Citation Nr: A21019719
Decision Date: 12/10/21	Archive Date: 12/10/21

DOCKET NO. 200229-67316
DATE: December 10, 2021

REMANDED

Entitlement to a 10 percent evaluation based upon multiple, noncompensable, service-connected disabilities is remanded.

REASONS FOR REMAND

The Veteran served on active duty in the United States Army from October 1952 to August 1954.

This appeal comes to the Board of Veterans' Appeal (Board) under the Appeals Modernization Act (AMA) review system.  Specifically, the appeal comes before the Board from a February 2020 AMA rating decision.  In a subsequent February 2020 VA form 10182, Decision Review Request: Board Appeal (AMA Notice of Disagreement), the Veteran elected the Direct Review Lane.  Therefore, the Board may only consider the evidence of record at the time of the agency of original jurisdiction (AOJ) decision on appeal.  38 C.F.R. § 20.301.

In April 2020, the Board denied the above claim. The Veteran appealed the April 2020 Board decision to the United States Court of Appeals for Veterans Claims (Court).  In an August 2021 order, which incorporated the parties' Joint Motion for Remand (JMR), the Court vacated and remanded the April 2020 Board decision.

Entitlement to a 10 percent evaluation based upon multiple, noncompensable, service-connected disabilities is remanded.

The JMR suggested the Veteran's December 2019 VA hernia examination was not adequate because the examiner "...failed to account for Appellant's lay statements when concluding there were no residuals of a hernia."  Therefore, the JMR vacated and remanded the April 2020 Board decision because it relied, in part, on the December 2019 VA examination when finding that the Veteran's noncompensable disabilities did not interfere with normal employability, without explaining why the December 2019 examination was adequate in spite of not addressing the Veteran's lay statements.

The Board finds that there was a pre-decisional duty to assist error when the AOJ adjudicated the claim without first obtaining a new VA examination that considered the Veteran's lay claims as to his observable adverse symptomatology due to his hernia.  See 38 C.F.R. § 20.802(a).

The appeal is REMANDED for the following action:

Schedule the Veteran for a VA examination with a suitably-qualified medical professional to address his service-connected hernia's adverse symptomatology.  The claims file should be made available to and be reviewed by the examiner in conjunction with conducting the examination.  Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed.  

After a consideration of the evidence of record (both lay and medical) and the results of the examination, the examiner is asked to report on all of the Veteran's adverse hernia symptomatology.

The examiner should specifically consider and discuss the competent lay claims from the Veteran regarding his hernia's observable adverse symptomatology to include any claims regarding the problems it caused with employment. 

 

L. STEPANICK

Acting Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	N.T. Werner, 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.