Citation Nr: 1342236 Decision Date: 12/20/13 Archive Date: 12/31/13 DOCKET NO. 12-19 286 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUE Entitlement to a rating in excess of 20 percent for duodenal ulcer; hiatal hernia; gastroesophageal reflux. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Sarah Plotnick, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1976 to January 1979 and from May 1989 to May 1993. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a February 2010 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in New Orleans, Louisiana. The Board notes that, in addition to the paper claims file, there is a paperless, electronic (Virtual VA) claims file associated with the Veteran's claim. A review of the Virtual VA claims file does not reveal any additional documents pertinent to the present appeal. In his June 2012 substantive appeal, the Veteran states that he was constantly under psychiatric care due to sexual abuse in the Army. He is advised that, if he would like to claim service connection for an acquired psychiatric disorder to so inform the RO. 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 Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2013). The Veteran has been assigned a 20 percent disability rating for his service-connected duodenal ulcer; hiatal hernia; gastroesophageal reflux. He contends that his disability is more severe than what is represented by a 20 percent rating. Additionally, the Veteran has essentially alleged that he is entitled to separate ratings for his service-connected disabilities. The Board initially finds that a remand is necessary in order to obtain outstanding records from the Social Security Administration (SSA). In this regard, a September 2009 VA treatment record indicates that the Veteran is in receipt of Social Security disability benefits. While additional records indicate that he is disabled due to a psychiatric disorder, the basis of his award of SSA disability benefits is unspecified. As such, a remand is necessary in order to obtain any determination pertinent to the Veteran's claim for SSA benefits, as well as any medical records relied upon concerning that claim. See Murincsak v. Derwinski, 2 Vet. App. 363, 369-70 (1992) (where VA has actual notice of the existence of records held by SSA which appear relevant to a pending claim, VA has a duty to assist by requesting those records from SSA). The Board further notes that, in a January 2010 communication, the Veteran reported receiving treatment for his service-connected disability through the VA facilities in Alexandria, Louisiana; Lake City, Florida; Tucson, Arizona; Jennings, Louisiana; and Jacksonville, Florida. Thereafter, records from the Alexandria, Tucson, and Jennings VA facilities were obtained. The RO noted that no records referable to the Veteran's duodenal ulcer, hiatal hernia, and gastroesophageal reflux were located at the Lake City and Jacksonville VA facilities. Additionally, the Board observes that the most recent VA treatment records contained in the claims file are dated in January 2010. Therefore, on remand, VA treatment records from all such facilities dated from January 2010 to the present should be obtained for consideration in the Veteran's appeal. After obtaining any additional records, the agency of original jurisdiction (AOJ) should then review the record and conduct any additionally indicated development, to include affording the Veteran any VA examinations deemed necessary for the adjudication of the claim. The Board also observes that the Veteran has raised the argument that he is entitled to separate ratings for his duodenal ulcer, hiatal hernia, and gastroesophageal reflux, which have been evaluated under Diagnostic Code 7346-7305. In the selection of code numbers assigned to disabilities, injuries will generally be represented by the number assigned to the residual condition on the basis of which the rating is determined. With diseases, preference is to be given to the number assigned to the disease itself; if the rating is determined on the basis of residual conditions, the number appropriate to the residual condition will be added, preceded by a hyphen. 38 C.F.R. § 4.27. The hyphenated diagnostic code in this case indicates that hiatal hernia under Diagnostic Code 7346 is the service-connected disorder and duodenal ulcer under Diagnostic Code 7305 is a residual condition. The Board notes that 38 C.F.R. § 4.113 provides that there are diseases of the digestive system, particularly within the abdomen, which, while differing in the site of pathology, produce a common disability picture characterized in the main by varying degrees of abdominal distress or pain, anemia and disturbances in nutrition. Consequently, certain coexisting diseases in this area, as indicated in the instruction under the title "Diseases of the Digestive System," do not lend themselves to distinct and separate disability evaluations without violating the fundamental principle relating to pyramiding as outlined in § 4.14. Additionally, 38 C.F.R. § 4.114 indicates that ratings under diagnostic codes 7301 to 7329, inclusive, 7331, 7342, and 7345 to 7348 inclusive, will not be combined with each other. A single evaluation will be assigned under the diagnostic code which reflects the predominant disability picture, with elevation to the next higher evaluation where the severity of the overall disability warrants such evaluation. In the instant case, while the Veteran is prohibited from receiving separate ratings under the Diagnostic Codes under which his disability is currently evaluated, the AOJ, in the readjudication of his claim, should consider whether separate ratings, to the extent such are allowed, are warranted for the symptomatology associated with his duodenal ulcer, hiatal hernia, and gastroesophageal reflux. Accordingly, the case is REMANDED for the following action: 1. Any determination pertinent to the Veteran's claim for SSA benefits, as well as any medical records relied upon concerning that claim, should be obtained from SSA and associated with the claims file. All reasonable attempts should be made to obtain such records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C.A. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 2. Obtain all VA treatment records from the Alexandria, Lake City, Tucson, Jennings, and Jacksonville VA facilities dated from January 2010 to the present pertaining to the Veteran's duodenal ulcer, hiatal hernia, and gastroesophageal reflux disabilities. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C.A. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 3. After obtaining any additional records, the AOJ should then review the record and conduct any additionally indicated development, to include affording the Veteran any VA examinations deemed necessary for the adjudication of the claim. 4. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran's claim should be readjudicated based on the entirety of the evidence. In the readjudication of the Veteran's claim, the AOJ should consider whether separate ratings, to the extent such are allowed, are warranted for the symptomatology associated with his duodenal ulcer, hiatal hernia, and gastroesophageal reflux. If the claim remains denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. 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).