Citation Nr: 1808777 Decision Date: 02/12/18 Archive Date: 02/23/18 DOCKET NO. 14-08 358 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to an increased rating greater than 30 percent for anal fistula prior to January 11, 2010, and greater than 60 percent from January 11, 2010, forward. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD L. Sinckler, Associate Counsel INTRODUCTION The Veteran served on active duty from April 1972 to October 1973. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama, that denied entitlement to a disability rating in excess of 30 percent for the Veteran's anal fistula. By way of history, on January 11, 2010, the Veteran submitted an increased rating claim for his anal fistula. Following his appeal of the November 2010 rating decision, he has been awarded an increased disability rating of 60 percent for his anal fistula, effective January 11, 2010, the date of his claim for an increase. However, the Veteran asserts that the 60 percent rating should be assigned effective from July 2009. See VA Form 21-4138, dated November 20, 2017. Because an increased rating may be awarded up to one year prior to receipt of the claim if the evidence shows an increase in disability at that time, the Veteran's claim is characterized as set forth on the title page. 38 C.F.R. § 5110(b)(2); 38 C.F.R. § 3.400(o)(2). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND The Board sincerely regrets the additional delay that inevitably will result from this remand, but it is necessary to ensure there is a complete record so the Veteran is afforded every possible consideration. While some of the Veteran's statements suggest that he was satisfied with the 60 percent rating assigned for his anal fistula, his most recent statement suggests that he believes that an even higher rating should be assigned. See VA Forms 21-4138, dated September 17, 2014, and November 20, 2017. In November 2017, he stated that he now has loss of sphincter control with worsening symptoms for the past six months. He also submitted a November 2017 letter from David Arnold, M.D. stating that the Veteran's ongoing issue with rectal sphincter control had worsened and he now has loss of function of the rectal sphincter on a daily basis. Because the Veteran was last afforded a VA examination more than five years ago in December 2012, a remand is required to schedule him for a current VA examination to assess the severity of his anal fistula. On remand, the Veteran's complete private treatment records, as well as his updated VA treatment records, should also be obtained. Accordingly, the case is REMANDED for the following action: 1. Make arrangements to obtain the Veteran's complete treatment records from David Arnold, M.D., and from Scott Robbins, M.D., dated from January 2009, forward. 2. Make arrangements to obtain the Veteran's complete VA treatment records, dated from November 2010, forward. 3. Thereafter, schedule the Veteran for an appropriate VA examination to assess the nature and current level of severity of his service-connected anal fistula. The Veteran's claims file, including a copy of this REMAND, must be made available to and reviewed by the examiner in conjunction with the examination. The examiner must note in the examination report that the evidence in the claims file has been reviewed. The appropriate Disability Benefits Questionnaire should be filled out. The examiner must provide a comprehensive report including complete rationales for all opinions and conclusions reached. 4. After the above development is completed, and any other development that may be warranted based on any additional information or evidence received, readjudicate the claim on appeal. If the benefits sought are not granted, the Veteran and his representative must be furnished a supplemental statement of the case (SSOC) and afforded a reasonable opportunity to respond before the record is returned to the Board for further review. The Veteran has the right to submit additional evidence and argument on the matter or matters 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.A. §§ 5109B, 7112 (West 2014). _________________________________________________ P. M. DILORENZO 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 your appeal. 38 C.F.R. § 20.1100(b) (2017).