Citation Nr: 1301883 Decision Date: 01/17/13 Archive Date: 01/23/13 DOCKET NO. 09-19 020A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to an initial evaluation in excess of 30 percent for adjustment disorder with depressed mood. 2. Entitlement to an initial evaluation in excess of 30 percent for gastroesophageal reflux disease, status post Nissen fundoplication. 3. Entitlement to an initial evaluation in excess of 10 percent for tinnitus. 4. Entitlement to an initial compensable evaluation for left ear hearing loss. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESSES AT HEARING ON APPEAL Veteran and his wife ATTORNEY FOR THE BOARD Kristi L. Gunn, Counsel INTRODUCTION The Veteran served on active duty from August 1999 to March 2005. This matter comes to the Board of Veterans' Appeals (Board) on appeal from August 2007, April 2008, and March 2011 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. During the pendency of the appeal, an April 2009 Decision Review Officer (DRO) decision increased the Veteran's disability evaluations for his service-connected gastroesophageal reflux disease, status post Nissen fundoplication, and service-connected adjustment disorder with depressed mood to 30 percent disabling each, effective March 21, 2007, and November 7, 2007, respectively. These claims remain in appellate status. Applicable law mandates that when a veteran seeks an increased evaluation, it will generally be presumed that the maximum benefit allowed by law and regulation is sought, and it follows that such a claim remains in controversy where less than the maximum benefit available is awarded. See AB v. Brown, 6 Vet. App. 35 (1993). The Veteran testified before a DRO at the RO in March 2009. A copy of the transcript has been associated with the claims file. The Veteran also testified at a hearing before the undersigned in October 2012. A copy of the transcript has been associated with the claims file. A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal. 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 With regards to the service-connected adjustment disorder with depressed mood, the Veteran testified at the October 2012 Board hearing that he has been receiving treatment at his local VA Medical Center. The most recent VA psychiatric examination report dated February 2011 notes that the Veteran has received psychotherapy treatment for his service-connected adjustment disorder with depressed mood for over the past year. VA outpatient treatment records as of October 2010 have been obtained and associated with the claims file; however, the documentation in the Veteran's claims file does not show the RO attempted to obtain any updated VA treatment records. Where VA has constructive and actual knowledge of the availability of pertinent records in the possession of the VA, an attempt to obtain them must be made. See Bell v. Derwinski, 2 Vet. App. 611 (1992). Turning to the Veteran's service-connected gastroesophageal reflux disease, status post Nissen fundoplication, the Veteran's most recent VA examination for the service-connected disability was conducted in July 2007. Its purpose was to determine whether the Veteran's gastrointestinal disability was related to service. It is now over four years old. Further, the examiner did not review the Veteran's claims file, and it does not appear that his treatment records were reviewed. At the October 2012 Board hearing, the Veteran testified that the pain associated with his service-connected gastroesophageal reflux disease, status post Nissen fundoplication has gotten a little worse over the years. VA's duty to assist includes providing a new VA medical examination when a Veteran asserts or provides evidence that a disability has worsened and the available evidence is too old for an adequate evaluation of the current condition. Weggenmann v. Brown, 5 Vet. App. 281, 284 (1993); see also 38 C.F.R. § 3.326(a). Examinations will be requested whenever VA determines, as in this case, that there is a need to determine the current severity of a disability. 38 C.F.R. §§ 3.159, 3.327(a) (2012). On remand, the Veteran should be scheduled for a new VA examination to evaluate the current severity of his service-connected gastrointestinal disability. Finally, with regards to the service-connected tinnitus and left ear hearing loss, the Veteran requested a hearing before a Veterans Law Judge by live videoconference in his May 2012 substantive appeal. No hearing has been scheduled. There is nothing in the record to indicate that the Veteran has been properly notified of a scheduled hearing date and time, or has withdrawn his request for a Board videoconference hearing. See 38 C.F.R. § 20.704(b), (e). Since the RO schedules videoconference hearings, a remand of this matter to the RO is warranted. Accordingly, the case is REMANDED for the following action: 1. Attempt to obtain any outstanding VA treatment records that may exist from the South Texas Veterans Health Care System in San Antonio, Texas. If no records are available, the claims folder must indicate this fact and the Veteran should be notified in accordance with 38 C.F.R. § 3.159(e) (2012). The notice must contain the following information: (1) the identity of the records that could not be obtained, (2) an explanation of efforts made to obtain the records, (3) a description of any further action that will be taken including notice that VA will decide the claim based upon evidence of record unless the Veteran submits records that VA was unable to obtain and (4) notice that the Veteran is ultimately responsible for providing the evidence. THE RO/AMC MUST CONSIDER AND DECIDE WHETHER THE VETERAN SHOULD UNDERGO AN ADDITIONAL MEDICAL EXAMINATION IN ACCORDANCE WITH APPELIOCABLE LAW. 2. Schedule the Veteran for a VA examination to ascertain the current severity of his service-connected gastrointestinal disability. In all examinations, the following considerations will govern: a. The claims folder, and a copy of this remand, will be made available to the examiner(s) who must acknowledge such receipt and review in any report generated as a result of this remand. b. The examiner(s) must conduct any appropriate interviews and clinical testing to respond to the inquiries. c. The examiner(s) must state the medical and factual basis or bases for any opinions rendered based on his or her clinical experience, medical expertise, and established medical principles, and with identification of the evidence of record. d. If the examiner finds he or she cannot provide a requested finding without resort to pure speculation, he must provide a complete rationale for any such opinion. He must indicate whether his or her inability to provide such an opinion is a result of such factors as: (i) an intractable lack of sufficient factual information, (ii) a lack of sufficient specialization or expertise on his or her part, or (iii) a lack of sufficient knowledge or information in the medical community at large under the current state of the art of medical care and research. e. The examiner must: i. Report whether the condition is productive of persistently recurrent epigastric distress with dysphagia, pyrosis, and regurgitation, accompanied by substantial arm or shoulder pain, productive of considerable impairment of health. ii. Report whether the condition is productive of symptoms of pain, vomiting, material weight loss and hematemesis or melena with moderate anemia; or other symptom combinations productive of severe impairment of health. iii. Comment on whether there is any clinical or medical evidence to support the Veteran's lay contentions that his disorder warrants a higher rating. 3. Schedule the Veteran for a videoconference hearing at the RO at the earliest available opportunity only for the claims of entitlement to an initial evaluation in excess of 10 percent for tinnitus and an initial compensable evaluation for left ear hearing loss. The RO should notify the Veteran and his representative of the date and time of the hearing, in accordance with 38 C.F.R. § 20.704(b) (2012). After the hearing, the claims file should be returned to the Board in accordance with current appellate procedures. 4. Thereafter, and after undertaking any additional development deemed necessary, readjudicate the issues on appeal. If the benefits sought on appeal remain denied, in whole or in part, the Veteran and his representative should be provided with a Supplemental Statement of the Case and be afforded reasonable opportunity to respond. The case should then be returned to the Board for further appellate review, if otherwise in order. 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. 2012). _________________________________________________ Vito A. Clementi 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) (2012).