Citation Nr: 1332916	
Decision Date: 10/22/13    Archive Date: 10/24/13

DOCKET NO.  09-27 753A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in New Orleans, Louisiana


THE ISSUE

Entitlement to an initial rating in excess of 30 percent for irritable bowel syndrome (IBS) and gastroesophageal reflux disease (GERD).


REPRESENTATION

Veteran represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

M. McPhaull, Counsel






INTRODUCTION

The Veteran served on active duty from July 1975 to December 1979.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2008 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in New Orleans, Louisiana, which, in part, granted service connection for chronic diarrhea, rated 10 percent effective from October 30, 2007; and GERD, rated 10 percent effective October 30, 2007; and denied service connection for migraine headaches and depression.  

On a March 2009 VA-Form 9 (which the RO accepted as a timely notice of disagreement (NOD)), the Veteran expressed his disagreement with the ratings assigned for chronic diarrhea and GERD; and the denial of service connection for migraine headaches.  

A July 2009 rating decision granted the Veteran's service connection claim for migraine headaches.  As such is a full grant of the benefit he sought on appeal, such issue is not before the Board.  A statement of the case (SOC) was issued in July 2009 in regard to the propriety of the initial ratings assigned for diarrhea and GERD, and the Veteran filed a substantive appeal (VA Form 9) in August 2009.  

During the course of the appeal, a May 2012 rating decision recharacterized the Veteran's issue and increased the separate 10 percent ratings to a combined 30 percent rating, effective from October 30, 2007 (the date of the original claim).  As the claimant will generally be presumed to be seeking the maximum benefit allowed by law and regulation, it follows that such a claim remains in controversy where less than the maximum available benefit is awarded.  AB v. Brown, 6 Vet. App. 35, 38 (1993).

The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, D.C.  VA will notify the Veteran if further action is required.


REMAND

In connection with the Veteran's August 2009 substantive appeal (VA Form 9), he indicated that he did not want a Board hearing.  However, following the issuance of the May 2012 rating decision that awarded an initial 30 percent rating for IBS and GERD, he submitted a second VA Form 9 in which he indicated that he wanted to appear at a Board hearing before a Veterans Law Judge sitting at the RO.  He has not yet been afforded his hearing and there is no indication that he has since withdrawn such request.  Therefore, a remand is necessary in order to reschedule the Veteran for his requested hearing.  38 C.F.R. § 20.704 (d) (2013).   

Accordingly, the case is REMANDED for the following action:

The Veteran should be scheduled for a Board hearing before a Veterans Law Judge sitting at the RO.

The Veteran 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 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).



_________________________________________________
A. JAEGER
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) (2013).