Citation Nr: 1307734 Decision Date: 03/08/13 Archive Date: 03/11/13 DOCKET NO. 09-21 198 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to service connection for right sesamoiditis. 2. Entitlement to service connection for elevated cholesterol. 3. Entitlement to service connection for gastroesophageal reflux disease (GERD). 4. Whether new and material evidence has been submitted to reopen the previously denied claim of entitlement to service connection for left ear hearing loss. 5. Entitlement to a total disability rating based on individual unemployability due to the service-connected disabilities (TDIU). REPRESENTATION Veteran represented by: Georgia Department of Veterans Services WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Shauna M. Watkins, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1976 to November 1977, from November 1981 to December 1982, from June 1989 to September 1991, from August 1995 to June 1999, from November 2001 to May 2002, and from December 2004 to January 2006. The Veteran's right sesamoiditis claim comes before the Board of Veterans' Appeals (Board) on appeal from a June 2007 rating decision of the U.S. Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio, which, in pertinent part, denied the benefit sought on appeal. Jurisdiction over this appeal was then transferred to the RO in Atlanta, Georgia. The Veteran filed a Notice of Disagreement (NOD) in August 2007. The RO issued a Statement of the Case (SOC) in April 2009. In June 2009, the Veteran filed his Substantive Appeal. Thus, the Veteran perfected a timely appeal of this issue. The Veteran's cholesterol and GERD claims come before the Board on appeal from a February 2008 rating decision of the RO in Atlanta, Georgia, which, in pertinent part, denied the benefits sought on appeal. The Veteran filed a NOD in June 2008. The RO issued a SOC in April 2009. In June 2009, the Veteran filed his Substantive Appeal. Thus, the Veteran perfected a timely appeal of these issues. The Veteran's TDIU and hearing loss claims come before the Board on appeal from an April 2010 rating decision of the RO in Atlanta, Georgia, which denied the benefits sought on appeal. The Veteran filed a NOD in December 2010. To date, the RO has not issued a SOC. In October 2012, the Veteran was afforded his requested Board hearing before the undersigned Veterans Law Judge (VLJ). A copy of the hearing transcript has been associated with the claims file. The Board notes that additional medical evidence was submitted after the April 2009 SOCs, and no waiver from the Veteran was received. However, these records, consisting of VA examinations and lay statements, are duplicative of evidence already in the claims file and do not provide any new lay or medical evidence to support the claims. As such, a waiver for this evidence is not necessary, nor is the initial consideration of this evidence by the RO. 38 C.F.R. §§ 20.800, 20.1304 (2012). The Veteran's Virtual VA records were also reviewed and considered in preparing this decision. At his Board hearing, the Veteran testified that he was also raising a claim of entitlement to service connection for hiatal hernia. See Hearing Transcript, page 11. He seemed to indicate that the hiatal hernia claim was part of his GERD claim; however, to date, the RO has not developed and adjudicated the hiatal hernia claim. As such, the issue of entitlement to service connection for a hiatal hernia is not a part of the current appeal, and this issue is referred to the Agency of Original Jurisdiction (AOJ) for appropriate action. The issues of: (1) entitlement to a TDIU; (2) whether new and material evidence has been submitted to reopen the previously denied claim of entitlement to service connection for left ear hearing loss; and, (3) entitlement to service connection for GERD, are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. The evidence of record is in relative equipoise as to whether the condition of right sesamoiditis was incurred during the Veteran's active military service. 2. Elevated cholesterol (i.e., hypercholesterolemia and hyperlipidemia) constitutes a laboratory finding and is not a disease or disability for which VA benefits can be granted. CONCLUSIONS OF LAW 1. Resolving all reasonable doubt in the Veteran's favor, service connection for right sesamoiditis is established. 38 U.S.C.A. §§ 105, 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.1(m), 3.102, 3.303 (2012). 2. Service connection for elevated cholesterol is not established. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2012); 61 Fed. Reg. 20 .440, 20,445 (May 7, 1996). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board has thoroughly reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claims. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the veteran). I. VA's Duties to Notify and Assist Under applicable law, VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA must inform the claimant of any information and evidence not of record: (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and, (3) that the claimant is expected to provide. This notice must be provided prior to an initial unfavorable decision on a claim by the AOJ. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). The Board finds that the content requirements of a duty to assist notice letter have been fully satisfied. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). Letters from the RO dated in February 2007 and December 2007 provided the Veteran with an explanation of the type of evidence necessary to substantiate his claims, as well as an explanation of what evidence was to be provided by him and what evidence the VA would attempt to obtain on his behalf. The letters also provided the Veteran with information concerning the evaluations and effective dates that could be assigned should service connection be granted, pursuant to Dingess v. Nicholson, 19 Vet. App. 473 (2006). These letters were provided prior to the initial RO adjudications of his claims. Accordingly, VA has no outstanding duty to inform the Veteran that any additional information or evidence is needed. For all of these reasons, the Board concludes that the appeal may be adjudicated without a remand for further notification. VA also has a duty to assist the Veteran in the development of the claims. This duty includes assisting the Veteran in the procurement of service treatment records (STRs) and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. Here, the Board finds that all relevant facts have been properly developed, and that all evidence necessary for equitable resolution of the issues has been obtained. He was afforded the opportunity for a personal hearing. His STRs and post-service VA treatment records have been obtained. The claims file does not present evidence that the Veteran is currently receiving disability benefits from the Social Security Administration (SSA) for the disorders currently on appeal. Therefore, the Board does not need to make an attempt to obtain these records. The Board does not have notice of any additional relevant evidence that is available but has not been obtained. The duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on a claim, as defined by law. The Veteran has been afforded VA examinations throughout his appeals. The Boards finds these examinations to be adequate for adjudicating the claims. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (affirming that a medical opinion is adequate if it provides sufficient detail so that the Board can perform a fully informed evaluation of the claim). Furthermore, the Veteran was afforded a Board hearing in October 2012. A Board member has two duties at a hearing: (1) a duty to fully explain the issues still outstanding that are relevant and material to substantiating the claim, and (2) a duty to suggest that a claimant submit evidence on an issue material to substantiating the claim when the record is missing any evidence on that issue or when the testimony at the hearing raises an issue for which there is no evidence in the record. See 38 C.F.R. § 3.103(c)(2) (2012); Procopio v. Shinseki, No. 11-1253, 2012 WL 4882287 at 3 (Vet. App. Oct. 16, 2012) (citing Bryant v. Shinseki, 23 Vet. App. 488, 492, 496 (2010)). Here, during the Board hearing, the VLJ specifically noted the issues as entitlement to service connection for right sesamoiditis and entitlement to service connection for elevated cholesterol. See Hearing Transcript, page 2. The Veteran was assisted at the hearing by an accredited representative from the Georgia Department of Veterans Services. The representative and the VLJ then asked questions to ascertain the etiology of the disorders on appeal. Moreover, neither the Veteran nor his representative has asserted that VA failed to comply with the hearing requirements, nor identified any prejudice in the conduct of the Board hearing. By contrast, the hearing focused on the elements necessary to substantiate the claims, and the Veteran, through his testimony, demonstrated that he had actual knowledge of the elements necessary to substantiate his claims for benefits. The Veteran's representative and the VLJ asked questions to draw out the evidence that related the Veteran's disorders to his active military service. As such, the Board finds that the VLJ complied with the aforementioned hearing duties, and that any error in notice provided during the Veteran's hearing constitutes harmless error. For the foregoing reasons, the Board concludes that all reasonable efforts were made by the VA to obtain evidence necessary to substantiate the Veteran's claims. Therefore, no further assistance to the Veteran with the development of evidence is required. II. Service Connection A. General Regulations and Statutes To establish direct service connection, the record must contain: (1) medical evidence of a current disorder; (2) medical evidence, or in certain circumstances, lay testimony, of in-service incurrence or aggravation of an injury or disease; and, (3) medical evidence of a nexus between the current disorder and the in-service disease or injury. In other words, entitlement to service connection for a particular disorder requires evidence of the existence of a current disorder and evidence that the disorder resulted from a disease or injury incurred in or aggravated during service. 38 U.S.C.A. §§ 1110, 1131. Service connection may also be granted for any disease diagnosed after the military discharge, when all the evidence, including that pertinent to the period of military service, establishes that the disease was incurred during the active military service. 38 U.S.C.A. § 1113(b) (West 2002); 38 C.F.R. § 3.303(d). The Board notes that under the provisions of 38 U.S.C.A. § 5107(b) (West 2002), the benefit of the doubt is to be resolved in the claimant's favor in cases where there is an approximate balance of positive and negative evidence in regard to a material issue. B. Right Sesamoiditis The Veteran asserts that his sesamoiditis of the right foot was incurred during his active military service - specifically, his final period of active duty from December 2004 to January 2006. Regarding the first element of service connection (i.e., a current diagnosis), in November 2005, during the Veteran's active military service, a Medical Evaluation Board (MEB) proceeding was conducted regarding the Veteran's right foot. Following extensive diagnostic testing, to include a bone scan, and a review of the Veteran's clinical records, the MEB found that the Veteran had a current diagnosis of right sesamoiditis. Post-service, the Veteran was afforded a VA examination in March 2007 to determine the nature of his right foot. Following a physical examination of the Veteran, the VA examiner found that a current diagnosis of right sesamoiditis could not be established because there was no pathology to render a diagnosis. Although the VA examiner conducted X-rays of the right foot, the examiner did not conduct a bone scan, which is a necessary diagnostic tool to diagnose right sesamoiditis. Following the March 2007 VA examination, a Physical Evaluation Board (PEB) was conducted by the military in May 2007. Following a review of the Veteran's medical records, the PEB again found that the Veteran currently had sesamoiditis of the right foot. Therefore, in considering the above evidence and in giving the Veteran the benefit of the doubt, the Board finds that VA must resolve this reasonable doubt in his favor and conclude he has the necessary current right sesamoiditis diagnosis. 38 C.F.R. § 3.102 (2012); Alemany v. Brown, 9 Vet. App. 518, 519 (1996). Regarding an in-service incurrence, the Veteran was treated in January 2005 for chronic bilateral foot pain and given a limited profile. No foot diagnosis was provided. However, this incident was followed by the November 2005 MEB. Following extensive diagnostic testing, to include a bone scan, and a review of the Veteran's clinical records, the MEB determined that the right sesamoiditis began in 2005, and was incurred while the Veteran was entitled to base pay. The MEB found that the right sesamoiditis did not exist prior to the Veteran's active military service. The MEB then referred the matter to a PEB. In December 2005, the Veteran was again given a limited physical profile for, in pertinent part, his right sesamoiditis. The Veteran's active military service ended in January 2006. Following the Veteran's discharge, the May 2007 PEB was conducted, which diagnosed the Veteran with right sesamoiditis. The PEB determined that the right sesamoiditis was incurred or aggravated while the Veteran was entitled to basic pay, and was the proximate result of performing his duty. The PEB found that the right sesamoiditis was not due to the Veteran's intentional misconduct, willful neglect, or unauthorized absence. As previously stated, applicable law provides that service connection will be granted if it is shown that a particular disease or injury resulting in a disorder was incurred in or aggravated in the line of duty. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. According to 38 C.F.R. § 3.1(m) (2012), "in line of duty" means an injury or disease incurred or aggravated during a period of active military, naval, or air service, unless such injury or disease was the result of the veteran's own misconduct or, for claims filed after October 31, 1990, was the result of his (or her) abuse of alcohol or drugs. A service department finding that injury, disease, or death occurred in line of duty will be binding on VA unless it is patently inconsistent with the requirements of laws administered by VA. 38 U.S.C.A. § 105(a) (West 2002); 38 C.F.R. § 3.1(m); see Kinnaman v. Principi, 4 Vet. App. 20, 28 (1993) (Coast Guard determination that the veteran's eye disease was incurred in the line of duty was binding on the VA pursuant to regulation). Here, the evidence of record does not establish that the November 2005 MEB and the May 2007 PEB findings regarding the in-service incurrence of the Veteran's current right sesamoiditis "are patently inconsistent with the requirements of laws administered by VA." Id. The November 2005 MEB and the May 2007 PEB findings were based on physical examinations and testing of the Veteran's right foot and a review of his clinical records, and are thus adequate and sufficient examinations and medical opinions. Further, there are no negative medical nexus opinions of record regarding the Veteran's right sesamoiditis. The March 2007 VA examiner did not provide a nexus opinion. The treatment records do not provide contrary evidence. Instead, the November 2005 MEB and the May 2007 PEB findings support the Veteran's lay assertions that his right sesamoiditis began during his active military service. Accordingly, based on the foregoing, the Board finds that the evidence supports the Veteran's claim for service connection for right sesamoiditis. As the competent medical evidence of record etiologically links the Veteran's right sesamoiditis to his active military service, service connection for right sesamoiditis is warranted. 38 U.S.C.A. § 5107(b); see Gilbert v. Derwinski, 1 Vet. App. 49 (1990). C. Elevated Cholesterol The Veteran asserts that his elevated cholesterol was incurred during his active military service. Regarding the first element of service connection (i.e., a current diagnosis), the medical evidence of record does not document that the Veteran has a current diagnosis of a disorder pertaining to his elevated cholesterol. The VA treatment records contain diagnoses of hyperlipidemia and hypercholesterolemia. The treatment records do not contain any other pertinent diagnoses related to the Veteran's elevated cholesterol. The Veteran's elevated cholesterol has not been attributed by a medical professional to a heart disorder, kidney disorder, diabetes, or any other underlying disorder. Thus, the elevated cholesterol (i.e., hypercholesterolemia and hyperlipidemia) are laboratory findings and are not disabilities for which VA compensation benefits are payable. See 61 Fed. Reg. 20,440, 20,445 (May 7, 1996) (noting that diagnoses of hyperlipidemia, elevated triglycerides, and elevated cholesterol are actually laboratory results and are not, in and of themselves, disabilities, and, therefore, not appropriate entities for the rating schedule). While elevated cholesterol may be evidence of an underlying disorder or may later cause a disorder, service connection may not be granted for a laboratory finding without evidence of a disorder manifested by elevated cholesterol. See Degmetich v. Brown, 104 F.3d 1328, 1332 (1997) (holding that interpretation of sections 1110 and 1131 of the statute as requiring the existence of a present disability for VA compensation purposes cannot be considered arbitrary); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Under the applicable regulation, the term "disability" means impairment in earning capacity resulting from diseases and injuries and their residual conditions. 38 C.F.R. § 4.1 (2012); see Hunt v. Derwinski, 1 Vet. App. 292, 296 (1991); Allen v. Brown, 7 Vet. App. 439 (1995). Thus, a symptom, without a diagnosed or identifiable underlying malady or disorder, does not, in and of itself, constitute a "disability" for which service connection may be granted. See Sanchez-Benitez v. West, 13 Vet. App. 282 (1999). The requirement that a current disorder be present is satisfied when a claimant has a disorder at the time a claim for VA disability compensation is filed or during the pendency of that claim, even if the disability resolves prior to the adjudication of the claim. See McClain v. Nicholson, 21 Vet. App. 319 (2007). In this case, a clinical diagnosis of a disorder related to the Veteran's elevated cholesterol has not been of record since the service connection claim was initially filed in August 2007. In the absence of proof of a present disorder (and, if so, of a nexus between that disorder and the active military service), there can be no valid claim for service connection. Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Brammer, 3 Vet. App. at 225. This principle has been repeatedly reaffirmed by the United States Court of Appeals for the Federal Circuit (Federal Circuit), which has stated that "a veteran seeking disability benefits must establish . . . the existence of a disability [and] a connection between the veteran's service and the disability." Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000). Accordingly, service connection for elevated cholesterol is not warranted because the Veteran has not satisfied the first requirement of service connection, i.e., a current diagnosis. See 38 C.F.R. §§ 3.303, 3.304 (2012); see again Gilpin, 155 F.3d at 1353; Brammer, 3 Vet. App. at 225. In forming this opinion, the Board has considered the Veteran's lay statements. However, attributing elevated cholesterol tests to an underlying disorder is not readily amenable to mere lay diagnosis. See Davidson, 581 F.3d at 1313; Jandreau, 492 F.3d at 1372; Barr, 21 Vet. App. at 303; see also 38 C.F.R. § 3.159(a)(1), (a)(2). There has to be supporting medical evidence. See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (reiterating that medical evidence was needed to support a claim for rheumatic heart disease). Here, the medical evidence of record only refutes the Veteran's claim, and does not support his testimony that he currently suffers from an underlying disorder attributable to his elevated cholesterol. In reaching the above conclusion, the Board has considered the benefit of the doubt doctrine; however, as the preponderance of the evidence is against the claim of entitlement to service connection for elevated cholesterol, that doctrine does not apply. 38 U.S.C.A. § 5107(b). The claim must be denied. ORDER The claim for service connection for right sesamoiditis is granted. The claim for service connection for elevated cholesterol is denied. REMAND Regarding the TDIU and left ear hearing loss claims, the RO denied these claims in the April 2010 rating decision. In December 2010, the RO sent the Veteran a letter indicating that they had received his written NOD with the April 2010 rating decision. However, to date, the RO has not responded to this NOD with a SOC addressing these issues. The Board finds that these claims must be remanded for the issuance of a SOC. Manlincon v. West, 12 Vet. App. 238 (1999). Regarding the GERD claim, in the case of a disability compensation claim, VA's duty to assist includes providing a medical examination or obtaining a medical opinion when necessary to make a decision on the claim. See 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4). Such an examination or opinion is necessary to make a decision on a claim if all of the lay and medical evidence of record: (1) contains competent evidence that the claimant has a current disorder, or persistent or recurrent symptoms of a disorder, and (2) indicates that the disorder or symptoms may be associated with the claimant's active military, naval, or air service, but (3) does not contain sufficient medical evidence for VA to make a decision on the claim. Id.; see McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). The threshold for finding a link between the current disorder and the active military service is low for the purposes of obtaining a medical opinion. Locklear v. Nicholson, 20 Vet. App. 410 (2006); McLendon, 20 Vet. App. at 83. Here, the evidence of record suggests that the Veteran's current GERD may have pre-existed his final period of active military service from December 2004 to January 2006. The Veteran's October 31, 2004, Initial Medical Review and Annual Medical Certificate examination documented that the Veteran had "GERD controlled with Prevacid," as noted by an examining physician. The Veteran's October 31, 2004, Report of Medical History includes a section titled, "Examiner's Summary and Elaboration of All Pertinent Data" which also documents "GERD controlled with Prevacid." At his Board hearing, the Veteran testified that his GERD began in 2003, prior to his entry into his last period of active duty. See Hearing Transcript, page 11. However, the Veteran's Report of Medical Examination dated on October 31, 2004, did not document GERD and found the Veteran to be without any defects. The Veteran officially entered the active duty on December 6, 2004, and there is no entry examination for this period of service besides from the examinations dated on October 31, 2004, over a month before his entry into the active duty. At his Board hearing, the Veteran testified that he experienced GERD symptoms during his active military service. See Board hearing transcript, pages 12-13. The Veteran's October 2005 separation Report of Medical Examination documents "chronic GERD." Thus, the question arises as to whether the Veteran's current GERD pre-existed his entry into his final period of active duty from December 2004 to January 2006, and if so, whether the pre-existing GERD underwent an increase in severity during the Veteran's military service and, if so, whether any such aggravation was beyond any expected natural progression. 38 U.S.C.A. §§ 1111, 1153 (West 2002); 38 C.F.R. §§ 3.304, 3.306 (2012). If the disorder did not pre-exist his final period of military service, then a medical opinion is needed regarding whether the disorder was incurred during the Veteran's final period of active military service. To date, there is no VA etiology medical opinion of record with respect to the Veteran's GERD, despite the fact that the Veteran was afforded a VA examination in December 2007. In the judgment of the Board, a VA medical opinion should be obtained to address these medical questions. See 38 C.F.R. § 3.159(c)(4); see also McLendon, supra. The Veteran is hereby notified that it is his responsibility to report for the 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, 3.655 (2012). Finally, the most recent outpatient treatment records from the Nashville, Tennessee, VA Medical Center (VAMC) (to include the Chattanooga, Tennessee, Community-Based Outpatient Clinic (CBOC)) are dated from November 2008. On remand, all pertinent records since this date should be obtained and added to the claims file. See 38 U.S.C.A. § 5103A(a)(1), (b)(1), (c)(1); Loving v. Nicholson, 19 Vet. App. 96, 101-03 (2005). Accordingly, the case is REMANDED for the following actions: 1. Issue a SOC addressing the Veteran's claims of entitlement to a TDIU and whether new and material evidence has been submitted to reopen the previously denied claim of entitlement to service connection for left ear hearing loss. Notify the Veteran of his appeal rights and that he must file a timely Substantive Appeal (on VA Form 9) if he desires to perfect the appeal of these claims. 2. Obtain all pertinent VA outpatient treatment records from the Nashville, Tennessee, VAMC (to include the Chattanooga CBOC) since November 2008 that have not been secured for inclusion in the record. Ensure that the Veteran has not been recently treated by any other local VAMCs. If no additional medical records are located, a written statement to that effect should be requested for incorporation into the record. 3. After obtaining the above records, the RO/AMC shall ask the December 2007 VA examiner to provide an addendum opinion, or if the VA examiner determines that it is necessary, schedule the Veteran for a VA examination with an appropriate expert to determine the etiology of his currently diagnosed GERD. Any and all indicated evaluations, studies, and tests deemed necessary by the examiner should be accomplished. The examiner is requested to review all pertinent records associated with the claims file, and offer opinions addressing: a) Did the Veteran clearly and unmistakably (i.e., undebatably) enter his final period of active military service from December 2004 to January 2006, with a pre-existing GERD disorder? i. If the answer is yes, is there clear and unmistakable evidence (i.e., undebatably) that the Veteran's pre-existing GERD was not aggravated (i.e., a chronic worsening of the underlying disorder, as opposed to a temporary flare-up of symptoms) during his last period of active duty from December 2004 to January 2006? ii. If the answer is yes, then is there clear and unmistakable evidence that any such permanent worsening of the pre-existing GERD was due to the natural progression of the GERD? iii. If the answer is no, then is it at least as likely as not that (a 50 percent probability or greater) that the Veteran's current GERD was incurred during his final period of active military service from December 2004 to January 2006? In forming his or her opinion, the examiner is asked to consider the Veteran's lay statements regarding the progression of the disorder, and comment on whether the Veteran's statements make sense from a medical point of view. All opinions should be supported by a clear rationale, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. If medical literature is relied upon in rendering this determination, the VA examiner should specifically cite each reference material utilized. If the VA examiner is unable to offer an opinion without resorting to speculation, a thorough explanation as to why an opinion cannot be rendered should be provided. Copies of all pertinent records in the Veteran's claims file, or in the alternative, the claims file itself, must be made available to the examiner. 4. After the above actions have been completed, readjudicate the Veteran's GERD claim. If the claim remains denied, issue to the Veteran and his representative a Supplemental Statement of the Case (SSOC). Afford them the appropriate period of time within which to respond thereto. 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 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). ______________________________________________ DEBORAH W. SINGLETON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs