Citation Nr: 1303281 Decision Date: 01/31/13 Archive Date: 02/05/13 DOCKET NO. 10-40 976 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to service connection for an esophageal disorder, to include a hiatal hernia, gastroesophageal reflux disease (GERD) and Barrett's esophagus. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD M. Hannan, Counsel INTRODUCTION Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). The appellant had active service from April 1943 to February 1946. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2009 rating decision of the Department of Veterans Affairs (VA) St. Louis, Missouri, Regional Office (RO) which denied the appellant's claim of entitlement to service connection for gastroesophageal reflux disease (GERD). The United States Court of Appeals for Veterans Claims (hereinafter Court) has held that the scope of a mental health disability claim includes any mental disability which may reasonably be encompassed by the claimant's description of the claim, the reported symptoms, and any other pertinent information of record. Clemons v. Shinseki, 23 Vet. App. 1 (2009) (per curiam). That holding was expanded to encompass other conditions in Brokowski v. Shinseki, 23 Vet. App. 79, 85 (2009) (claimant's identification of the benefit sought does not require technical precision). The medical evidence of record includes clinical findings of a hiatal hernia, GERD and Barrett's esophagus. The Board has therefore recharacterized the issue on appeal as listed on the first page, above. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND A determination has been made that additional development is necessary in the current appeal. Accordingly, further appellate consideration will be deferred and this case is REMANDED for action as described below. The appellant contends that he currently suffers from an esophageal disorder that he attributes to his post-service treatment for service-connected pulmonary tuberculosis. He maintains that his acid reflux began while he was hospitalized at the VA hospital at Fort Snelling and that it has persisted to the present time. In written statements submitted in March 2010 and October 2010, the appellant reported relevant treatment at a VA facility in Las Vegas in the mid-1980s to 1990. Review of the record reveals that the appellant was hospitalized at Fort Snelling between September 1952 and August 1953; only the discharge summary is included in the claims file. It appears that an upper gastrointestinal series was performed during that hospitalization, but the report is not of record. The claims file does not include any subsequent VA treatment records, including any from the Las Vegas area. Because such records could reflect the onset date and etiology of the claimed pathology, VA is therefore on notice of records that may be probative to the claim. Robinette v. Brown, 8 Vet. App. 69 (1995). VA has a responsibility to obtain records generated by Federal government entities that may have an impact on the adjudication of a claim. See Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). Thus, the AMC/RO should obtain all of the relevant VA treatment records generated since 1953 and not already of record, as well as any relevant private post-service medical treatment records, and associate all of those records with the claims file. In addition, as the VA medical opinion of record was based on incomplete medical records, it is of little or no probative value. See Shipwash v. Brown, 8 Vet. App. 218, 222 (1995); Flash v. Brown, 8 Vet. App. 332, 339-340 (1995) (regarding the duty of VA to provide medical examinations conducted by medical professionals with full access to and review of the veteran's claims folder). Accordingly, a new medical opinion is necessary to make a determination in this case. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (stating that once VA undertakes the effort to provide an examination when developing a service-connection claim, even if not statutorily obligated to do so, it must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided). These considerations require further investigation by medical professionals, inasmuch as the Board is prohibited from substituting its own unsubstantiated medical opinions. See Colvin v. Derwinski, Vet. App. 171, 175 (1991). In addition, the duty to assist includes obtaining medical records and examinations where indicated by the facts and circumstances of an individual case. See Murphy v. Derwinski, 1 Vet. App. 78 (1990). The Board's task is to make findings based on evidence of record--not to supply missing facts. Beaty v. Brown, 6 Vet. App. 532 (1994). Thus, where the record before the Board is inadequate to render a fully informed decision, a remand to the RO is required in order to fulfill its statutory duty to assist the appellant to develop the facts pertinent to the claim. Ascherl v. Brown, 4 Vet. App. 371, 377 (1993). To ensure that VA has met its duty to assist in developing the facts pertinent to the claim on appeal and to afford full procedural due process, the case is REMANDED for the following: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) 1. Ensure that all notification and development action required by 38 U.S.C.A. §§ 5102, 5103, and 5103A, the implementing regulations found at 38 C.F.R. § 3.159 and any other applicable legal precedent has been completed. 2. Obtain all of the appellant's outstanding VA medical treatment records and associate them with the claims file. Obtain all private records as well, if any. In particular, obtain the VA inpatient treatment records from the VA Hospital, Minneapolis, from September 1952 to August 1953; and in December 1953, March 1954, June 1954, and September 1954; VA inpatient and/or outpatient treatment records from St. Louis, VAMC, from June 1984; VA outpatient treatment records from "VA clinic in Las Vegas"from 1986 to "about 1990"; and all VA inpatient and outpatient records from St. Louis from the year 2000 to the present, if any. 3. To the extent an attempt to obtain any of these records is unsuccessful, the claims file must contain documentation of the attempts made. The appellant and his representative must also be informed of the negative results and be given opportunity to secure the records. 4. After completing any additional notification and/or development action deemed warranted by the record, arrange for review of the appellant's claims file by a gastroenterologist in light of the questions of etiology presented in this case. The entire claims file (i.e., the paper claims file and any medical records contained in Virtual VA, CAPRI, and AMIE) and this remand must be made available to the reviewer. If the reviewer does not have access to Virtual VA, any relevant treatment records contained in Virtual VA file that are not available on CAPRI or AMIE must be printed and associated with the paper claims file so they can be available for review. The reviewer should construct a detailed written history of the nature and onset of the appellant's esophageal pathology, including a discussion of the epidemiology and symptomatology of the appellant's hiatal hernia, GERD and Barrett's esophagus. The gastrointestinal specialist is to determine the onset, nature, clinical significance and etiology of any documented esophageal disorder. It is requested that the examiner determine whether any of documented disorders of the esophageal tract, including hiatal hernia, GERD and Barrett's esophagus, are etiologically related to the appellant's military service or to his treatment for pulmonary tuberculosis in the early 1950s. Based on the findings of the review of the medical evidence in the claims file, the reviewer should express her/his opinions concerning the questions below: a. Whether the appellant's current esophageal pathology is causally or etiologically related to his period of military service (April 1943 to February 1946) or to some other cause or causes? (It is not necessary that the exact causes other than apparent relationship to some incident of service be delineated.) b. Whether the appellant's current esophageal pathology is related to symptoms and signs that may have occurred within one year of his service separation in February 1946? and c. Whether any portion of the appellant's current esophageal pathology is attributable to treatment of his service-connected pulmonary tuberculosis disability, particularly in the early 1950s, or to some other cause or causes or combination thereof? If the reviewer does find that any portion of the appellant's esophageal pathology is attributable to treatment of his pulmonary tuberculosis disability, the reviewer should identify the specific amount/proportion of additional esophageal pathology that is related to the treatment of the tuberculosis disability. In assessing the relative likelihood as to origin and etiology of the claimed esophageal pathology, the reviewer must apply the standard of whether it is at least as likely as not (i.e., to at least a 50-50 degree of probability) that the claimed pathology is causally or etiologically related to the appellant's service or treatment for a service-connected disability, or whether such a causal or etiological relationship is unlikely (i.e., less than a 50 percent probability), with the rationale for any such conclusion set out in the report. Note: As used above, 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 the conclusion as it is to find against it. If any opinion and supporting rationale cannot be provided without invoking processes relating to guesses or judgment based upon mere conjecture, the reviewer must clearly and specifically so specify in the report, and explain why this is so. In this regard, if the reviewer concludes that there is insufficient information to provide an etiologic opinion without result to mere speculation, the reviewer must state whether the inability to provide a definitive opinion was due to a need for further information (with that needed information identified) or because the limits of medical knowledge had been exhausted regarding the etiology of the Veteran's current claimed esophageal pathology. See Jones v. Shinseki, 23 Vet. App. 382 (2010). 5. Complete any additional notification and/or development action deemed warranted by the record. If the reviewer determines that an examination is needed before the requested opinions can be rendered, schedule the appellant for such an examination. 6. Review the claims file to ensure that all development actions have been conducted and completed in full. If any development is incomplete, appropriate corrective action is to be implemented. Specific attention is directed to the reviewing physician's report. If the report does not include fully detailed descriptions of all pathology or adequate responses to the specific opinions requested, the report must be returned to the providing physician for corrective action. See 38 C.F.R. § 4.2 (If the findings on an examination report do not contain sufficient detail, it is incumbent upon the rating board to return the examination report as inadequate for evaluation purposes.). 7. Then re-adjudicate the issue on appeal. The readjudication must reflect consideration of all the evidence of record and be accomplished with application of all appropriate legal theories, including Allen v. Brown, 7 Vet. App. 439 (1995). Ensure that direct, presumptive and secondary theories of service connection are considered. 8. If the benefit sought on appeal remains denied, provide the appellant and his representative a Supplemental Statement of the Case (SSOC) and appropriate period of time for response. The appellant is hereby notified that it is his responsibility to report for any scheduled examination and to cooperate in the development of the case, and that the consequences of failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158 and 3.655. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). Thereafter, the case should be returned to the Board, if in order. The Board intimates no opinion as to the ultimate outcome of this case. The appellant need take no action unless otherwise notified. 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). _________________________________________________ KATHLEEN K. GALLAGHER 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).