Citation Nr: 1801708 Decision Date: 01/10/18 Archive Date: 01/23/18 DOCKET NO. 14-11 335 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUE Entitlement to a rating in excess of 30 percent for irritable bowel syndrome (IBS) with gastroesophageal reflux disease (GERD). REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD P. E. Metzner, Associate Counsel INTRODUCTION The Veteran served on active duty from June 2006 to March 2012. The current matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Phoenix, Arizona. Jurisdiction presently resides with the RO in Seattle, Washington. Although the Veteran, by and through her representative, contends that her service-connected IBS with GERD have separate and distinct symptomatology and should be rated separately, the Board finds that the Agency of Original Jurisdiction (AOJ) was correct in evaluating these problems as a single disability. See December 2017 Appellate Brief. In pertinent part, the provisions of 38 C.F.R. § 4.114 for rating disabilities of the digestive system specifically state that separate ratings cannot be assigned under these diagnostic codes. The Board acknowledges that the Form 9 received at the RO in February 2014 was timely with respect to the Veteran's claim for an increased rating for his service-connected IBS with GERD. However, as correctly found by the RO, this Form 9 was not timely with respect to the other issues mentioned by the Veteran therein. Accordingly, the RO certified only the Veteran's IBS/GERD claim to the Board. Further, the Veteran has not expressed disagreement with the RO's finding that the Form 9 (substantive appeal) was untimely as to these additional claims. Accordingly, the Board concludes that the only issue currently on appeal is the claim for an increased rating for the service-connected IBS with GERD. In April 2015, the RO granted an increased rating for service-connected IBS with GERD from 10 percent to 30 percent, effective March 13, 2012. As, this increase constitutes less than a full grant of the benefits sought, this issue remains on appeal. AB v. Brown, 6 Vet. App. 35, 39 (1993). Lastly, the Board notes that, following the submission of the substantive appeal, the Veteran underwent a VA examination in April 2015. Significantly, such examination and VA Medical Center (VAMC) records were included in the claims file. In consideration of this evidence, however, the AOJ issued a rating decision, but did not issue a Supplemental Statement of the Case (SSOC). Nevertheless, the April 2015 rating decision reflects adjudication of the claim based on the new evidence. Furthermore, on current remand, the AOJ will have an opportunity to review this new evidence, as well as the additional evidence received on remand. The appeal is REMANDED to the AOJ. VA will notify the Veteran if further action is required. REMAND The Board emphasizes that the paramount consideration in an increased rating claim is the Veteran's current level of disability. Thus, when the evidence of record does not reflect the current state of the Veteran's disability, the duty to assist requires that a VA examination be conducted. Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. § 3.327 (a); see Green v. Derwinski, 1 Vet. App. 121 (1991) (VA has a duty to conduct a thorough and contemporaneous examination of the Veteran in an increased rating claim); see also Snuffer v. Gober, 10 Vet. App. 400, 403 (1997) (a veteran is entitled to a new examination after a two-year period between the last VA examination and the Veteran's contention that the pertinent disability had increased in severity). The Veteran, by and through her representative, maintains that the record is too old to evaluate adequately her disability. See December 2017 Appellate Brief. Such statement, at the very least, implies that the Veteran's symptomatology has increased in severity (i.e., worsened). Accordingly, as the evidence reflects a possible worsening of the service-connected disorder and as the last VA examination (in April 2015) was over two years ago, the duty to assist necessitates that this claim be remanded to schedule a new VA examination. Accordingly, the case is REMANDED for the following action: 1. Contact the Veteran, and, with her assistance, identify any outstanding records of pertinent medical treatment from VA or private health care providers. Follow the procedures for obtaining the records set forth at 38 C.F.R. § 3.159(c). If VA attempts to obtain any outstanding records which are unavailable, the Veteran should be notified in accordance with 38 C.F.R. § 3.159(e). 2. After all available records have been associated with the claims file, schedule the Veteran for a VA examination with an appropriate examiner to determine the current severity of her service-connected IBS with GERD. The examiner must review pertinent documents in the Veteran's claims file in conjunction with the examination. All indicated studies should be completed. All findings must be fully reported. The examiner should: (a) discuss the presence (including frequency and severity) or absence of epigastric distress, dysphagia, pyrosis, regurgitation, substernal or arm or shoulder pain or other pain, vomiting, material weight loss, hematemesis or melena, and anemia; (b) opine as to whether the combination of the applicable symptoms (enumerated in subparagraph 2(a) above) are productive of either severe impairment of health or considerable impairment of health; and (c) discuss the presence (including frequency and severity) or absence of diarrhea, alternating diarrhea and constipation, bowel disturbance, and abdominal distress. The examiner is advised that the Veteran is competent to report her symptoms/history and that such reports must be acknowledged and considered in formulating any opinion. If her reports are discounted, the examiner should provide a reason for doing so. Rationales for all requested opinions shall be provided. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question. 3. After completing all indicated development, the claim for a disability rating greater than 30 percent for the service-connected IBS with GERD should be readjudicated based on the entirety of the evidence. If this claim remains denied, the Veteran and her representative should be furnished a Supplemental Statement of the Case and provided with the appropriate opportunity to respond. Thereafter, the appeal must be returned to the Board for appellate review. No action is required of the Veteran until she is notified by VA. However, she is again advised of her obligation to cooperate in ensuring the duty to assist is satisfied. Kowalski v. Nicholson, 19 Vet. App. 171 (2005); Wood, 1 Vet. App. at 190. Her failure to help procure treatment records, for example, may impact the determination made. Her failure to report for a VA medical examination may have the same impact. 38 C.F.R. § 3.655 (2017). The Veteran also is advised that she has the right to submit additional evidence and argument, whether herself or through her representative, with respect to this matter. Kutscherousky v. West, 12 Vet. App. 369 (1999). This appeal must be afforded prompt treatment. The law indeed requires that all remands by the Board or the Court are to be handled in an expeditious manner. 38 U.S.C. §§ 5109B, 7112 (2012). _________________________________________________ THERESA M. CATINO Veterans Law Judge, Board of Veterans' Appeals Only a decision of the Board is appealable to the Court. 38 U.S.C. § 7252 (2012). 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) (2017).