Citation Nr: 1516572	
Decision Date: 04/17/15    Archive Date: 04/24/15

DOCKET NO.  13-05 505	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO) in 
Pittsburgh, Pennsylvania


THE ISSUES

1.  Entitlement to a higher initial disability rating for gastroesophageal reflux disease, currently evaluated as 30 percent disabling.

2.  Entitlement to higher initial disability ratings for major depressive disorder, currently evaluated as 10 percent disabling effective August 12, 2003; as 30 percent disabling effective May 1, 2008; and as 50 percent disabling effective June 14, 2010.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

Mary C. Suffoletta, Counsel 


INTRODUCTION

The Veteran served on active duty from January 1966 to May 1969.

These matters come to the Board of Veterans' Appeals (Board) on appeal from a September 2009 decision of the RO that granted service connection for gastroesophageal reflux disease evaluated as 30 percent disabling effective August 12, 2003; and from a February 2013 decision of the RO that granted service connection for major depressive disorder evaluated as 0 percent (noncompensable) disabling effective August 12, 2003, and as 30 percent disabling effective June 14, 2010.  The Veteran timely appealed for higher initial ratings.

In February 2013, the RO increased the disability evaluation to 10 percent for major depressive disorder, effective August 12, 2003; to 30 percent effective May 1, 2008; and to 50 percent effective June 14, 2010.  Because higher evaluations are available for a major depressive disorder, and the Veteran is presumed to seek the maximum available benefit for a disability, the claim remains on appeal.  See AB v. Brown, 6 Vet. App. 35, 38 (1993).

Also, in February 2013, the Veteran withdrew his prior request for a Board hearing, in writing.

The Court has held that a request for a TDIU, whether expressly raised by the Veteran or reasonably raised by the record, is not a separate "claim" for benefits, but rather, can be part of a claim for increased compensation.  Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009).  In this case, the Veteran's claim for entitlement to a TDIU already has been awarded, effective from the date when the schedular criteria for TDIU first were met.

The issues of service connection for post-traumatic stress disorder (PTSD) and for erectile dysfunction have been raised by the record in a February 2013 deferred rating action and in a July 2013 statement, respectively, but have not been adjudicated by the Agency of Original Jurisdiction (AOJ).  Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action.  38 C.F.R. § 19.9(b) (2014). 

The issue of a higher initial disability rating for gastroesophageal reflux disease is addressed in the REMAND portion of the decision below, and is REMANDED to the AOJ.


FINDING OF FACT

Prior to the promulgation of a decision in the appeals, the Board received notification from the Veteran in writing in July 2013, that a withdrawal of the appeal for higher disability ratings for a major depressive disorder is requested.


CONCLUSION OF LAW

The criteria for withdrawal of the appeal for higher disability ratings for a major depressive disorder have been met.  38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2014); 38 C.F.R. §§ 20.202, 20.204 (2014).


REASONS AND BASES FOR FINDING AND CONCLUSION

Evaluation of a Major Depressive Disorder

Under 38 U.S.C.A. § 7105, the Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed.  An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision.  38 C.F.R. § 20.204 (2014).  Withdrawal may be made by the Veteran or by his authorized representative.  38 C.F.R. § 20.204.  In the present case, the Veteran withdrew the appeal for higher disability ratings for a major depressive disorder in writing in July 2013.  There remain no allegations of errors of fact or law for appellate consideration as to that issue.  Accordingly, the Board does not have jurisdiction to review the appeal for higher disability ratings for a major depressive disorder, and the claim is dismissed.


ORDER

The appeal seeking higher disability ratings for a major depressive disorder is dismissed.


REMAND

In evaluating the Veteran's request for a higher initial disability rating, the Board has reviewed the medical evidence of record.

Records

Records show that the Veteran has received treatment for gastroesophageal reflux disease from a private physician.  These treatment records are directly relevant to the issue on appeal and therefore must be obtained.

In addition, recent VA treatment records must be obtained for gastroesophageal reflux disease.  See Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA has constructive notice of VA generated documents that could reasonably be expected to be part of the record).

Gastroesophageal Reflux Disease

The Veteran contends that his service-connected gastroesophageal reflux disease is more severe than currently rated, and warrants a higher initial disability rating.  Records show that the Veteran was last afforded a VA examination to evaluate the severity of his service-connected gastroesophageal reflux disease in April 2008.  Since then, the Veteran has described a worsening of the disability.

The Veteran is competent to testify on factual matters of which he has first-hand knowledge, to include a feeling of worsening.  Washington v. Nicholson, 19 Vet. App. 362 (2005).  Under these circumstances, VA cannot rate the service-connected gastroesophageal reflux disease without further medical clarification.  Hence, the Veteran is entitled to a new VA examination.  See, e.g., Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994); VAOPGCPREC 11-95 (1995).

Accordingly, the case is REMANDED for the following action:

1.  After obtaining any necessary contact information and authorization from the Veteran, please request treatment records that pertain to gastroesophageal reflux disease from the Veteran's private physician, dated from August 2003 to the present date; and associate them with the Veteran's claims file (paper/electronic). 

If, after making reasonable efforts to obtain records identified by the Veteran; and if the RO or AMC is unable to secure such records, the RO or AMC must notify the Veteran and (a) identify the specific records the RO or AMC is unable to obtain; (b) briefly explain the efforts that the RO or AMC made to obtain those records; (c) describe any further action to be taken by the RO or AMC with respect to the claim; and (d) inform the Veteran that he is ultimately responsible for providing the evidence.  The Veteran must then be given an opportunity to respond.

2.  Obtain and associate with the Veteran's claims file (paper/electronic), VA treatment records for gastroesophageal reflux disease, dated from July 2009 to present.  

3.  Schedule the Veteran for a VA gastrointestinal examination to determine the nature and severity of his gastroesophageal reflux disease.  The claims file, to include a complete copy of this REMAND, must be made available to the examiner; and the report of the examination should note review of the file.  Any indicated test or study should be conducted, and findings should be noted in the examination report.

Specifically, the examiner should note the presence or absence of symptoms such as pain, vomiting, material weight loss, hematemesis, melena, anemia, epigastric distress, dysphagia, pyrosis, regurgitation, and substernal or arm or shoulder pain.

The examiner should express an opinion as to whether the Veteran's symptoms combine to produce severe, considerable, or less impairment of health.  In providing the specific findings noted above, the examiner should, to the extent possible, distinguish the symptoms and effects of the service-connected gastroesophageal reflux disease, from those associated with other disability.

These specific findings are needed to rate the Veteran's disability in accordance with the rating schedule.  It is therefore important that the examiner furnish the requested information.
 
4.  After ensuring that the requested actions are completed, the RO or AMC should re-adjudicate the claim on appeal, taking into consideration all applicable rating criteria; and stage ratings pursuant to Fenderson v. West, 12 Vet. App. 119 (1999).  Consideration should also specifically be given to the holding in Burton v. Shinseki, 25 Vet. App. 1 (2011) as it relates to any reported symptoms of pain.  If the benefits sought are not fully granted, the RO or AMC must furnish a supplemental statement of the case (SSOC), before the claims file is returned to the Board, if otherwise in order.

No action is required of the Veteran and his representative until they are notified by the RO or AMC; however, the Veteran is advised that failure to report for any scheduled examination may result in the denial of his claim.  38 C.F.R. § 3.655 (2014).  The Veteran 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 2014).




______________________________________________
MICHAEL A. PAPPAS
 Veterans Law Judge, Board of Veterans' Appeals




Department of Veterans Affairs