Citation Nr: 21042549 Decision Date: 07/13/21 Archive Date: 07/13/21 DOCKET NO. 14-38 519A DATE: July 13, 2021 REMANDED Entitlement to an initial rating in excess of 30 percent for gastroesophageal reflex disease (GERD) with gallbladder removal, is remanded. Entitlement to an initial rating in excess of 10 percent for tension headaches is remanded. REASONS FOR REMAND The Veteran served on active duty from January 1991 to October 1997, and from November 2000 to July 2014. He is a recipient of the Purple Heart and the Combat Infantry Badge, among other awards. The issues on appeal were previously before the Board of Veterans Appeals (Board) in December 2018. In its prior decision, the Board concluded that the Veteran sought no higher than an initial rating of 30 percent for his GERD and an initial 10 percent for his headaches, which the Board granted. The Veteran appealed this decision to the Court of Appeals for Veterans Claims (Court) which, in a November 2020 Order, vacated the Board's decision and remanded the issue for additional development. Specifically, the Court found that the Veteran had not demonstrated a clearly expressed intent to limit his disability ratings when he submitted his October 2014 Notice of Disagreement (NOD). In his NOD, the Veteran listed 30 percent for GERD and 10 percent for headaches under the "Percentage Evaluation Sought" column. Because the Veteran did not clearly express intent to limit his disability rating, the question before the Board is whether initial ratings in excess of 30 percent for his GERD and 10 percent for his headaches are warranted. 1. Entitlement to an initial rating in excess of 30 percent for GERD is remanded. In the Veteran's Reply Brief, submitted to the Court in July 2020, he argued through counsel, that his service-connected GERD symptoms had worsened and thus, he should have been afforded a new VA examination. A review of the Veteran's claims file reveals that he has not undergone a VA examination to assess the severity of his GERD symptoms since May 2014. In his December 2014 VA Form 9, he wrote that his GERD symptoms were severe and not controlled by medication. A VA treatment note, also from December 2014, indicates the need for increased use of his proton pump inhibitor. Due to the above, the Board finds that a new examination is required to evaluate the current degree of impairment. See Snuffer v. Gober, 10 Vet. App. 400, 403 (1997); see also Allday v. Brown, 7 Vet. App. 517, 526 (1995) (where the record does not adequately reveal current state of claimant's disability, fulfillment of statutory duty to assist requires a contemporaneous medical examination - particularly if there is no additional medical evidence that adequately addresses the level of impairment of the disability since the previous examination). 2. Entitlement to an initial rating in excess of 10 percent for headaches is remanded. After a review of the Veteran's claims file, the Board notes that the Veteran has not undergone a VA examination to assess the severity of his service-connected headaches since May 2014. While the record contains little with regard to his headache symptoms, there are VA treatment notes from February 2019 that indicate his condition has worsened. Given the more than seven years since his previous VA examination, and VA treatment records that show his symptoms may have worsened, the Board finds a new VA examination is required to evaluate the current degree of impairment. Caffrey v. Brown, 6 Vet. App. 377, 381 (1994) (the Board should have ordered a contemporaneous examination of the Veteran because a 23-month old examination was too remote in time to adequately support the decision in an appeal for an increased rating). Finally, as this matter is being remanded for the reasons set forth above, any additional VA treatment records of the Veteran for his disabilities should also be obtained. The matters are REMANDED for the following action: 1. Upload all outstanding VA treatment records not currently associated with the Veteran's claims file. Invite the Veteran to submit any additional relevant evidence or arguments in support of his claim. 2. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected GERD. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluation of the Veteran's disability under the rating criteria. 3. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected headaches. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluation of the Veteran's disability under the rating criteria. 4. Thereafter, readjudicate the claim on appeal in light of all evidence of record. If the benefit sought should remain denied, or not granted to its fullest extent, issue the Veteran and his representative a supplemental statement of the case and afford him adequate time to respond before returning the matter to the Board for further appellate review. B.T. KNOPE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. McDonald