Citation Nr: 1636244 Decision Date: 09/16/16 Archive Date: 09/27/16 DOCKET NO. 12-08 877 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida THE ISSUE Entitlement to an initial disability rating greater than 10 percent for service-connected recurrent small bowel obstructions. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD D. Orfanoudis, Counsel INTRODUCTION The Veteran had active duty service from August 1974 to August 1977 and from September 1981 to June 1995. This appeal to the Board of Veterans' Appeals (Board) arose from a September 2009 rating decision in which the RO, inter alia, granted service connection for recurrent small bowel obstructions, and assigned an initial 0 percent (noncompensable) disability rating, effective February 26, 2009 (the date of the Veteran's claim). In December 2009, the Veteran filed a notice of disagreement (NOD) with respect to the assigned rating. A statement of the case (SOC) was issued in March 2012 and the Veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals) in April 2012. During the pendency of the appeal, by rating action dated in March 2012, the RO assigned an increased disability rating of 10 percent for the service-connected recurrent small bowel obstructions, also effective as of February 26, 2009. Applicable law provides that absent a waiver, a claimant seeking a disability rating greater than assigned will generally be presumed to be seeking the maximum benefit allowed by law and regulation, and that a claim remains in controversy where less than the maximum available benefits are awarded. See AB v. Brown, 6 Vet. App. 35, 38 (1993). The Veteran has not withdrawn the appeal as to the issue of a disability rating greater than assigned, therefore, the issue remains in appellate status. The Veteran's paper claims file has been converted into a paperless, electronic claims file via the Veterans Benefits Management System (VBMS) and Virtual VA claims processing systems. All records in such files have been reviewed. For reasons expressed below, the matter on appeal is being remanded to the agency of original jurisdiction (AOJ). VA will notify the Veteran when further action, on his part, is required. REMAND The Board's review of the claims file reveals that further AOJ action in this appeal is warranted. The Veteran was last afforded a VA examination in July 2009. In an August 2016 Written Brief Presentation, the Veteran's representative asserted that the Veteran's disability had increased in severity since the July 2009 VA examination. In light of the assertions of the Veteran's representative, the Board finds that the evidence suggests the possible worsening of his disability, warranting re-examination. See Snuffer v. Gober, 10 Vet. App. 400, 403 (1997). See also VAOPGCPREC 11-95 (1995), 60 Fed. Reg. 43186 (1995); Allday v. Brown, 7 Vet. App. 517, 526 (1995) Caffrey v. Brown, 6 Vet. App. 377, 381 (1994). The Veteran is hereby notified that failure to report to the scheduled examination, without good cause, may well result in denial of the claim for higher rating. See 38 C.F.R. § 3.655 (2015). Examples of good cause include, but are not limited to, the illness or hospitalization of the claimant and death of an immediate family member. Prior to arranging for the requested examination, to ensure that all due process requirements are met, and the record is complete, the AOJ should undertake appropriate action to obtain and associate with the claims file (in VBMS and Virtual VA) all outstanding, pertinent records. The evidence reflects that the Veteran is in receipt of benefits from the Social Security Administration (SSA). In correspondence received in April 2012, it is suggested that the Veteran had applied for SSA disability benefits and had met the medical requirements for such benefits. There are no copies of any clinical records used to support such an award of record. While SSA records are not controlling for VA determinations, they may be 'pertinent' to VA claims. See Murincsak v. Derwinski, 2 Vet. App. 363 (1992); Collier v. Derwinski, 1 Vet. App. 412 (1991). Hence, when VA is put on notice of the existence of SSA records, as here, it must seek to obtain those records before proceeding with the appeal. See Murincsak, supra; see also Lind v. Principi, 3 Vet. App. 493, 494 (1992). Thus, the AOJ should obtain and associate with the claims file a copy of any SSA determination on the Veteran's claim, as well as copies of all medical records underlying that determination, following the current procedures prescribed in 38 C.F.R. § 3.159 (c) with respect to requesting records from Federal facilities. Notably, the duty to assist includes making as many requests as are necessary to obtain relevant records from a Federal department or agency, including, but not limited to, VA medical records and relevant SSA records. 38 C.F.R. § 3.159 (c)(2); Golz v. Shinseki, 590 F.3d 1317, 1321-23 (Fed. Cir. 2010). The AOJ should also give the Veteran another opportunity to provide additional information and/or evidence pertinent to the claim on appeal, explaining that he has a full one-year period for response. See 38 U.S.C.A. § 5103(b)(1) (West 2014)); but see also 38 U.S.C.A. § 5103(b)(3) (clarifying that VA may make a decision on a claim before the expiration of the one-year notice period). The AOJ should specifically request that the Veteran furnish, or furnish appropriate authorization to obtain, all outstanding, pertinent private (non-VA) records. Thereafter, the AOJ should attempt to obtain any additional evidence for which the Veteran provides sufficient information, and, if needed, authorization, following the current procedures prescribed in 38 C.F.R. § 3.159 (2015). The actions identified herein are consistent with the duties imposed by the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. §§ 5103, 5103A (West 2014); 38 C.F.R. § 3.159 (2015). However, identification of specific actions requested on remand does not relieve the AOJ of the responsibility to ensure full compliance with the VCAA and its implementing regulations. Hence, in addition to the actions requested above, the AOJ should also undertake any other development and/or notification action deemed warranted prior to adjudicating the claim on appeal. Adjudication of the claim should include consideration of whether "staged rating" of the disability-assignment of different ratings for distinct periods of time, based on the facts found-is appropriate. Accordingly, this matter is hereby REMANDED for the following action: 1. Request from SSA a copy of its determination on the Veteran's claim for disability benefits, as well as copies of all medical records underlying its determination. In requesting these records, follow the current procedures of 38 C.F.R. § 3.159 (c) with respect to requesting records from Federal facilities. All records and/or responses received should be associated with the claims file. 2. Furnish to the Veteran and his representative a letter requesting that the Veteran provide information and, if necessary, authorization, to obtain any additional evidence pertinent to the matter on appeal that is not currently of record. Specifically request that the Veteran furnish, or furnish appropriate authorization to obtain, all outstanding, pertinent private (non-VA) treatment records. Clearly explain to the Veteran that he has a full one-year period to respond (although VA may decide the matter within the one-year period). 3. If the Veteran responds, obtain all identified records, following the procedures set forth in 38 C.F.R. § 3.159. All records and responses received should be associated with the file. If any records sought are not obtained, notify the Veteran and his representative of the records that were not obtained, explain the efforts taken to obtain them, and describe further action to be taken. 4. After all records and/or responses received from each contacted entity have been associated with the file, After all records and/or responses received from each contacted entity have been associated with the claims file, arrange for the Veteran to undergo a VA examination, by an appropriate medical professional, for evaluation of his service-connected recurrent small bowel obstructions. The contents of the entire claims file (in VBMS and Virtual VA), to include a complete copy of this REMAND, must be made available to the individual designated to examine the Veteran, and the examination report should include discussion of the Veteran's documented medical history and assertions. All appropriate tests and studies (should be accomplished (with all results made available to the examiner prior to the completion of his or her report) and all clinical findings should be reported in detail. Based on the examination results, and full consideration of the Veteran's documented medical history and assertions, the examiner should identify all symptoms attributable to, and manifestations of, the service-connected disability, to include any residual scarring. The examiner should also specify the degree of severity of all symptoms/manifestations, to specifically include whether the disability is manifested by: (a) moderate adhesions of the peritoneum with pulling pain on attempting work or aggravated by movements of the body, or occasional episodes of colic pain, nausea, constipation (perhaps alternating with diarrhea) or abdominal distension; (b) moderately severe adhesions of the peritoneum with partial obstruction manifested by delayed motility of barium meal and less frequent and less prolonged episodes of pain; or (c) severe adhesions of the peritoneum with definite partial obstruction shown by X-ray, with frequent and prolonged episodes of severe colic distension, nausea or vomiting, following severe peritonitis, ruptured appendix, perforated ulcer, or operation with drainage. All clinical findings/testing results, along with complete, clearly-stated rationale for conclusions reached, should be provided. 5. To help avoid future remand, ensure that all requested actions have been accomplished (to the extent possible) in compliance with this REMAND. If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken. See Stegall v. West, 11 Vet. App. 268, 271 (1998). 6. After completing the requested actions, and any additional notification and/or development deemed warranted, adjudicate the claim on appeal in light of all pertinent evidence (to include all evidence added to the claims file since the last adjudication) and legal authority (to include consideration of whether staged rating is appropriate). 7. If the benefit sought on appeal remains denied, furnish the Veteran and his representative an appropriate supplemental statement of the case that includes clear reasons and bases for all determinations, and afford them the appropriate time period for response. The purpose of this REMAND is to afford due process and to accomplish additional development and adjudication; it is not the Board's intent to imply whether the benefits requested should be granted or denied. The Veteran need take no action until otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999). This REMAND must be afforded expeditious treatment. The law requires that all claims 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). _________________________________________________ JACQUELINE E. MONROE 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 the appeal. 38 C.F.R. § 20.1100(b) (2015).