Citation Nr: 1736618	
Decision Date: 08/31/17    Archive Date: 09/06/17

DOCKET NO. 09-19 020A	)	DATE
	)
	)
On appeal from the
Department of Veterans Affairs Regional Office in Houston, Texas


THE ISSUES

1. Entitlement to an initial disability rating in excess of 30 percent for gastroesophageal reflux disease (GERD), status post Nissen fundoplication.

2. Entitlement to an initial disability rating in excess of 30 percent for adjustment disorder with depressed mood.

3. Entitlement to an initial disability rating in excess of 10 percent for tinnitus.

4. Entitlement to an initial compensable disability rating for left ear hearing loss.


REPRESENTATION

Veteran represented by:	Texas Veterans Commission


WITNESSES AT HEARING ON APPEAL

The Veteran and his spouse
ATTORNEY FOR THE BOARD

E. Duthely, Associate Counsel


INTRODUCTION

The Veteran served on active duty from August 1999 to March 2005. 

This matter comes before the Board of Veterans' Appeals (Board) on appeal from August 2007, January 2008, and March 2011 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas.

In October 2012, the Veteran and his spouse testified at a hearing concerning his GERD and chronic adjustment disorder before the undersigned Veterans Law Judge seated at the RO. During the hearing, the undersigned engaged in a colloquy with the Veteran and his spouse toward substantiation of the claim. See Bryant v. Shinseki, 23 Vet. App. 488, 496-97 (2010). A transcript of the Board hearing is included in the electronic claims file. In May 2012, the Veteran requested a videoconference hearing concerning his tinnitus and hearing loss claims, which was scheduled for October 2016. The Veteran did not appear for the scheduled hearing, and provided no reason for missing the hearing. Therefore, the Veteran's request for a hearing is considered withdrawn. 

In January 2013, the Board remanded the appeal to the RO for additional development. For the reasons discussed below, further development is necessary to properly adjudicate the Veteran's claims and another remand is required. See Stegall v. West, 11 Vet. App. 268 (1998)

The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required.



REMAND

In a July 2017 statement from his representative, the Veteran contends his conditions have worsened since his last VA examinations. The Veteran is competent to allege such worsening. Therefore, a new VA examination is necessary to assist in determining the current nature and severity of the Veteran's GERD, chronic adjustment disorder, left ear hearing loss, and tinnitus.

Additionally, the Board remanded these claims in January 2013 with instructions to the RO to issue a supplemental statement of the case (SSOC), as the VA treatment records and May 2013 VA examination constituted new evidence to be considered pursuant to 38 C.F.R. § 19.31 (2016). No SSOC was issued. Stegall, 11 Vet. App. at 271; 38 C.F.R. § 19.31 (2016) (setting for requirements for issuing an SSOC, including for the purpose of consideration of additional material evidence).

Accordingly, the case is REMANDED for the following actions:

1. Request that the Veteran identify and secure any relevant private medical records that are not in the claims file. Attempt to obtain any records identified by the Veteran and associate these records with the claims file.

2. Obtain any outstanding VA medical records and associate them with the claims file.

3. Schedule the Veteran for additional appropriate VA examinations to determine the current severity of his GERD, chronic adjustment disorder, tinnitus, and bilateral hearing loss. The entire VBMS file, including a copy of the Remand, should be made available to, and be reviewed by, the VA examiner. All appropriate tests, studies, and consultation, should be accomplished and all clinical findings should be reported in detail. Specifically as to any reported worsening, the examiner must report a complete explanation as to findings. 

4. After completion of the above and any other appropriate development deemed necessary, readjudicate the issues on appeal on the basis of the additional evidence. If the determinations remain adverse to the Veteran, he and his representative should be furnished with a Supplemental Statement of the Case. An appropriate period of time should then be allowed for a response before the record is returned to the Board for further review.

The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014).



_________________________________________________
VITO A. CLEMENTI
Veterans Law Judge, Board of Veterans' Appeals

Under 38 U.S.C.A. § 7252 (West 2014), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2016).

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