Citation Nr: 1301229 Decision Date: 01/11/13 Archive Date: 01/16/13 DOCKET NO. 12-30 581 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Fort Harrison, Montana THE ISSUES 1. Entitlement to service connection for peptic ulcer disease. 2. Entitlement to service connection for gastroesophageal disease (GERD). REPRESENTATION Veteran represented by: Montana Veterans Affairs Division ATTORNEY FOR THE BOARD Megan C. Kral, Associate Counsel INTRODUCTION The appellant is a Veteran who served on active duty from September 1966 to January 1967. This matter is before the Board of Veterans' Appeals (Board) on appeal from a January 2011 rating decision of the Fort Harrison, Montana Department of Veterans Affairs (VA) Regional Office (RO). The appeal is being 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 his peptic ulcer disease was aggravated by his active duty service. He seeks service connection for GERD either on the basis that it is directly related to his gastrointestinal (GI) complaints in service, or on the basis that it is secondary to his ulcer disease. At the outset, the Board notes that there is nothing in the record showing that the Veteran was provided Veterans Claims Assistance Act (VCAA)-mandated notice regarding the matters at hand. As the case is being remanded, the RO will have the opportunity to provide such notice. The record shows that on service entrance examination the Veteran provided a history of fairly recent ulcer disease. Such history was rejected on examination, and he was inducted as fit for duty. Consequently, he is entitled to the presumption of soundness [as to ulcer disease] on entry into service (as ulcer disease was not noted on examination). Although there is clear and unmistakable evidence rebutting the presumption of soundness (in the form of a report of a pre-service diagnostic study), because the Veteran's ulcer became symptomatic during service (and he was discharged during basic training as not meeting fitness standards), he is further entitled to a presumption that such disease was aggravated by his service. That presumption is likewise rebuttable only by clear and unmistakable evidence. The conclusory VA medical opinion in this matter (to the effect that the ulcer disease was not aggravated by service because any increase in disability was due to "natural progression" is unaccompanied by any detailed explanation of rationale with citation to factual data or medical literature (e.g., discussing what constitutes natural progression)) cannot be found to be clear and unmistakable evidence of non-aggravation. Consequently, another examination to secure an adequate medical opinion in this matter is necessary. Regarding GERD, the nurse practitioner who examined the Veteran in January 2011 opined that such disease was diagnosed by history (and not shown clinically in the record) and was related to the Veteran's ulcer disease. Hence, the matter of service connection for GERD is inextricably intertwined with the issue of service connection for ulcer disease (and consideration of the matter must be deferred pending resolution of the service connection for ulcer disease claim) and also requires further development. Finally, the record reflects that substantial pertinent evidence may be outstanding. It appears the Veteran was hospitalized on numerous occasions for his peptic ulcer disease; records of Dr. B. note that he was treated in the emergency room at Deaconess Hospital in 1995 and further medical records show that he was treated at St. Vincent's hospital. Records of all evaluations and treatment the Veteran has received for GI disability (specifically including for ulcer disease and GERD) are pertinent evidence that must be secured for the record. The Veteran's cooperation (by identifying the records and providing authorizations for VA to secure them) will be needed for such development. Additionally, in his December 2011 notice of disagreement the Veteran stated he is on Social Security (but does not specify whether it is age-related or disability benefits). Medical records considered in any Social Security Administration (SSA) disability benefits determination are constructively of record and must be secured. Accordingly, the case is REMANDED for the following action: 1. With respect to the claims on appeal, the RO must send the Veteran (and his representative) a letter that provides him VCAA-mandated notice. He should have opportunity to respond. 2. The RO should also ask the Veteran to identify all providers of evaluations and/or treatment he has received for GI complaints (including for peptic ulcer disease and GERD) prior to and since his discharge from service and to submit the releases necessary for VA to secure records of any such private treatment/evaluations. The RO should secure complete clinical records of the evaluations and treatment from all providers identified, specifically including records from Drs. F. and A. (identified in service treatment records); St. Vincent's Hospital; and the Deaconess Emergency Room. The RO should also ascertain whether the Veteran's SSA benefits are age/retirement or disability-related. If he receives SSA disability benefits, the RO should secure from SSA a copy of the award and copies of all medical records considered in connection with their determination. 3. After the development sought above is completed, the RO should arrange for the Veteran to be examined by a gastroenterologist to assess his ulcer disease and GERD. The Veteran's claims file, including this remand, must be reviewed by the examiner in connection with the examination, and any tests or studies indicated must be completed. Based on a review of the record, and examination and interview of the Veteran, the examiner must provide opinions that respond to the following: (a) Is there any evidence in the record that renders it undebatable from a medical standpoint that the Veteran's ulcer disease was not aggravated by his service? If the finding is that there was no aggravation because any increase in severity of the disability during service was due to natural progression, please cite to the factual data and medical literature that support such conclusion (and discuss, with supporting citation, the established course of natural progression of ulcer disease). (b) Does the Veteran have GERD? Please cite the clinical data which support the response. (c) If GERD is diagnosed, please opine (based on the factual record) whether it is at least as likely as not (a 50 % or better probability) that such disease is either related directly to his service/GI complaints therein or was caused or aggravated by his ulcer disease. The examiner must explain the rationale for all opinions in detail, citing to supporting clinical data and/or medical literature, as appropriate. 4. The RO should then readjudicate these claims. If either remains denied, the RO should issue an appropriate supplemental statement of the case and afford the Veteran and his representative the opportunity to respond. The case should then be returned to the Board, if in order, for further review. 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 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). _________________________________________________ GEORGE R. SENYK 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. 38 C.F.R. § 20.1100(b) (2012).