Citation Nr: 1322069 Decision Date: 07/10/13 Archive Date: 07/18/13 DOCKET NO. 03-27 024 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to service connection for residuals of a hiatal hernia. 2. Entitlement to service connection for ulcerative colitis. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD S. B. Mays, Counsel INTRODUCTION The Veteran had active service from January 1965 to January 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2002 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana. The Veteran subsequently moved and his claims file was transferred to the VA RO in Winston-Salem, Virginia. The Board remanded this case to the RO via the Appeals Management Center (AMC) for further development and consideration in April 2005, August 2009, and July 2010. In February 2012, the Board denied the Veteran's claims of entitlement to service connection for hiatal hernia, atrial fibrillation, and ulcerative colitis. The Veteran subsequently appealed the Board decision to the United States Court of Appeals for Veterans Claims. In December 2012, pursuant to a Joint Motion for Partial Remand (Joint Motion), the Court vacated the Board's denials of service connection for hiatal hernia and ulcerative colitis and remanded those issues to the Board for further development consistent with the Joint Motion. The Veteran abandoned his appeal concerning the Board's denial of service connection for cardiovascular disease, therefore that issue is no longer on appeal. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND Consistent with the findings of the December 2012 Joint Motion, additional development is necessary. In November 2010, the Veteran underwent a VA examination and the examiner indicated that the Veteran did not have a hiatal hernia. However, although the Board ultimately denied the service connection claim for residuals of a hernia in its December 2012 decision, it found that, based on the evidence of record, the Veteran did in fact have a hernia. Consequently, the December 2012 Joint Motion determined that the November 2010 VA examination report is inadequate because it was not based upon facts as found by the Board. For this reason, the Veteran should be afforded an additional VA examination to determine the etiology of his hiatal hernia. Concerning the service connection claim for ulcerative colitis, VA examiners in April 2009 and November 2010 were unable to provide a medical opinion relating such disability directly to the Veteran's service without resorting to speculation. However, as noted in the 2012 Joint Motion, the Veteran also alleges that his colitis is secondary to his ulcer condition and hiatal hernia. See March 2003 NOD. As such, the issue of entitlement to service connection for ulcerative colitis is inextricably intertwined with the service connection claim for residuals of a hiatal hernia. The colitis claim must be adjudicated pending disposition of the hernia claim and therefore must be remanded as well. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). Accordingly, the case is REMANDED for the following action: 1. After obtaining any outstanding evidence, schedule the Veteran for a VA compensation examination to ascertain the etiology of claimed residuals of a hiatal hernia. Any necessary tests or studies must be conducted and all clinical findings should be reported in detail and correlated to a specific diagnosis. The claims file and a copy of this remand will be made available to the examiner, who will acknowledge receipt and review of these materials in any report generated as a result of this remand. After having reviewed the entire record, the examiner must respond to the following: a. Regardless of whether or not the Veteran underwent hernia repair, determine whether his current hiatal hernia (or residuals thereof) began in service or is it otherwise related to service, to include his need for special dietary restrictions during service. b. If the Veteran's hernia is found to be etiologically related to service, determine whether his ulcerative colitis is proximately due to, or aggravated by, his hiatal hernia. The examiner must independently review the record for pertinent evidence, but his or her attention is called to the following: * Service treatment records from 1968 are unavailable, but the Veteran submitted an October 1968 record requesting that he be permitted to draw commuted rations for "medical purposes" because he was in need of "special dietary restrictions" that were not specified. * Service separation examination report dated in January 1969 showing no relevant abnormal or viscera abnormalities which also specifically included hernia. * A December 1999 esophagogastroduodenoscopy showing a "slight" hiatal hernia. * In August 2007, the Veteran was diagnosed with a small siding hiatal hernia, visualized during an endoscopy. * In providing the requested opinion(s), the VA examiner should also note his or her review and consideration of the prior October 2007, April 2009, and November 2010 VA Compensation and Pension examinations. * In all conclusions, the examiner must identify and explain the medical basis or bases, with identification of pertinent evidence of record. If the examiner is unable to render an opinion without resort to speculation, he or she must explain why and so state. 2. Next, review the claims file and ensure that the foregoing development actions have been conducted and completed in full. If any development is incomplete, appropriate corrective action is to be implemented. Specific attention is directed to the examination report. If the requested report does not include adequate responses to the specific opinions requested, the report must be returned for corrective action. 3. After completing the above, readjudicate the service connection claims for residuals of a hiatal hernia, and ulcerative colitis, to include on a secondary basis. If the benefits sought on appeal are not granted, the Veteran and his representative should be furnished with a supplemental statement of the case and afforded a reasonable opportunity to respond before the record is returned to the Board for further review. 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). _________________________________________________ Vito A. Clementi 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).