Citation Nr: 1324053	
Decision Date: 07/29/13    Archive Date: 08/07/13

DOCKET NO.  08-39 689	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas


THE ISSUES

1.  Entitlement to service connection for gastroenteritis.

2.  Entitlement to service connection for a dental disorder for dental treatment purposes.


REPRESENTATION

Appellant represented by:	Veterans of Foreign Wars of the United States


ATTORNEY FOR THE BOARD

D.S. Lee, Counsel




INTRODUCTION

The Veteran served on active duty from May 1987 through May 2007.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions issued in September 2007 by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina, which denied service connection for gastroenteritis, and in March 2009 by the RO in Indianapolis, Indiana, which entitled service connection for a dental disorder for dental treatment purposes.  After these rating decisions were issued, original jurisdiction over this matter was transferred to the RO in Waco, Texas.

With regard to the September 2007 rating decision which denied service connection for gastroenteritis, a timely Notice of Disagreement (NOD) was received from the Veteran in December 2007.  After a Statement of the Case (SOC) was mailed to the Veteran in November 2008, the Veteran perfected her appeal later that month via VA Form 9 substantive appeal.

In relation to the March 2009 rating decision which denied service connection for a dental disorder for dental treatment purposes, the Veteran filed a timely NOD that was received in April 2009.  After an SOC was issued in August 2009, the Veteran perfected her appeal as to that issue later that month via VA Form 9 substantive appeal.

In her November 2008 substantive appeal, the Veteran requested a Board hearing in this matter.  Accordingly, a Travel Board hearing was scheduled to take place in February 2011 at the Waco RO.  Notice to that effect was mailed to the Veteran in December 2010.  In a January 2011 VA Form 21-4138, however, the Veteran notified the RO that she was unable to attend the scheduled hearing requested that the matter be forwarded to the Board for its review instead.  The Veteran's January 2011 submission has been construed as a withdrawal of her hearing request.  Neither the Veteran nor her representative has made a renewed request for a hearing.

This appeal also initially included the issue of entitlement to service connection for a bilateral foot disorder.  During the pendency of this appeal, however, that claim was granted in full in a December 2009 rating decision issued by the Waco RO.  The Veteran did not subsequently seek further appeal in relation to her service-connected bilateral foot disability.  Accordingly, no issues in relation to that disability remain on appeal before the Board.

The issue of entitlement to service connection for gastroenteritis is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.


FINDING OF FACT

The Veteran does not meet the requirements for service connection for dental treatment purposes.


CONCLUSION OF LAW

The criteria for entitlement to service connection for dental treatment purposes, have not been met.  38 U.S.C.A. §§ 1712, 5103(a), 5103A, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.159, 3.381, 4.150, 17.161 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

I.  Duties to Notify and Assist

VA's duties to notify and assist claimants in substantiating a claim for VA benefits are found at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2010) and 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 evidence or lay evidence that is necessary to substantiate the claim.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002).  In accordance with 38 C.F.R. § 3.159(b)(1), proper notice 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.

VA's notice requirements apply to all five elements of a service-connection claim: veteran status, existence of a disability, a connection between a veteran's service and the disability, degree of disability, and effective date of the disability.  Dingess v. Nicholson, 19 Vet. App. 473 (2006).  In rating cases, a claimant must be provided with information pertaining to assignment of disability ratings (to include the rating criteria for all higher ratings for a disability), as well as information regarding the effective date that may be assigned.  Id.  Such notice should be provided to a claimant before the initial unfavorable decision on a claim.  Pelegrini v. Principi, 18 Vet. App. 112 (2004).

In a September 2011 post-rating letter, the RO provided notice to the Veteran explaining what information and evidence was needed to substantiate her claim for entitlement to service connection for dental treatment purposes, what information and evidence must be submitted by the appellant, and what information and evidence would be obtained by VA.  This letter also provided the Veteran with information pertaining to the assignment of disability ratings and effective dates, as well as the type of evidence that impacts those determinations, consistent with Dingess/Hartman.  

After issuance of the September 2011 letter, and opportunity for the Veteran to respond, the Veteran's claim was readjudicated in a September 2012 Supplemental Statement of the Case.  Hence, the Veteran is not shown to be prejudiced by the timing of this notice.  See Mayfield v. Nicholson, 20 Vet. App. 537, 543 (2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant VCAA notification followed by readjudication of the claim, such as in an SOC or SSOC, is sufficient to cure a timing defect).

In addition, VA has fulfilled its duty to assist in obtaining identified and available evidence needed to substantiate the Veteran's claim.  Her service treatment and dental records, claims submissions, lay statements, VA treatment records, and identified and relevant private treatment records have been obtained and associated with the record.

Overall, there is no evidence of any VA error in notifying or assisting the Veteran that reasonably affects the fairness of this adjudication.

II.  Service Connection for Dental Disorder

At the outset, the Board notes that a claim for service connection is also considered a claim for VA outpatient dental treatment.  Mays v. Brown, 5 Vet. App. 302, 306 (1993).  To establish entitlement to service connection for a tooth in particular, the Veteran must have sustained a combat wound or other in-service trauma.  See 38 U.S.C.A. § 1712 (2002); 38 C.F.R. § 3.381(b) (2012).  The significance of finding that a dental condition is due to in-service trauma is that a veteran will be eligible for VA outpatient dental treatment, without being subject to the usual restrictions of a timely application and one-time treatment.  38 C.F.R. § 17.161(c) (2012). 

Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service.  38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a).  Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability.  Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a).

Service connection may also be granted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d).

In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied.  Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C.A. § 5107(b).

In her December 2008 claim, the Veteran alleged that she was involved in an in-service humvee accident in which she struck her face on the dash and sustained injuries that resulted in misalignment of her jaw and teeth.  She stated that she was required to receive "lots of dental work" and wear a mouthpiece.  In her August 2009 substantive appeal, she elaborated that she underwent two major dental surgeries and was still in need of more surgical treatment.  She alleged that she reported these dental issues during her active duty service and that they were "covered up" with pain medications.  Similar allegations are raised by the Veteran's representative in an August 2011 Informal Hearing Presentation.

The service dental records, which encompass the Veteran's entire period of active duty service, simply do not support any of the Veteran's allegations.  In that regard, the service dental records do not mention any subjective complaints or objective findings of any traumatic injuries to the Veteran's teeth or jaw. Moreover, there is no mention in the dental treatment records of any traumatic injuries sustained in a 1989 humvee accident.  Indeed, there is no evidence in the dental treatment records of any outpatient or in-patient treatment or dental surgery for any traumatic injuries.  The Board notes that the dental records contain health questionnaires which reflect a reported history of previous "serious illness, operation, or hospitalization" but such references appear to allude to pre-service hernia surgery.

The service treatment records contain isolated complaints of a toothache.  Nonetheless, there is no reference in the service treatment records to any subjective complaints, objective findings, or treatment of any kind for malalignment of the teeth or jaw as a result of a traumatic injury.  There is a September 1989 emergency report noting that she was in an accident while driving a vehicle.  However, no bleeding or bruises were noted on the scalp or face, and no injury to her teeth or jaw were otherwise noted.  Service dental records dated throughout 1989 and 1990 contain no reference to injuries sustained in such accident, or to other trauma.  Finally, the Board also notes that repeated physical examinations performed over the course of the Veteran's active duty service consistently revealed normal findings of the mouth, which is also contrary to the Veteran's assertions. 

Post-service private dental treatment records dated from July 2007 through November 2009 also do not reference any complaints, findings, or treatment related to any deformities of the Veteran's teeth or jaw.  Similarly, there is no mention in those records of any service-related traumatic dental injuries from the 1989 accident.

Overall, the only evidence in the record that is favorable to the Veteran's claim are her own lay assertions concerning the 1989 accident and her own subjectively reported dental history.  In addressing lay evidence and determining what, if any, probative value may be attached to it, attention must be directed to both competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted").  See Layno v. Brown, 6 Vet. App. 465, 469 (1994).

The United States Court of Appeals for Veterans Claims (Court) has held that veterans are competent to offer statements as to the continuity and severity of symptoms arising from his or her injuries.  See Barr v. Nicholson, 21 Vet. App. 303, 308 -09 (2007) (holding that lay evidence is competent with regard to a disease or injury with "unique and readily identifiable features" that are "capable of lay observation."); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (holding that a veteran is competent to report as to onset and symptoms of a dislocated shoulder); Charles v. Principi, 16 Vet. App. 370, 374 (2002) (holding that a veteran is competent to report as to onset and symptoms of tinnitus); Falzone v. Brown, 8 Vet. App. 398, 405 (1995) (holding that a veteran is competent to report as to the onset and symptoms of flatfoot).  Certainly, under the foregoing legal authority, the Veteran is competent to offer probative statements as to the onset and subsequent continuity of her claimed dental injuries.

Nonetheless, the Board finds that the Veteran's assertions that she sustained any traumatic injuries to her teeth and jaw during an in-service accident are simply not credible.  In weighing credibility, VA may consider interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self-interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of the witness.  See generally Caluza v. Brown, 7 Vet. App. 498 (1995).  The Board may also weigh the absence of contemporaneous medical evidence against the lay evidence in determining credibility, but it cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence.  See Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006); but see Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000) (evidence of a prolonged period without medical complaint after service can be considered along with other factors in the analysis of a service connection claim).  

In this case, the Veteran's assertions concerning the 1989 humvee accident and the dental injuries which allegedly resulted are contradicted by the absence of any objectively noted traumatic dental injuries, or reference to any subsequent treatment in her dental record for traumatic dental and jaw injuries.  As noted, the only clinical records pertaining to a 1989 accident specifically note that examination of the face showed no evidence of bleeding or bruising, and no dental or jaw-related complaints were noted.  The notation of such things would normally be expected to be found in the Veteran's dental treatment records and service treatment records, particularly in view of the nature and severity of the injuries alleged by the Veteran (i.e., malalignment of the teeth and jaw requiring multiple dental surgeries).  Moreover, and as alluded to above, the dental treatment records and service treatment records in the claims file encompass the entire period of the Veteran's active duty service, and, there is no indication that these records are incomplete.  Under the circumstances, the Board is unable to assign significant probative weight to the Veteran's assertions and assigns far greater probative weight to the objective evidence shown in the in-service and post-service treatment records.

In allegations expressed on a duplicative VA Form 9 received in April 2011, the Veteran additionally alleged that silver fillings were placed in her mouth during service, and that these fillings released metals such as mercury into her body.  It is unclear as to whether the Veteran maintains that these fillings are related to the facial injuries which she allegedly sustained in the alleged humvee accident.  Nonetheless, she appears to allege that this alleged release of metals into her body resulted in various symptoms which include various oral symptoms such as metallic taste in her mouth, mouth sores, gingivitis, excess saliva, and bleeding gums.  Once again, the Board notes that there is no medical evidence in the claims file which supports the Veteran's allegation.  In that regard, there is no reference in the dental treatment records or the service treatment records of any of the oral symptoms raised in the April 2011 statement, nor is there any indication in those records of any complications arising from the Veteran's fillings.  Similarly, the post-service treatment records do not indicate any complaints, findings, or treatment related to any such complications; nor have any opinions been rendered which as much as suggests any current complications related to the Veteran's dental fillings.  Under the same analysis as that undertaken above, the Board also does not assign great probative weight to these assertions.

The Board recognizes that the Veteran has not been afforded a VA examination of her claimed dental injuries.  Such an examination, however, is not required in this case in the absence of any competent or credible evidence showing that the Veteran has any history of traumatic injuries to her teeth and jaw.  Even if such injuries were shown in the record, there is also no evidence in the record which would demonstrate a relationship between such injuries and the Veteran's active duty service.  In short, the evidence does not establish a prima facie claim for service connection for a dental disorder; hence, VA is not obliged to obtain a medical opinion concerning the Veteran's claimed dental disability.  See 38 U.S.C.A. § 5103A(d); Wells v. Principi, 326 F. 3d. 1381, 1384 (Fed. Cir. 2003); see also Duenas v. Principi, 18 Vet. App. 512 (2004) (per curium).

Thus, the Board finds that the Veteran has not presented any competent evidence that he has a dental disorder for which service-connected compensation may be granted.

In the context of determining whether a veteran has treatment eligibility, legal authority describes various categories of eligibility for VA outpatient dental treatment, to include veterans having a compensable service-connected dental condition (Class I eligibility); one-time treatment for Veterans having a noncompensable service-connected dental condition, provided they apply for treatment within a year after service (Class II eligibility); those having a noncompensable service-connected dental condition adjudicated as resulting from a combat wound or other service trauma (Class II(a) eligibility); those who were detained as a POW (Class II(b) and Class II(c) eligibility); those who made prior applications for, and received, dental treatment from VA for noncompensable dental conditions but were denied replacement of missing teeth that were lost during any period of service prior to his last period of service (Class IIR (Retroactive) eligibility); those having a dental condition professionally determined to be aggravating disability from an associated service-connected condition or disability (Class III eligibility); those whose service-connected disabilities are rated at 100 percent by schedular evaluation or who are entitled to the 100 percent rating by reason of individual unemployability (Class IV eligibility); those who participate in a rehabilitation program under 38 U.S.C. Chapter 31 (Class V eligibility) and those who are scheduled for admission or who are otherwise receiving care and services under Chapter 17 of 38 U.S.C. (Class VI eligibility).  38 U.S.C.A. § 1712; 38 C.F.R. § 17.161. 

Under Class I, those having a service-connected compensable dental disability or condition may be authorized any dental treatment indicated as reasonably necessary to maintain oral health and masticatory function.  There is no time limitation for making an application for treatment and no restriction as to the number of repeat episodes of treatment.

Regarding Class II eligibility, the following principles apply to dental conditions noted at entry and treated during service: (1) teeth noted as normal at entry will be service-connected if they were filled or extracted after 180 days or more of active service; (2) teeth noted as filled at entry will be service-connected if they were extracted, or if the existing filling was replaced, after 180 days or more of active service; (3) teeth noted as carious but restorable at entry will not be service-connected on the basis that they were filled during service.  However, new caries that developed 180 days or more after such tooth was filled will be service-connected;  (4) teeth noted as carious but restorable at entry, whether or not filled, will be service-connected if extraction was required after 180 days or more of active service; (5) teeth noted at entry as non-restorable will not be service-connected, regardless of treatment during service; (6) teeth noted as missing at entry will not be service connected, regardless of treatment during service.  38 C.F.R. § 3.381(d).

Class II also includes those Veterans having a service-connected noncompensable dental condition or disability shown to have been in existence at the time of discharge or release from active service which took place before October 1, 1981 in certain cases.  Such Veterans may be authorized treatment indicated as reasonably necessary for the one-time correction of the service-connected noncompensable condition, but only if: (i) they were discharged or released, under conditions other than dishonorable, from a period of active military, naval, or air service of not less than 180 days; (ii) application for treatment is made within one year after such discharge or release; and (iii) a VA dental examination is completed within 14 months after discharge or release, unless delayed through no fault of the Veteran.   Those Veterans discharged from their final period of service before August 13, 1981, who had reentered active military service within one year from the date of a prior discharge or release, may apply for treatment for service-connected noncompensable dental conditions relating to any such prior periods of service within one year of their final discharge or release.  If a disqualifying discharge or release has been corrected by competent authority, application may be made within one year after the date of correction.  38 C.F.R. § 17.161(b)(2).

Under Class II(a), those having a service-connected noncompensable dental condition or disability adjudicated as resulting from combat wounds or service trauma may be authorized any treatment indicated as reasonably necessary for the correction of such service-connected noncompensable condition or disability.  38 C.F.R. § 17.161(c).  Under Class II(b), those having a service-connected noncompensable dental condition or disability and who had been detained or interned as prisoners of war for a period of less than 90 days may be authorized any treatment as reasonably necessary for the correction of such service-connected dental condition or disability.  38 C.F.R. § 17.161(d).

Under Class II(c), those who were prisoners of war, as determined by the concerned military service department, may be authorized any needed dental treatment.  38 C.F.R. § 17.161(e).

Under Class IIR (Retroactive), any veteran who had made prior application for and received dental treatment from VA for noncompensable dental conditions, but was denied replacement of missing teeth which were lost during any period of service prior to his last period of service may be authorized such previously denied benefits under the following conditions: (i) an application for such retroactive benefits is made within one year of April 5, 1983; and (ii) existing VA records reflect a prior denial of the claim. 38 C.F.R. § 17.161(f).

Under Class III, those having a dental condition professionally determined to be aggravating a disability from an associated service-connected condition or disability may be authorized dental treatment for only those dental conditions which, in sound professional judgment, are having a direct and material detrimental effect upon the associated basic condition or disability.  38 C.F.R. § 17.161(g).

Under Class IV, those whose service-connected disabilities are rated at 100 percent by schedular evaluation, or those who are entitled to the 100 percent rate by reason of individual unemployability, may be authorized any needed dental treatment.

Under Class V, a Veteran who is participating in a rehabilitation program under 38 U.S.C.A., Chapter 31, may be authorized dental services as are professionally determined to be necessary for any of the reasons enumerated in 38 C.F.R. § 17.47(g).  38 C.F.R. § 17.161(i).

Under Class VI, any Veterans scheduled for admission or are otherwise receiving care and service under 38 U.S.C.A., Chapter 17, may receive outpatient dental care which is medically necessary (i.e., for a dental condition clinically determined to be complicating a medical condition currently under treatment).  38 C.F.R. § 17.161(j).

The Veteran does not fall into any eligibility class under 38 C.F.R. § 17.161.  She does not have a service-connected dental condition, whether compensable or non-compensable, hence precluding Class I and Class II eligibility.

Further, the record does not show that the Veteran incurred any wounds in combat or was a POW.  Class IIR (Retroactive) treatment benefits do not apply in this case, as the Veteran did not enter the service until 1987.  Also, there is no evidence that her service-connected disorders, which include gastroesophageal reflux disease with diverticulosis; bilateral pes planus with plantar fibromatosis; degenerative arthritis of the thoracolumbar spine; degenerative disc disease of the cervical spine; right shoulder rotator cuff disease; left shoulder rotator cuff disease; right hip strain; left hip bursitis with muscular pain; left knee degenerative joint disease; right knee degenerative joint disease; migraine headaches; right hand carpal tunnel syndrome; and left hand carpal tunnel syndrome, are aggravated by a dental disorder.  Moreover, the Veteran does not have a 100 percent rating.  She is not participating in a rehabilitation program under 38 U.S.C.A., Chapter 31, and fixing her dental problems is not medically necessary for a medical condition currently under treatment by VA.  For these reasons, the Board finds that the Veteran also does not qualify for Class II(a), (b), (c), IIR, III, IV, V, or VI eligibility.

Accordingly, the Board finds that the preponderance of the evidence is against the Veteran's claim service connection for a dental disability for compensation or treatment purposes. The benefit-of-the-doubt rule does not apply, and this claim must be denied. 38 U.S.C.A. § 5107(b) (West 2002).



ORDER

Entitlement to service connection for a dental disorder for dental treatment purposes is denied.


REMAND

With regard to the issue of the Veteran's entitlement to service connection for gastroenteritis, the service treatment records show that the Veteran was treated on multiple occasions during service for gastrointestinal symptoms which included abdominal pain, nausea, vomiting, and periods of alternating diarrhea and constipation.  These symptoms were diagnosed as gastroenteritis in September 1987, September 1990, and September 1997.  Post-service VA and private treatment records dated through February 2012 show that the Veteran has been treated for ongoing gastrointestinal problems.  VA treatment records dated February 2009 state that the Veteran's ongoing symptoms of mid-epigastric pain and constipation were concerning for gastritis.

In its September 2011 remand, the Board noted that, given similarities between gastritis and gastroenteritis, it was compelled to consider whether service connection is warranted for both disabilities.  See Clemons v. Shinseki, 23 Vet. App. 1 (2009) (holding that the scope of a disability claim includes any other disability that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and other information of record).  Accordingly, the Board remanded the matter so that the Veteran could be arranged to undergo a VA examination.  Specifically, the Board directed that the designated VA examiner be provided the claims file, to include a copy of its remand, and be asked to offer an opinion as to whether it is at least as likely as not that the Veteran's gastritis and/or gastroenteritis arose during or resulted from her active duty service.

Consistent with the Board's remand, the Veteran was afforded a VA examination in September 2011.  The corresponding report indicates a gastritis diagnosis marked by symptoms of nausea, vomiting, and abdominal pain.  However, the examiner did not initially render an opinion as to whether the gastritis was related in any way to the Veteran's active duty service.  In an October 2011 addendum opinion, the examiner opined that the Veteran's already service-connected GERD is as likely as not related to her in-service stomach problems; but once again, no opinion was given as to whether the Veteran's gastritis is related to the Veteran's active duty service.  In the absence of such an opinion, the September 2011 VA examination and October 2011 addendum opinion are incomplete, and moreover, do not comply with the Board's prior remand instructions.

Additionally, the Board notes that while the Veteran's claim for service connection for gastroenteritis and/or gastritis remains in an appellate status, service connection is already in effect for GERD with diverticulosis, which is rated as 30 percent disabling.  The assignment of separate disability ratings for the same manifestation under different diagnoses constitutes "pyramiding," which is forbidden under the federal regulations.  38 C.F.R. § 4.14; see also Esteban v. Brown, 6 Vet App 259  (1994) (noting that the rating schedule may not be employed as a vehicle for compensating a claimant twice or more for the same symptomatology, as such a result would overcompensate the claimant for the actual impairment of his earning capacity).  In addition, 38 C.F.R. § 4.114 provides additional prohibitions on separately rating various disorders of the digestive system.  Given the similarities in symptomatology associated with GERD and gastritis, an opinion differentiating the symptoms attributable to gastritis from those attributable to the Veteran's service-connected GERD with diverticulosis would also be useful in this case.  For purposes of exploring possible entitlement to service connection on a secondary basis pursuant to 38 C.F.R. § 3.310, an opinion as to whether the Veteran has gastritis and//or gastroenteritis that's been permanently aggravated by or resulted from her service-connected GERD with diverticulosis would also be useful.

For the foregoing reasons, the Board is compelled to remand this matter so that the claims file may be provided to the same VA examiner who performed the September 2011 examination and October 2011 addendum opinion for his review and a supplemental addendum opinion as to whether the Veteran has gastritis that arose during or resulted from the Veteran's active duty service or was aggravated by or resulted from the Veteran's service-connected GERD with diverticulosis.  If the examiner finds in the affirmative as to either of these questions, he should also opine as to whether the symptoms attributable to gastritis may be differentiated from those attributable to the Veteran's service-connected GERD with diverticulosis.  38 C.F.R. § 3.159(c)(4); Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that a remand by the Board confers upon a veteran, as a matter of law, the right to compliance with the remand instructions, and imposes upon VA a concomitant duty to ensure compliance with the terms of the remand).  If the VA examiner is unavailable, or, further examination of the Veteran is deemed warranted, the RO should arrange for the Veteran to undergo a new VA examination.

Accordingly, the case is REMANDED for the following action:

1.  The claims file should be forwarded to the same VA examiner who performed the September 2011 VA examination and who prepared the October 2011 addendum opinion.  The examiner should review the entire claims file and provide an opinion as to whether it is at least as likely as not that the Veteran has gastritis or gastroenteritis that arose during or resulted from her active duty service, or, whether the Veteran has gastritis or gastroenteritis that has been permanently aggravated by or resulted from her service-connected GERD with diverticulosis.  If the examiner finds in the affirmative as to either of these questions, then the examiner should also differentiate the symptoms attributable to the Veteran's gastritis or gastroenteritis from those attributable to her service-connected GERD with diverticulosis.

A complete rationale for all expressed opinions, which includes citation to any relevant facts, evidence, or medical principles, must be provided.  If the examiner cannot provide the requested opinions without resorting to speculation, he should expressly indicate this and explain what additional information is necessary and why the opinion sought cannot be given without resorting to speculation.

If the same VA examiner who performed the September 2011 VA examination is unavailable, then the file should be provided to another appropriate examiner for review.  If deemed necessary by the examiner, the  Veteran should be arranged to undergo a new VA examination for the opinions requested above.  All tests and studies deemed necessary by the examiner should be performed.  

A report of the new examination should be prepared and associated with the Veteran's VA claims file.  A complete rationale which includes citation to any relevant facts, evidence, or medical principles must be provided for all opinions rendered.  If the examiner cannot provide the requested opinions without resorting to speculation, he or she should expressly indicate this and provide a supporting rationale as to what additional information is necessary and why the opinion sought cannot be given without resorting to speculation.

2.  After completion of the above development, the issue of entitlement to service connection for gastroenteritis should be readjudicated.  If the determination remains adverse to the Veteran, she and her representative should be furnished with a supplemental SOC and be given an opportunity to respond.

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).




______________________________________________
MICHAEL LANE
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs