Citation Nr: A25041217
Decision Date: 05/06/25	Archive Date: 05/06/25

DOCKET NO. 240827-467410
DATE: May 6, 2025

REMANDED

Entitlement to an initial rating in excess of 10 percent for peptic ulcer is remanded.

REASONS FOR REMAND

The Veteran served on active duty from May 1991 to March 1993.

The rating decision on appeal was issued in April 2024 and constitutes an initial decision; therefore, the modernized review system, also known as the Appeals Modernization Act (AMA), applies.

In the VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement) (NOD), the Veteran elected the Direct Review option; 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.

The Board notes that on the August 27, 2024, VA Form 10182, the Veteran included the issues of entitlement to service connection for an acquired psychiatric disorder, HIV, and tinnitus. The rating decision identified was dated August 2015; however, these issues were not adjudicated in April 2024 rating decision on appeal and there is no adjudication of these issues in the year prior to the date of the VA Form 10182. Thus, the Board notes that claims processing rules were not followed with regard to these issues and the Board will not adjudicate the issues herein.

1. Entitlement to an initial rating in excess of 10 percent for peptic ulcer is remanded.

In the April 2024 rating decision on appeal, the AOJ awarded service connection for peptic ulcer and assigned the initial 10 percent rating.

Remand by the Board under AMA is proper for a correction of duty to assist error which occurred prior to the AOJ decision on appeal (i.e., pre-decisional duty to assist error). 38 C.F.R. § 20.802(a).

Here, the Board finds that the AOJ committed a pre-decisional duty to assist error when it failed to provide the Veteran with an adequate VA examination to determine the current nature and severity of his peptic ulcer prior to its assignment of the initial rating in the rating decision on appeal. Thus, a remand is necessary to obtain an adequate VA examination.

Here, in the July 2015 VA examination for the Veteran's peptic ulcer, the examiner indicated that the Veteran's treatment plan included taking continuous medication. However, in the September 2020 VA examination, the examiner found that the Veteran's treatment plan does not include taking continuous medication for his peptic ulcer. The Board finds the September 2020 VA examination is inconsistent with the previous examination as the examiner indicated that the Veteran's condition stayed the same, and therefore inadequate for adjudication purposes. 

In addition, on the rating decision on appeal, the evidence noted included treatment records from "Bronx VA Medical Center from May 7, 2012, to August 13, 2020," however, these treatment records are not in the claims file. As such, on remand, these VA treatment records should be uploaded into the claims file. 

The matters are REMANDED for the following action:

1. Upload any missing VA treatment records to include treatment records from Bronx VA Medical Center from May 7, 2012, to August 13, 2020.

2. Schedule the Veteran for an appropriate examination to assess the nature and severity of his service-connected peptic ulcer disability. The examiner should review the Veteran's medical records and take a history from the Veteran as to the progression of his symptoms. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria

 

 

Ardie A. Bland

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	M.D.

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.