Citation Nr: 1805290 Decision Date: 01/26/18 Archive Date: 02/07/18 DOCKET NO. 14-16 186 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUE Entitlement to an initial compensable evaluation prior to August 16, 2016, and an evaluation in excess of 20 percent thereafter, for a service-connected ventral hernia. REPRESENTATION Appellant represented by: Penelope Groenbeck, Attorney ATTORNEY FOR THE BOARD G.C., Associate Counsel INTRODUCTION The Veteran served on active duty from November 1984 to March 1985 and from January 1986 to December 1993 in the Navy with honorable service. This case comes before the Board of Veterans' Appeals (Board) on appeal of rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) located in Roanoke, Virginia. REMAND The Veteran was granted service connection for a ventral hernia in an October 2013 rating decision, with a noncompensable evaluation effective July 31, 2012. This disability rating was assigned based on the hernia's small size. In a January 2017 rating decision, the Veteran's hernia evaluation was increased to 20 percent disabling, effective August 16, 2016, based on indication for a supporting belt and small hernia size. The Veteran was last afforded a VA examination in July 2013, well over two years prior to the date of this decision, and in fact, close to five years prior. He submitted statements in October 2013 and May 2014 indicating that his hernia would require surgery and was interfering with his work and daily life. Furthermore, December 2015 VA treatment records show that the Veteran's hernia has not only increased in size, but also, that the Veteran had been unable to work for over a year. A letter stating the Veteran was unable to engage in strenuous work for six months due to his hernia is indeed of record, and is also dated in December 2015. In addition, a September 2016 VA treatment note indicates that the Veteran underwent a hernia belt fitting. These symptoms suggest a worsening of the Veteran's condition. The duty to conduct a contemporaneous examination is triggered when the evidence indicates there has been a material change in disability or that the current rating may be incorrect. See Caffrey v. Brown, 6 Vet. App. 377 (1994); Snuffer v. Gober, 10 Vet. App. 400 (1997). Thus, as the record indicates a worsening of the Veteran's condition since the last examination, a new VA examination should be obtained on remand. Since the claims file is being returned, it should be updated to include any outstanding VA treatment records. See 38 C.F.R. § 3.159 (c)(2); see also Bell v. Derwinski, 2 Vet. App. 611 (1992). Accordingly, the case is REMANDED for the following action: 1. Contact the appropriate VA Medical Center(s) and obtain and associate with the claims file all outstanding records of treatment. If any requested records are not available, or the search for any such records otherwise yields negative results, that fact must clearly be documented in the claims file. Efforts to obtain these records must continue until it is determined that they do not exist or that further attempts to obtain them would be futile. The non-existence or unavailability of such records must be verified and this should be documented for the record. Required notice must be provided to the Veteran and his representative. 2. Contact the Veteran and afford him the opportunity to identify by name, address and dates of treatment or examination any relevant medical records. Subsequently, and after securing any proper authorizations, make arrangements to obtain all the records of treatment or examination from all the sources listed by the Veteran which are not already on file. All information obtained must be made part of the file. All attempts to secure this evidence must be documented in the claims file. 3. After the above development has been completed and all records associated with the claims file, the Veteran must be afforded a VA examination to determine the current severity of his ventral hernia. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner must review all pertinent records associated with the claims file. An explanation for all opinions expressed must be provided. The appropriate Disability Benefits Questionnaire must be utilized. The examiner must provide accurate and fully descriptive assessments of all hernia symptoms, to include specifically: a. Whether the hernia is small, large or massive in size; b. Whether or not it is well-supported by a belt under ordinary conditions; and c. Whether there is persistent, severe diastasis of recti muscles or extensive diffuse destruction or weakening of muscular and fascial support of abdominal wall so as to be inoperable. The examiner is asked to also specifically address the December 2015 VA treatment record showing that the hernia increased in size as well as the December 2015 letter stating the Veteran was unable to engage in strenuous work for six months due to his hernia. 4. Notify the Veteran that it is his responsibility to report for any scheduled examination and to cooperate in the development of the claim, and that the consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2017). In the event that the Veteran does not report for any scheduled examination, documentation must be obtained which shows that notice scheduling the examination was sent to the last known address. It must also be indicated whether any notice that was sent was returned as undeliverable. 5. After completing the above actions, 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 claims should be readjudicated based on the entirety of the evidence. If the claim remains denied, the Veteran and his representative should be issued a supplemental statement of the case, and an appropriate period of time should be allowed for response. The appellant 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 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. §§ 5109B, 7112 (2012). _________________________________________________ CAROLINE B. FLEMING Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (2012), 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) (2017).