Citation Nr: 1310248 Decision Date: 03/26/13 Archive Date: 04/02/13 DOCKET NO. 06-07 800 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for a gastrointestinal disorder other than stomach ulcers to include dyspepsia, including aggravation of a preexisting condition. REPRESENTATION Veteran represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD N. L. Northcutt, Counsel INTRODUCTION The Veteran, who is the appellant, served on active duty from March 1971 to May 1973. This matter is before the Board of Veterans' Appeals (Board) on appeal of a rating decision in December 2004 of a Department of Veterans Affairs (VA) Regional Office (RO). In March 2011, the Board reopened the claim of service connection for stomach ulcers and remanded the claim for further development. In March 2012, the Board sought an advisory opinion from the Veterans Health Administration (VHA) on the questions of whether the Veteran's current gastrointestinal symptoms were related to gastrointestinal symptoms manifested in service. Based on the VHA opinion, as well as additional medical evidence in the file, the Board denied service connection for stomach ulcers, but determined that the claim of service connection for a gastrointestinal disorder other than stomach ulcers, namely, dyspepsia, had been raised. In November 2012, the Board remanded the claim of service connection for dyspepsia to provide the Veteran with required notice and readjudication of the claim, which was completed. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that if the Board proceeds with final disposition of an appeal, and the remand orders have not been complied with, the Board itself errs in failing to ensure compliance). As further development is required, the appeal is REMANDED to the RO via the Appeals Management Center in Washington, DC. REMAND The evidence of record is insufficient to decide the appeal on the question of aggravation of preexisting dyspepsia, which was noted on entrance examination. See Horn v. Shinseki, 25 Vet. App. 231, 237 (2012) (holding that in the absence of a contention that the appellant never made statements, reporting a pre-service disability attributed to him, the statements alone may rebut the preexistence prong of the presumption of soundness); see Doran v. Brown, 6 Vet. App. 283, 286 (1994) (the presumption of soundness was rebutted by clear and unmistakable evidence consisting of the appellant's own admissions of a preservice disability). Accordingly, the case is REMANDED for the following action: 1. Arrange to have the Veteran's file reviewed by a VA physician to determine: Whether the current non-ulcerative dyspepsia (opinion of a VA gastroenterologist in the May 2012), which preexisted service, was aggravated by service. In formulating the opinion, the term "aggravation" means a permanent or irreversible worsening of the preexisting condition beyond natural progress as contrasted to a temporary worsening or intermittent flare-ups of symptoms. Aggravation is not conceded if there was no increase in the preexisting condition on the basis of the evidence, pertaining to the manifestation of the disability before, during, and after service. If the preexisting non-ulcerative dyspepsia increased in severity in service, is there undebatable evidence that the increase in the preexisting condition during service was due to the natural progress of the preexisting condition. The VA examiner is asked to consider the significant facts of the case: On induction the Veteran's history included frequent indigestion after consuming milk or fish with no gastrointestinal abnormality noted; In service, the Veteran complained of abdominal pain in 1972, which was treated with Maalox and a bland diet or soft diet; The Veteran's complaint of frequent indigestion was noted on separation examination, but no gastrointestinal abnormality was noted; After service, the gastrointestinal complaints were first documented in a December 1974 and regular and intermittent complaints and treatment since service. 2. After the development is completed, adjudicate the claim of service connection by aggravation of a preexisting condition. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306. If the benefit sought is denied, then provide the Veteran and his representative a supplemental statement of the case and return the case to the Board. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). The claim 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. 38 U.S.C.A. §§ 5109B, 7112. _________________________________________________ George E. Guido Jr. Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board 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).