Citation Nr: 18148482 Decision Date: 11/07/18 Archive Date: 11/07/18 DOCKET NO. 18-18 041 DATE: November 7, 2018 ORDER Entitlement to an effective date of October 7, 2010, for the 30 percent rating for duodenal ulcer, prolapsed gastric mucosa to include gastroesophageal reflux disease (GERD) (hereinafter a “gastrointestinal disability”) is granted. REMANDED Entitlement to a rating in excess of 30 percent, prior to September 23, 2017, and 40 percent thereafter, for a gastrointestinal disability, is remanded. Entitlement to a total rating based on individual unemployability due to service connected disability (TDIU), is remanded. FINDINGS OF FACT 1. The Veteran filed claims of entitlement to service connection for GERD and of entitlement to an increased rating for his gastrointestinal disability that were received by VA on October 7, 2010. 2. Service connection for GERD was established effective June 20, 2016, in response to the October 7, 2010, claim for such and, the addition of that disability to the Veteran’s award was the basis for the assignment of the 30 percent rating for the Veteran’s service-connected gastrointestinal disability. CONCLUSION OF LAW The criteria for an effective date of October 7, 2010, for the 30 percent rating for a gastrointestinal disability have been met. 38 U.S.C.§§ 5107, 5110 (2012); 38 C.F.R. § 3.400 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran had active military service from January 1954 to January 1956. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a June 2011 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. In connection with this appeal, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge in July 2018 and accepted that hearing in lieu of an in-person hearing before a member of the Board. A transcript of that hearing has been associated with the claims file. Subsequent to his July 2018 Board hearing, the Veteran asserted that he is no longer able to work due to his service-connected gastrointestinal disability. The issue of TDIU has been raised by the record. Rice v. Shinseki, 22 Vet. App. 447 (2009). Earlier Effective Date Claim In October 2010, the Veteran submitted an informal claim for entitlement to an increased rating for his service-connected duodenal ulcer disease, and for entitlement to service connection for GERD secondary to service-connected duodenal ulcer. In an April 2011 rating decision, the RO denied a rating in excess of 20 percent for the Veteran’s duodenal ulcer disease. Then, in a June 2011 rating decision, the RO denied service connection for GERD. In August 2011, the Veteran asserted in his Notice of Disagreement (NOD) that he was entitled to service connection for GERD as secondary to duodenal ulcer, prolapsed gastric mucosa. The Veteran was afforded a VA examination in June 2016. At that time, the examiner concluded that the Veteran’s GERD was at least as likely as not as due to the Veteran’s service-connected duodenal ulcer. Subsequently, in a September 2016 rating decision, the RO determined that the rating for duodenal ulcer, prolapsed gastric mucosa to now include GERD was increased to 30 percent, effective June 20, 2016, which was the date of the Veteran’s VA examination for GERD. In October 2016 correspondence, the Veteran asserted that he was entitled to a rating higher than 30 percent for service-connected duodenal ulcer, prolapsed gastric mucosa to now include GERD. In his October 2016 correspondence, the Veteran also asserted that he is entitled to an effective date earlier than June 20, 2016, for his 30 percent rating. The Veteran was afforded another VA examination in September 2017. Subsequently, in a February 2018 rating decision, the RO determined that the evaluation of the Veteran’s gastrointestinal disability was increased to 40 percent, effective September 23, 2017, which was the date of the Veteran’s additional VA examination. At his August 2018 Board hearing, the Veteran contends that his claim for entitlement to an increased rating for his duodenal ulcer disease has been continuously prosecuted since he filed his claim that was received by VA on October 7, 2010, and as such, that should be the effective date of his increase. A review of the record shows that the eventual grant of entitlement to service connection for GERD prompted the addition of GERD to the Veteran’s duodenal ulcer disease rating, which was the basis for the increase to 30 percent. That addition of GERD to the Veteran’s award was in response to his October 7, 2010, claim of entitlement to service connection for GERD. The fact that the Veteran was not afforded a sufficient VA examination until June 2016, which did show that GERD was related to his service-connected disability, should not be held against the Veteran for purposes of determining the effective date of the increased rating. In sum, the Veteran was given an effective date for his disability rating of 30 percent for a gastrointestinal disability that matched the date of the VA examination on June 20, 2016, based on the VA examination from that date showing his GERD to be related to his service-connected gastrointestinal disability. The Veteran’s claim for service connection for GERD was received on October 7, 2010, and was continuously prosecuted from that date. As such, an effective date of October 7, 2010, for the increase to a 30 percent rating for the Veteran’s gastrointestinal disability is warranted as that was the date of claim for such. 38 C.F.R. § 3.400 (2018). REASONS FOR REMAND 1. Disability Rating - Gastrointestinal Disability The Board finds that additional development is required before the remaining claims on appeal are decided. The Veteran was most recently afforded an examination for his gastrointestinal disability in September 2017. At his July 2018 Board hearing, the Veteran indicated his gastrointestinal disability had worsened since that VA examination. As the above evidence indicates a possible worsening of that the Veteran’s gastrointestinal disability since his last VA examination, an additional examination should be afforded to gauge the current level of severity of all impairment resulting from his service-connected gastrointestinal disability. 2. TDIU Regarding the TDIU issue, the Board notes that the issue of entitlement to a TDIU was raised subsequent to the July 2018 Board hearing. That issue has not been properly developed or adjudicated by the Agency of Original Jurisdiction. Therefore, the issue is remanded for such. The matter is REMANDED for the following action: 1. Identify and obtain any pertinent, outstanding VA and private treatment records and associate them with the claims file. 2. Then, schedule the Veteran for a VA examination by an examiner with sufficient expertise to determine the current level of severity of all impairment resulting from his service-connected gastrointestinal disability. The claims file must be made available to, and reviewed by the examiner. All indicated tests and studies must be performed. The examiner must provide all information required for rating purposes, to include a full description of all accommodations the Veteran would require as a result of his service-connected gastrointestinal disability in order to perform in an occupational environment. 3. Conduct the appropriate development to adjudicate the issue of entitlement to a TDIU. 4. Confirm that the VA examination report and any opinions provided comport with this remand, and undertake any other development found to be warranted. 5. Then, readjudicate the remaining issue on appeal. If the decision is adverse to the Veteran, issue a supplemental statement of the case and allow appropriate time for response. Then, return the case to the Board. Kristin Haddock Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Mariah N. Sim, Associate Counsel