Citation Nr: 18142901 Decision Date: 10/17/18 Archive Date: 10/17/18 DOCKET NO. 18-16 948 DATE: October 17, 2018 REMANDED The issue of entitlement to a rating higher than 50 percent for esophageal stricture is remanded. The issue of entitlement to a rating higher than 60 percent for gastroesophageal reflux disease (GERD) is remanded. The issue of entitlement to an effective date prior to November 1, 2017, for the grant of service connection for esophageal stricture, is remanded. The issue of entitlement to an effective date prior to September 30, 2003, for the award of service connection for GERD, is remanded. REFERRED The issue of whether there was clear and unmistakable error (CUE) in April and/or May 1948 rating decisions that failed to address the issue of entitlement to service connection for GERD has been raised by the Veteran, through his attorney, in February and March 2018 statements. This issue of CUE has not been adjudicated by the Agency of Original Jurisdiction (AOJ). The Veteran is advised that these statements do not meet the standards of a complete claim under 38 C.F.R. § 3.150(a). On remand, the AOJ should notify the Veteran and his representative as to the procedures required under 38 C.F.R. § 3.155 for filing a claim for VA benefits. REASONS FOR REMAND Veteran served on active duty from May 1946 to December 1947. This matter is before the Board following his appeal of a January 2018 rating decision. In a July 2018 written statement, the Veteran withdrew a request for a Board hearing. 38 C.F.R. § 20.704(e). 1. The issues of entitlement to higher ratings for GERD and esophageal stricture, and to an earlier effective date for the grant of service connection for esophageal stricture are remanded. The Veteran is seeking higher ratings for his GERD and esophageal stricture, and an earlier effective date for his esophageal stricture service connection award. The Board finds that prior to adjudication of those issues, remand is necessary to obtain outstanding records. In this regard, the record supports that the Veteran has been in receipt of Social Security Administration disability benefits since 1993 or 1994, and the Veteran has reported that he stopped working at that time due to his GERD disability. However, SSA records have not yet been requested. As medical records underlying the SSA disability award could support higher ratings for GERD and esophageal stricture, or an earlier effective date for service connection for esophageal stricture by showing the existence of the disability prior to November 1, 2017, those records should be obtained prior to adjudication of those claims. Additionally, the available VA clinical records indicate that the Veteran has received primarily private treatment for his gastroesophageal symptoms since at least 2000. However, only limited records related to that treatment have been obtained. Thus, remand is necessary to obtain any relevant outstanding treatment records. 2. An effective date prior to September 30, 2003, for the award of service connection for GERD is remanded. The Veteran, through his attorney, now specifically alleges clear and unmistakable error (CUE) in April 1948 and/or May 1948 rating decisions that granted service connection for infectious hepatitis for treatment purposes and malaria, but did not address entitlement to service connection for GERD. Specifically, the Veteran and his attorney argue that, because the medical evidence showed GERD at that time, the military should have filed a claim on the Veteran’s behalf and been granted service connection for GERD. The April and May 1948 rating decisions are final, and the RO has not yet adjudicated the CUE issue. The Board finds that the Veteran’s claim for an effective date earlier than September 30, 2003, for the grant of service connection for GERD and his claim with regards to CUE in the 1948 rating decisions are inextricably intertwined, as the outcome of the CUE issue could affect the outcome of the Veteran’s earlier effective date claim. Therefore, the earlier effective date claim must be held in abeyance and remanded to the AOJ to be addressed after initial adjudication of the CUE claim. The matters are REMANDED for the following action: 1. Ask the Veteran to identify and authorize VA to obtain any outstanding records documenting private treatment by any provider for his gastrointestinal or gastroesophageal symptoms since service, to include records from Dr. Bin-Sagheer, Dr. Mitchell Lewis, Marathon Family Medicine Associates, Dr. Kanuri, and/or Hernando Gastroenterology. After obtaining any necessary authorization forms from the Veteran, obtain any pertinent records identified and associate them with the claims file. Any negative responses should be in writing and should be associated with the claims file. In addition, associate all outstanding VA treatment records with the claims file. 2. Request from the SSA copies of the records pertinent to the Veteran’s claim for Social Security disability benefits as well as the medical records relied upon concerning that claim. If the requested records are unavailable, the claims file should be annotated as such and the Veteran and his representative notified of such. 3. Adjudicate the issue of whether CUE exists in any 1948 rating decision that failed to address entitlement to service connection for GERD. If the CUE issue is denied, the Veteran and his attorney should be informed of his appellate rights and given an opportunity to appeal. This CUE claim should only be returned to the Board if the Veteran perfects a timely appeal of a denial of that issue. (Continued on the next page)   4. Then, re-adjudicate the claims on appeal, to include entitlement to an earlier effective date for the award of service connection for GERD. If any benefit sought is not granted, the Veteran and his attorney should be furnished a supplemental statement of the case and afforded a reasonable opportunity to respond before the record is returned to the Board for further review. S. C. KREMBS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Fagan, Counsel