Citation Nr: 1306641	
Decision Date: 02/27/13    Archive Date: 03/01/13

DOCKET NO.  09-34 160	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Roanoke, Virginia


THE ISSUE

Entitlement to an initial evaluation in excess of 10 percent for irritable bowel syndrome (IBS).


REPRESENTATION

Appellant represented by:	Kathy A. Lieberman, Attorney at Law


ATTORNEY FOR THE BOARD

C.A. Skow, Counsel


INTRODUCTION

The Veteran served on active duty from October 2003 to October 2007.

This case comes before the Board of Veterans' Appeals (Board) on appeal from a September 2008 rating decision of the Roanoke, Virginia, Department of Veterans Affairs (VA) Regional Office (RO), which granted service connection for IBS and anxiety disorder, assigning a 10 percent evaluation, effective October 7, 2007, for each disorder.  This appeal arises from the Veteran's disagreement with assigned initial disability evaluations.

The Board notes that the RO assigned a 30 percent evaluation for anxiety disorder effective October 7, 2007, in a July 2012 rating decision.  In general, as a veteran is presumed to be seeking the maximum benefit allowed by law and regulation, it follows that a claim remains in controversy as less than the maximum benefit available has been awarded.  AB v. Brown, 6 Vet. App. 35, 39 (1993).  However, here the RO advised the Veteran that the award of a 30 percent evaluation was considered a full grant because that was the precise disability evaluation he had been seeking.  Since then, both the Veteran and his attorney have submitted several statements in support of the claim for a higher initial evaluation for IBS, and neither have expressed disagreement with the RO's determination regarding the claim for a higher initial rating for anxiety disorder.  Therefore, under the circumstances of this particular case, the Board finds that the claim for a higher initial evaluation for anxiety disorder has been resolved and is no longer on appeal.  

The Board also notes that there is a Virtual VA electronic claims file associated with the Veteran's claims.  A review of the documents in the electronic file reveals that they are either duplicative of the evidence in the paper claims files or are irrelevant to the issues on appeal.

The appeal is REMANDED to the Regional Office.  VA will notify the Veteran if further action is required.


REMAND

VA's duty to assist includes obtaining records in Federal custody and making reasonable efforts to obtain those outstanding medical records not in Federal custody.  38 C.F.R. § 3.159 (2012).

Here, the record shows that the Veteran received treatment from Dr. Shahzad Rahman for his IBS.  However, these records have not been requested or obtained.  Therefore, to ensure that VA has fulfilled its duty to assist the Veteran in the development of his claim, remand is necessary.

Accordingly, the case is REMANDED for the following action:

1.  The RO should undertake appropriate development to obtain a copy of all updated VA treatment records and any other outstanding records pertinent to the Veteran's claims, including the private treatment records of Dr. Shahzad Rahman.

2.  Thereafter, the RO should also undertake any other development it determines to be warranted.

3.  Then, the RO should readjudicate the issue on appeal.  If the benefit sought on appeal is not granted to the Veteran's satisfaction, the RO should furnish to the Veteran and his attorney a supplemental statement of the case and afford them the requisite opportunity to respond.  Thereafter, if indicated, the case should be returned to the Board for further appellate action.

The Veteran 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).



______________________________________________
MICHAEL LANE
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).