Citation Nr: 1300682 Decision Date: 01/08/13 Archive Date: 01/16/13 DOCKET NO. 02-14 258 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES Entitlement to service connection for a gastrointestinal disorder, characterized as gastroesophageal reflux disorder (GERD) with hiatal hernia. REPRESENTATION Veteran represented by: Nancy Foti, Attorney-at-Law WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD Jennifer R. White, Associate Counsel INTRODUCTION The Veteran served on active duty from May 1978 to April 1981. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an April 2002 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. In May 2005 and December 2005, this case was remanded for additional evidentiary development. The requested development was completed, and the case was returned to the Board in September 2006, at which time the claim was denied. The Veteran then appealed that determination to the United States Court of Appeals for Veterans Claims (Court). In an April 2008 Order, the Court vacated the September 2006 Board decision and remanded the matter back to the Board for development consistent with the parties' Joint Motion for Remand. In November 2008 and May 2010, the case was again remanded. The appeal is REMANDED to the Department of Veterans Affairs Regional Office. VA will notify the Veteran if further action is required. REMAND The Board finds that additional development is required before the issue on appeal is ripe for adjudication upon the merits. 38 C.F.R. § 19.9 (2012). Initially, a review of the claims folder indicates that there may be additional outstanding evidence pertinent to the claim. In this regard, the Veteran submitted a VA Form 21-4142 in January 2007, reporting treatment at Brooke Army Medical Center in 1974 and 1975 for GERD. He stated that he was a teenager at the time, and was receiving treatment as a dependent of his father. In response, the RO sent the Veteran a letter in February 2007, stating that he would need to provide his father's social security number in order to perform a records search. In February 2007, the Veteran provided the requested information. The AMC, very unfortunately, used the Veteran's social security number in the request to Brooke Army Medical Center rather than his father's social security number. The Veteran's attorney subsequently pointed out this issue in a September 2010 letter. Accordingly, an additional research request should be undertaken. Pursuant to prior remand instructions, a VA examination was performed in November 2009, and an addendum submitted in February 2010. The examiner diagnosed cholelithiasis and cholecystitis, status post cholecystectomy; acute biliary pancreatitis, resolved following cholecystectomy; colon diverticulitis status post successful treatment with no recurrences since year 2000; and, gastroesophageal reflux disorder, no complications. However, the examiner did not expressly state when such conditions were first manifested, as instructed in the remand. Moreover, the opinion provided in the November 2009 examination only addressed the etiology of the Veteran's GERD and his service-connected pancreatitis, without addressing the remaining diagnoses and the subsequent February 2010 addendum was deemed to be conclusory and poorly substantiated. Indeed, the only rationale provided in the addendum was that "none of the disorders were the result of the Veteran's military service, as no symptoms were apparent for some time following that service, and thus is unlikely that they were related to the Veteran's military service or pancreatitis." However, it is noted that the absence of in-service findings would not necessarily be pertinent to the question of whether any current GERD or other gastrointestinal disability was secondary to his pancreatitis. The Board also notes that the Veteran's attorney submitted correspondence in April 2010, with attached medical information from the Internet, suggesting that the Veteran's current gastrointestinal symptoms are the result of the cholecystectomy performed in connection with his service-connected pancreatitis, thereby causing postcholecystectomy syndrome (PCS), which in turn involves GERD symptoms. The Board's last remand ordered a new VA examination to determine the issues at hand, to include consideration of PCS. A September 2010 examination report indicates that current diagnoses of cholelithiasis, colecystitis, acute biliary pancreatitis, colon diverticulitis, and GERD are not relate to active service, but no rationale was provided for this conclusion. The examiner did note that the Veteran had undergone a cholecystectomy in connection with his service-connected pancreatitis. A December 2010 VA examination report offers no opinion whatsoever. The Veteran's attorney submitted a letter dated January 2011. The attorney pointed out that there was no objective testing on the Veteran to determine whether he has PCS or not and that the aforementioned medical literature indicated a battery of tests were necessary to determine such diagnosis. Pursuant to the private attorney's objections, the Veteran was afforded an additional VA examination in June 2012. The examiner imported VA treatment records into the examination report, indicating when the Veteran was diagnosed with various gastrointestinal ailments. The examiner indicated that the Veteran's symptoms may or may not have been related to his pancreatitis (service-connected), drug abuse, cholelithiasis, gastritis, GERD, or diverticulosis, noting that he could not determine the exact etiology without resorting to speculation due to the lack of objective testing prior to 1999. The examiner also indicated that extrabiliary causes of PCS include, among other illnesses, pancreatitis. The examiner indicated that it was highly unlikely that the cholecystectomy caused any of the abdominal symptoms, as they were present prior to the cholecystectomy and there was no objective indication of worsening. The examiner therefore concluded that it was unlikely that the Veteran has PCS. Unfortunately, the examiner declined to subject the Veteran to objective testing. There is no explanation concerning this lack of testing. Additionally, the examiner noted literature that the Veteran's (service-connected) pancreatitis was a possible cause for PCS. The September 2010 VA examination report specifically indicated that the cholecystectomy was performed in connection to the Veteran's pancreatitis. Thus, the Board finds the examiner's opinions lacking in that there is no objective testing to indicate whether the Veteran has PCS (or explanation as to why no testing was performed) and there is a gap in the logic that the Veteran must not have PCS because the abdominal symptoms pre-existed the cholecystectomy, as the Veteran's pancreatitis (for which he had the cholecystectomy) has been noted as a possible cause for PCS. Thus, the Board must once again request a medical opinion with examination to determine the Veteran's issue. Hence, the Board finds that further development is warranted in order to fairly and accurately decide the Veteran's claim. Pursuant to 38 C.F.R. § 19.9(a) (2012), if further evidence or clarification of the evidence is essential for a proper appellate decision, the Board is required to remand the case to the RO for necessary action. The U. S. Court of Appeals for Veterans Claims has held that compliance with a remand is not discretionary and that failure to comply with the terms of a remand necessitates another remand for corrective action. Stegall v. West, 11 Vet. App. 268 (1998). Accordingly, the case is REMANDED for the following action: 1. Using the information provided by the Veteran in his statement dated February 28, 2007, again contact the records department at Brooke Army Medical Center and request any treatment pertaining to the Veteran from 1974 to 1975. If no records can be located, then this fact should be communicated to the Veteran and noted in the claims folder. 2. After the above development is accomplished, afford the Veteran with a VA examination with an appropriate examiner. The examiner should note in the examination report that he or she has reviewed the claims folder. The examiner should render a medical opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that any diagnosed gastrointestinal disabilities were caused by or incurred in active service or were proximately due to, or aggravated by, the Veteran's service-connected pancreatitis. The examiner should also address the argument raised by the private attorney and indicated in the medical information from the Internet and render a medical opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that the cholecystectomy the Veteran underwent in connection with his service-connected pancreatitis as ultimately led to any diagnosed gastrointestinal disability. Conduct all special studies deemed necessary to render the requested opinions to include objective testing to determine if the Veteran has PCS. If objective testing is not necessary, the examiner should specifically state why such testing is not being performed. A complete rationale for all opinions expressed should be provided. The opinions should address the particulars of this Veteran's service record, medical history, and the relevant medical science as applicable to this claim. If the examiner cannot respond without resorting to speculation, he or she should explain why a response would be speculative. The term "at least as likely as not" does not mean merely within the realm of medical possibility, but rather 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 causation as it is to find against it. The term "aggravated" in the above context refers to a permanent worsening of the underlying condition, as contrasted to temporary or intermittent flare-ups of symptomatology which resolve with return to the baseline level of disability. 3. After the development requested above has been completed, review the record and adjudicate the issue on appeal. If the benefit sought on appeal remains denied, the Veteran and his attorney should be furnished a supplemental statement of the case and given the opportunity to respond thereto before this case is returned to the Board. The Veteran 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. 2012). _________________________________________________ ERIC S. LEBOFF 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) (2012).