Citation Nr: 1306016 Decision Date: 02/21/13 Archive Date: 02/27/13 DOCKET NO. 07-07 632 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to an initial compensable rating for gastroesophageal reflux disease (GERD). REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD F. Yankey, Counsel INTRODUCTION The Veteran had several periods of either active duty (special work) or active duty for training, including from October 22, 1972 to February 21, 1973, from February 25, 1991 to October 9, 1991, from April 1, 1994 to June 4, 1994, from June 18, 1994 to July 8, 1995, from July 22, 1995 to February 25, 1996, from March 25, 1996 to September 25, 1996 and from September 15, 1997 to September 30, 2004, as well as other periods of unverified reserve service, with total active and inactive service in excess of 30 years when he retired in 2004. This case comes before the Board of Veterans' Appeals (Board) on appeal of a November 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, which in pertinent part, granted service connection for GERD and assigned a noncompensable evaluation. In December 2007, the Veteran failed to appear, without explanation, for a Board hearing. He has not requested that the hearing be rescheduled. Therefore, his request for a hearing is considered withdrawn. See C.F.R. §20.702(d) (2012). In November 2010, the Board remanded the case for further development by the originating agency. The case has been returned to the Board for further appellate 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 Unfortunately, another remand is required in this case. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. In this regard, the Veteran's representative indicated in the November 2012 Written Brief Presentation, submitted after that examination, that it was the Veteran's contention that his GERD had worsened. Thus, the evidence of record indicates that the Veteran's disability may have worsened the most recent VA examination, which was conducted two years ago, in February 2011. In February 2011, the Veteran reported that his symptoms were consistently changing, but complained of right-sided abdominal pain and hot sweats, unrelated to food intake. He also reported periods of no symptomatology. He denied any history of hospitalization or surgery to the esophagus, nausea or vomiting associated with esophageal disease, dysphagia, pyrosis or heartburn, regurgitation, esophageal dilation, hematemesis or melena, or esophageal distress. The examiner also noted that there were no signs of anemia or significant weight loss or malnutrition. However, as noted, the Veteran reports an increased severity of symptoms since that examination, so further examination is required. 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). Given the evidence of increased symptomatology, a new VA examination is warranted to determine the current severity of his GERD. The law provides that the 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 & Supp. 2012); 38 C.F.R. § 3.159 (2012). 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. Id. The appellant is advised that it is his responsibility to report for the examination and to cooperate in the development of the case, and that the consequences of failure to report for a VA examination without good cause may include denial of the claim. See 38 C.F.R. §§ 3.158, 3.655 (2012). The Board further notes that the claims file does not contain any treatment records dated after December 2010. As this case is already being remanded for further development, the RO should take this opportunity to obtain any additional treatment records that may be relevant to the claim. Accordingly, the case is REMANDED for the following action: 1. The RO should request that the Veteran provide the names and addresses of any and all health care providers who have provided treatment for his service-connected GERD. After acquiring this information and obtaining any necessary authorization, the RO should obtain and associate these records with the claims file. All development efforts should be in writing and associated with the claims folder. 2. The RO should also obtain any outstanding VA medical records dated from December 2010 to the present. 3. After the aforementioned development has been completed and any obtained treatment records, and/or negative response(s), associated with the claims folder, the Veteran should be scheduled for a VA examination related to his GERD, to ascertain the current severity of this disorder. All indicated tests or studies should be accomplished. The claims folder must be made available to and reviewed by the examiner, such review must be noted in the examination report, to include records associated with the claims file or electronic file curing the course of this Remand. All symptoms attributed to the condition should be identified, with it particularly noted whether pain, vomiting, epigastric distress with dysphagia, pyrosis and regurgitation are present or absent. Additionally, if the Veteran's symptoms have increased or decreased in severity during the pendency of this claim, that is, since the Veteran submitted the initial claim for service connection in 2005, the examiner should indicate the onset date of the increase or decrease in symptoms. The examiner must provide a rationale for each opinion. If an opinion as to dates of increases or decreases in severity of symptomatology cannot be provided without resort to mere speculation, the examiner should indicate this in the examination report and must provide a rationale for such conclusion. 4. When the development requested has been completed, the case should be reviewed by the RO on the basis of additional evidence. 5. If the benefit sought on appeal is not granted, the AOJ should issue a supplemental statement of the case, before returning the case to the Board, 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). _________________________________________________ Tresa M. Schlecht Acting 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).