Citation Nr: 1207919 Decision Date: 03/01/12 Archive Date: 03/16/12 DOCKET NO. 07-18 064 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for acid reflux disease, to include a hiatal hernia. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Timothy D. Rudy, Counsel INTRODUCTION The Veteran served on active duty from July 1984 to February 1985, and from February 2004 to November 2004. The Veteran also has service with the Navy Reserve; presumably this includes periods of active duty for training (ACDUTRA) and inactive duty training (INACDUTRA). This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2006 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. Subsequently, this matter was remanded for additional development in a February 2011 Board decision. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, D.C. VA will notify the appellant, if further action is required. REMAND Unfortunately, a further remand is required in this case. Although the Board sincerely regrets the additional delay, a remand is necessary to ensure that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. VA has a duty to make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A(a) (West 2002 & Supp. 2010); 38 C.F.R. § 3.159(c), (d) (2011). The Board notes that in its remand of February 2011 it requested development of the Veteran's duty status in December 2002. Before adjudicating his claim of service connection for acid reflux disease, the Board wanted to determine if he was on ACDUTRA in December 2002, in which case service connection might be warranted for this claim. The Board had noted that its review of the claims file disclosed that a December 2003 Naval Reserve annual certificate of physical condition noted that the Veteran had been treated for one year with Nexium for gastroesophageal reflux disease (GERD). According to the Veteran's subsequent March 2004 pre-deployment questionnaire, the Veteran was taking Nexium on a regular basis before his tour of active duty from February 2004 to November 2004. The reference to Nexium in the pre-deployment questionnaire and the December 2003 Naval Reserve annual certificate, which noted treatment for GERD, suggested that the Veteran's acid reflux disease and/or hiatal hernia preexisted the Veteran's entry into active duty in February 2004. According to the December 2003 Naval Reserve annual certificate of physical condition, it appeared to the Board that the onset of the Veteran's acid reflux disease might have been December 2002. The examiner noted that the Veteran had been treated with Nexium for one year for GERD. As there was no indication in the record of the Veteran's duty status during December 2002, this matter was remanded for the RO/AMC to obtain the Veteran's service personnel records to determine his duty status in December 2002. Instead of obtaining the Veteran's service personnel records, the RO/AMC then sent the Veteran a duty-to-assist letter in February 2011 in which it explained that it was attempting to verify the Veteran's periods of ACDUTRA and INACDUTRA. The RO/AMC requested that the Veteran explain when his disease occurred, the complete unit (down to the company level) he was assigned to at the time, and the type of training he was conducting at the time. The letter further explained that this requested information was needed by the Defense Finance and Accounting Service (DFAS) in order to conduct a search of stored paper records. The Veteran did not respond to this correspondence and it appears from a review of the claims file that the RO/AMC did no further development to determine the Veteran's duty status in December 2002. The Board notes that subsequent to its February 2011 remand there is no indication from the claims file whether the Veteran ever received his February 2011 correspondence, no indication that the RO/AMC contacted the Naval Reserve or the Department of the Navy for appropriate service personnel records, and no indication a further search for the Veteran's service personnel records, including the December 2002 time frame, would prove futile. When VA attempts to obtain records from a federal department or agency, the efforts to obtain these records must continue until they are obtained unless it is reasonably certain they do not exist or that further efforts to obtain them would be futile. 38 U.S.C.A. § 5103A(b); 38 C.F.R. §§ 3.159(c)(2), (3). The Board notes that its requested development was not completed prior to return of the claims file to the Board for appellate consideration. Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that compliance by the Board or the RO with remand directives is neither optional nor discretionary, and where the remand orders of the Board or the courts are not complied with, the Board errs as a matter of law when it fails to ensure compliance). Therefore, the RO/AMC on remand shall continue its attempt to determine whether the Veteran was ever in ACDUTRA status between December 2002 and December 2003. The Board feels that instead of limiting the search for duty or personnel records to only December 2002, the search should be expanded to the entire twelve-month period between December 2002 and December 2003. The reviewing officer-nurse practitioner had noted on the December 2003 Naval Reserve annual certificate of physical condition that the Veteran had been treated with Nexium for one year for GERD and that his symptoms had resolved. On remand, even if no response is received from the Veteran, the RO/AMC shall do further development to determine whether the Veteran was ever in a period of ACDUTRA in the months between December 2002 and December 2003. The Board notes that if the Veteran was in a period of INACDUTRA from December 2002 to December 2003 than service connection will not be warranted because acid reflux disease is a disease and not an injury. Service connection may be granted for a disability resulting from disease or injury incurred in, or aggravated, while performing ACDUTRA or active service, but only for an injury incurred in or aggravated while performing INACDUTRA. 38 U.S.C.A. §§ 101(24), 106, 1110 (2011). In addition, the Board notes that the May 2011 VA examiner reviewed all available computer records of the Veteran's treatment at VA facilities, including a March 2008 EGD screening. The examiner appeared to rely, in part, on the findings of this March 2008 screening to form his opinion that the Veteran's hiatal hernia and esophageal reflux were neither caused by nor aggravated by the Veteran's period of active duty service. The Board notes that VA treatment records found in the claims file are only dated from November 2004 to September 2006. A search for additional VA treatment records on the Virtual VA system proved fruitless. Therefore, on remand, the RO/AMC shall attempt to obtain and associate with the claims file copies of any outstanding VA medical records from the Tampa VAMC and the Orlando outpatient clinic in Florida, for the period from September 2006 to the present. Accordingly, the case is REMANDED for the following action: 1. Even if the Veteran fails to respond to any query, the RO/AMC shall take appropriate steps to secure all of the Veteran's U.S. Naval Reserve service personnel records related to the time period from December 2002 to December 2003, including a breakdown of any periods of ACDUTRA or INACDUTRA, through official channels or from any other appropriate source. These records should be associated with the claims file after which the RO/AMC shall determine whether the Veteran was performing ACDUTRA or INACDUTRA at any time during this time period. 2. The RO/AMC shall obtain and associate with the claims file all VA records of evaluation and/or treatment of the Veteran from the Tampa VAMC and VA's outpatient clinic in Orlando, from September 2006 to the present. 3. Thereafter, the RO/AMC shall readjudicate the Veteran's claim for service connection for acid reflux disease, to include a hiatal hernia. If the benefit sought on appeal is not granted, the Veteran and his representative should be provided with a Supplemental Statement of the Case and afforded a reasonable opportunity to respond. Thereafter, the case should be returned to the Board for the purpose of appellate disposition. The appellant has the right to submit additional evidence and argument on the matter or 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 Supp. 2011). _________________________________________________ JONATHAN B. KRAMER 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 your appeal. 38 C.F.R. § 20.1100(b) (2011).