Citation Nr: 0948549	
Decision Date: 12/28/09    Archive Date: 01/13/10

DOCKET NO.  06-10 499	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Boston, 
Massachusetts


THE ISSUE

Entitlement to service connection for gastroesophageal reflux 
disease (GERD).


REPRESENTATION

Veteran represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

Veteran


ATTORNEY FOR THE BOARD

M. Moore, Law Clerk


INTRODUCTION

The Veteran served on active duty from June 1967 to 
January 1970.

This matter comes before the Board of Veterans' Appeals 
(Board) on appeal from a July 2004 rating decision of the 
Department of Veterans Affairs (VA) Regional Office (RO) in 
Cleveland, Ohio, which granted service connection for hearing 
loss and posttraumatic stress disorder (PTSD), assigning 10 
percent and 50 percent evaluations, respectively, and denied 
service connection for voiding dysfunction and erectile 
dysfunction status post transurethral resection of the 
prostate, secondary to herbicide exposure, and GERD.  In 
August 2004, the Veteran submitted a notice of disagreement 
(NOD) with regard to PTSD and GERD.  A February 2006 rating 
decision increased the Veteran's evaluation for PTSD from 
50 percent to 70 percent.  Subsequent to that increase, the 
Veteran withdrew his appeal for PTSD in a February 2006 
letter.  The Veteran perfected his appeal for GERD in 
March 2006.

In March 2009, the Veteran presented sworn testimony during a 
Travel Board hearing in Boston, Massachusetts, which was 
chaired by the undersigned Veterans Law Judge.  A transcript 
of the hearing has been associated with the Veteran's claims 
file.

The appeal is REMANDED to the RO via the Appeals Management 
Center (AMC), in Washington, DC.  VA will notify the Veteran 
if further action on his part is required.


REMAND

The Veteran contends that he has GERD as a result of active 
duty service.  Specifically, he contends that he began 
experiencing symptoms of heart burn and indigestion in 
service and that this has caused his current GERD.  
Alternatively, he contends that his service-connected PTSD 
has caused or exacerbated his GERD.  Therefore, he believes 
service connection is warranted.

After a thorough review of the Veteran's claims file, the 
Board has determined that additional evidentiary development 
is necessary prior to the adjudication of the Veteran's claim 
of entitlement to service connection for GERD.

The Veteran was afforded a VA examination in June 2004.  The 
examiner diagnosed the Veteran with GERD symptoms and 
concluded that his symptoms were not likely to have been 
caused by service.  In support of his conclusion, the 
examiner stated that he reviewed the Veteran's claims file 
and found no evidence of inservice gastrointestinal 
complaints.  However, the Board's review of the service 
treatment records found that the Veteran was treated for 
stomach cramps, nausea, and vomiting, and diagnosed with 
viral gastroenteritis in May 1969.  The June 2004 VA 
examination report did not address this treatment record or 
opine on its relationship to the Veteran's currently 
diagnosed GERD.

In January 2005, the Veteran was granted service connection 
for PTSD.  Subsequent to this grant, he submitted statements 
from three private physicians attesting to a possible 
relationship between PTSD and GERD.  See Dr. J. P. D. letter, 
February 2006; Dr. J. S. letter, February 2006; Dr. A. M. B. 
letter, February 2009.  However, the VA examination report of 
record does not address a possible nexus between the 
Veteran's service-connected PTSD and his GERD.

In light of these deficiencies, the June 2004 VA examiner's 
opinion is not adequate to render a decision on entitlement 
to service connection for GERD.  See Barr v. Nicholson, 21 
Vet. App. 303, 311-12 (2007) (When VA undertakes to provide a 
VA examination or obtain a VA opinion, it must ensure that 
the examination or opinion is adequate).

Further, at his March 2009 Travel Board hearing, the Veteran 
submitted multiple statements from fellow service members who 
recall the Veteran experiencing heart burn and using baking 
soda and antacids in service.  See V. B. statement, 
March 2009; G. W. statement, March 2009; R. E. T. statement, 
March 2009; J. L. H. statement, March 2009.  Additionally, he 
submitted copies of letters he sent to his family while in 
service, requesting that they send him Tums and Rolaids.  See 
inservice letters from Veteran, October 1967, July 1968, and 
October 1968.  A new VA examination is necessary to address 
the question of a medical nexus in light of this new evidence 
of inservice symptoms.

As the United States Court of Appeals for Veterans Claims 
(Court) explained in Colvin v. Derwinski, 1 Vet. App. 171, 
175 (1991), the Board may consider only independent medical 
evidence to support its findings.  The Court went on to say 
that, if the medical evidence of record is insufficient, the 
Board is free to supplement the record by seeking an advisory 
opinion, ordering a medical examination or citing recognized 
medical treatises in its decisions that clearly support its 
ultimate conclusions.  See shermanashley@example.com.  For the reasons 
described above, the Veteran's claim of entitlement to 
service connection for GERD must be remanded for a new VA 
examination.

Additionally, as this issue is being remanded, the Board will 
take the opportunity to obtain any VA treatment records not 
yet associated with the claims file and to provide the 
Veteran with VCAA notice that is compliant with 
Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).

Accordingly, the case is REMANDED for the following actions:

1.  Copies of updated treatment records, 
covering the period from January 5, 2006 
to the present, should be obtained and 
added to the claims folder.

2.  Provide the Veteran with corrective 
VCAA notice, including an explanation of 
the information or evidence necessary to 
establish a disability rating and effective 
date for the claim on appeal, pursuant to 
Dingess/Hartman v. Nicholson.

3.  The Veteran should be afforded an 
examination with an appropriate examiner.  
All indicated studies should be performed.  
The claims folder should be provided to the 
examiner for review of pertinent documents 
therein in connection with the examination, 
and the examination report should reflect 
that such a review was conducted.  The 
examiner should provide an opinion as to 
the likelihood that the Veteran's current 
gastroesophageal reflux disease is causally 
related to his inservice complaints of 
heart burn.  The examiner should discuss 
inservice treatment records, including the 
May 1969 treatment for gastroenteritis, the 
June 2004 VA examination report, and the 
Veteran's inservice use of baking soda and 
antacids for relief of his symptoms.  A 
complete rationale should be provided for 
any opinion offered.

Additionally, the examiner should provide 
an opinion as to the likelihood that the 
Veteran's current gastroesophageal reflux 
disease is causally related to his service-
connected posttraumatic stress disorder.  
The examiner should specifically discuss 
whether the Veteran's posttraumatic stress 
disorder and/or combat-related stress 
contributed to or exacerbated his 
gastroesophageal reflux disease.  If the 
examiner determines that the Veteran's 
gastroesophageal reflux disease was 
aggravated (permanently increased in 
severity beyond the natural progress) by 
his posttraumatic stress disorder, the 
examiner should identify the level of 
disability caused by the posttraumatic 
stress disorder, to the extent possible.

It would be helpful if the examiner would 
use the following language, as may be 
appropriate:  "more likely than not" 
(meaning likelihood greater than 50%), "at 
least as likely as not" (meaning likelihood 
of at least 50%), or "less likely than 
not" or "unlikely" (meaning that there is 
a less than 50% likelihood).

The term "at least as likely as not" does 
not mean "within the realm of medical 
possibility."  Rather, it means that the 
weight of medical evidence both for and 
against a conclusion is so evenly divided 
that it is as medically sound to find in 
favor of that conclusion as it is to find 
against it.  The examiner should provide a 
complete rationale for any opinion 
provided.

4.  After completing the above actions and 
any other development as may be indicated 
by any response received as a consequence 
of the action taken in the paragraphs 
above, the claim of entitlement to service 
connection for gastroesophageal reflux 
disease should be readjudicated.  If the 
claim remains denied, a supplemental 
statement of the case should be provided 
to the Veteran and his representative.  
After they have had an adequate 
opportunity to respond, this issue should 
be returned to the Board for further 
appellate review.

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

No action is required of the Veteran until further notice.  
However, the Board takes this opportunity to advise the 
Veteran that the conduct of the efforts as directed in this 
remand, as well as any other development deemed necessary, is 
needed for a comprehensive and correct adjudication of his 
claim.  His cooperation in VA's efforts to develop his claim, 
including reporting for any scheduled VA examination, is both 
critical and appreciated.  The Veteran is also advised that 
failure to report for any scheduled examination may result in 
the denial of a claim.  See 38 C.F.R. § 3.655 (2009).

This claim must be afforded expeditious treatment.  The law 
requires that all claims that are remanded by the Board or by 
the Court for additional development or other appropriate 
action must be handled in an expeditious manner.  See 38 
U.S.C.A. §§ 5109B, 7112 (West 2002 & Supp. 2009).



_________________________________________________
BARBARA B. COPELAND
Veterans Law Judge, Board of Veterans' Appeals

Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the 
Board is appealable to the Court.  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.  See 
38 C.F.R. § 20.1100(b) (2009).


{'dataset': 'bva_opinions'}