Citation Nr: 1311757 Decision Date: 04/09/13 Archive Date: 04/19/13 DOCKET NO. 08-28 083 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUE Entitlement to service connection for a gastrointestinal disorder, to include as secondary to posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: John S. Berry, Attorney at Law ATTORNEY FOR THE BOARD R.N. Poulson, Counsel INTRODUCTION The Veteran served on active duty from July 1967 to April 1972. He is a Vietnam veteran who earned the Combat Action Ribbon. This matter initially came to the Board of Veterans' Appeals (Board) on appeal from an April 2008 decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska, which denied service connection for a gastrointestinal disability. The Board must discuss all theories of entitlement raised by the Veteran or by the evidence of record. Robinson v. Mansfield, 21 Vet. App. 545 (2008). Accordingly, the claim has been recharacterized as noted on the title page to reflect the theory of secondary service connection and the Veteran's contentions. In a May 2010 decision, the Board determined that the February 2008 VA examination was inadequate and remanded the case for an addendum opinion. In an April 2011 decision, the Board denied the service connection claim. The Veteran appealed the Board's April 2011 decision to the United States Court of Appeals for Veterans Claims (Court). In an Order dated in July 2012, the Court remanded the claim. A copy of the Court's Order is in the claims file. At the beginning of the appeal, the Veteran was represented by the Veterans of Foreign Wars (VFW). In an October 2012 VA Form 21-22a, the Veteran appointed John S. Berry as his representative, thereby revoking the earlier power of attorney. The appeal is REMANDED to the Department of Veterans Affairs Regional Office. VA will notify the appellant if further action is required. REMAND Per the July 2012 Court Order, additional evidentiary development is required with respect to this claim. During the February 2008 VA examination, the Veteran indicated that he had started experiencing gastrointestinal symptoms, to include heartburn, indigestion, nausea, regurgitation, rare vomiting and epigastric pain, 7-8 years earlier. He reported that his private doctor had diagnosed gastroesophageal reflux disease (GERD). The examiner diagnosed GERD and opined that this disability "is neither secondary to nor aggravated by the service-connected PTSD." She explained that there is no evidence in the medical literature that psychiatric distress causes GERD. She also opined that the Veteran's GERD is not permanently aggravated by the PTSD because "both conditions occur independently and without influence of the symptoms of PTSD." As instructed by the May 2010 Remand, the RO obtained an addendum opinion in June 2010 with respect to the theory of direct service connection. The examiner noted that the Veteran's service treatment records (STRs) reflect treatment for an episode of gastroenteritis in October 1968. He noted that this was an isolated stomach flu, and that there appeared to be no sequelae or further treatment. He also reviewed the claims file and noted that the Veteran's reflux complaints apparently began in the early 2000's. The examiner "could not find any evidence at all" that the Veteran's GERD is etiologically related to his service. The July 2012 Court Order indicates that the February 2008 VA examination is inadequate because it did not address the articles that the Veteran's attorney later submitted that establish "at least an increased incidence of gastrointestinal problems associated with PTSD." The Court also found the opinion inadequate for failing to provide a rationale as to why the Veteran's PTSD "might not aggravate" his GERD. See July 2012 Order at 3-4. Therefore, a remand is necessary for another opinion to address the issue of aggravation with respect to service-connected PTSD. In addition, there are private treatment records that need to be obtained. Specifically, the Veteran has stated that he received private medical treatment for his gastrointestinal symptoms. Such relevant evidence must be obtained. See 38 C.F.R. § 3.159(c)(1)(2) (2012). Accordingly, the case is REMANDED for the following action: 1. Contact the Veteran and request that he identify the name, address, and dates of treatment with regard to any private medical providers who treated him for gastrointestinal symptoms, and that he complete an appropriate release with regard to any such medical provider. He should be advised that he is also welcome to submit statement(s) from medical advisor(s) of his choice in support of his claim. In the event the Veteran responds and upon obtaining an appropriate release from the Veteran, request the Veteran's treatment records from any identified medical provider. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C.A. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 2. Then, schedule the Veteran for a VA examination in order to determine the nature and etiology of any currently diagnosed gastrointestinal disorder. The claims file should be made available to the examiner in connection with the examination. All indicated testing should be performed. The examiner is requested to review the record and offer the following opinions: Whether it is at least as likely as not, i.e., a 50 percent probability or greater, that any currently diagnosed gastrointestinal disorder was caused or aggravated by the service-connected PTSD. [If the Veteran is found to have a gastrointestinal disorder that is aggravated by his service-connected PTSD, the examiner should specify the baseline of gastrointestinal disability prior to aggravation and the permanent, measurable increase in symptomatology due to the service-connected PTSD.] In answering this question, the examiner should address the three medical articles submitted by the Veteran's attorney with the May 2008 NOD, as well as current medical literature discussing the relationship between PTSD and gastrointestinal disorders. A full and complete rationale for all opinions expressed is required. If the examiner feels that the requested opinion cannot be rendered without resorting to speculation, the examiner should state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). 3. Thereafter, readjudicate the issue on appeal, considering any evidence submitted since the last supplemental statement of the case. If the determination remains unfavorable to the Veteran, he and his attorney must be furnished a supplemental statement of the case. The Veteran and his attorney must be afforded the applicable time period in which to respond. The appellant has the right to submit additional evidence and argument on the matter 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). _________________________________________________ THOMAS J. DANNAHER 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).