Citation Nr: 1618444 Decision Date: 05/09/16 Archive Date: 05/19/16 DOCKET NO. 11-04 991 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Newark, New Jersey THE ISSUES 1. Entitlement to an initial rating in excess of 10 percent disabling for gastritis. 2. Entitlement to an initial compensable rating for dry eye syndrome with blurred vision and eye twitching. REPRESENTATION Veteran represented by: New Jersey Department of Military and Veterans' Affairs ATTORNEY FOR THE BOARD J. Unger, Associate Counsel INTRODUCTION The Veteran served on active duty from August 2001 to May 2004. These matters come before the Board of Veteran's Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Newark, New Jersey. An April 2010 rating decision granted service connection for gastroenteritis with an evaluation of 10 percent effective October 13, 2009. A November 2014 rating decision granted service connection for dry eye syndrome, claimed as blurred vision and eye twitching, with an evaluation of 0 percent effective December 10, 2010. The Board notes that the Veteran requested a Board videoconference hearing in her March 2011 substantive appeal (VA Form 9). The Veteran was notified of her hearing scheduled for January 2016. However, the Veteran failed to appear for the hearing. Later in January 2016, the Veteran requested that her hearing be rescheduled. In April 2016, the Veterans Law Judge scheduled to hold the January 2016 hearing denied the Veteran's request to reschedule the hearing. The Veteran was formerly represented by Disabled American Veterans (DAV). In August 2011, the Veteran revoked DAV's power of attorney (POA) as the Veteran's representative. The Veteran submitted a new Appointment of Veteran's Service Organization as Claimant's Representative (Form 21-22) appointing the New Jersey Department of Military and Veteran's Affairs as her representative. The Board recognizes this change in representation, as is reflected on the title page. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND With respect to the Veteran's gastritis claim, the evidence indicates that this disability may have gotten worse since the most recent November 2009 examination. See the Veteran's March 2011 correspondence, and November 2011 Monmouth Medical Center treatment notes. In such circumstances, VA is required to afford her a contemporaneous VA examination to assess the current nature, extent, and severity of the disability. See Palczewski v. Nicholson, 21 Vet. App. 174, 181 (2007). With respect to the Veteran's claim for a compensable rating for dry eye syndrome, the RO granted service connection for the claim and assigned a 0 percent rating effective December 10, 2010, in a November 2014 rating decision. The Veteran filed a notice of disagreement in February 2015. To date, the RO has not issued a statement of the case as to this claim. Where, as here, there has been an initial RO adjudication of a claim and a notice of disagreement as to its denial, the claimant is entitled to a statement of the case. See 38 C.F.R. § 19.26. Thus, remand for issuance of a statement of the case on this issue is needed. Manlincon v. West, 12 Vet. App. 238 (1999). As the appeal is being remanded for development, the RO should ask the Veteran to identify any additional, pertinent medical treatment that she has received, and take appropriate measures to obtain those records. Any additional, pertinent VA treatment records should be associated with the file. See 38 C.F.R. § 3.159(c)(2); Bell v. Derwinski, 2 Vet. App. 611 (1992); see also Stefl v. Nicholson, 21 Vet. App. 120, 125 (2007). Accordingly, the case is REMANDED for the following action: 1. Provide the Veteran with a statement of the case regarding the issue of entitlement to a compensable rating for dry eye syndrome with blurred vision and eye twitching. Please advise the Veteran of the time period in which to perfect her appeal. If the Veteran perfects her appeal in a timely fashion, then return the case to the Board for its review, as appropriate. 2. The RO should contact the Veteran and ask that she identify any outstanding VA and non-VA records pertaining to her gastritis that are not already of record. The RO should take appropriate measures to request copies of any outstanding records of pertinent VA or private medical treatment and associate them with the claims file. Any negative response should be in writing and associated with the claims file. 3. Schedule the Veteran for an examination by an appropriate VA medical professional to determine the current severity of her gastritis. The entire claims file, including any newly obtained treatment records, should be reviewed by the examiner and all necessary tests should be conducted. 4. Then readjudicate the appeal. If the claim remains denied, issue a supplemental statement of the case to the Veteran and her representative and provide an opportunity to respond before the case is returned to the Board. The Veteran has the right to submit additional evidence and argument on the 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 E. KILCOYNE Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), 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) (2015).