Citation Nr: 1326427 Decision Date: 08/20/13 Archive Date: 08/26/13 DOCKET NO. 10-14 845 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in North Little Rock, Arkansas THE ISSUES 1. Entitlement to a disability rating in excess of 20 percent for gastroesophageal reflux disease (GERD). 2. Entitlement to a compensable disability rating for headaches. WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD J.A. Flynn, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1974 to March 1996. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2009 rating decision from the of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. Jurisdiction over the Veteran's claims has been transferred to the VA RO in North Little Rock, Arkansas. The Veteran participated in a videoconference hearing before the undersigned in January 2011, and a transcript of this hearing has been associated with the record. In November 2012, additional evidence was added to the Veteran's claims file without a waiver of review in the first instance by the agency of original jurisdiction (AOJ). As this decision remands the claim to the RO for other reasons, the RO will have the opportunity to review those records in the first instance. The issue of entitlement to an increased rating for irritable bowel syndrome has been raised by the record, but it has not been adjudicated by the AOJ. Therefore, the Board does not have jurisdiction over that issue, and it is referred to the AOJ for appropriate action. In November 2010, the Veteran requested that the RO reconsider a denial of service connection for erectile dysfunction. That claim is also referred to the AOJ for appropriate action. The appeal is REMANDED to the RO via the Appeals Management Center in Washington, D.C. REMAND A remand of the Veteran's claims is warranted. Although the Board regrets the delay associated with the remand, further development of the record is required before the Board may render a decision. The present level of disability is of primary concern when entitlement to compensation has already been established and an increase in the disability rating is at issue. Francisco v. Brown, 7 Vet. App. 55 (1994). While a new VA examination is not warranted based solely upon the passage of time, VA's duty to assist includes providing a new medical examination when a Veteran asserts or provides evidence that a disability has worsened and the available evidence is too old for an adequate rating of the current disability. Palczewski v. Nicholson, 21 Vet. App. 174 (2007); Weggenmann v. Brown, 5 Vet. App. 281 (1993); Caffrey v. Brown, 6 Vet. App. 377 (1994). The Veteran's last headache examination occurred in March 2009, over four years ago. In November 2012, the Veteran stated that his headache disability had worsened in severity since 2009. Specifically, the Veteran stated that he had recently been prescribed an additional medication to treat his headaches. Accordingly, an additional VA examination of the Veteran's headache disability is necessary to accurately evaluate the current severity of his disability. The Veteran's last examination specifically addressing his GERD occurred in April 2009, over four years ago. While a June 2010 examination incidentally addressed the Veteran's GERD, the Board does not find it to be a complete discussion of the then-current severity of the Veteran's symptoms. In December 2010, the Veteran's physician stated that his GERD disability had worsened, and he had referred the Veteran to a gastroenterologist for further evaluation. Furthermore, the Veteran has indicated that he experiences difficulty swallowing as a result of his GERD. The April 2009 examiner noted no such difficulty swallowing. Accordingly, the evidence suggests that the Veteran's GERD may have worsened, and an additional VA examination of the Veteran's GERD disability is necessary to accurately evaluate the current severity of his disability. Accordingly, the case is REMANDED for the following actions: 1. Contact the Veteran and provide him with the opportunity to identify or submit any additional pertinent evidence in support of his claims. Based on the Veteran's response, attempt to procure copies of all records that have not been previously obtained from identified treatment sources. Those efforts should include an attempt to obtain private records from the Veteran's treating physician, Dr. J.D.C. Ensure that all records of which RO has notice have been obtained and either associated with the claims file. 2. Schedule the Veteran for VA examinations with examiners of appropriate expertise to determine the current severity of his headache and GERD disabilities. The examiners must review the claims file and must note that review in the report. Any indicated evaluations, studies, and tests deemed necessary should be accomplished. 3. Then readjudicate the claim. If the decision is adverse to the Veteran, issue a supplemental statement of the case and allow the appropriate time for response. Then, return the claim to the Board. The Veteran has the right to submit additional evidence and argument on the 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 or the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. 38 U.S.C.A. §§ 5109B, 7112 (West 2002 & Supp. 2012). _________________________________________________ Harvey P. Roberts Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board 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).