Citation Nr: 22016275 Decision Date: 03/21/22 Archive Date: 03/21/22 DOCKET NO. 16-48 536 DATE: March 21, 2022 REMANDED Entitlement to an initial compensable evaluation for the service-connected hiatal hernia for the period prior to August 4, 2016, and to an evaluation in excess of 10 percent thereafter, is remanded. REASONS FOR REMAND The Veteran had numerous periods of active duty service, to include from November 1983 to June 1990, September 10, 2001 to September 11, 2001, from September 2006, to February 2007, from May 2008 to October 2008, from January 2009 to April 2011, and from June 2011 to November 2011. This matter comes before the Board of Veterans' Appeals (Board) from a July 2012 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO) that granted service connection for a hiatal hernia and assigned a noncompensable disability rating. The Veteran disagreed with the initial noncompensable rating and appeared and testified before the undersigned Acting Veterans Law Judge at a hearing conducted in June 2021. A transcript of the hearing is included in the claims file. The other issue certified on appeal regarding the issue of recognition of the Veteran's adult child as permanently incapable of self-support prior to attaining age 18 will be the subject of a separate Board decision. Entitlement to an increased evaluation for a hiatal hernia is remanded. The Veteran seeks a higher initial rating that has been assigned to his hiatal hernia. In the course of the instant appeal, his claim was partially granted by way of an August 2016 rating decision that increased the disability rating to 10 percent effective August 4, 2016. As the Veteran was not granted the maximum benefit for the entire appeal period, the issue remains on appeal. See AB. v. Brown, 6 Vet. App. 35 (1993). In the course of the Board's review of the claims file, it has uncovered references to substantial private treatment that the Veteran has received for his disabilities throughout the pending appeal period, to include extensive primary care that has not been provided by VA. For instance, a September 2016 VA treatment record states the Veteran receives primary care from Dr. K, a non-VA physician. The record also indicates the Veteran has received substantial gastrointestinal care from Rockville Internal Medicine Group throughout the appeal period, but substantial records are not included in the claims file earlier than 2018. These records are of vital importance in evaluating the correct level of disability of the Veteran's disability. VA has a statutory duty to assist claimants by "mak[ing] reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the claimant's claim for a benefit." 38 U.S.C. § 5103A(a)(1). This includes obtaining relevant private records that the claimant adequately identifies to the Secretary. Sullivan v. McDonald, 815 F.3d 786, 791 (Fed. Cir. 2016). "Relevant records for the purpose of [section] 5103A are those records that relate to the injury [or condition] for which the claimant is seeking benefits and have a reasonable possibility of substantiating the claim." Golz v. Shinseki, 590 F.3d 1317, 1321 (Fed. Cir. 2010). The Board now finds that VA's duty to assist the Veteran in the development of his claim has been triggered and VA must make reasonable efforts to obtain and consider the potentially relevant private treatment records from Dr. K. and Rockville Internal Medicine Group. As a final note, the Board also notes that the Veteran testified at the hearing that his symptoms had continue to worsen since the time of his most recent VA medical examination regarding his disability. Ordinarily, these competent statements would raise the question of arranging for an additional clinical evaluation of the current severity of this disability. Although not yet considered in a supplemental statement of the case, VA has already provided the Veteran a contracted medical examination to uncover the current level of severity of his hiatal hernia in December 2021. As the Board is remanding this matter for other reasons, the Agency of Original Jurisdiction will consider this new evidence when issuing a supplemental statement of the case that is responsive to the Board's current directives. The matter is REMANDED for the following action: Contact the Veteran and ask him to identify the names and addresses of all healthcare providers who have provided him primary care or specifically treated his hernia condition, to include the Dr. K. referenced in the Veterans' VA medical records and the Rockville Internal Medicine Group. For all providers identified, ask the Veteran to complete a VA Form 21-4142. Make two requests for the authorized records from any identified facility unless it is clear after the first request that a second request would be futile. Jenna Brant Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. Whitelaw, 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.