Citation Nr: 1327804 Decision Date: 08/30/13 Archive Date: 09/05/13 DOCKET NO. 10-09 917 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to an increased rating for chronic gastritis, currently evaluated as 10 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD M. C. Graham, Counsel INTRODUCTION The Veteran served on active duty from May 1971 to May 1973. This case comes before the Board of Veterans' Appeals (Board) on appeal from an August 2008 rating decision rendered by the St. Petersburg, Florida Regional Office (RO) of the Department of Veterans Affairs (VA). The Veteran requested a Travel Board hearing. A motion to reschedule his September 2011 Travel Board hearing was granted as good cause was shown for his failure to report (he had transportation problems when his daughter, who was to drive him to the hearing, was involved in a car accident). He then failed (without giving cause) to report for the rescheduled hearing in December 2011. Accordingly, his hearing request is deemed withdrawn. See 38 C.F.R. § 20.702(d). 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's representative, in the August 2013 informal hearing presentation before the Board, argued that this appeal should be remanded as the available evidence is too old to adequately evaluate the condition. His representative noted that it has been more than five years since the Veteran's most recent VA examination (in April 2008) to assess the severity of his service-connected gastritis. The Board notes that the most recent VA treatment records are dated over three years ago, in January 2010. Given the Veteran's contentions that his gastritis disability is worse than when it was originally rated, and given the lack of a contemporaneous VA examination or other medical treatment record which addresses the current severity of his gastritis, the Board finds that he is entitled to a new examination. Snuffer v. Gober, 10 Vet. App. 400, 403 (1997); see also VAOPGCPREC 11-95 (1995), 60 Fed. Reg. 43186 (1995); Allday v. Brown, 7 Vet. App. 517, 526 (1995). As this matter is being remanded for the reasons set forth above, any additional VA treatment records pertaining to the gastritis disability and developed since January 2010 should also be obtained. See 38 U.S.C.A. § 5103A(b), (c); 38 C.F.R. § 3.159(b); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim). Accordingly, the case is REMANDED for the following action: 1. Obtain records of VA treatment for gastritis developed since January 2010, including any from the West Palm Beach VA Medical Center. 2. Arrange for the Veteran to undergo a VA examination to determine the nature and severity of the service-connected gastritis. A copy of this remand and all relevant medical records should be made available to the examiner - such records must be made available to the examiner either in the Virtual VA eFolder, or, if the eFolder is not available (such as if the examiner has no access to Virtual VA), then via paper copies that are printed out for the examiner. The examiner should review the pertinent evidence, including the Veteran's lay assertions, and undertake any indicated studies. Then, based on the results of the examination, the examiner is asked to provide an assessment of the current nature and severity of the Veteran's gastritis. It is essential that the examiner offer a detailed explanation discussing why and how all conclusions and opinions were reached. This discussion should include reference to specific evidence in the Veteran's claims file, including the Veteran's lay assertions, as indicated. 3. After the development sought is completed, re-adjudicate the claim. If it remains denied, an appropriate supplemental statement of the case should be issued, and the Veteran and his representative should be afforded the opportunity to respond. The case should then be returned to the Board, if in order, for further appellate consideration. 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). _________________________________________________ ROBERT E. SULLIVAN 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).