Citation Nr: 1416288 Decision Date: 04/11/14 Archive Date: 04/24/14 DOCKET NO. 07-03 155 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New York, New York THE ISSUES 1. Entitlement to service connection for gastroesophageal reflux disease (GERD), also claimed as hiatal hernia, to include as secondary to a service-connected disability. 2. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD James G. Reinhart, Counsel INTRODUCTION The Veteran served on active duty from May 1994 to October 1997. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an October 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in New York, New York. In September 2008, the Veteran testified at a personal hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required. REMAND In a November 2012 decision, the Board adjudicated the Veteran's appeal as to the issues listed on the title page. The Veteran appealed that decision to the U.S. Court of Appeals for Veterans Claims (Court). In April 2013, the Court granted a joint motion for remand of the Veteran and the Secretary of Veteran's Affairs (the Parties), vacated the November 2012 Board decision, and remanded the case to the Board for action consistent with the terms of the joint motion. Action consistent with the terms of the joint motion requires a Remand to the AOJ (which is the RO via the AMC) so that VA can provide an adequate examination and obtain an adequate expert opinion. First, the Parties agreed that there had not been compliance with a directive of a November 2010 Board Remand. In that Remand, the Board had asked for an expert opinion as to the etiology of the Veteran's hiatal hernia. None was provided. The following paragraphs provide more explanation. A December 2008 VA primary care note includes, in a history of present illness section, that the Veteran reported that his GERD and hiatal hernia symptoms were stable since he adjusted medication. A past medical history / problem list includes an entry of "GERD/hiatal hernia." In the November 2010 Remand, the Board directed as follows: "The RO/AMC shall arrange for the Veteran to undergo an appropriate VA examination so as to ascertain the underlying cause, time of onset, and etiology of the disorder claimed as GERD/hiatal hernia." It also directed that "[t]he examiner shall clearly identify (by diagnosis) whether the Veteran currently has a GI disability or disabilities, claimed as GERD and hiatal hernia." In the resulting December 2010 VA examination, the only gastrointestinal disorder diagnosed was GERD. The examiner referred to hiatal hernia as a risk factor for GERD. He limited his nexus opinion to whether GERD was connected to service. In the joint motion, the Parties agreed that remand was necessary because the Board had not ensured substantial compliance with the November 2010 Remand order which required that VA provide an opinion as to whether the Veteran's hiatal hernia was due to service. On remand, the VA must provide an examination and obtain an expert opinion that addresses whether the Veteran's hiatal hernia had onset or was caused by active service. Second, the Parties pointed out that the December 2010 opinion is deficient in addressing whether nonsteroidal anti-inflammatory drugs (NSAIDs) prescribed for the Veteran's service-connected back disability aggravated his GERD. In the December 2010 examination report, the examiner referred to the treatment of the Veteran's psychiatric symptoms and service-connected back pain. The examiner stated that "[q]uetiapine and diclofenac (NSAID) were last prescribed in 2008." In the joint motion, the Parties found it important that although the examiner found that the Veteran had discontinued use of quetiapine and diclofenac in 2008, an August 6, 2010 medication reconciliation note showed that he was taking diclofenac as recently as August 2010. The Parties agreed that the Board must ensure that the Veteran is provided with a VA opinion on whether his use of NSAIDs used to treat his service-connected back disability aggravated his GERD. A remand is therefore necessary to comply with the terms of the joint remand. The TDIU is inextricably intertwined with the GERD/hiatal hernia injury and therefore must also be remanded. Finally, so as to ensure that the record is complete, the AOJ must obtain and associate with the claims file all records of VA treatment of the Veteran since November 20, 2013. Accordingly, the case is REMANDED for the following action: 1. Obtain all records of VA treatment of the Veteran since November 2013 and associated the obtained records with the claims file. 2. Ensure that the Veteran is scheduled for an appropriate examination with regard to his claimed GERD/hiatal hernia claim. The claims file must be provided to the examiner and the examiner must review the claims file in conjunction with the examination. The examiner must provide a complete rationale to support any and all opinions provided. The examiner must accomplish the following: (a) Provide an expert opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that the use of NSAIDs for the Veteran's service-connected back condition has resulted in a worsening of the Veteran's GERD beyond its natural progression. This case has been appealed to the Court and remanded back to VA from the Court. Based on that remand, the Board cautions the examiner to pay particular attention to NSAIDs that have been discontinued and then restarted or replaced with other NSAIDs. In this regard, a previous examination report referred to the discontinued use of diclofenac in 2008 without recognizing that the Veteran was taking dicolfenac as recently as August 2010. This discrepancy led to the Court returning the case to the Board for additional development. The examiner must take into consideration the January 17, 2004 statement by a VA treating physician regarding the use of NSAIDs and the effect of such on the Veteran's GERD / hiatal hernia. The examiner must specifically comment on this statement. (b) Provide an expert opinion to ascertain the underlying cause, time of onset, and etiology of a claimed hiatal hernia. Specifically, the examiner must as to whether it is at least as likely as not (a 50 percent or greater probability) that a hiatal hernia had onset during the Veteran's active service or was caused by his active service. 3. The AOJ must review the body of this Remand and ensure that the examination report is adequate. If it is not adequate, take immediate corrective action. 4. Then, readjudicate the claims that are the subject of this Remand. If any benefit sought is not granted, provide the Veteran and his representative with a supplemental statement of the case and allow an appropriate opportunity to respond thereto before returning the case to the Board, if in order. 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). These claims 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. 2013). _________________________________________________ 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) (2013).