Citation Nr: 21063513 Decision Date: 10/14/21 Archive Date: 10/14/21 DOCKET NO. 10-47 078 DATE: October 14, 2021 REMANDED Entitlement to an initial rating in excess of 10 percent for hiatal hernia, to include on an extraschedular basis, is remanded. REASONS FOR REMAND The Veteran served on active duty from June 1953 to July 1972. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2010 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO), which granted the Veteran service connection for hiatal hernia with gastroesophageal reflux disease (GERD) and assigned a rating of 10 percent. The Veteran's claim was previously before the Board in May 2013, February 2021, March 2021, and July 2021. In its July 2021 decision, the Board remanded to afford the Veteran a VA examination. The claim is back before the Board for further appellate proceedings. In compliance with the July 2021 Board remand, the AOJ afforded the Veteran a new VA examination in August 2021. The examiner noted that the Veteran has moved to an assisted living facility that has treated the Veteran's hiatal hernia and GERD without esophagitis. See August 2021 VA examination report. The examiner pointed to these treatment records as evidence supporting their conclusion. Id. However, these records are not part of the evidentiary record. Id. Remand is necessary to afford the Veteran the opportunity to submit these treatment records, if they are not already in VA's possession. Indeed, the last VA treatment records that have been associated with the evidentiary record are dated in October 2020. Outstanding medical records should be associated with the evidentiary record on remand. Further, it its May 2013 decision, the Board instructed the AOJ to specifically request that the Veteran's assistance in obtaining April 2011 private medical records wherein the Veteran sought treatment for right upper quadrant pain due to his hiatal hernia. See October 2012 VA examination report. The AOJ has not yet asked for these records with specificity. Cf. May 2013 VCAA Letter (requesting "any treatment records" without noting the April 2011 private medical records). Thus, the AOJ must request these records again on remand. The Board notes that the Veteran's representative has argued that an endoscopy study is essential here to fully reveal the Veteran's "actual material status." See September 2021 informal hearing presentation. Neither the Veteran, nor his representative, has indicated what impairment an endoscopy study would find that is not already shown in the VA examination report. Regardless, the August 2021 VA examination report stated that "an endoscopy, which requires some sedation, is not without risks particularly in [someone the Veteran's age]. An endoscopy, if required for this administrative examination, is more appropriately ordered for this . . . veteran by the treating and prescribing provider who will be most familiar with the veteran's additional medical conditions and medications." As an endoscopy study contains a risk that the examiner found imprudent to undertake in an administrative examination, the Veteran may request additional time to provide the results of such a study from their primary care physician. On this review, the record does not reveal a present need to remand for a new VA examination. The matter is REMANDED for the following action: 1. Obtain any outstanding VA and/or private treatment records relevant to treatment the Veteran received for his gastrointestinal disability that are not already of record, to include (1) treatment records from his assisted living facility referenced in the August 2021 VA examination report, and (2) treatment records from his community physician in April 2011 showing treatment for right upper quadrant pain referenced in the October 2012 VA examination report. All obtained records should be associated with the evidentiary record. If any identified records are not obtainable (or none exist), the Veteran and his representative should be notified, and the record clearly documented. 2. After the above has been completed to the extent possible, readjudicate the claims. If any benefit sought remains denied, provide the Veteran and his representative with a supplemental statement of the case (SSOC), and return the case to the Board. DONNIE R. HACHEY Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Strickland The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.