Citation Nr: 21076556 Decision Date: 12/27/21 Archive Date: 12/27/21 DOCKET NO. 16-61 750 DATE: December 27, 2021 REMANDED The issue of entitlement to a higher initial rating for gastroesophageal reflux disease (GERD) with hiatal hernia, status post cholecystectomy, is remanded. The issue of entitlement to an initial compensable rating for migraines is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Navy from November 1994 to November 2014. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2015 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO) in which the RO, inter alia, granted service connection for GERD with hiatal hernia, status post cholecystectomy, evaluated as 10 percent disabling, for migraines, evaluated as noncompensably (zero percent) disabling, and for female infertility, evaluated as noncompensably disabling. The RO also denied service connection for, inter alia, chronic fatigue syndrome and right and left knee disabilities. Thereafter, the Veteran disagreed with the RO's denial of service connection for chronic fatigue syndrome and right and left knee disabilities, and with the assigned ratings for female infertility, migraines, and GERD. A statement of the case (SOC) addressing those issues was issued in October 2016 and the Veteran subsequently filed a VA Form 9 (Appeal to the Board of Veterans Appeals) in December 2016. Notably, in her VA Form 9, the Veteran checked the box indicating that she had read the SOC and was appealing only the issues of entitlement to higher initial ratings for GERD and migraines. The Veteran also expressed her desire to present testimony at a Board videoconference hearing before a Veterans Law Judge (VLJ). The record shows that the Veteran was scheduled for hearings to be held in September 2019, August 2020, January 2021, and May 2021, but that each of those scheduled hearings were postponed. The Veteran was then scheduled for a hearing to be held on October 20, 2021, notification of which was sent to the Veteran on September 13, 2021. However, the Veteran failed to report for the scheduled hearing. As the record does not reflect that Veteran has either explained her failure to report, or requested rescheduling of the hearing, the Board will proceed as though her hearing request has been withdrawn. See 38 C.F.R. § 20.704(d). 1. Entitlement to a higher initial rating for GERD with hiatal hernia and status post cholecystectomy is remanded. 2. Entitlement to an initial compensable rating for migraines is remanded. Regarding the Veteran's claim for higher initial ratings for her service-connected GERD and migraines, the Board notes that a veteran must be afforded a thorough and contemporaneous examination when the record does not adequately reveal the current state of his disability. Hart v. Mansfield, 21 Vet. App. 505, 508 (2007) (citing, inter alia, Green v. Derwinski, 1 Vet. App. 121, 124 (1991)). The record is inadequate and the need for a contemporaneous examination occurs when there is evidence, including a veteran's statement, of a possible increase in disability since the last examination. Hart, 21 Vet. App. at 508 (2007) (citing, inter alia, Snuffer v. Gober, 10 Vet. App. 400, 403 (1997)). Here, the only examinations pertaining to the severity of the Veteran's GERD and migraines is her January 2014 separation health assessment examinations. Notably, in her July 2015 notice of disagreement, the Veteran reported that her GERD symptoms "get so bad" that she has "painful chest pain." She also reported "persistent recurrence" of symptoms. In her December 2016 VA Form 9, the Veteran stated that her "GERD hasn't gotten any better." She also reported that on a few occasions, symptoms from this disability were so bad that she could not "keep anything down and it causes constant chest pain." These symptoms were not noted at the time of the January 2014 examination. The Veteran has also reported that she continues to suffer from migraines at least two to three times per week and that she receives Botox injections and takes the prescription medication Maxalt for treatment of her migraines. Such treatment was not indicated at the time of the January 2014 examination. Also, a May 2021 VA neurology note indicates that the Veteran has one debilitating headache a month. Given this evidence, the Board finds that new examinations to obtain more contemporaneous findings is needed to assess the severity of the service-connected GERD and migraines. See 38 U.S.C. § 5103A; Palczewski v. Nicholson, 21 Vet. App. 174, 181-82 (2007); Snuffer, supra; 38 C.F.R. § 3.327(a) (duty to provide a thorough and contemporaneous examination is triggered when the "evidence indicates there has been a material change in a disability or that the current rating may be incorrect"). The matters are REMANDED for the following action: 1. Schedule the Veteran for an examination by an appropriate clinician to determine the current nature and severity of all symptoms and manifestations pertaining to her service-connected GERD with hiatal hernia and migraines. The claims file must be made be reviewed by the examiner(s). All indicated studies and tests should be conducted. The examiner should provide a full description of the disabilities and report all signs and symptoms necessary for evaluating the Veteran's disabilities under the rating criteria. 2. After completing the above-requested actions, and any additional action(s) deemed warranted, adjudicate the claims on appeal, considering all pertinent evidence (to include all evidence added to the record since the October 2016 statement of the case. KRISTIN E. NEILSON Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Telamour, Associate Counsel 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.