Citation Nr: 0006203 Decision Date: 03/08/00 Archive Date: 03/17/00 DOCKET NO. 96-45 489A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUES 1. Entitlement to an increased (compensable) evaluation for hemorrhoids. 2. Entitlement to an increased evaluation for residuals of a duodenal ulcer, currently rated as 10 percent disabling. REPRESENTATION Appellant represented by: AMVETS ATTORNEY FOR THE BOARD K. R. McCormack, Associate Counsel INTRODUCTION The veteran had active military service from September 1940 to September 1945 and September 1948 to March 1965. This matter comes to the Board of Veterans' Appeals (Board) from a Department of Veterans Affairs (VA) Los Angeles Regional Office (RO) January 1995 rating decision which, in pertinent part, granted service connection for hemorrhoids and residuals of a duodenal ulcer, assigning ratings of zero and 10 percent, respectively, effective November 4, 1993. REMAND The veteran has disagreed with the noncompensable rating assigned his service-connected hemorrhoids and the 10 percent rating assigned his service-connected residuals of a duodenal ulcer. He maintains that increased ratings are warranted for both disabilities. Initially, the veteran's claims for increased ratings are well grounded under 38 U.S.C.A. § 5107(a), as they are plausible or capable of substantiation. Murphy v. Derwinski, 1 Vet. App. 78 (1990). In general, an allegation of increased disability is sufficient to establish a well- grounded claim seeking increased rating. Proscelle v. Derwinski, 2 Vet. App. 629 (1992). Here, his contentions concerning severity of the hemorrhoids and residuals of duodenal ulcer (within the competence of a lay party to report) are sufficient to well ground his claims. The record discloses that, following issuance of the statement of the case in September 1996, additional evidence was received by the RO. In particular, copies of private medical records from Garfield Medical Center, dated from December 1993 to August 1995, were associated with the claims folder in December 1996. However, there is no indication that this evidence was formally reviewed by the RO in any rating action pertaining to the claims on appeal; this fact did not escape the attention of the veteran's representative. (See October 1999 VA Form 1-646.) As this evidence pertains to the claims on appeal, a referral to RO for review and preparation of a supplemental statement of the case is appropriate. See Thurber v. Brown, 5 Vet. App. 119, 124 (1993); 38 C.F.R. § 3.103(d) (1999). Evidence received pursuant to 38 C.F.R. § 19.37(b) must be referred to the RO unless such consideration is waived by the appellant or representative, or unless the Board grants the benefits requested on appeal. Such waiver must be in writing or, if a hearing on appeal is conducted, formally entered on the record orally at the time of the hearing. 38 C.F.R. § 20.1304(c) (1999). No such waiver is in evidence. Additionally, the record demonstrates that the veteran was last afforded a VA medical examination for compensation purposes in April 1995 (almost 5 years ago). Another examination is not required solely due to the passage of time since an otherwise adequate examination report was prepared, but because the recently received private medical evidence contains evidence suggesting the possibility that the service-connected disabilities at issue here may have undergone increased severity since the time of the prior examination, the Board believes that a contemporaneous VA medical examination is necessary here under the circumstances. See Caffrey v. Brown, 6 Vet. App. 377 (1994). To ensure full compliance with due process requirements, the case is REMANDED for the following action: The RO should schedule the veteran for a VA medical examination of his hemorrhoids and residuals of duodenal ulcer disability. The veteran's claims folder must be made available to the examiner for review in conjunction with the examination. The RO should then readjudicate the issues of entitlement to an increased (compensable) evaluation for hemorrhoids and entitlement to an increased evaluation for residuals of a duodenal ulcer, currently rated as 10 percent disabling. In so doing, the RO should specifically document consideration of the private medical records, dated from December 1993 to August 1995, which were associated with the claims folder in December 1996. If the benefits sought on appeal are not granted, the RO should issue a supplemental statement of the case and provide the veteran and his representative an opportunity to respond. He may submit additional evidence and argument on the matter remanded to the RO. Kutscherousky v. West, 12 Vet. App. 369 (1999). J. F. Gough Member, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 1991 & Supp. 1999), only a decision of the Board is appealable to the U.S. 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) (1999).