Citation Nr: 1325441 Decision Date: 08/12/13 Archive Date: 08/16/13 DOCKET NO. 09-04 929 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUE Entitlement to an increased rating for gastroesophageal reflux disease with hiatal hernia and Barrett's esophagitis, status post Nissen fundoplication with scars, currently evaluated as 10 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Siobhan Brogdon, Counsel INTRODUCTION The Veteran served on active duty from June 1977 to January 2000. This appeal comes before the Department of Veterans Affairs (VA) Board of Veterans Appeals (Board) from a January 2009 rating decision of the VA Regional Office in Roanoke, Virginia that denied entitlement to an evaluation in excess of 10 percent for gastroesophageal reflux disease with hiatal hernia and Barrett's esophagitis, status post Nissen fundoplication with scars. The Veteran was afforded a hearing in February 2011 before the undersigned Veterans Law Judge. The transcript is of record. The case was remanded for further development by Board decision in May 2011. Following review of the record, 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 asserts that the symptoms associated with his service-connected gastroesophageal disease are more severely disabling than reflected by the currently assigned 10 percent evaluation. The appellant testified at his February 2011 hearing that he had been receiving treatment for his service-connected gastroesophageal disease from the Bethesda Naval Medical Center (since renamed "Walter Reed National Military Medical Center") since 2007, including a collaborative study with the National Institutes of Health. At the time of the 2011 hearing, he stated that he continued in treatment what is now Walter Reed. The Board observes, however, that with the exception of results of endoscopic studies performed in July and August 2009 and March 2010, there are no other outpatient or clinic notes evidencing continuing treatment or follow-up in this regard. Pursuant to the Board's 2011 remand and following a request for records from Walter Reed, no more than a duplicate copy of a previously submitted endoscope report was received. Attached to the report was a form letter indicating that VA's request was "referred to Inpatient medical records." However, a VA inquiry dated in May 2011 requested all treatment records, hospital summaries, and findings for a gastrointestinal disorder. As such, the Board is of the opinion that there are outstanding records at Walter Reed that have not been made available for the Board's review and consideration. Accordingly, another request must be presented to Walter Reed Hospital, and VA must specifically request all outpatient and inpatient records dating from 2007 pertaining to the Veteran's treatment for gastroesophageal disability and associate them with the claims folder. Additionally, the Board notes that a letter was sent to the appellant in May 2011 requesting that he submit reports and/or statements from doctors, hospitals, and medical facilities that have treated him for gastrointestinal illness since October 2007. It appears, however, that there has been no response from the appellant to date. In a case such as this one that lacks almost six years of outpatient treatment records, it would behoove the Veteran to attempt to secure his own records for full consideration of his claim. The United States Court of Appeals for Veterans Claims (Court) has held that "The duty to assist in the development and adjudication of a claim is not a one-way street." Wamhoff v. Brown, 8 Vet.App. 517, 522 (1996). "If a [claimant] wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence." Wood v. Derwinski, 1 Vet.App. 190, 193 (1991); see also Olson v. Principi, 3 Vet.App. 480, 483 (1992). In order for VA to process claims, individuals applying for benefits have a responsibility to cooperate with the agency in the gathering of evidence necessary to establish entitlement to benefits. Caffrey v. Brown, 6 Vet.App. 377, 383 (1994). Therefore, the RO/AMC should once again contact the Veteran and request he provide authorization to obtain records and/or secure his own treatment records from Walter Reed National Military Medical Center and the National Institutes of Health. The Board would also point out that when this case was remanded in May 2011, the Board instructed that the Veteran be examined by a gastroenterologist. The record reflects, however, that the June 2011 VA examination appears to have been performed by either a VA staff person with the title of chief administrative officer, or by an internist who is not shown to be a gastroenterologist. It is well established that a remand by the Board confers on the appellant, as a matter of law, a right to compliance with the remand instructions, and imposes upon VA a concomitant duty to ensure compliance with the terms of the remand. Stegall v. West, 11 Vet.App. 268, 271 (1998). As such, the Veteran must be afforded a VA examination by a VA medical doctor who is a gastroenterologist and this should be noted on the examination report. Accordingly, the case is REMANDED for the following actions: 1. The AMC/RO should contact the Walter Reed National Military Medical Center in Bethesda, Maryland and request all records for the Veteran, including outpatient and inpatient records dating since October 2007. All attempts to secure this evidence must be documented in the claims file. If the AMC/RO is unable to secure these records, the AMC/RO must document the attempts that were made to locate them, and explain in writing why further attempts to locate or secure them would be futile. The AMC/RO must then: (a) notify the claimant of the specific records that it is unable to retrieve; (b) explain the efforts VA has made to obtain that evidence; and (c) describe any further action it will take with respect to the claim. The Veteran must then be given an opportunity to respond. 2. The AMC/RO should write the Veteran a letter and ask him submit authorization to retrieve inpatient and outpatient records from Walter Reed Hospital and the National Institutes of Health pertaining to treatment for gastroesophageal disease. He should also be advised that he should obtain his own treatment records and send them to VA. 3. After the above is complete, the AMC/RO should arrange a VA examination by a gastroenterologist to determine the extent and severity of the Veteran's gastrointestinal disability. Any indicated clinical or diagnostic tests should be conducted. All clinical manifestations of the service-connected disorder should be delineated in detail. The claims folder to include Virtual VA must be made available to the examiner for review as part of the examination. 4. The Veteran is notified that it is his responsibility to report for VA examination, to cooperate in the development of the claim, and that the consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2012). 5. The AMC/RO should review the examination report to ensure that it complies with the directives of this remand. If it is deficient in any manner, the AMC/RO must implement corrective procedures. 6. After taking any further development deemed appropriate, re-adjudicate the issue on appeal. If the benefit sought is not granted, provide the appellant and his representative a supplemental statement of the case and afford them an opportunity to respond before the case is returned to the Board. 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). _________________________________________________ DEREK R. BROWN 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).