Citation Nr: 1319846 Decision Date: 06/19/13 Archive Date: 06/27/13 DOCKET NO. 09-50 914 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Huntington, West Virginia THE ISSUES 1. Entitlement to an increased rating for diffuse epidural fibrosis, L4-5, as a result of laminectomy, with recurrence, reherniation, or persistent L4-5 disc right posterolaterally, and degenerative findings at L4-5 and L5-S1, currently evaluated as 40 percent disabling (for brevity, this claim is referred to as "an increased rating for a back disability"). 2. Entitlement to an increased rating for gastroesophageal reflux disease (GERD) and a hiatal hernia with a history of ulcers and erosions (also claimed as peptic ulcer disease) associated with the service-connected back disability, currently evaluated as 10 percent disabling. 3. Entitlement to service connection for pancreatitis. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Emily L. Tamlyn, Counsel INTRODUCTION The Veteran served on active duty from April 1973 to April 1976. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2008 rating decision of the Huntington, West Virginia Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a decision review officer (DRO) hearing in March 2010. In his December 2009 substantive appeal, the Veteran requested a Board hearing, which was scheduled in April 2012. However, in a statement that same month, he cancelled his hearing request. This claim was remanded in July 2012 and January 2013. The issue of an increased rating for a back disability is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. Resolving doubt in favor of the Veteran, GERD and a hiatal hernia with a history of ulcers and erosions have been manifested by persistently recurrent epigastric distress with dysphagia, pyrosis, and regurgitation, accompanied by substernal or arm or shoulder pain, productive of a considerable impairment of health. 2. The weight of the evidence is against a finding that the Veteran has pancreatitis that is related to service. CONCLUSIONS OF LAW 1. Throughout the appeal period, the criteria for 30 percent for GERD and a hiatal hernia with history of ulcers and erosions have been met. 38 U.S.C.A. §§ 1155, 5107(b) (West 2002); 38 C.F.R. § 3.321(b), 4.1, 4.2, 4.7, 4.10, 4.21, 4.114, Diagnostic Codes (DCs) 7304, 7305, 7346 (2012). 2. Pancreatitis was not incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VCAA As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). Proper notice from VA must inform the claimant of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In addition, the notice requirements of the VCAA apply to all elements of a service-connection claim, including the degree of disability and the effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. VCAA notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). Where complete notice is not timely accomplished, such error may be cured by issuance of a fully compliant notice, followed by re-adjudication of the claim. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). For the increased rating claim, the VCAA requires only generic notice as to the type of evidence needed to substantiate the claim, namely, evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on employment, as well as general notice regarding how disability ratings and effective dates are assigned. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). Here, the Veteran was sent a letter in July 2008 that provided information as to what evidence was required to substantiate the claims and of the division of responsibilities between VA and a claimant in developing an appeal. The letter also explained what type of information and evidence was needed to establish a disability rating and effective date. Accordingly, no further development is required with respect to the duty to notify. Next, VA has a duty to assist the Veteran in the development of the claim. This duty includes assisting the Veteran in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). The claims file contains service treatment records, as well as post-service reports of VA and private treatment and examination. Social Security Administration (SSA) records are also in the file. Moreover, the statements in support of the claim are of record. The Board has carefully reviewed such statements and concludes that no available outstanding evidence has been identified. The Board has also perused the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the Veteran's claims adjudicated in this decision. The July 2012 remand requested that the Veteran be afforded a new VA examination for his increased rating for GERD as the disability had worsened. Further, it was instructed that the Veteran be provided a new VA examination for service connection for pancreatitis during an active stage (some past VA records stated it was chronic, but the last VA examination stated there was no present disability). The file shows the Veteran reported to his VA examinations in July 2012 and told the examiner that he was now rated at 100 percent and did not wish to continue with the appeal. He asked the doctor to "send it back" to the AMC; the examiner complied and no examination took place. The AMC sent a follow up letter asking the Veteran to confirm if he wanted to withdraw his appeal; there was no response. The Board finds that the statement to the examiner does not constitute a properly withdrawn appeal under 38 C.F.R. § 20.204 (2012). As explained in a July 2012 letter, where any veteran fails to report for an examination scheduled in connection with a claim for an increase, the claim shall be denied. See 38 C.F.R. § 3.655(b) (2012). Also, as a threshold matter, when a veteran misses a scheduled VA examination, the Board must consider (1) whether the examination was necessary to establish entitlement to the benefit sought, and (2) whether the veteran lacked good cause to miss the scheduled examination. Turk v. Peake, 21 Vet. App. 565, 568-70 (2008). The Veteran here has not supplied good cause for missing or refusing the scheduled examinations. As there is no signed statement from the Veteran withdrawing the claims, the Board will consider the increased rating claim and rate it based on the evidence out of fairness to the Veteran, as he did report to the earlier examination that was later deemed inadequate for rating purposes. If the examiner had done a thorough job then there would have been no need for a follow-up examination and the claim would have been evaluated based on the evidence at hand. The Board will also decide the service connection claim. In light of the above, the Board finds there has been substantial compliance with the July 2012 remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998). (Another remand was ordered in January 2013; although there was not complete compliance with the remand instructions then issued, such noncompliance relates only to the low back claim and will be addressed in the remand portion of this decision.) Further regarding the duty to assist, the United States Court of Appeals for Veterans Claims (Court) has held that the provisions of 38 C.F.R. § 3.103(c)(2) impose two distinct duties on VA employees, in conducting hearings: The duty to explain fully the issues and the duty to suggest the submission of evidence that may have been overlooked. Bryant v. Shinseki, 23 Vet. App. 488 (2010) (per curiam). Here, the transcript of the March 2010 DRO hearing shows the Veteran gave information regarding his claims and responded to questions aimed at determining whether further information was needed to substantiate the claim. The Veteran was represented by an attorney at that hearing. He has not raised complaints regarding the conduct of the hearing. For the above reasons, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002). Increased Ratings Disability evaluations are determined by the application of a schedule of ratings which is based, as far as can practicably be determined, on the average impairment of earning capacity. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.1 (2012). Each service-connected disability is rated on the basis of specific criteria identified by diagnostic codes (DCs). 38 C.F.R. § 4.27 (2012). In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. §§ 4.1 and 4.2 (2012). Also, the entire rating period is considered for the possibility of staged ratings. Consideration will be given to the possibility of separate ratings for separate periods of time based on the facts found. Hart v. Mansfield, 21 Vet. App. 505, 509-510 (2007). The Board has considered whether the Veteran is entitled to staged ratings. Hart, 21 Vet. App. 505. However, as will be discussed, no staged ratings are warranted by the evidence in the file. By way of background, in January 2008, the RO granted service connection for GERD with a history of ulcers and erosions, under DC 7399-7346. The provisions of 38 C.F.R. § 4.27 instruct that unlisted disabilities requiring rating by analogy will be coded with the first two numbers of the schedule provisions for the most closely related body part and "99." Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the specific basis for the evaluation assigned. The additional code 7346 for a hiatal hernia is shown after a hyphen. In September 2008, the RO continued the rating at 10 percent disabling and continued evaluation under the same DC. The Veteran filed a notice of disagreement with this decision. In December 2009, the RO granted entitlement to a total disability rating for individual unemployability (TDIU). The code sheet attached to that decision did not alter the rating, but now described the issue as: "GERD and a hiatal hernia with history of ulcers and erosions." The severity of a digestive system disability is ascertained, for VA rating purposes, by application of the criteria set forth in VA's Schedule for Rating Disabilities at 38 C.F.R. § 4.114 (2012). Ratings under DCs 7301 to 7329, inclusive, 7331, 7342, and 7345 to 7348 inclusive, will not be combined with each other. Instead, a single evaluation will be assigned under the DC which reflects the predominant disability picture, with elevation to the next higher evaluation where the severity of the overall disability warrants such elevation. Id. The Board must evaluate disabilities under multiple DCs to determine if there is any basis to increase the assigned rating. Such evaluations involve consideration of the level of impairment of a veteran's ability to engage in ordinary activities, to include employment, as well as an assessment of the effect of pain on those activities. 38 C.F.R. §§ 4.10, 4.40, 4.45, 4.59 (2012). Turning to the evidence of record, a May 2007 VA examination report referenced private records dated in 2006 showing the presence of an esophageal ulcer. In January 2007 TMH records showed erosive esophagitis as well as mild gastritis. The duodenal appeared normal at the time. The examiner did note the presence of H. pylori in 1998 VA records. The Veteran reported nausea and vomiting intermittently with most recent episode two days prior. The examiner provided positive nexus for GERD and current ulcers/erosions secondary to nonsteroidal anti-inflammatory drugs (NSAIDs) used to control a service-connected back disability. In August 2009, the Veteran saw Dr. B. for a private opinion regarding his unemployability and his service-connected disabilities. Dr. B. thought that the Veteran was service-connected for GERD and a hiatal hernia from NSAID therapy. Dr. B. reported the Veteran had persistent, chronic, and recurrent epigastric distress. He had dysphagia and regurgitation accompanied by arm/chest discomfort and daily pain. He mistook the pain for a heart attack and would go to the ER. His medications did not help and he reported weight loss and gain. Dr. B. believed that erosion of the esophagus was linked to weight gain, which was related to his lack of ability to exercise. The impression was GERD "with major impairment to health" and frequent/recurrent symptoms on a daily basis. He emphasized that the hiatal hernia was due to NSAID therapy for his back. An August 2009 VA primary care record shows the GERD was controlled. The assessment was also "alcohol abuse" and cessation was advised. In September 2009, the Veteran's wife stated the Veteran suffered from pain from GERD; she claimed he had drastic swings in weight gain and loss due to stomach problems. In November 2009, the Veteran was afforded a VA examination for GERD and related symptoms. The claims file and medical records were reviewed. He had intermittent epigastric pain that worsens with stress, spicy foods, dairy and fatty meals. He reported a hiatal hernia and gastric ulcer via esophagogastroduodenoscopy (EGD) in 2007. He responded fairly to medication and had no side effects. He had vomiting less than weekly caused by certain foods. He also had dysphagia (occasionally, at least monthly) and esophageal distress (less than weekly). He could always swallow liquids and soft foods and no feeding tube was required. He had weekly heartburn and less than weekly regurgitation (contents were blood or coffee ground material). There was no history of trauma to the esophagus or history of nausea and there was no hematemesis, melena, or esophageal dilation. He had no signs of anemia. The Veteran's height was 66.5 inches and he weighed 260 pounds; there was a less than 10 percent baseline loss and there were no signs of significant weight loss or malnutrition. He had a distended abdomen and normal abdominal bowel sounds. It was noted that a recent biopsy was negative for H. pylori but gastritis was found. The July 2007 colonoscopy noted mild diverticulosis and an upper GI series from the same month showed small hiatal hernia with GERD along with small duodenal diverticulum. A test for H. pylori in November 2009 was positive. There were no significant effects on his usual occupation (he was not working) and no problems regarding usual daily activities. The examiner did note that the current hiatal hernia was due to the SC GERD, noting both GERD and obesity were risk factors. Many other records noted complaints or treatment for stomach symptoms. In a July 2010 VA psychiatric examination report, the Veteran's indicated that he often drank excessive amounts of coffee during times of mania. Also noted was his history of prescription pain drug abuse, though he denied any current abuse as his wife helped him with his medication. In October 2010, a VA colonoscopy record showed increased inflammatory cells indicative of colitis, early inflammatory bowel or infectious process, but there was no bloody diarrhea or mucous. As stated, in July 2012 the Veteran refused a new examination and told the examiner he did not want to continue his current appeal. Resolving all doubt in the Veteran's favor, the Board finds a 30 percent rating for the service-connected digestive disability is warranted. Again, the service-connected digestive system disability is rated analogously to hiatal hernia under 38 C.F.R. § 4.114, DC 7346. According this code, a 10 percent rating is assigned for a hiatal hernia with two or more of the symptoms of less severity for the 30 percent rating. A 30 percent rating is assigned for a hiatal hernia with persistently recurrent epigastric distress with dysphagia, pyrosis, and regurgitation, accompanied by substernal or arm or shoulder pain, productive of considerable impairment of health. A 60 percent rating is assigned for a hiatal hernia with symptoms of pain, vomiting, material weight loss and hematemesis or melena with moderate anemia; or other symptom combinations productive of severe impairment of health. Although the Veteran's wife and Dr. B. reported material weight loss symptoms, the evidence of record does not reflect that he experienced such a symptom. It also does not show and/or moderate anemia or melena (bloody stools). However, the Board finds that during the appeal period, the service-connected digestive disability has been manifested by recurrent epigastric distress with dysphagia, pyrosis, and regurgitation, accompanied by substernal or arm or shoulder pain. In so finding, the Board relies on treatment records and the 2009 VA examination, as well as a review of private treatment records. At the March 2010 DRO hearing, the Veteran stated that he had an ulcer. (Transcript, p 6.) He couldn't exercise due to his stomach problems. Id. He felt his acid reflux had gotten worse due to being on a bland diet and having gastritis. (Transcript, p 13.) His pain medication for his back made his stomach worse. Id. He felt that he had to eat constantly to avoid feeling nauseated. Id. He regurgitated daily and had chest pain. (Transcript, p 14.) His wife explained that it was like he was having a heart attack. (Transcript, p 15.) He stated that he was receiving increased medication for GERD and had some symptoms but it was now more controlled. (Transcript, p 20.) He further stated his hernia was caused by reflux. (Transcript, p 21.) He felt medicine did not help his ulcer. (Transcript, p 21.) The Board finds the Veteran is competent to report his digestive-related symptoms such as stomach pain. See Washington, 19 Vet. App. at 368-69. Moreover, such reports are deemed credible here. See Tatum v. Shinseki, 23 Vet. App. 152, 155 (2009) (noting that the Board's failure to discuss a veteran's report of symptoms combined with a failure to address her credibility rendered its statement of reasons or bases inadequate). Indeed, the Board finds the Veteran has been candid in stating his GERD was more controlled at the DRO hearing. The Board has considered all appropriate ratings under 38 C.F.R. § 4.114, which covers the digestive system. The Board is aware that the Veteran has been diagnosed with multiple gastrointestinal disabilities during the pendency of the appeal in addition to GERD, including a hiatal hernia, PUD, erosions, and possible irritable bowel syndrome and colitis. Regarding other mentioned disabilities, (i.e., peptic ulcer, irritable bowel syndrome, etc.), 38 C.F.R. § 4.114 makes clear that ratings under DCs 7301 to 7329, inclusive 7331, 7342, and 7345 to 7348 inclusive will not be combined with each other. Instead, a single evaluation will be assigned under the predominant disability picture, with elevation to the next higher evaluation where the severity of the overall disability warrants such elevation. Id. The Board has determined that the overall disability picture warrants elevation to the next-higher evaluation. Peptic ulcer disease (PUD), along with GERD, may be rated as analogous to hiatal hernia under DC 7346. As such, the symptoms related to the Veteran's hiatal hernia and PUD are contemplated in the now-assigned 30 percent rating. Other potentially applicable diagnostic codes for peptic ulcer, irritable bowel syndrome, colitis and GERD include DCs 7305, 7307, 7319 and 7323. Duodenal and gastric ulcers are rated under DC 7305. Under this code (focusing on the provisions that would provide an increase), a 40 percent evaluation is assigned for a moderately severe duodenal ulcer that is less than severe, but with impairment of health manifested by anemia and weight loss; or recurrent incapacitating episodes averaging ten days or more in duration at least four or more times per year. A 60 percent evaluation, the highest schedular rating available under this code provision, is assigned for a severe duodenal ulcer with pain only partially relieved by standard ulcer therapy, periodic vomiting, recurrent hematemesis or melena, with manifestations of anemia and weight loss productive of definite impairment of health. As explained above, there is no objectively demonstrated material weight loss, and no showing of anemia and other symptoms that support a higher rating under this code. DC 7307 contemplates a rating for hypertrophic gastritis, but this must be identified by gastroscope. A 60 percent evaluation, the highest schedular rating available under this diagnostic code, is assigned for chronic hypertrophic gastritis with severe hemorrhages or large ulcerated or eroded areas; other ratings under this code do not provide an increase. A notation to DC 7307 indicates that atrophic gastritis is a symptom of a number of diseases, including pernicious anemia. Anemia, severe hemorrhages and large ulcerated areas are not shown by the record. Finally, DC 7319 contemplates disability ratings for irritable colon syndrome. However, this code would not provide an increased rating in this case, as the maximum rating available is 30 percent. As severe ulcerative colitis (numerous attacks a year and malnutrition) or pronounced ulcerative colitis symptoms (marked malnutrition, anemia and general debility) are not supported by the record, a higher rating under Diagnostic Code 7323 is not for application. See 38 C.F.R. § 4.114, DC 7323. Given the above findings, the Board finds that a 30 percent evaluation best represents the Veteran's disability picture in this case. As explained, the GERD and a hiatal hernia with history of ulcers and erosions do not rise to the level of an increased rating under 38 C.F.R. § 4.114 (2012). Other stomach disabilities are not shown and no other DC provides for an increased rating. An evaluation of 30 percent for service-connected GERD and a hiatal hernia with history of ulcers and erosions is awarded. For exceptional cases, an extraschedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities may be awarded. 38 C.F.R. § 3.321 (b)(1) (2012). In Thun v. Peake, 22 Vet. App. 111 (2011), the Court clarified the analytical steps necessary to determine whether referral for extraschedular consideration is warranted. Either the RO or the Board must first determine whether the schedular rating criteria reasonably describe a veteran's disability level and symptomatology. Id. at 115. If the schedular rating criteria do reasonably describe a veteran's disability level and symptomatology, the assigned schedular evaluation is adequate, referral for extraschedular consideration is not required, and the analysis stops. The Board has considered step one under Thun, 22 Vet App 111, and finds the schedular rating to be fully adequate in this case. The Veteran described his stomach symptoms, which are typical for his disability. The schedular rating takes such symptoms into account in the DC by listing specific symptoms along with their severity. The Board finds the pertinent rating criteria, as detailed previously, accurately describes the severity and symptoms of the service-connected GERD and a hiatal hernia with history of ulcers and erosions. The evidence does not present an exceptional disability picture. In Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court held that an increased rating claim encompasses a claim for a total disability rating based on individual unemployability (TDIU), where raised by the record. In this case, the Veteran is already in receipt of a TDIU for the entire period on appeal (see December 2009 Board decision). In sum, the Board finds that a 30 percent evaluation, but no higher, is warranted. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102 (2012). Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military, naval or air service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303(a) (2012). Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table); see also Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303. Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden/Caluza element is through a demonstration of continuity of symptomatology if the disability claimed qualifies as a chronic disease; such diseases are listed in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Pancreatitis is not among the listed diseases. In adjudicating this claim, the Board must assess the competence and credibility of the Veteran. Washington v. Nicholson, 19 Vet. App. 362 (2005). Under 38 C.F.R. § 3.159(a)(2) (2012), competent lay evidence means any evidence not requiring that the proponent have specialized education, training or experience. Lay evidence is competent if it is provided by a person who has knowledge of the facts or circumstances and conveys matters that can be observed and described by a lay person. Id. In Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009), the Federal Circuit reiterated that under 38 U.S.C.A. § 1154(a) VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for benefits. Citing Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006) and Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007), the Federal Circuit stated that under § 1154(a) lay evidence can be competent and sufficient to establish a diagnosis of a condition when: "(1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional." Jandreau, 492 F.3d at 1377. The Board must also assess the credibility, and probative value of the evidence of record as a whole. In determining whether documents submitted by a veteran are credible, the Board may consider internal consistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza, 7 Vet. App. 498. In addition, regulations provide that service connection is warranted for a disability which is aggravated by, proximately due to, or the result of a service-connected disease or injury. 38 C.F.R. § 3.310 (2012). Any additional impairment of earning capacity resulting from an already service-connected disability, regardless of whether or not the additional impairment is itself a separate disease or injury caused by the service-connected disability, should also be compensated. Allen v. Brown, 7 Vet. App. 439 (1995). When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. Id. The provisions of 38 C.F.R. § 3.310 were amended, effective October 10, 2006. The pre-aggravation baseline level of disability must be established with medical evidence created before the onset of aggravation or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity of the nonservice-connected disease or injury. 38 C.F.R. § 3.310(b). The findings as to the baseline and current levels of severity are to be based upon application of the corresponding criteria under the Schedule for Rating Disabilities (38 C.F.R. Part 4) for evaluating that particular nonservice-connected disability. § 3.310(b). The Veteran contended in December 2006 that he had been diagnosed with chronic pancreatitis secondary to NSAIDS for his service-connected back disability; he did not smoke or drink and followed a bland diet. In a February 2008 statement, stated that he was seeking service connection for chronic pancreatitis. In March 2010, at a DRO hearing, he claimed to have had several bouts of pancreatitis. He did not drink hard alcohol, only beer at social gatherings. (Transcript, p 16.) When he got pancreatitis, he was hospitalized and given intravenous fluid and other drugs. (Transcript, p 17.) The Veteran stated VA kept him "medicated" for his pancreatitis but did not indicate that he was treated for flare ups. (Transcript, p 19.) He had submitted all past private treatment for pancreatitis. (Transcript, p 20.) Here, the Board finds the record does not establish a current diagnosis of chronic pancreatitis. Service treatment records do not document treatment for pancreatitis. The April 1976 Report of Medical Examination (RME) shows the endocrine system was clinically normal; he had no defects and was qualified for separation. Many records show that he was treated for PUD over the years (see March 1979 BMH, April 1983 LGH, and September 1985 Dr. M. records). In May 1986, he was diagnosed and treated for chronic cholelithiasis at CAMC. It was noted he had a history of right upper quadrant pain with nausea for past four or five years. He had stones in gall bladder on ultrasound. A cholecystectomy was performed. In March 1998, a LGH emergency room (ER) record showed a final diagnosis of acute pancreatitis/abdominal pain. An X-ray of the chest and kidneys, ureter and bladder (KUB) showed no significant abnormality (the past cholecystectomy was noted). In May, he went to VA where a record noted a questionable history of pancreatitis. Past gall bladder surgery was noted and that he was seen at LGH. An X-ray of the abdomen showed no abnormalities. He had a normal chest. An ultrasound of abdomen was normal, but the pancreas was poorly visualized due to overlying gas. He was diagnosed with abdominal/epigastric pain and PUD only. Over the next several months, VA records note a history of a pancreatic disorder (see July 1998 VA record). In August 1998, a VA computed tomography (CT) of the pancreas showed irregular enlargement of head of the pancreas with no definitive evidence of pseudocyst or parapancreatic fluid collections or adjacent soft tissue abnormalities. In September, he went to the ER at SM and stated that he passed two kidney stones two days ago. He complained of chronic pancreatitis; he was diagnosed with a history of chronic pancreatitis and narcotic addiction. The same month the Veteran presented to VA stating he had chronic pancreatitis and was not a drinker. It was noted he had no acute pain and that he had bilateral flank pain of an unclear etiology. It was noted that usually pancreas pain was anterior to the abdomen. He was referred to urology. Also early in September 1998, the Veteran went to LGH where a history of pancreatitis was noted. Another record showed he had history of chronic abdominal pain for many years. A CT scan noted focal enlargement to the head of the pancreas with some irregularity. The etiology of pancreatitis was not defined. The impression was recurrent pancreatitis with abnormal CT scan. Consult noted that further study was needed, noting he experienced weight loss. The differential diagnosis was pancreatic head neoplasm versus focal pancreatitis. Finally, at the end of September he went to see Dr. M. at CAMC. He had an endoscopic retrograde cholangiopancreatography (ERCP). Postoperative diagnosis was normal pancreatic ductal system, normal biliary system, status post-cholecystectomy. He had gastritis. Dr. M. concluded that the pain was not pancreatic in origin. Supporting Dr. M. in the file is the ERCP showing a normal appearance of pancreatic duct and common bile duct. In November 1998 the Veteran was admitted to TMH for depression and a long history of prescription drug abuse was noted. Similarly, a December 1998 worker's compensation psychiatric evaluation noted the Veteran's report of being diagnosed with pancreatitis a few months ago and stated: "This was thought to be related to analgesic use." From this point on, the Veteran frequently reported to providers that he had been diagnosed with pancreatitis in 1998 (see, for example, a February 1999 chiropractor record and a January 2007 VA primary care record). He sometimes stated that he had stomach and biliary surgery and was left with residual chronic pancreatitis in the early 1980s (see January 2000 private psychiatric report). An October 1999 LGH discharge summary shows the diagnosis was abdominal pain, resolved, possibly secondary to a combination of pancreatitis as well as gastroparesis. Records from the past surgery with Dr. M. in 1998 were not received. A CT scan was negative; it showed significant food debris in stomach; the Veteran stated he had heartburn, but couldn't tolerate medications for it. The etiology of pancreatitis was undefined. He had alcohol abuse and had a colecystectomy. Discharge instructions were for a low fat diet. Further evidence does not support a definite diagnosis of chronic pancreatitis. A February 2000 SSA decision showed the Veteran was disabled and noted past prescription drug abuse but that the Veteran no longer takes such medications. In June 2001, Dr. M. completed an echography, but the pancreas was not optimally visualized. In July 2001, Dr. M. had another CT of the abdomen and there was no definite evidence for pancreatitis. In January 2002, a WMH note shows an assessment of acute pancreatitis, as well as hypertension and GERD. However, other WMH records incorrectly state that the Veteran had a stent put in his pancreas, which is not supported by other records. He had recurrent episodes of epigastric pain and elevation of lipase once a year. He denied several symptoms of pancreatitis. His past medical history noted a past gunshot wound for the first time and portions of the record were redacted for an unknown reason. The assessment was mild pancreatitis "with no Ranson's criteria, and that is a good sign." The etiology was unknown. A portion of the assessment is redacted and unreadable. However, the discharge summary is not redacted and mentions a variety of diagnoses. This includes recurrent abdominal pain; nausea, vomiting and diarrhea secondary to acute gastroenteritis with/or chronic pancreatitis; GERD; PUD; and status post gunshot wound. His reported history of gallstone and pancreatitis trouble was noted. It was further noted that the Veteran left the hospital against medical advice a few days after admission. An X-ray from that same month showed as best as demonstrated the pancreas was normal, but diffuse edema was not excluded. In May 2007, a VA examiner reviewed September 1998 CAMC records and saw that there was no definite evidence of pancreatitis at the time. The Veteran did not report for an August 2008 VA examination. In November 2009, a VA examiner reviewed the file and interviewed the Veteran. The Veteran related his history of pancreatitis to 1998, with no further episodes. A follow up CT of the abdomen showed no evidence of pancreatitis. The examiner found the pancreas was currently stable. There was no subjective or objective evidence of pancreatitis. A prior CAT scan of the abdomen did not show evidence of pancreatitis. Therefore, no nexus opinion was given. In July 2012, the Board remanded the claim for a more detailed opinion, however, the Veteran refused it in July 2012 and informed the examiner that he did not want to continue to the appeal. As an initial matter, the Board finds the Veteran would be competent to report symptoms of pancreatitis, such as pain anterior to the abdomen (see September 1998 VA record where the clinician describes this as a typical symptom). However, to the extent the Veteran has asserted he had chronic pancreatitis, the Board finds that he and other lay observers are not competent to diagnose a particular disease or find that it is related to service or another service-connected disability because medical expertise is required for such a judgment; lay persons can state what they saw or experienced with their own senses. 38 C.F.R. § 3.159(a)(2). The Board also finds that the Veteran was not adept at reporting what diagnoses he had received in the past or his prior medical history. To that extent, his self-reported diagnoses are assigned less weight. Caluza, 7 Vet. App. at 511. Given the above evidence, the Board does not find the first element has been met regarding chronic pancreatitis. Shedden, 381 F.3d at 1167. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007) is often cited for the proposition that the requirement of current disability for service connection is satisfied when the claimant has the disability at the time the claim for VA disability compensation is filed or during the pendency of the claim, even if the disability resolves prior to VA's adjudication of the claim. However, the issue in that case was a psychiatric disability and it involved whether or not that claimant had a personality disorder. In contrast, this case involves a disease that may or may not be chronic and is properly diagnosed with the assistance of diagnostic tests, laboratory results and other procedures. Psychiatric disabilities are not subject to the same kind of testing as pancreatic disease. Here, the Board relies on Dr. M.'s September 1998 ERCP and other clinical findings as well as the May 2007 and November 2009 VA examination reports to determine the Veteran did not have chronic pancreatitis in the past and does not currently have this disability. While there are certainly some unclear findings in the record, the Board's attempt to clarify this was thwarted by the Veteran's failure to report to the July 2012 VA examination. Overall, the Board finds Dr. M.'s September 1998 record the most probative, based on the available evidence. Weighing the evidence, the Board finds that service connection is not warranted for pancreatitis because it is not a present disability. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(d). It follows there is no showing of aggravation, proximately due to, or the result of any other service-connected disability. 38 C.F.R. § 3.310; Allen, 7 Vet. App. 439. ORDER A 30 percent rating, but no higher, for GERD and a hiatal hernia with history of ulcers and erosions has been met. Service connection for pancreatitis is denied. REMAND The Board finds a remand is required regarding the claim of entitlement to an increased rating for a back disability because there is no showing that the AMC took steps to get the VA-fee basis Cabell Huntington Regional Pain Management Center (Cabell) records. Instead of retrieving the records, the AMC printed records from Virtual VA that reference Cabell treatment. The Board is requesting the actual fee-basis record from Cabell created after March 2010. As mentioned in the last remand, the September 2012 SSOC notes and a July 2012 letter shows the AMC requested the Veteran sign and authorization and consent letter to these records. However, such consent should not be necessary, since the Cabell records mentioned are scanned and in Virtual VA-it just is not accessible by the Board (See the several fee-basis out-patient treatment references in the uploaded batch of documents labeled "CAPRI" dated November 14, 2011). The AMC should contact the Veterans Health Administration (VHA) to get the documents; the Veteran would not have to sign an authorization and consent form. VA paid for the fee-basis appointments so VHA should have these treatment records. Compliance with remand directives is neither optional nor discretionary. Where the remand orders of the Board or the Courts are not complied with, the Board errs as a matter of law when it fails to assure compliance. Stegall, 11 Vet. App. at 271. Accordingly, the case is REMANDED for the following action: 1. Obtain all treatment records from Cabell Huntington Regional Pain Management Center from March 2010 to the present. If VHA does not have the records, the Veteran should be notified in accordance with 38 C.F.R. § 3.159(e). 2. After the above development is completed, review the evidence of record, to specifically include all evidence associated with the Veteran's claims file and Virtual VA record since the April 2013 SSOC, and re-adjudicate the issues on appeal. If the benefit sought on appeal is not granted, the Veteran should be provided with a SSOC and afforded the appropriate opportunity to respond to it. Then the case should be returned to the Board for further appellate consideration. The appellant has the right to submit 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 Court 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). ______________________________________________ ERIC S. LEBOFF Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs