Citation Nr: 1332102 Decision Date: 10/17/13 Archive Date: 10/21/13 DOCKET NO. 10-17 962 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUES 1. Entitlement to service connection for a digestive disability, diagnosed as gastroesophageal reflux disease (GERD) and hiatal hernia, to include as secondary to service-connected posttraumatic stress disorder (PTSD). 2. Entitlement to an increased rating for PTSD, rated as 50 percent disabling prior to January 13, 2012, and 70 percent disabling thereafter. 3. Entitlement to total disability rating based upon individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Oregon Department of Veterans' Affairs WITNESSES AT HEARING ON APPEAL Appellant and Ms. J.K. ATTORNEY FOR THE BOARD A. Michel, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1966 to April 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Portland, Oregon which, in part, denied entitlement to service connection for a digestive condition and granted entitlement to service connection for PTSD with an evaluation of 30 percent from that date of service connection, May 28, 2008. During the course of this appeal, a 50 percent rating was granted for PTSD from the date of service connection and a 70 percent rating was granted from January 13, 2012; this did not satisfy the Veteran's appeal. In June 2013, the Veteran and Ms. J.K. testified at a Travel Board hearing held at the RO. A copy of the transcript of that hearing has been associated with the claims folder. The Board notes that in Rice v. Shinseki, 22 Vet. App. 447 (2009), the United States Court of Appeals for Veterans Claims (Court) held that a claim for a TDIU is part and parcel of an increased rating claim when such claim is raised by the record. During the June 2013 hearing, the Veteran and his representative raised the issue of the Veteran's unemployability. In light of the Court's holding in Rice, the Board has considered the TDIU claim as part of his pending increased rating claim and has accordingly listed the raised TDIU claim as an issue. The Veteran also initiated an appeal of the RO's denial of service connection for bilateral hearing loss and tinnitus. In a January 2012 rating decision, the RO granted service connection for bilateral hearing loss and tinnitus. Those issues therefore are no longer before 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 is of the opinion that additional development is required before the Veteran's claims are decided. Claim - Service Connection Digestive Disability The Veteran contends that he is entitled to service connection for a digestive disorder as his current problems are related to his active service or, alternatively, his digestive problems are related to his service-connected PTSD. The Veteran was afforded a VA examination in January 2012 in which the VA examiner noted that service treatment records (STRs) were silent for any digestive or GERD complaints while on active duty; esophagogastroduodenoscopy (EGD) was performed in January 2009 which was significant for negative findings for inflammation (esophagitis), or Barrett's, but did show a hiatal hernia. The examiner opined that the claimed condition was less likely than not (less than 50 percent probability) proximately due to or the result of the Veteran's service-connected condition; the claimed condition, which clearly and unmistakably existed prior to service, was clearly and unmistakably not aggravated beyond its natural progression by an in-service injury, event, or illness. The examiner stated that there was no pathophysiologic link with PTSD and GERD and thus PTSD cannot be seen to aggravated this condition; additionally, the Veteran's EGD revealed a hiatal hernia, which is well reported in the literature to cause or worsen GERD conditions. The Board finds this opinion inadequate for adjudication purposes as the examiner simply states that the condition existed prior to service without supporting this rationale with references to any evidence, to specifically include STRs and the January 2009 EGD that were negative for digestive complaints and findings of inflammation. Moreover, because the Veteran was not found to have a digestive condition on enlistment examination in June 1966, the presumption of soundness applies. It can only be rebutted by evidence establishing that the digestive condition clearly and unmistakably existed prior to service and clearly and unmistakably underwent no permanent increase in severity as a result of active duty. See 38 U.S.C.A. § 1111 (2002); 38 C.F.R. § 3.304 (2013). The Veteran's statements alone that he had digestive problems in the late 1960s or early 1970s does not constitute clear and unmistakable evidence those digestive problems existed prior to service. Moreover, it is unclear how the January 2012 VA examiner used the Veteran's undefinitive report of history ("the late 1960s or early 1970s" encompasses the period before during and after the Veteran's period of service) to form an opinion that the disability at issue clearly and unmistakably pre-existed service. Finally, the Board finds that an etiological opinion should be obtained in regards to the Veteran's hiatal hernia as the VA examiner stated the EGD revealed a hiatal hernia, which is well reported in the literature to cause or worsen GERD conditions. That is, because the evidence developed during the processing of this claim indicates that the symptoms for which the Veteran is seeking VA benefits may be caused by hiatal hernia, this issue is part of the Veteran's appeal as noted on the title page of this remand. See Clemons v. Shinseki, 23 Vet. App. 1 (2009); see also Brokowski v. Shinseki, 23 Vet. App. 79 (2009). Accordingly, the Board finds that the Veteran should be afforded another VA examination to determine the nature and etiology of any currently present digestive disability, to include his hiatal hernia. Claims - Increased Rating PTSD and TDIU As noted above, during the June 2013 hearing, the Veteran and his representative raised the issue of the Veteran's unemployability as related to his service-connected PTSD. In light of the Court's holding in Rice, the Board has considered the TDIU claim as part of his pending increased rating claim. The Veteran testified that there was incorrect information in the last VA examination he was afforded for his PTSD in May 2012, to include that he was vacationing and enjoying his retirement. The Veteran also disagreed with the examiner's opinion that it appeared he would do best if in a job where he had little contact with people and little supervision. To this point the Board notes that it is the established policy of VA that all Veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. 38 C.F.R. § 4.16 (2013). A finding of total disability is appropriate "when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation." 38 C.F.R. §§ 3.340(a) (1), 4.15 (2013). "Substantially gainful employment" is that employment "which is ordinarily followed by the nondisabled to earn their livelihood with earnings common to the particular occupation in the community where the Veteran resides." Moore v. Derwinski, 1 Vet. App. 356, 358 (1991). "Marginal employment shall not be considered substantially gainful employment." 38 C.F.R. § 4.16(a) (2013). The Board finds that the Veteran presented credible testimony as to his PTSD symptoms and should be afforded a VA examination for his PTSD that addresses unemployability guidelines. Accordingly, this case is REMANDED for the following actions: 1. The RO or the AMC should undertake appropriate development to obtain a copy of any outstanding, pertinent medical records. 2. The Veteran should be afforded a VA examination by a different examiner than the January 2012 examiner, with appropriate expertise to determine if his digestive disability, to include GERD and hiatal hernia, is related to his service or to his service-connected PTSD. The claims folder must be provided to and reviewed by the examiner. Based on the examination results and a complete review of the claims folder, the examiner should provide an opinion as to whether there is a 50 percent or better probability that the Veteran's digestive disability was present during active service. If the examiner is of the opinion that a digestive disability was present during service, the examiner should provide an opinion as to whether the digestive disability clearly and unmistakably existed prior to service and clearly and unmistakably underwent no permanent increase in severity as a result of active duty. If the examiner is of the opinion that a digestive disability was not present during service, the examiner should provide opinions as to: 1. whether it is at least as likely as not (50 percent or better probability) that a digestive disability is etiologically related to the Veteran's active service, and 2. whether it is at least as likely as not (50 percent or better probability) that the Veteran's digestive disability is etiologically related to his PTSD, to include whether it was permanently worsened by the PTSD. The supporting rationale for all opinions expressed must be provided. 3. The Veteran should be scheduled for a VA examination by a psychiatrist to ascertain the current severity of his service-connected PTSD. The claims folder must be provided to and reviewed by the examiner. The examiner should provide an opinion on the effect of the Veteran's PTSD in conjunction with his other service-connected disabilities on his ability to obtain or retain gainful employment (occupational functioning) and daily activities. The supporting rationale for all opinions expressed must be provided. 4. The RO or the AMC should undertake any additional development it determines to be warranted. 5. Then, the RO or the AMC should adjudicate the issues on appeal in light of all pertinent evidence and legal authority. If the benefits sought on appeal are not granted to the Veteran's satisfaction, a Supplemental Statement of the Case should be furnished to the Veteran and his representative and they should be afforded the requisite opportunity to respond. Thereafter, if indicated, the case should be returned to the Board for further appellate action. By this remand the Board intimates no opinion as to any final outcome warranted. 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 A. PAPPAS 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) (2013).