Citation Nr: 1304497 Decision Date: 02/07/13 Archive Date: 02/19/13 DOCKET NO. 08-17 238 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Paul, Minnesota THE ISSUES 1. Entitlement to service connection for gastroesophageal reflux disease (GERD). 2. Entitlement to a disability evaluation in excess of 50 percent for posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: John S. Berry, Attorney at Law ATTORNEY FOR THE BOARD D. M. Ames, Counsel INTRODUCTION The Veteran had active service from February 1982 to October 1991. This matter comes before the Board of Veterans' Appeals (Board) on appeal from April 2008, September 2011, and November 2011 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota. In February 2008, the RO granted service connection for PTSD and assigned an initial 50 percent evaluation. The Veteran appealed his case to the Board and in a January 2010 decision, the Board denied his claim for service connection for GERD and his claim for an increased evaluation for PTSD. The Veteran appealed his case to the U. S. Court of Appeals for Veterans Claims (Court), and in an August 2011 decision, it vacated the Board's January 2010 denial of the claim for service connection for GERD, and remanded the matter to the Board. The Court affirmed the Board's denial of an increased evaluation for PTSD. Therefore the February 2008 rating decision is no longer on appeal. While the Veteran's case was pending before the Court, the Veteran, through his attorney, filed new claims for service connection for GERD and an increased evaluation for PTSD. The RO denied his PTSD claim in September 2011 and his GERD claim in November 2011. The RO adjudicated his GERD claim as a petition to reopen. However, because this issue was on appeal before the Court at the same time, the issue will be phrased as a service connection claim. A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal. The appeal is REMANDED to the Department of Veterans Affairs Regional Office. VA will notify the appellant if further action is required. REMAND While the Board regrets the further delay that a remand of this case will cause, the record is not ready for appellate review of the issue on appeal. The following further development is required. GERD In its August 2011 Memorandum Decision, the Court found that the Board improperly relied on a March 2008 VA examination report that did not address the reasonably raised possibility that the Veteran's GERD was aggravated by his service connected PTSD or medications used to treat PTSD. While the case was pending before the Court, the Veteran's attorney presented the same argument to the RO. In April 2012, the Veteran's claims file was provided to a VA examiner. He opined that the Veteran's GERD was less likely due to his PTSD medication. He explained that the Veteran had a history of alcohol and tobacco abuse and that this predisposed him to developing GERD. The Veteran had been self treating his PTSD symptoms with alcohol and had symptoms of GERD prior to starting prescription medication. He concluded that medication did not cause ongoing GERD symptoms. He also concluded that there was "[n]o evidence for chronic aggravation of this condition beyond its normal progression." In January 2013, the Veteran's attorney argued that the examiner improperly concluded that the Veteran currently abused alcohol and tobacco when in fact these conditions had been in remission for years. The examiner did not make such a conclusion, instead he noted that the Veteran had problems with substance abuse in the past and included evidence from the record showing that he had not abused alcohol or tobacco for many years. The Veteran's attorney also argued that the examiner did not specifically address the three medications the Veteran took for his PTSD, and instead made a generalized statement. In support of his claim, the Veteran submitted lists of side effects of his PTSD medications, an article about tranquilizers and sedatives causing GERD, and an article about PTSD causing gastrointestinal symptoms. Remand is warranted so that a new opinion regarding GERD may be obtained. It must address the specific medications used by the Veteran and it must address the treatise evidence submitted by the Veteran. The current record does not contain sufficient evidence for the Board to determine whether the Veteran's tranquilizers and sedatives cause or aggravate GERD, or whether his PTSD causes or aggravates GERD. McLendon v. Nicholson, 20 Vet. App. 79 (2006), see also Colvin v. Derwinski, 1 Vet. App. 171, 174 (1991) (the Board may not make use of its own unsubstantiated medical conclusions); 38 U.S.C.A. § 5103A(d). PTSD In January 2012, the Veteran's attorney submitted a November 2011 PTSD evaluation from Dr. R. M., a private psychologist. It was not reviewed prior to the issuance of the most recent Supplemental Statement of the Case for this issue. The evidence was submitted directly to the Board without a waiver of initial RO consideration. 38 C.F.R. § 20.1304(c) (2012). The attorney specifically requested that the issue of entitlement to an increased evaluation for PTSD be remanded to the RO so that it may consider Dr. R. M.'s assessment of the Veteran's current symptoms. On remand, the RO must consider this additional evidence. Accordingly, the case is REMANDED for the following action: 1. Review the claims file and ensure the development actions have been conducted and completed. Then, schedule the Veteran for an examination with an appropriate clinician. The following considerations will govern the opinion: a) The claims folder and a copy of this remand must be made available to the examiner for review, and the examiner must specifically acknowledge receipt and review of these materials in any reports generated. b) The examiner must take a detailed history from the Veteran. If there is any clinical or medical basis for corroborating or discounting the credibility of the history provided by the Veteran, the examiner must so state, with a complete explanation in support of such a finding. c) The examiner must provide an opinion as to whether the Veteran's GERD i) began during active service or is related to any incident of service; or, ii) was caused or aggravated by his service connected PTSD; or, iii) was caused or aggravated by the specific medications he takes for his service connected PTSD. d) In formulating these opinions, the examiner must address the treatise evidence submitted by the Veteran including: i) "GERD: Can certain medications increase severity?" ii) "Physical Health and Post-traumatic Stress Disorder: Review and Synthesis." iii) "PTSD and Physical Health." e) The examiner must provide a complete explanation for his or her opinion(s), based on his or her clinical experience, medical expertise, and established medical principles. f) If the examiner is unable to render the requested opinion(s) without resort to speculation, he or she must so state. 2. Review all new evidence that was submitted directly to the Board in January 2012, including the psychological evaluation by Dr. R. M., a private psychologist. 3. After the above has been completed, the RO must review the claims file and ensure that all of the foregoing development actions have been conducted and completed in full. If any development is incomplete, appropriate corrective action must be implemented. If any report does not include adequate responses to the specific opinions requested, it must be returned to the providing examiner for corrective action. 4) Thereafter, and after undertaking any additional development deemed necessary, readjudicate the issues on appeal. If the benefits sought on appeal remain denied, in whole or in part, the Veteran and his representative should be provided with a Supplemental Statement of the Case and be afforded reasonable opportunity to respond. The case should then be returned to the Board for further appellate review, if otherwise in order. The appellant 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. 2011). _________________________________________________ K. PARAKKAL 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).