKET NO. 04-37 878 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUES 1. Entitlement to service connection for an acquired psychiatric disorder, claimed as depression, to include as secondary to service-connected disabilities. 2. Entitlement to a disability rating in excess of 10 percent for hiatal hernia. REPRESENTATION Veteran represented by: The American Legion WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD Saira Sleemi, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1974 to August 1994. This matter comes to the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Togus, Maine Department of Veterans' Affairs (VA) Regional Office (RO). The case has since been transferred to the Detroit, Michigan VARO. The Veteran testified at a Travel Board hearing before the undersigned Veterans' Law Judge in June 2006. A transcript of that hearing has been associated with the claims file. This case was previously remanded by the Board in December 2006 and August 2007 for further development. The Board notes that the Veteran perfected a timely appeal on the issue of service connection for an acquired mental disorder, claimed as depression, to include as secondary to service- connected disabilities, in April 2006. However, as it appears from the record that no further action has been taken on this issue, it will be addressed in the remand below. 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 As reflected below, the Board finds that there is a further VA duty to assist the Veteran in developing evidence pertinent to his claims for service connection for an acquired psychiatric disorder, claimed as depression, to include as secondary to service-connected disabilities and for a disability rating in excess of 10 percent for hiatal hernia. 38 U.S.C.A. § 5103A (West 2002 & Supp. 2009); 38 C.F.R. § 3.159 (2009). Regrettably, it is again necessary to return this case to the RO/AMC in order to ensure that the Veteran's right to due process is preserved. An Acquired Psychiatric Disorder The Veteran has perfected a timely appeal concerning the issue of entitlement to service connection for an acquired psychiatric disorder, claimed as depression. (See Rating Decision, dated April 2005; Notice of Disagreement, received June 2005; Statement of the Case, dated February 2006; and Substantive Appeal, received April 2006). In the April 2006 VA form 9, received on this discrete issue, the Veteran checked the box noting that he did not want a Board hearing and requested a "local hearing." It appears that no hearing was held on this issue. Therefore, upon remand, the RO/AMC should schedule the Veteran for a hearing before a Decision Review Officer (DRO). Hiatal Hernia In an August 2010 informal hearing presentation, the Veteran's representative argued that it had been over three years since his last VA examination and requested that a new examination be provided. The representative also stated that the Veteran had reported his condition had worsened and thus a new VA examination was warranted. As the Veteran was last provided a VA examination in January 2007, approximately three and a half years ago and the Veteran reported that his condition has worsened, the Board finds that a current VA examination is necessary to adequately evaluate the claim. See Caffrey v. Brown, 6 Vet. App. 377 (1995); Green v. Derwinski, 1 Vet. App. 121 (1991). Accordingly, the case is REMANDED for the following action: 1. The Veteran should be scheduled for a personal hearing before a DRO at the local RO to address the issue of entitlement to service connection for an acquired psychiatric disorder, claimed as depression, to include as secondary to service-connected disabilities. In doing so, the Veteran should be notified at his latest address of record, of the hearing location, date and time. 2. The Veteran should be scheduled for a VA gastrointestinal examination (digestive disorders) by an appropriate specialist, in order to determine the current nature and severity of the Veteran's service-connected hiatal hernia. The claims folder and a copy of this remand are to be made available to and reviewed by the examiner in connection with the examination, specifically to include a review of the recently obtained private medical records from August 2005 to June 2009 demonstrating treatment for several gastrointestinal disorders including: gastroesophageal reflux disease (GERD), gastritis, peptic ulcer disease, mucosal thickening of the esophagus and gastric ulcer. The examination report is to contain a notation that the examiner reviewed the claims file. The evaluation should consist of all necessary testing. The examiner is asked to offer an opinion addressing the following questions: (a). Does the Veteran have a current diagnosis of hiatal hernia? If not, are there any residuals of hiatal hernia or any related gastrointestinal disorders present? (b). Is the Veteran's current hiatal hernia, residuals thereof or a related gastrointestinal condition characterized by persistently recurrent epigastric distress with dysphagia, pyrosis, and regurgitation, accompanied by substernal or arm or shoulder pain, productive of considerable impairment of health? (c). Is the Veteran's current hiatal hernia, residuals thereof or a related gastrointestinal condition characterized by symptoms of pain, vomiting, material weight loss and hematemesis or melena with moderate anemia, or other symptoms combinations productive of severe impairment of health? A complete rationale must be given for any opinion expressed, and the foundation for all conclusions should be set forth. The report of the examination should be associated with the claims file. 3. After the development requested above has been completed to the extent possible, the record should again be reviewed. If the benefits sought on appeal remain denied, the Veteran and his representative, if any, should be furnished a supplemental statement of the case and given the opportunity to respond thereto. The case should then be returned to the Board for further appellate consideration. The appellant 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. 2009). _________________________________________________ DEBORAH W. SINGLETON 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).