Citation Nr: 1330323 Decision Date: 09/20/13 Archive Date: 09/25/13 DOCKET NO. 09-41 517 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to service connection for a stomach disorder (claimed as ulcers), to include as secondary to service-connected posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Lester S. Milligan, Individual ATTORNEY FOR THE BOARD K. Gielow, Counsel INTRODUCTION The Veteran had active service from September 1969 to May 1971. This matter comes before the Board of Veterans' Appeals (BVA or Board) from a March 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. The Veteran now resides in Alabama, so the matter is now handled by the RO in Montgomery, Alabama. The Board notes that the Veteran executed a VA Form 21-22a, Appointment of Individual as Claimant's Representative, in favor of the above-listed representative in conjunction with the claim currently before the Board. It is a special power of attorney, pursuant to 38 C.F.R. § 14.630, which allows for one-time representation by an individual who is not accredited by VA as required in 38 C.F.R. § 14.629. As an initial matter, the March 2009 rating decision adjudicated the issues of entitlement to gastroesophageal reflux disease (GERD) and ulcers separately. The Veteran's May 2009 notice of disagreement specifically listed the issue of "[s]tomach ulcer condition," and he therefore placed the ulcer issue in appellate status. However, no notice of disagreement was received with respect to GERD, and this issue is not considered part of the current appeal before the Board. In his substantive appeal, the Veteran requested a hearing before a member of the Board. However, in May 2013, he withdrew his hearing request. 38 C.F.R. § 20.704(e) (2012). This matter was previously before the Board in June 2013, at which time the issue was remanded for additional development. 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 Although any additional delay is regrettable, the Board finds that this matter must again be remanded to obtain an adequate medical opinion. A remand by the Board confers on the claimant, as a matter of law, the right to compliance with the remand orders. Stegall v. West, 11 Vet. App. 268 (1998) (holding where the remand orders of the Board are not fully implemented, the Board itself errs in failing to insure compliance). In June 2013, the Board remanded the issue on appeal in order to obtain a VA examination and opinion regarding the nature and etiology of the Veteran's stomach disorder. In addition to requesting an opinion on direct service connection, the remand instructions specifically requested an opinion as to whether any stomach and/or ulcer disorder "is proximately due to or aggravated (an increase in severity beyond natural progression) by his service-connected PTSD." Additionally, if it was not possible to provide a requested opinion without resort to speculation, the Board directed that: the examiner should state why speculation would be required in this case (e.g., if the requested determination is beyond the scope of current medical knowledge, actual causation cannot be selected from multiple potential causes, etc.). If there are insufficient facts or data within the claims file, the examiner should identify the relevant testing, specialist's opinion, or other information needed to provide the requested opinion. Upon reviewing the June 2013 VA examination that was provided on remand, it is clear that the VA examiner did not comply with the above-mentioned directives. As to the first, simply no opinion was provided regarding secondary service connection. As to the second, the examiner stated "I am unable to provide the requested opinion [on direct service connection] because I would have to resort to speculation to do so." However, no rationale was provided for why speculation would be required in this case. See also See Jones v. Shinseki, 23 Vet. App. 382, 390 (2010) (a speculative opinion is not inadequate where the examiner explains the opinion or the reasons for the opinion are "otherwise apparent in the Board's review of the evidence"). Accordingly, this case must once again be remanded so that the examiner can state why speculation would be required in this case (e.g., if the requested determination is beyond the scope of current medical knowledge, actual causation cannot be selected from multiple potential causes, etc.) and so that the examiner can proffer an opinion as to whether the disorder is caused by or aggravated by PTSD. Accordingly, the case is REMANDED for the following actions: 1. Return the claims file to the VA examiner who previously provided an examination and opinion in this case in June 2013. If the VA examiner is unavailable, arrange to obtain the requested information from another qualified examiner. The need for another examination is left to the discretion of the examiner selected to offer the requested opinion. The claims file [i.e. both the paper claims file and any relevant medical records contained in Virtual VA] must be provided to and reviewed by the examiner. Identify every diagnosed stomach disorder and/or ulcer disorder the Veteran has. For each stomach disorder and/or ulcer disorder diagnosed, the examiner should offer comments and an opinion addressing whether it is more likely than not (i.e., probability greater than 50 percent), at least as likely as not (i.e., probability of 50 percent), or less likely than not (i.e., probability less than 50 percent) that the Veteran's current stomach disorder is causally or etiologically due to service, had its onset during service, or is proximately due to or aggravated (an increase in severity beyond natural progression) by his service-connected PTSD. If it is determined that the Veteran's service-connected PTSD increased the severity of a stomach disorder beyond the natural progress, the physician should identify that aspect of the disability which is due to aggravation by the service-connected PTSD. If it is not possible to provide the requested opinion without resort to speculation, the examiner should state why speculation would be required in this case (e.g., if the requested determination is beyond the scope of current medical knowledge, actual causation cannot be selected from multiple potential causes, etc.). If there are insufficient facts or data within the claims file, the examiner should identify the relevant testing, specialist's opinion, or other information needed to provide the requested opinion. All opinions should be supported by a clear rationale, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. 2. Thereafter, the issue of entitlement to service connection for a stomach disorder (claimed as ulcers), to include as secondary to PTSD, should be readjudicated. If the benefit sought on appeal remains denied, the Veteran and his representative should be furnished a supplemental statement of the case and given the opportunity to respond thereto. The case should then be returned to the Board for further appellate consideration. 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). _________________________________________________ K. OSBORNE 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).