Citation Nr: 1332401 Decision Date: 10/18/13 Archive Date: 10/24/13 DOCKET NO. 08-36 756 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Entitlement to service connection for gastroesophageal reflux disease (GERD) with hiatal hernia. 2. Entitlement to service connection for a bilateral foot disability, not including bilateral pes planus. REPRESENTATION Veteran represented by: John S. Berry, Attorney ATTORNEY FOR THE BOARD Helena M. Walker, Counsel INTRODUCTION The Veteran served on active duty from March 1969 to October 1970. His discharge documents reflect that he was awarded the Combat Infantryman Badge. This appeal arises before the Board of Veterans'Appeals (Board) from a rating decision dated in May 2008 by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. In the May 2008 rating decision, the RO declined to reopen a previously denied claim for service connection for bilateral flat feet, and denied service connection for GERD and IBS. All of these issues were appealed. In August 2010, the Board reopened the claim for service connection for a disability of the bilateral feet, and remanded it and GERD for further development. The case was returned to the Board in May 2012, and the Board denied service connection for GERD, granted service connection for left pes planus, and denied service connection for right pes planus. The Veteran appealed the claims to the Court of Appeals for Veterans Claims (Court). In March 2013, the parties filed a joint motion for remand (JMR) with the Court, and the Court issued an Order vacating the Board's May 2012 decision in part, and remanding this matter for further appellate review consistent with its Order. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required. REMAND In its March 2013 JMR, the parties agreed that the Board's May 2012 decision was flawed as it relied on an inadequate VA examination (January 2012) to deny service connection for GERD. The parties also agreed that the Board failed to address whether the Veteran's bilateral plantar fasciitis was part and parcel of the adjudicated pes planus issues or pursuant to Clemons v. Shinseki, 23 Vet. App. 1 (2009). In other words, the Board did not properly address all issues "reasonably encompassed within the scope of the filed claim" for a bilateral foot disability. Of note, the parties agreed that the decision regarding the grant of service connection for left pes planus, as well as the denial of right pes planus, should not be disturbed. In light of the deficiencies described in the JMR, the Board finds that the Veteran's claims should be remanded again to afford the Veteran new VA examinations to determine the nature and etiology of his GERD and any bilateral foot disability other than pes planus. Accordingly, the case is REMANDED for the following action: 1. The RO should undertake appropriate development to obtain a copy of any outstanding records pertinent to the Veteran's claims. 2. Then, schedule the Veteran for an appropriate VA examination with a qualified medical professional regarding his GERD. The claims file, and any pertinent evidence contained in an electronic format, should be provided to the appropriate examiner for review, and the examiner should note that it has been reviewed. After reviewing the file, obtaining a complete history from the Veteran, and conducting a physical examination, as well as any diagnostic studies deemed necessary, the examiner should indicate whether there is any evidence of GERD and/or hiatal hernia. The examiner should discuss the significance, if any, of his use of over-the-counter medications for treatment of what the Veteran described as acid reflux. The examiner should also offer an opinion as to whether it is at least as likely as not that (i.e. probability of 50 percent or greater) the Veteran has GERD that has been caused or aggravated by his military service. The term "at least as likely as not" does not mean "within the realm of medical possibility." Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of that conclusion as it is to find against it. The examiner should provide a complete rationale for any opinion provided. 3. Then, schedule the Veteran for an appropriate VA examination with a qualified medical professional regarding his bilateral plantar fasciitis. The claims file, and any pertinent evidence contained in an electronic format, should be provided to the appropriate examiner for review, and the examiner should note that it has been reviewed. After reviewing the file, obtaining a complete history from the Veteran, and conducting a physical examination, as well as any diagnostic studies deemed necessary, the examiner should indicate whether there is any evidence of a bilateral foot disability, other than left foot pes planus. For any foot disability identified (to include plantar fasciitis), the examiner should offer an opinion as to whether it is at least as likely as not (i.e. probability of 50 percent or greater) that the disability is caused or aggravated by his military service, or has been caused or chronically worsened by his service-connected left pes planus. The term "at least as likely as not" does not mean "within the realm of medical possibility." Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of that conclusion as it is to find against it. The examiner should provide a complete rationale for any opinion provided. 4. The RO should also undertake any other development it determines to be warranted. 5. When the development requested has been completed, the case should again be reviewed by the RO. If the benefits sought are not granted, the Veteran and his representative should be furnished a Supplemental Statement of the Case, and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. By this remand, the Board intimates no opinion as to any final outcome warranted. No action is required of the Veteran until he is otherwise notified but he has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This case 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 L. WIGHT 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).