Citation Nr: 1224885 Decision Date: 07/18/12 Archive Date: 07/20/12 DOCKET NO. 09-40 053 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida THE ISSUE Entitlement to service connection for gastrointestinal disability, including gastroesophageal reflux disease (GERD) with esophageal ulcer, and/or hiatal hernia, to include as secondary to service-connected posttraumatic stress disorder (PTSD). ATTORNEY FOR THE BOARD Stephen Holland, Legal Intern INTRODUCTION The Veteran served on active duty from July 1984 to May 1992 and from December 2003 to March 2005. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2008 rating decision and an April 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In an April 2012 statement, the Veteran indicated that although he was previously represented by Disabled American Veterans, he wished to revoke representation and represent himself. The Veteran's statement is sufficient to revoke his previous power of attorney. See 38 C.F.R. §§ 20.607, 20.608 (2011). Accordingly, and because there has been no withdrawal of this request, and the Veteran has not submitted a new power of attorney for any other organization or individual to serve as his representative, the Board recognizes the Veteran as now proceeding pro se in the current appeal. The Board recognizes that the Veteran's claimed disability has been variously characterized. The RO previously characterized the Veteran's hiatal hernia and GERD as separate issues. However, the Board finds, as explained, in part, below, that the claim on appeal is more appropriately characterized as reflected on the title page. For reasons expressed below, this matter is being remanded to the RO, via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant when further action, on his part, is required. REMAND The Board review of the claims file reveals that further action in this appeal is warranted. In November 2004 and February 2005, the Veteran was diagnosed with stress-induced GERD while serving in Iraq. The Veteran reported that his symptoms continued after service. After undergoing an esophagogastroduodenoscopy in June 2008, the physician diagnosed the Veteran with a small linear ulcer in distal esophagus, hiatal hernia, and GERD. On August 2008 VA examination, the examiner noted the Veteran's hiatal hernia but found no objective indication of GERD. In April 2009, the Veteran underwent another VA examination. The examiner diagnosed hiatal hernia, but opined that it was not caused by or related to military service. When asked for her rationale for finding no relation between service and the diagnosed hiatal hernia, the examiner merely noted that a UGI series conducted during service was negative for hiatal hernia. When VA undertakes action to provide a VA examination or to obtain a medical opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Here, the Board finds the April 2009 medical opinion does not adequately resolve the claim on appeal. The examiner's sparse reference to an in-service UGI series does not explain why she concluded that the Veteran's hiatal hernia is unrelated to the Veteran's service. The claims file also includes no other medical evidence that is sufficient to resolve the claim. In May 2012, the Veteran's physician filled out a Disability Benefits Questionnaire, on which he reported of GERD, hiatal hernia, and erosive esophagitis. However, the physician, did not provide an opinion as to the etiology of any diagnosed disability. He noted that only that the onset of the Veteran's esophageal conditions was in 2004, but did not explicitly opine that there was a medical relationship between the symptoms the Veteran experienced in service and his current symptoms. The Board also notes that the record raises an additional theory of entitlement which no medical professional has directly addressed. Although the Veteran has not explicitly alleged entitlement to GERD as secondary PTSD, the Veteran raised the possibility in his brief to the Board. In this vein, the Board points out that the Veteran's stressors were originally noted to be the cause of the Veteran's GERD. However, no examiner has referenced the Veteran's PTSD. Under these circumstances, the Board finds that the medical evidence of record is inadequate to resolve the claim on appeal, and that further examination and opinion that address all theories of entitlement raised-that is based on full consideration of the Veteran's documented medical history, and supported by stated rationale-is needed to resolve the claim for service connection. See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2011); McLendon v. Nicholson, 20 Vet. App. 79 (2006). Prior to arranging for the Veteran to undergo further examination, to ensure that all due process requirements are met, the RO should also give the Veteran another opportunity to provide information and/or evidence pertinent to the claim on appeal. The RO's letter to the Veteran should explain that he has a full one-year period for response. See 38 U.S.C.A. § 5103(b)(1) (West 2002); but see also 38 U.S.C.A. § 5103(b)(3) (West Supp. 2011) (amending the relevant statute to clarify that VA may make a decision on a claim before the expiration of the one-year notice period). Thereafter, the RO should attempt to obtain any additional evidence for which the Veteran provides sufficient information and, if needed, authorization, following the current procedures prescribed in 38 C.F.R. § 3.159 (2011). The actions identified herein are consistent with the duties imposed by the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2011). However, identification of specific actions requested on remand does not relieve the RO of the responsibility to ensure full compliance with the VCAA and its implementing regulations. Hence, in addition to the actions requested above, the RO should also undertake any other development and/or notification action deemed warranted by the VCAA prior to adjudicating the expanded claim on appeal. Accordingly, this matter is hereby REMANDED to the RO, via the AMC, for the following action: 1. The RO should send to the Veteran a letter requesting that he provide sufficient information, and if necessary, authorization to enable it to obtain any additional evidence pertinent to the claim on appeal that is not currently of record. The RO should also clearly explain to the Veteran that he has a full one-year period to respond (although VA may decide the claim within the one-year period). 2. If the Veteran responds, the RO should assist him in obtaining any additional evidence identified, following the current procedures set forth in 38 C.F.R. § 3.159. All records/responses received should be associated with the claims file. If any records sought are not obtained, the RO should notify the Veteran of the records that were not obtained, explain the efforts taken to obtain them, and describe further action to be taken. 3. After all records and/or responses from each contacted entity are associated with claims file, or a reasonable time period for the Veteran's response has expired, the RO should arrange for the Veteran to undergo VA gastrointestinal examination by an appropriate physician. The entire claims file, to include a complete copy if this REMAND, must be made available to and reviewed by the examiner in conjunction with the examination. Any indicated tests and studies should be conducted, with all results furnished to the examining physician prior to the completion of his or her report. The examiner should clearly indicate all current gastrointestinal disability(ies), to include GERD and/or hiatal hernia. Then, with respect to each such diagnosed disability, the examiner should provide an opinion, consistent with sound medical principles, as to whether it is at least as likely as not (i.e., there is a 50 percent or greater probability) that the disability (a) had its onset in or is otherwise medically related to service; and, if not (b was caused or is aggravated (chronically worsened beyond natural progression) by the Veteran's PTSD. In rendered the requested opinion, the examiner should consider and discuss all pertinent in- and post-service evidence and lay assertions. The examiner is advised that the Veteran is competent to report injuries and symptoms, and that his assertions in this regard should be considered in formulating the requested opinion. All conclusions reached by the examiner must be supported by complete, clearly-stated rationale. 4. To help avoid future remand, the RO must ensure that all requested actions have been accomplished (to the extent possible) in compliance with this REMAND. If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken. Stegall v. West, 11 Vet. App. 268 (1998). 5. After undertaking the requested actions, and any additional action deemed warranted, the RO should readjudicate the expanded claim on appeal in light of all pertinent evidence and legal authority. 6. If the benefit sought on appeal continues to be denied, the RO should furnish the Veteran an appropriate Supplemental Statement of the Case, and afford him the requisite opportunity to respond before the claims file is returned to the Board for further appellate action. No action is required of the Veteran until he is otherwise notified, but he has the right to submit additional evidence and argument on the matter 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 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 Supp. 2011). _________________________________________________ JACQUELINE E. MONROE Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), 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 the appeal. 38 C.F.R. § 20.1100(b) (2011).