Citation Nr: 1325758 Decision Date: 08/14/13 Archive Date: 08/16/13 DOCKET NO. 08-08 511 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUE Entitlement to service connection for gastroesophageal reflux disease (GERD) with esophagus stricture, on a direct basis. REPRESENTATION Appellant represented by: Kentucky Department of Veterans Affairs ATTORNEY FOR THE BOARD Biswajit Chatterjee, Counsel INTRODUCTION The Veteran served on active duty from February 1968 to September 1972 and from March 1974 to April 1980. This appeal to the Board of Veterans' Appeals (Board) is from a May 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky. In January 2011, the Board issued a decision denying service connection for GERD with esophagus stricture on a direct basis, as well as secondary to radiation exposure. The Veteran appealed that decision to the United States Court of Appeals for Veterans Claims (Court). In a March 2012 Joint Motion for Partial Remand (Joint Motion), the parties stated that they would not disturb the Board's January 2011 denial of the service-connection claim for GERD as secondary to radiation exposure. However, the Joint Motion vacated and remanded the claim on a direct basis. A May 2012 Court Order granted the Joint Motion. In December 2012, the Board remanded the case to the Appeals Management Center (AMC) for additional development and the file has been returned to the Board. 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 The Board finds that this matter must be remanded in order to comply with the terms of the Joint Motion. The March 2012 Joint Motion faulted the Board for relying upon an inadequate August 2009 VA examination, which did not discuss evidence of continuity of symptomatology of his GERD since service. The Joint Motion noted reports of indigestion and trouble eating spicy foods made during the Veteran's separation examination in March 1980. In addition, in a June 2003 private medical consultation with Dr. J. S., the physician noted a longstanding history of dyspeptic complaints. Dr. J. S., however, did not indicate how many years the complaints existed. The Joint Motion concluded, "remand of Appellant's claim for entitlement to service connection for GERD with esophagus stricture on a direct basis requires a new VA examination which specifically addresses evidence concerning continuity of symptomatology..." Subsequent to the Joint Motion, the Veteran, his wife, and several other family members provided letters including lay statements of observing his continuity of gastrointestinal symptoms since separation, including difficulty swallowing and having food lodged in his throat; heartburn, which his wife characterized as so severe that she "remember[s] him going through [large bottles of] Rolaids like they were jelly beans;" and acid reflux. See September 2012 and October 2012 lay statements by Veteran, wife and other family members. Moreover, the Veteran and his family members are competent to make such lay statements, as they are within the realm of lay experience and observation. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Barr v. Nicholson, 21 Vet. App. 303, 310 (2007); and 38 C.F.R. § 3.159(a)(2). The Board remanded the claim in December 2012, in accordance with the Joint Motion, for a new VA examination and medical opinion concerning direct service connection for GERD. In February 2013, the Veteran was provided a new VA examination, wherein he reported a history of a narrowed esophagus and burning in his esophagus since the 1970s from radiation treatments for his Hodgkin's lymphoma. The examiner diagnosed current disabilities of GERD, hiatal hernia and esophageal stricture; and opined that the claimed condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. As part of the rationale for this negative nexus opinion, the examiner stated: "From 1980 forward, the patient had no GI complaints until 2007. This represents a 27 year period of time where there is absence of a diagnosis of GERD...the examiner did not find medical records documenting the condition until 2007. Regardless, this is an enormous amount of time where the patient did not have GI complaints." [italicized for emphasis]. Unfortunately, the latter statement indicates that the examiner did not consider the competent lay statements, as discussed above by the Veteran and his family, of a continuity of symptomatology from 1980 to the present. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). Rather, the examiner appears to have limited consideration of evidence to the documented medical records, rendering the opinion inadequate for resolving this claim on a direct basis. See Barr v. Nicholson, 21. Vet. App. 303 (2007); Nieves- Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). Consequently, to ensure compliance with the Joint Motion, the Board remands this claim for the AMC to arrange a new VA examination and opinion on the etiology of his GERD with esophagus stricture. In providing an opinion, the examiner should consider the lay statements by the Veteran and family members of gastrointestinal symptoms for the many years since separation from service in 1980, when considering the possibility of entitlement to service connection on a direct basis. Also, the Veteran's May 2013 statement indicates that he may have recently been seen by VA treating providers for his GERD, and if so, the AMC is obligated to attempt to obtain such records on remand. Here, the most recent VA treatment records are associated for the Louisville, Kentucky VA Medical Center (VAMC), dated through July 2012, and associated with his Virtual VA file. See 38 U.S.C.A. § 5103A(c)(2) (West 2002); 38 C.F.R. §§ 3.159(c)(1) and (2) (2012). Moreover, the Veteran has complained of missing in-service clinical records, dated from April to June 1970, that are potentially relevant to his GERD claim. See Veteran's May 2013 statement. The Board notes that there is already a folder associated with his claims file that contains some clinical records dated within this period. On remand, the AMC should send the Veteran a letter requesting clarification of exactly which records he seeks that have not yet been obtained. Accordingly, the case is REMANDED for the following action: 1. Send the Veteran a letter asking him for clarification on whether there are outstanding clinical records from service that need to be obtained and considered in his appeal. If so, request him to provide specific dates and places of missing clinical records. 2. Obtain any outstanding VA gastrointestinal treatment records from the Louisville, Kentucky VAMC from July 2012 to the present. 3. Schedule the Veteran for a VA examination in order to determine the nature and etiology of his claimed GERD with esophagus stricture. It is imperative that the claims file be made available to the examiner and reviewed in connection with the examination. Any medically indicated special tests should be accomplished, and all special tests and clinical findings should be clearly reported. The examiner must identify and describe the nature of the claimed GERD with esophagus stricture. The examiner must address whether it is at least as likely as not (i.e., a probability of 50 percent or greater) that the claimed condition of GERD is directly related to the Veteran's active duty military service. Specifically consider the Veteran's lay statements asserting a post-service continuity of symptomatology of gastrointestinal disability, including heartburn, acid reflux, indigestion, difficulty swallowing, food lodged in the throat, etc. Rationale for all requested opinions shall be provided. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). 4. Ensure that the requested actions have been accomplished (to the extent possible) in compliance with this REMAND. If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken. 5. Then readjudicate the claim in light of any additional evidence. If this claim is not granted to the Veteran's satisfaction, send him a Supplemental SOC and give him an opportunity to respond to it before returning the file to the Board for further appellate consideration of this claim. 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). _________________________________________________ DAVID S. AMES Acting 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).