Citation Nr: 1328713 Decision Date: 09/09/13 Archive Date: 09/17/13 DOCKET NO. 07-21 373 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUE Entitlement to service connection for a gastrointestinal disorder, to include as secondary to service-connected posttraumatic stress disorder (PTSD) with alcohol dependence and/or Agent Orange exposure. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD K. Neilson, Counsel REMAND The Veteran had active service from November 1967 to June 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal of an April 2001 rating action by the Department of Veterans Affairs (VA) Regional Office (RO) located in Los Angeles, California. The Board notes that the instant matter was previously before the Board in September 2011 at which time it was remanded for further development. Specifically, the Board directed the agency of original jurisdiction (AOJ) to schedule the Veteran for a VA examination for the purpose of ascertaining the etiology of any diagnosed gastrointestinal disorder, to specifically include gastroesophageal reflux disease (GERD). The examiner was requested to opine as to the medical probabilities that any diagnosed gastrointestinal disorder was related to the Veteran's period of active service, to include his presumed exposure to herbicides, and as to whether the Veteran's GERD, or any other gastrointestinal disorder, was caused of made chronically worse by his service-connected PTSD with alcohol dependence. The Veteran was afforded a VA examination in November 2011. A review of the examination report reveals that it is noncompliant with the terms of the Board's November 2011 remand. Notably, the VA examiner indicated that GERD can be exacerbated by PTSD and/or increased alcohol consumption, but the examiner failed to specifically render an opinion as to the likelihood that the Veteran's service-connected PTSD with alcohol dependence has made chronically worse his diagnosed GERD. See Allen v. Brown, 7 Vet. App. 439, 448 (1995) (holding that secondary service connection is a two-part issue that involves analysis of causation and analysis of aggravation); 38 C.F.R. § 3.310 (2013). Accordingly, a remand is necessary to ensure compliance with the terms of the Board's previous remand. See Stegall v. West, 11 Vet. App. 268 (1998). Specifically, the matter must be remanded for the AOJ to seek from the examiner who performed the November 2011 VA examination an addendum that addresses the whether the Veteran's GERD has been aggravated by his PTSD with alcohol dependence. Accordingly, the case is REMANDED to the AOJ for the following action: 1. The claims folder, and a copy of this remand, must be provided to and reviewed by the VA clinician who conducted the November 2011 VA examination for esophageal conditions. The examiner should provide an addendum to that report that includes an opinion as to whether it is at least as likely as not the Veteran's service-connected PTSD with alcohol dependence has made chronically worse the Veteran's diagnosed GERD. The examiner should also provide an extended rationale for his opinion that the Veteran's GERD is not related to service. The November 2011 negative nexus opinion relies solely on the fact that the Veteran did not present with symptoms of GERD in service. However, an October 2000 statement from A.W., M.D., states that the Veteran had suffered from acid reflux since he was in military service. The VA examiner is requested to consider this evidence and state why it is not sufficient to support a nexus between the Veteran's currently diagnosed GERD and service. If the VA examiner determines that the evidence supports a nexus between the Veteran's current GERD and service, the examiner should so state and reasons for his changed opinion should be set forth. The examiner should provide support for all opinions expressed. This includes reference to lay or medical evidence contained in the claims folder, if appropriate, or to known medical principles relied upon in forming his opinion. If the examiner determines that he cannot provide an opinion on the issue at hand without resorting to speculation, he should explain the inability to provide an opinion, identifying precisely what facts could not be determined. In particular, he should comment on whether an opinion could not be rendered because the limits of medical knowledge have been exhausted regarding the etiology of any diagnosed disorder or whether additional testing or information could be obtained that would lead to a conclusive opinion. See Jones v. Shinseki, 23 Vet. App. 382, 389 (2010). (The AOJ should ensure that any additional evidentiary development suggested by the examiner should be undertaken so that a definitive opinion can be obtained.) (If the requested examiner is no longer available, the claims folder should be forwarded to another VA clinician to answer the questions set forth above. If additional evidentiary development is suggested or if another examination is required to formulate an opinion by the examiner, the AOJ should ensure that any additional development is undertaken in order to obtain definitive opinions as to whether it is at least as likely as not that (1) the Veteran's GERD is related to his active military service and/or (2) the Veteran's service-connected PTSD with alcohol dependence has made chronically worse the Veteran's GERD.) 2. After undertaking any other development deemed appropriate, the AOJ should re-adjudicate the issue on appeal. If the benefit sought is not granted, the appellant should be furnished with a supplemental statement of the case (SSOC) and afforded an opportunity to respond before the record is returned to the Board for further review. No action is required of the Veteran until he is notified by the AOJ. He has the right to submit additional evidence and argument on the matter that 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 or by the United States Court of Appeals for Veterans Claims (Court) 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). _________________________________________________ JAMES L. MARCH 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 Court. 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) (2013).