Citation Nr: 1333186 Decision Date: 10/23/13 Archive Date: 10/24/13 DOCKET NO. 10-13 547 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to an initial compensable rating for gastroesophageal reflux disease (GERD) prior to January 7, 2011. 2. Entitlement to an initial rating in excess of 10 percent for GERD on or after January 7, 2011. 3. Entitlement to an initial compensable rating for status post umbilical hernia repair with residual scar. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Shana Z. Siesser, Counsel INTRODUCTION The Veteran had active service from January 1983 to July 2008. This case comes before the Board of Veterans' Appeals (Board) on appeal from a September 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. In that decision, the RO granted service connection for GERD and status post umbilical hernia repair with residual scar and assigned both disabilities a noncompensable evaluation effective from January 7, 2011. During the pendency of the appeal, the RO issued another rating decision in June 2011, which increased the evaluation for GERD to 10 percent effective from January 7, 2011. However, applicable law mandates that when a veteran seeks an increased evaluation, it will generally be presumed that the maximum benefit allowed by law and regulation is sought, and it follows that such a claim remains in controversy where less than the maximum benefit available is awarded. See AB v. Brown, 6 Vet. App. 35 (1993). Thus, the issue remains on appeal. In addition to the paper claims file, there are Virtual VA paperless files associated with the Veteran's case. 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 was last afforded a VA examination in June 2008. Based on those findings, the RO granted service connection for GERD and status post umbilical hernia repair with residual scar and granted noncompensable ratings for both disorders in a September 2008 rating decision. The Veteran disagreed with those ratings, and in his March 2010 substantive appeal, he requested a new VA examination in order to support his claim for a higher rating. The Board notes that it has been over 5 years since his last examination, and there is medical evidence suggesting a worsening, which was the basis for the June 2011 rating decision that increased the evaluation for his GERD. When a claimant asserts that the severity of a disability has increased since the most recent rating examination, an additional examination is appropriate. VAOPGCPREC 11-95 (April 7, 1995); see also Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994). Thus, considering the Veteran's reports of worsening symptoms, as well as the length of time since the last examination, the Board finds that additional examination is warranted. See 38 C.F.R. § 3.327 (2012); Green v. Derwinski, 1 Vet. App. 121 (1991). Accordingly, the case is REMANDED for the following action: 1. The RO/AMC should request that the Veteran provide the names and addresses of any and all health care providers who have provided treatment for his service-connected GERD and status post umbilical hernia repair with residual scar. After acquiring this information and obtaining any necessary authorization, the RO/AMC should obtain and associate these records with the claims file. 2. The Veteran should be afforded a VA examination to ascertain the current severity and manifestations of his service-connected GERD. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file and to comment on the severity of the Veteran's service-connected GERD. The examiner should report all signs and symptoms necessary for rating the disability under the rating criteria. In particular, the examiner should indicate whether the Veteran has persistently recurrent epigastric distress with dysphagia, pyrosis, and regurgitation accompanied by substernal or arm or shoulder pain productive of considerable impairment of health. If not, he or she should state whether the Veteran has two or more of these symptoms of less severity. He or she should also state whether there are symptoms of pain, vomiting, material weight loss and hematemesis or melena with moderate anemia or any other symptom combinations of severe impairment of health. A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Because it is important "that each disability be viewed in relation to its history [,]" 38 C.F.R. § 4.1, copies of all pertinent records in the appellant's claims file, or in the alternative, the claims file, must be made available to the examiner for review. 3. The Veteran should be afforded a VA examination to ascertain the severity and manifestations of his service-connected umbilical hernia repair with residual scar. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file and to comment on the severity of the Veteran's service-connected umbilical hernia repair with residual scar. The examiner should report all signs and symptoms necessary for rating the disability under the rating criteria. In particular, the examiner should provide a description of the Veteran's hernia repair scar, including the size and location, and indicate whether it is unstable or painful; deep or superficial; and linear or nonlinear. The examiner should also state whether the scar causes any functional loss. A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Because it is important "that each disability be viewed in relation to its history [,]" 38 C.F.R. § 4.1, copies of all pertinent records in the appellant's claims file, or in the alternative, the claims file, must be made available to the examiner for review. 4. After completing these actions, the RO/AMC should conduct any other development as may be indicated by a response received as a consequence of the actions taken in this remand. 5. When the development requested has been completed, the case should be reviewed by the RO/AMC on the basis of additional evidence. If the benefit sought is not granted, the appellant and his representative should be furnished a supplemental statement of the case and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. 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). ________________________________________________ JESSICA J. WILLS 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).