Citation Nr: 1309232 Decision Date: 03/19/13 Archive Date: 04/01/13 DOCKET NO. 10-22 406 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for gastrointestinal esophageal reflux disease (GERD), including as secondary to the service connected myofascial pain syndrome. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD William J. Jefferson III, Counsel INTRODUCTION The Veteran served on active duty from April 1967 to April 1969, and from July 1970 to September 1994. This appeal to the Board of Veterans' Appeals (Board) is from a September 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. The Veteran testified at a video conference hearing before the undersigned Veterans Law Judge in November 2011. A transcript of that hearing has been associated with the claims file. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. REMAND There are various ways of establishing entitlement to service connection for a claimed condition. A Veteran claimant may show the condition in question was directly incurred in service or, if pre-existing service, was aggravated during or by his service), and, if a chronic condition per se, also may show the condition was presumptively incurred in service if manifested to a compensable degree (generally of at least 10-percent disabling) within one year of his discharge from service, absent affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309(a) (2012). Here though, the Veteran is specifically maintaining that his GERD is attributable to his already service-connected myofascial pain syndrome disorder, more specifically, to Ibuprofen, the medication prescribed for treatment of his myofascial pain syndrome over a long period. His claim therefore is entirely predicated on the notion that it is secondary to this service-connected disability (so not directly or presumptively incurred in service). Service connection has been in effect for myofascial pain syndrome disorder rated as30 percent disabling since April 1997. Service connection is permissible on a secondary basis for disability that is proximately due to, the result of, or aggravated by a service-connected condition. 38 C.F.R. § 3.310(a) and (b). But in this latter instance the Veteran is only compensated for the degree of disability over and above that existing prior to the aggravation. Id., at subpart (b); see also Allen v. Brown, 7 Vet. App. 439, 448 (1995). Supporting medical evidence, not just lay opinion, generally is required to associate a claimed condition with a service-connected disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998); Velez v. West, 11 Vet. App. 148, 158 (1998); and McQueen v. West, 13 Vet. App. 237 (1999). In April 2009, a VA esophagus and hiatal hernia examination was performed. The examination findings revealed GERD secondary to a small hiatal hernia. The examiner opined that the Veteran's GERD was less likely caused or the result of taking Ibuprofen for his myofascial pain syndrome. In the rationale the examiner indicated that hiatal hernias were well known for causing reflux, and that non-steroidal anti-inflammatories are known to irritate the gastrointestinal system; the hiatal hernia is less likely as not the cause (of) the reflux. In a September 2009 addendum to the examination report, the previous examiner stated that GERD is less likely as not the cause or the result of taking Ibuprofen for his myofascial pain syndrome. The wording of the VA examiner's April 2009 opinion and the September 2009 addendum for that matter, is equivocal at best in terms of determining the likelihood that Ibuprofen pain mediation used by the Veteran to treat his myofascial pain syndrome causes his hiatal hernia or GERD. Significantly, it was acknowledged by the examiner that non-steroidal anti-inflammatories are known to irritate the gastrointestinal system, which would appear to include Ibuprofen. Also, and importantly, the opinions do not specifically address aggravation of a non-service connected disability (GERD), by a service connected disability (myofascial pain syndrome and Ibuprofen used to treat the disorder). See 38 C.F.R. § 3.310 (b); see also Allen, supra. Because this case presents complex medical and unresolved factual questions and since the Board is precluded from reaching its own unsubstantiated medical conclusions, a medical opinion is required. See Jones v. Principi, 16 Vet. App. 219, 225 (2002), citing Smith v. Brown, 8 Vet. App. 546, 553 (1996) (en banc); Colvin v. Derwinski, 1 Vet. App. 171 (1991). Accordingly, the case is REMANDED for the following action: 1. Schedule a VA gastroenterology examination to determine the nature and etiology of the Veteran's GERD, and the relationship, if any, to the use of Ibuprofen to treat his service-connected myofascial pain syndrome. The examiner is requested to render a medical opinion determining the likelihood (very likely, as likely as not, or unlikely) that the Veteran's GERD is proximately due to, the result of, or aggravated by medication, including Ibuprofen, used for treatment of his service-connected myofascial pain syndrome. The term "as likely as not" (at least 50-percent probability) does not mean merely within the realm of medical possibility, rather, that the weight of medical evidence both for and against a conclusion such as causation or aggravation is so evenly divided that it is as medically sound to find in favor of that conclusion as it is to find against it. For completeness of the requested opinions, it is essential the examiners review the claims file, including this remand, for the pertinent history of the claimed disability. The examiner must discuss the medical rationale for all opinions expressed, whether favorable or unfavorable, if necessary citing to specific evidence in the file. If no opinion can be rendered concerning the claim, without resorting to mere speculation, explain why this is not possible or feasible - such as clarifying whether the examiner simply is unable to comment since the limits of medical knowledge have been exhausted or, instead, for example, there are multiple possible etiologies with none more prevalent than another, or he needs further information to assist in making this nexus determination (e.g., additional records and/or diagnostic studies) or other procurable and assembled data. 2. Then readjudicate the claim on the underlying merits in light of the additional evidence. If the claim is not granted to the Veteran's satisfaction, send him and his representative a supplemental statement of the case (SSOC) and give him an opportunity to submit additional evidence and/or argument in response before returning the file to the Board for further appellate consideration of the claim. 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. 2012). _________________________________________________ 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).