Citation Nr: 1304471	
Decision Date: 02/07/13    Archive Date: 02/19/13

DOCKET NO.  10-15 910	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO) 
in Columbia, South Carolina


THE ISSUES

1.  Whether new and material evidence to reopen a claim for service connection for gastroesophageal reflux disease (GERD) has been received.

2.  Entitlement to service connection for GERD.



REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

T. Mainelli, Counsel



INTRODUCTION

The Veteran served on active duty from August 1956 to June 1958.

A claim for service connection for GERD was denied by the RO in August 2005. The Veteran timely filed a Notice of Disagreement (NOD) with his decision in October 2005.  Although she was furnished a Statement of the Case (SOC) in January 2006, the Veteran did not timely submit a substantive appeal.

This appeal to the Board of Veterans' Appeals (Board) arose from a March 2009 rating decision in which the RO denied the Veteran's application to reopen her service connection claim for GERD.  In September 2009, the Veteran filed an NOD.  An SOC was issued in February 2010, and the Veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals) in March 2010.

In May 2011, the Board remanded this case to the RO, via the Appeals Management Center (AMC) in Washington, DC, to clarify the Veteran's intentions regarding her accredited representative for this matter, and her desire for a hearing before the Board.

In December 2011, the Veteran submitted a properly completed VA Form 21-22, "Appointment of Veterans Service Organization as Claimant's Representative," electing the Disabled American Veterans as her accredited representative.  She also clarified that she did not desire a hearing before the Board.

The Board points out that, regardless of what the RO has done, it must address the question of whether new and material evidence to reopen the claims for service connection for GERD has been received because this matter goes to the Board's jurisdiction to reach the underlying claim and adjudicate the claim on a de novo basis.  See Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996).  In other words, the Board is required to first consider whether new and material evidence is presented before the merits of the claims can be considered.  See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001).  Accordingly-and, given the Board's favorable disposition of the request to reopen -the Board has characterized the appeal regarding the claimed GERD as encompassing both matters set forth on the title page.

The Board's decision reopening the Veteran's claim for service connection for GERD is set forth below.  The claim for service connection for GERD, on the merits, is addressed in the remand following the order; that matter is being remanded to the RO, via the Appeals Management Center (AMC) in Washington, DC.  VA will notify the Veteran when further action, on her part, is required. 


FINDINGS OF FACT

1.  All notification and development actions needed to fairly adjudicate the claim herein decided have been accomplished.

2.  In an August 2005 rating decision, the RO denied service connection for GERD (claimed as a stomach condition) on the basis that such condition was neither incurred in nor caused by service; although the Veteran initiated an appeal with a timely filed NOD in October 2005 and was furnished an SOC in January 2006, the Veteran did not perfect her appeal with timely-filed substantive appeal.

3.  Evidence associated with the claims file since the August 2005 denial of the claim for service connection for GERD includes new evidence that relates to an unestablished fact necessary to substantiate the claim, and raises a reasonable possibility of substantiating the claim.


CONCLUSIONS OF LAW

1.  The August 2005 rating decision in which the RO denied service connection for GERD is final.  38 U.S.C.A. § 7105(b) (West 2002); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2012).

2.  As pertinent evidence received since the August 2005 denial is new and material, the criteria for reopening the claim for service connection for GERD are met.  38 U.S.C.A. §§ 5108, 7105 (West 2002); 38 C.F.R. § 3.156 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  Duties to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2012)) includes enhanced duties to notify and assist claimants for VA benefits.  VA regulations implementing the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2012).

Given the favorable disposition of the request to reopen previously denied claim for GERD, the Board finds that all notification and development action needed to render a fair decision on this aspect of the appeal has been accomplished.

II.  Analysis

Service connection may be granted for disability resulting from disease or injury incurred in or aggravated during active peacetime service.  38 U.S.C.A. § 1131; 38 C.F.R. § 3.303.  Such a determination requires a finding of current disability that is related to an injury or disease in service.  Watson v. Brown, 4 Vet. App. 309 (1993); Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992).  Service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury that was incurred or aggravated in service.  38 C.F.R. § 3.303(d).

In an August 2005 rating decision, the RO denied service connection for GERD (claimed as a stomach condition) on the basis that such condition was neither incurred in nor caused by service.

The Veteran was notified of the RO's August 2005 decision and of her appellate rights by letter dated September 2, 2005.  The Veteran initiated an appeal with a timely filed NOD in October 2005 and was furnished an SOC in January 2006.

A Substantive Appeal consists of a properly completed VA Form 9, "Appeal to Board of Veterans' Appeals" or correspondence containing the necessary information.  38 C.F.R. § 20.202.  Proper completion and filing of a Substantive appeal are the last actions a claimant needs to take to perfect an appeal.  Id.  The Board will construe all arguments in a liberal manner for determining whether the adequacy of content regarding the specification of errors of law or fact.  Id.

A Substantive Appeal must be filed within 60 days from the date that the agency of original jurisdiction (AOJ) mails the SOC to the claimant or within the remainder of the one-year period from the date of mailing of the notification of the determination being appealed, whichever comes later.  38 C.F.R. § 20.302(b)(1).  The date of mailing of the SOC will be presumed to be the same as the date of the SOC and the date of mailing the letter of notification of the determination will be presumed to be the same as the date of that letter for purposes of determining whether an appeal has been timely filed.  Id.

Here, the Veteran had until August 2006 to submit a substantive appeal to the RO to perfect her appeal to the Board.  The only written statement received within this time period consisted of a VCAA Notice Response form, received in May 2006, wherein the Veteran indicated that she had no other information or evidence to give VA to substantiate her claim, and for her claim to be decided as soon as possible.  Notably, this VCAA Notice Response was an attachment to a corrective VCAA notice sent on March 20, 2006 which advised the Veteran of the criteria for establishing a disability rating and effective date of award should service connection be established.

The provisions of 38 U.S.C.A. § 7105(d)(3) require that, in a Substantive Appeal, a claimant should "set out specific allegations of error of fact or law," which "are related to specific items in the statement of the case."  As indicated above, the Board must construe all arguments in a liberal manner for determining whether the adequacy of content regarding the specification of errors of law or fact.  38 C.F.R. § 20.202.  This liberal construction must be made in the context of the entire record, and not limited to the "4 corners" of the document itself.  Douglas v. Derwinski, 2 Vet. App. 435, 439 (1992).  Additionally, a determination should be made as to whether the Veteran's statement makes it clear that he/she disagrees with the RO's decision.  See Rivera v. Shinseki, 654 F.3d 1377, 1381 (Fed.Cir.2011) (holding that "[s]ection 7105(d)(3) does not prescribe a particular format for the veteran's appeal or a particular degree of specificity that must be provided.")

Even with a liberal construction of the May 2006 statement, the Board finds that the requirements for a timely filed substantive appeal have not been met.  In this respect, the Veteran did not refer to any errors of fact or law regarding her GERD.  The Veteran's written statement is in the context of a letter responding to corrective VCAA notice indicating that she had no more information or evidence to submit in support of her claim.  This document reflected no intent or communication reflecting her desire or intent to appeal the decision to the Board.  

The next written communication of record consists of a congressional letter received in January 2007, wherein it was noted that the congressional member had been contacted by the Veteran inquiring about her VA compensation claim.

By letter dated January 12, 2007, the RO informed the congressional member that the Veteran's September 2005 rating decision denying service connection for GERD was final for failure to timely file a substantive appeal.  The RO advised that the Veteran would need to reopen her claim with new and material evidence.

In September 2008, the RO received a VA Form 21-4138 from the Veteran which she stylized as an NOD with respect to a "January 2005" RO rating decision.  

By letter dated January 21, 2009, the RO notified the Veteran that her statement could not be accepted as a timely filed substantive appeal as the time limit to continue her appeal with respect to the September 2005 rating decision had expired.

A substantive appeal is deemed a non-jurisdictional requirement which, in certain circumstances, can be waived by the actions of the AOJ or the Board.  See Rowell v. Principi, 4 Vet. App. 9, 16 (1993) (RO waived the untimeliness of a Substantive Appeal when it continued to adjudicate the claim); Gomez v. Principi, 17 Vet. App. 369, 372 (2003) (the Board waived the untimeliness of a Substantive Appeal by adjudicating the claim).  See also Percy v. Shinseki, 23 Vet. App. 37, 42 (2009). 

Here, the RO did not undertake any actions waiving the time requirements for filing a Substantive Appeal.  See Gonzalez-Morales, 16 Vet. App. at 557; Percy, 23 Vet. App. 37 (2009).  In this respect, the RO had immediately considered the appeal closed, and had no requirement to inform the Veteran of the closing of her appeal.  38 C.F.R. § 19.32.  On receiving the December 2006 congressional letter, the RO responded by reflecting its conclusion that a timely Substantive Appeal had not been received.

Thereafter, the RO has not certified for appeal the merits of the GERD claim, and indicated in all adjudicative actions leading to this appeal that the Veteran had not perfected her appeal with respect to the September 2005 RO rating decision.  Therefore, the RO has not waived the time requirements for filing a substantive appeal.

A special rule for extending the filing deadline exists under 38 C.F.R. § 20.302(b)(2), when additional evidence is submitted requiring the issuance of an Supplemental SOC (SSOC).  However, this rule does not apply as the Veteran did not submit any evidence within one year from the date of the September 2005 notice of decision requiring an additional SSOC.  The Veteran's May 2006 written statement did not contain any new and material evidence requiring an additional adjudication.

Furthermore, as a written request to extend the filing deadline for good cause was not received prior to the expiration of the time limit for filing the Substantive Appeal, the provisions of 38 C.F.R. § 20.303 also do not apply. 

Finally, the record contains no evidence or argument that mental illness or "extraordinary circumstances" existed to prevent the Veteran from filing a substantive appeal.  Thus, there is no basis to consider the potential applicability of extending the filing requirement on the basis of equitable tolling.  See generally Barrett v. Principi, 363 F.3d 1316, 1318 (2004); McCreary v. Nicholson, 19 Vet. App. 324, 332 (2005). 

As such, the RO's September 2005 decision denying the service connection claim for GERD is final as to the evidence then of record, and is not subject to revision on the same factual basis.  See 38 U.S.C.A. § 7105(b); 38 C.F.R. §§ 3.104, 20.302, 20.1103.

However, under pertinent legal authority, VA may reopen and review a claim that has been previously denied if new and material evidence is submitted by or on behalf of the claimant.  38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a); see also Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998).

The RO accepted the Veteran's September 2008 "NOD" as an application to reopen the GERD service connection claim.  For petitions to reopen filed on and after August 29, 2001, 38 C.F.R. § 3.156(a) defines "new" evidence as evidence not previously submitted to agency decisionmakers and "material" evidence as evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim.  New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim.  38 C.F.R. § 3.156(a).

In determining whether new and material evidence has been received, VA must initially decide whether evidence received since the prior final denial is, in fact, new.  As indicated by the regulation cited above, and by judicial case law, "new" evidence is that which was not of record at the time of the last final disallowance (on any basis) of the claim, and is not duplicative or "merely cumulative" of other evidence then of record.  This analysis is undertaken by comparing the newly received evidence with the evidence previously of record.  After evidence is determined to be new, the next question is whether it is material.

The provisions of 38 U.S.C.A. § 5108 require a review of all evidence submitted by or on behalf of a claimant since the last final denial on any basis to determine whether a claim must be reopened.  See Evans v. Brown, 9 Vet. App. 273, 282-3 (1996).  Furthermore, for purposes of the "new and material" analysis, the credibility of the evidence is presumed.  Justus v. Principi, 3 Vet. App. 510, 512-513 (1992).

As mentioned, this claim was denied in a September 2005 RO decision on the basis that GERD was neither incurred in nor caused by service.  The pertinent evidence then of record consisted of only one service treatment record (STR) reflecting the Veteran's admission to Brooke Army Hospital (AH) in October 1957 for treatment of the common cold.  Unfortunately, the remaining STRs have been presumed to have been destroyed by a fire at the National Personnel Records Center (NPRC) in 1973.

Additional records included private treatment records in 1994 which reflected a diagnosis of acute and chronic gastritis and the presence of helicobacter Pylori-type organisms following an esophagogastroduodenoscopy (EGD).  Additional private treatment records reflected treatment for GERD beginning in 2003.  A December 2004 private physician letter reflected that the Veteran had been treated for GERD symptoms in February 1994, April 1995 and May 1996.

Additionally, the Veteran had theorized that her GERD symptoms were related to her time in service due to poor eating circumstances, and having a nervous stomach from rushing and running.  She also alleged that her reflux problem existed while in the military, and had worsened since her service time.  She submitted pictures of herself during her active duty service.

Pertinent evidence added to the claims file since September 2005 includes a September 2009 private examination report wherein the examiner indicated that the Veteran reported the onset of her GERD symptoms "in her 20's."  Additionally, in October 2008, the Veteran submitted a VA Form 21-4142 specifically alleging treatment for GERD "Reflux C" at Brooke Army AH in September 1956 and May 1958.  In a NA Form 13055, the Veteran more specifically reported treatment for GERD at Fort McClellan from August to October 1956, and Brooke Army AH from November 1956 to June 1958.

The Board finds that the above-described evidence provides a basis for reopening the claim for service connection for GERD.  The Board finds that the evidence is "new" in that it was not before agency decisionmakers at the time of the September 2005 final denial of the claim for service connection, and is not duplicative or cumulative of evidence previously of record.  Moreover, this evidence is "material" in that it goes to the question of whether the Veteran's GERD was first treated and manifested in service.  In this respect, the Veteran for the first time identified specific periods of treatment for GERD during service.  This evidence, while certainly not conclusive, relates to an unestablished fact necessary to substantiate the claim for service connection for GERD (i.e., the onset of GERD in service), and thus, when presumed credible, also raises a reasonable possibility of substantiating the claim when viewed in light of VA's duty to assist.  See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010) (the phrase "must raise a reasonable possibility of substantiating the claim," as it is used in 38 C.F.R. § 3.156(a), creates a standard that requires reopening "if newly submitted evidence, combined with VA assistance and considering the other evidence of record, raises a reasonable possibility of substantiating the claim.")

Under these circumstances, the Board concludes that the criteria for reopening the claim for service connection for GERD are met.  See 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156.


ORDER

As new and material evidence to reopen the claim for service connection for GERD has been received, to this limited extent, the appeal is granted. 


REMAND

The Board's review of the claims file reveals that further RO action on the claim for service connection, on the merits, is warranted.

At the outset, the Board observes that the record reflects that the Veteran's STRs, other than the October 1957 clinic cover sheet from Brooke AH, were likely destroyed by fire.  In this situation, VA has a heightened duty to assist the Veteran in development of her claim. O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991).

In October 2009, the RO requested an NPRC search for inpatient treatment records at Fort McClellan from "09/01/56" to "09/30/06" and Brooke Army AH from "05/01/1958" to "05/31/1958."  In January 2010, the NPRC reported that a specific search for inpatient records at Fort McClellan in "1956" and Brooke Army AH in "1958" was negative.  Notably, in July 2005, the NPRC had previously reported that a research of alternate records sources only disclosed the October 1957 clinic cover sheet from Brooke AH. 

In the September 2012 Post-Remand Brief, the Veteran's representative argued that VA has a further duty to search for records at Brooke Army AH as its search was limited to September 1956 and May 1958.  Notably, in an NA Form 13055 received in January 2010, the Veteran had identified treatment at Fort McClellan from August 1956 to October 1956, and Brooke Army AH from November 1956 to June 1958.

In this case, the Board realizes that the NPRC's research in July 2005 already included an alternate records search which presumably would have included the records identified by the Veteran in her January 2010 NA Form 13055.  However, given the potential ambiguity in the RO's records search request when compared to the information provided by the Veteran in the January 2010 NA Form 13055, the Board will request that another records search be conducted.

In the September 2012 Post-Remand Brief, the Veteran's representative also has argued that VA should conduct another search through the Personnel Information Exchange System (PIES) to determine whether the Veteran's STRs have become available or have been rebuilt.  The NPRC has already reported that the Veteran's STRs have been destroyed, and it would be futile to make any additional PIES requests particularly given that a direct records search will be conducted.

Consistent with the heightened duty to assist in this case, the record also discloses additional sources of potentially relevant information.  A December 2004 private physician letter from Dr. C reports that the Veteran had been treated for GERD symptoms in February 1994, April 1995 and May 1996.  However, the record only includes the results from a July 1994 EGD.  An attempt to obtain complete records, if available, should be made.

The record also reflects that the Veteran has been treated by physicians at "The Medical Group" possibly dating back to 1999.  It appears that, in August 2002, her primary care provider within this physician group was changed from Dr. B.B. to Dr. S.R.  The records obtained from "The Medical Group" do not extend to 1999 and contain no records from Dr. B.B.  Thus, another attempt to obtain complete records from "The Medical Group," if available, should be made.

Additionally, treatment records from the Florence VA Community Based Outpatient Clinic (CBOC) reflect that the Veteran's treatment first began in approximately 2003.  See VA clinic records dated May 2, 2006 and September 13, 2007.  The RO has only associated VA clinic records since May 2, 2006.  The Board notes that records generated by VA facilities that may have an impact on the adjudication of a claim are considered constructively in the possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file.  See Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992).  Therefore, the VA clinic records prior to May 2, 2006 must be obtained by VA. 

With respect to potentially relevant information, in a statement received in September 2008, the Veteran asserted that she was attaching letters from lay witnesses regarding her GERD symptomatology before and after service.  Unfortunately, the record does not disclose that these letters were received.  The RO's March 2009 rating decision does not reference this evidence.  On remand, the Veteran should be requested to submit these lay witness statements in connection with her appeal.

VA will provide a medical examination or obtain a medical opinion if the record, including lay or medical evidence, contains competent evidence of a disability that may be associated with an event, injury, or disease that occurred in service, but the record does not contain sufficient medical evidence to decide the claim.  38 U.S.C.A. § 5103A(d); McLendon v. Nicholson, 20 Vet. App. 79 (2006).  The threshold for determining whether the evidence "indicates" that there "may" be a nexus between a current disability and an in-service event, injury, or disease is a low one.  McLendon, 20 Vet. App. at 83.

The Veteran alleges that her GERD symptoms first began in service, and required medical treatment during active duty.  The Veteran is clearly competent to describe GERD symptoms as well as medical treatment received.  However, on this limited record, the Board cannot assess the probative weight to be assigned to her recollections.  Under these circumstances, the Board finds that a medical examination and opinion-based on full consideration of the Veteran's documented medical history and assertions, and supported by clearly-stated rationale-would be helpful in resolving the claim for service connection for GERD.  See 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159; McLendon, 20 Vet. App. at 83.

The Veteran is hereby notified that failure to report to the scheduled examination, without good cause, may well have adverse consequences on her reopened claim for service connection.  See 38 C.F.R. § 3.655 (b) (2012).  Examples of good cause include, but are not limited to, the illness or hospitalization of the claimant and death of an immediate family member.  If the Veteran fails to report to the scheduled examination, the RO should obtain and associate with the claims file (a) copy(ies) of the notice(s) of the examination sent to her by the pertinent VA medical facility.

Prior to arranging further examination, to ensure that all due process requirements are met, and that the record before the examiner is complete, the RO should obtain and associate with the claims file all outstanding pertinent records.

Records of the Veteran's treatment through the VA Medical Center (VAMC) in Pittsburgh, Pennsylvania, and the VA Community Based Outpatient Clinic (CBOC)

The RO should also give the Veteran another opportunity to provide information and/or evidence pertinent to the claim for service connection on appeal.  The RO's letter to the Veteran should explain that he has a full one-year period for response.  See 38 U.S.C.A. § 5103(b)(1) (West 2002); but see also 38 U.S.C.A. § 5103(b)(3) (West Supp. 2012) (amending the relevant statute to clarify that VA may make a decision on a claim before the expiration of the one-year notice period).  In its letter, the RO should request that the Veteran furnish, or furnish appropriate authorization to enable the RO too obtain outstanding, pertinent private records identified above, as well as provide necessary information pertaining to missing STRS (if needed), and lay statements. 

Thereafter, the RO should attempt to obtain any additional evidence for which the appellant provides sufficient information, and, if needed, authorization, following the current procedures prescribed in 38 C.F.R. § 3.159. 

The actions identified herein are consistent with the duties imposed by VCAA.  See 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2012).  However, identification of specific actions requested on remand does not relieve the RO of the responsibility to ensure full compliance with the VCAA and its implementing regulations.  Hence, in addition to the actions requested above, the RO should also undertake any other development and/or notification action deemed warranted by the VCAA prior to adjudicating the claim remaining on appeal. 

Accordingly, this matter is hereby REMANDED for the following action:

1.  The RO should request that NPRC conduct an alternate search for records of the Veteran's GERD treatment at Fort McClellan from August 1956 to October 1956, and Brooke Army AH from November 1956 to June 1958.  The RO must follow the procedures set forth in 38 C.F.R. § 3.159(c) with respect to requesting records from Federal facilities. All records and/or responses from each contacted facility should be associated with the claims

2.  The RO should associate with the claims file all records pertaining to the Veteran's treatment at the Florence VA CBOC from approximately 2003 to May 2, 2006, and from September 16, 2008 to the present.  The RO must follow the procedures set forth in 38 C.F.R. § 3.159(c) with respect to requesting records from Federal facilities.  All records/responses received should be associated with the claims file.

3.  The RO should furnish to the Veteran and her representative a letter requesting that the Veteran provide information and, if necessary, authorization, to enable it to obtain any additional evidence pertinent to the claims remaining on appeal that is not currently of record.  

The RO should specifically request that the Veteran furnish, or furnish current, signed authorization(s) to enable it to obtain, complete records of treatment for Dr. C. since February 1994, and records from "The Medical Group" (including Dr. B.B.) from 1999 to August 2002, and from January 2010 to the present.

In its letter, the RO must explain the alternate forms of evidence which may substitute for missing STRs (if necessary), as well as inform her that the claims file does not contain the lay witness observations of her GERD symptomatology before and after service which she apparently intended to provide to VA in September 2008.

The RO should further clearly explain to the Veteran that she has a full one-year period to respond (although VA may decide the claims within the one-year period).

4.  If the Veteran responds, the RO should obtain all identified outstanding pertinent records of evaluation and/or treatment not currently of record, following the procedures set forth in 38 C.F.R. § 3.159.  All records and responses received should be associated with the claims file.  If any records sought are not obtained, the RO should notify the Veteran and her representative of the records that were not obtained, explain the efforts taken to obtain them, and describe further action to be taken.

5.  After all records and/or responses received from each contacted entity have been associated with the claims file, the RO should arrange for the Veteran to undergo VA gastroenterology examination, by appropriate physician, at a VA medical facility.

The entire claims file, to include a complete copy of this REMAND, must be made available to the physician designated to examine the Veteran, and the examination report should include discussion of the Veteran's documented medical history and assertions.  All indicated tests and studies should be accomplished (with all results made available to the examining physician prior to the completion of his or her report), and all clinical findings should be reported in detail.  

The examiner should provide an opinion, consistent with sound medical judgment, as to whether it is at least as likely as not (i.e., there is a 50 percent or greater probability) that the Veteran's GERD disability had its onset in or is otherwise medically related to service, including her report of poor eating circumstances and having a "nervous stomach."

In rendering the requested opinion, the examiner should consider all pertinent medical and lay evidence of record.  In this regard, the examiner is advised that the Veteran is competent to describe her in service symptomatology and treatment, and should comment as to whether there is any medical reason to accept or reject her reported treatment history.

The examiner should set forth all examination findings, together with the complete rationale for the comments and opinions expressed, in a printed (typewritten) report.

6.  If the Veteran fails to report to the scheduled examination, the RO must obtain and associate with the claims file (a) copy(ies) of any notice(s) of the date and time of the examination sent to her by the pertinent VA medical facility.

7.  To help avoid future remand, the RO must ensure that all requested actions have been accomplished (to the extent possible) in compliance with this REMAND.  If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken.  Stegall v. West, 11 Vet. App. 268 (1998).

8.  After completing the requested action, and any additional notification and/or development deemed warranted, the RO should adjudicate the claim for service connection for GERD.

If the Veteran fails, without cause, to report to the scheduled examination, in adjudicating the reopened claim for service connection, the RO should consider the provisions of 38 C.F.R. § 3.655(b), as appropriate.  

Otherwise, the RO should adjudicate the claim for service connection, on the merits, in light of all pertinent evidence and legal authority.

9.  If the benefit sought on appeal remains denied, the RO must furnish to the Veteran and her representative an appropriate supplemental statement of the case that includes clear reasons and bases for all determinations, and afford them the appropriate time period for response before the claims file is returned to the Board for further appellate consideration.

The purpose of this REMAND is to afford due process and to accomplish additional development and adjudication; it is not the Board's intent to imply whether the benefits requested should be granted or denied.  The Veteran need take no action until otherwise notified, but she may furnish additional evidence and/or argument during the appropriate time frame.  See Kutscherousky v. West, 12 Vet. App. 369 (1999); Colon v. Brown, 9 Vet. App. 104, 108 (1996); Booth v. Brown, 8 Vet. App. 109 (1995); Quarles v. Derwinski, 3 Vet. App. 129, 141 (1992).

This REMAND must be afforded expeditious treatment.  The law requires that all claims 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).



______________________________________________
JACQUELINE E. MONROE
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs