Citation Nr: 1300562 Decision Date: 01/08/13 Archive Date: 01/16/13 DOCKET NO. 09-33 801 ) DATE ) ) Received from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUE Entitlement to an initial rating in excess of 30 percent for service-connected gastroesophageal reflux disease (GERD). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD D. Whitehead, Counsel INTRODUCTION The Veteran served on active duty from April 1984 to April 1988. He also had an additional 4 years 6 months and 26 days of active service. This matter comes properly before the Board of Veterans' Appeals (Board) on appeal from a June 2008 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California. In a November 2010 statement, the Veteran relayed that he had been assessed as having irritable bowel syndrome (IBS) by his private physician. He appears to have attributed this condition to gastrointestinal symptoms he experienced in service. However, it is unclear from the Veteran's statement whether he seeks service connection for IBS. As further clarification is needed in this regard, and as the issue has not yet been addressed by the agency of original jurisdiction (AOJ), the issue is referred to the AOJ for appropriate action. 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 The Veteran claims that an initial increased rating is warranted for his service-connected GERD. Historically, the RO granted service connection for GERD in the June 2008 rating decision, with an initial 30 percent rating assigned for the disability. The Veteran subsequently perfected an appeal of this initial rating. In a December 2012 brief, the Veteran's representative essentially asserted that the evidence of record does not fully reflect the current severity of the Veteran's GERD. His representative noted that the Veteran was last afforded a VA examination in April 2008 and highlighted that the Veteran continued to experience GERD symptomatology. In support of this contention, the representative highlighted that private medical records submitted since the April 2008 VA examination showed treatment for the service-connected disability. Generally, these records document the Veteran's symptoms as including nausea, diarrhea, and vomiting, which the Board notes are symptoms that were not reported at the time of the April 2008 VA examination. Thus, the Veteran, by way of his representative, has essentially claimed that his GERD has gotten worse since he was last afforded a VA examination. In light of the fact that the Veteran's most recent VA examination for his service-connected GERD was conducted in April 2008, his assertion that this disability is more severe than previously determined, and the medical evidence indicating a possible increase in severity, the Board finds that an additional examination is warranted. See Olsen v. Principi, 3 Vet. App. 480, 482 (1992), citing Proscelle v. Derwinski, 2 Vet. App. 629, 632 (1992). Moreover, the April 2008 examination is over four years old and is therefore too remote in time from which to evaluate the current severity of the Veteran's disability. See Snuffer v. Gober, 10 Vet. App. 400, 403 (1997) (holding that a veteran was entitled to a new evaluation after a two year period between the last VA examination and the Veteran's contention that his disability has increased in severity); Caffrey v. Brown, 6 Vet. App. 377, 381 (1994) (an examination too remote for rating purposes cannot be considered "contemporaneous"). Therefore, due to the passage of time and the Veteran's assertions, the Veteran must be afforded a new examination to determine the current nature, extent, severity and manifestations of his service-connected GERD. See Palczewski v. Nicholson, 21 Vet. App. 174, 181 (2007). Thus, the Board finds it necessary to remand the claim to the AOJ to afford the Veteran another VA examination. Additionally, the Board notes that the Veteran has submitted private medical records dated up until October 2010 that have not yet been considered by the AOJ. This evidence is relevant to the issue being addressed in this appeal, and a waiver of AOJ consideration of this additional evidence has not been received. Accordingly, the AOJ must give consideration to this additional evidence during the course of this remand, and such must be reflected in any supplemental statement of the case issued in this matter. See 38 C.F.R. § 19.31 (2012). Accordingly, the case is REMANDED for the following actions: 1. Schedule the Veteran for an appropriate VA examination to determine the severity of his service-connected GERD. (Advise the Veteran that failure to appear for an examination as requested, and without good cause, could adversely affect his appeal. See 38 C.F.R. § 3.655 (2012).) The claims folder must be provided to the examiner in conjunction with the examination. All pertinent symptomatology and findings must be reported in detail. Any indicated diagnostic tests and studies must be accomplished. The examiner must address whether the Veteran has symptoms of vomiting, material weight loss, hematemesis, melena, moderate anemia, or other symptom combinations associated with his GERD, and whether any such symptoms are productive of "severe" impairment of health. The examiner must also address whether the Veteran has persistently recurring epigastric distress, dysphagia, pyrosis, or regurgitation, accompanied by substernal or arm or shoulder pain, and, if so, whether these symptoms are productive of "considerable" impairment of health. The examiner must also identify and explain any other manifestations of the Veteran's GERD. In so doing, and to the extent possible, the examiner must distinguish the Veteran's GERD symptomatology from that which is attributable to any other digestive condition. A complete rationale for all requested opinions must be provided. If an examiner cannot provide the requested opinion without resorting to speculation, it must be so stated, and the examiner must provide the reasons why an opinion would require speculation. The examiner must indicate whether there was any further need for information or testing necessary to make a determination. Additionally, the examiner must indicate whether any opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner. The report prepared must be typed. 2. Then, review the examination report to ensure that it is in complete compliance with the directives of this remand. If the report is deficient in any manner, implement corrective procedures at once. 3. Finally, after undertaking any necessary development, re-adjudicate the Veteran's claim on appeal, taking into consideration any newly acquired evidence. If the benefit remains denied, a supplemental statement of the case must be provided to the Veteran and his representative. After the Veteran has had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. No action is required by the Veteran until he receives further notice; however, he may present additional evidence and argument on the matter 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 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. 2012). _________________________________________________ RYAN T. KESSEL Acting Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board 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) (2012).