Citation Nr: 1332810 Decision Date: 10/21/13 Archive Date: 10/24/13 DOCKET NO. 09-30 168 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for gastroesophageal reflux disorder (GERD) secondary to service-connected diabetes mellitus, type II. REPRESENTATION Veteran represented by: Texas Veterans Commission WITNESSES AT HEARING ON APPEAL The Veteran and his spouse ATTORNEY FOR THE BOARD B. Ogilvie, Counsel INTRODUCTION The Veteran served on active duty from October 1967 to May 1969. This matter comes before the Board of Veterans' Appeals on appeal from a March 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. In March 2013, the Veteran and his spouse testified before the undersigned at a Board hearing at the RO. A copy of this transcript is of record. In June 2013, the Board remanded the claim on appeal to the RO for further development. The claim is again before the Board for appellate review. The appeal is REMANDED to the agency of original jurisdiction (AOJ) via the Appeals Management Center (AMC), in Washington, D.C. VA will notify the appellant if further action is required. REMAND The Veteran is claiming entitlement to service connection for GERD secondary to his service-connected diabetes mellitus, type II. The Veteran stated at the March 2013 Board hearing that he was not claiming GERD directly related to his active service. See Board Hearing Tr. at 5. For secondary service connection to be granted, generally there must be (1) medical evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical nexus evidence establishing a connection between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). The Court has held that when aggravation of a veteran's nonservice-connected disability is proximately due to or the result of a service-connected disease or injury, it too shall be service connected for that degree of aggravation. See Allen v. Brown, 7 Vet. App. 439, 446 (1995); see also 38 C.F.R. § 3.310; 71 Fed. Reg. 52744-47 (Sept. 7, 2006). In February 2009, the Veteran was afforded a VA examination in response to his claim of entitlement to service connection for GERD. On examination, the Veteran was diagnosed with GERD, and the examiner opined that it was less likely than not related to the Veteran's diabetes mellitus, type II. The examiner, however, failed to provide a rationale for his opinion. Furthermore, the examiner did not consider whether the Veteran's diabetes mellitus, type II was aggravating his GERD. For these reasons, the Board found that this opinion was inadequate and remanded for a new examination. In July 2013, the Veteran was provided with a new examination, in which the examiner opined that his GERD was less likely than not related to his service-connected diabetes mellitus. As rationale, she noted that the Veteran's GERD predated the onset of his diabetes, and his obesity most likely caused his GERD. She also noted that there is no causal link between diabetes and GERD. She failed, however, to provide an opinion regarding aggravation. Therefore, the Board has determined that the Veteran should be afforded another VA opinion to address the aggravation aspect of this secondary service connection claim. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (noting that a remand by the Board confers upon the veteran, as a matter of law, the right to compliance with the remand instructions, and imposes upon VA a concomitant duty to ensure compliance with the terms of the remand). Accordingly, the case is REMANDED for the following actions: 1. Forward the Veteran's complete claims file to the same examiner who administered the July 2013 VA examination to determine the etiology of his GERD. The entire claims file, to include any relevant records contained in Virtual VA and VBMS, should be made available to and be reviewed by the examiner in conjunction with the evaluation. After a full review of the record, the examiner should provide opinions on the following question: Is it at least as likely as not (50 percent or greater) that GERD has been aggravated beyond the normal course of the condition by the Veteran's service-connected diabetes mellitus, type II? If this examiner is not available, the claims folder should be forwarded to another qualified medical practitioner. If deemed necessary, the Veteran should be scheduled for another appropriate examination. A comprehensive rationale must be provided for the opinion rendered. If the examiner cannot provide the requested opinion without resorting to speculation, he or she should expressly indicate this and provide a supporting rationale as to why the opinion cannot be made without resorting to speculation. 2. Thereafter, review the claims folder and ensure that the foregoing development action, as well as any other development that may be in order, has been conducted and completed in full. The requested opinion should be reviewed to ensure that it is in compliance with the directives of this remand. If the opinion is deficient in any manner, implement corrective procedures. 3. Thereafter, readjudicate the issue on appeal. If the benefit sought on appeal remains denied, provide the Veteran and his representative with a Supplemental Statement of the Case and afforded a reasonable opportunity to respond before returning the case to the Board for further appellate review. 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). _________________________________________________ Paul Sorisio 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).