Citation Nr: 1334182 Decision Date: 10/28/13 Archive Date: 11/06/13 DOCKET NO. 06-31 987A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New York, New York THE ISSUE Entitlement to service connection for gastritis (claimed as a gastrointestinal disorder). REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD A.M. Ivory, Counsel INTRODUCTION The Veteran had active service from September 1981 to May 1990. This matter came before the Board of Veterans' Appeals (Board) on appeal from a January 2006 decisions by the Department of Veterans Affairs (VA) St. Petersburg, Florida, Regional Office (RO). In August 2010 the Board reopened the Veteran's claim for entitlement to service connection for gastritis and remanded for further development. A review of the Virtual VA paperless claims processing system reveals only the September 2013 brief by the Veteran's representative. 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 the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. In August 2010 the Board remanded in order to afford the Veteran a VA examination. However, after a careful review of the Veteran's claims file the Board finds that an additional VA examination is warranted. The Board notes that in addition to the Veteran's active military service from September 1981 to May 1990 the Veteran had periods of service in the National Guard and Reserves and retired from the Reserves in July 2005. The Board notes that service connection may be granted for injury or disease incurred while on Active Duty for Training (ACDUTRA), full-time duty in the Armed Forces performed by Reserves for training purposes. 38 U.S.C.A. § 01(22). However, service connection may be granted for injuries incurred while on Inactive Duty for Training (INACDUTRA), but not for disease; INACDUTRA is defined as other than full-time training performed by Reserves. 38 U.S.C.A. § 101(23). The Board notes that the Veteran's point credit history, which details his dates of ACDUTRA and INACDUTRA, is associated with the Veteran's claims file. The Veteran's service treatment records show multiple complaints of gastrointestinal problems, including diarrhea, stomach cramping, nausea, vomiting, and acid reflux/regurgitation. These records also document diagnoses of gastroenteritis and gastritis. In July 1982 it was noted that the Veteran had complaints of nausea, vomiting, and diarrhea for one day; he was assessed with mild gastroenteritis. In September 1982 he was seen for complaints of vomiting, chills, and hot and cold spells; he was diagnosed with gastritis. In October 1984 he was assessed with resolving flu like symptoms after complaints of diarrhea. In June 1985 he had complaints of diarrhea and was diagnosed with enteritis. In September 1988 he was diagnosed with gastroenteritis and assigned to his quarters for 24 hours. He had complaints of diarrhea again in January 1989. On the Veteran's March 1990 Report of Medical Examination for Separation it was noted that he had recent gain or loss of weight. On a May 1999 Report of Medical History for Period Physical the Veteran checked yes to frequent indigestion and the physician stated that the Veteran had complaints of frequent indigestion/regurgitation and the Veteran used TUMS to decrease acid. In a June 2005 service treatment record for retirement it was stated that the Veteran had unusual fatigue and stomach problems. The Veteran's post-service medical records include March 2006 private treatment records that demonstrate a current diagnosis of GERD and show complaints of epigastric discomfort, problems swallowing, and epigastric pain. An April 2006 private treatment note likewise shows complaints of acid reflux with a diagnosis of gastritis. In October 2011 the Veteran was afforded a VA medical examination. The VA examiner opined that the Veteran's condition was at least likely as not related to the Veteran's military service. For the rationale the VA examiner stated: Review of C file finds SMR documentation of diagnoses of viral gastritis, viral syndrome, gastroenteritis. These were episodic, self limited acute illnesses, not chronic conditions and not symptomatic of a chronic condition. Report of Medical History dated 2 May 99 finds statements that veteran has "frequent indigestion/regurgitation- PT uses TUMS to [decrease] acid." Indigestion, regurgitation and acid were likely due to GERD and therefore GERD is likely related to military service. October 2011 VA Examination Report In November 2011 the RO sent the Veteran's claims file for a new medical opinion because the Veteran was not on active service on May 2, 1999, but was rather in the National Guard. The same VA examiner opined in November 2011 that the Veteran's claimed condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. For the rationale the VA examiner stated: Review of C file finds SMR documentation of diagnoses of viral gastritis, viral syndrome, gastroenteritis. These were episodic, self limited acute illnesses, not chronic conditions and not symptomatic of a chronic condition. No active duty documentation of GERD or symptoms related to GERD. November 2011 VA Examination Report The Board finds that the Veteran should be afforded a new VA examination by a different VA examiner. The October 2011 and November 2011 VA examination reports do not discuss the documented in-service symptoms nor is there a discussion if the Veteran's current diagnoses are related to his military service, including his ACDUTRA. Thus, the Board finds that the Veteran should be scheduled for a VA examination by a different VA examiner. Accordingly, the case is REMANDED for the following action: 1. The RO should obtain any outstanding, pertinent VA or private treatment records. 2. The RO should schedule the Veteran for a VA examination, by a different VA examiner than the October 2011 and November 2011 VA examiner, to determine the existence and etiology of any gastrointestinal disorder, to include GERD, gastroenteritis, and gastritis. The claims file should be made available for review in conjunction with the examination and the examiner's attention should be directed to this remand. All necessary tests should be accomplished. The VA examiner should identify all gastrointestinal disorders. For each gastrointestinal disorder, the VA examiner should determine if it is as least as likely as not (50 percent or greater probability) is due to any aspect of the Veteran's military service, including periods of ACDUTRA and active duty. The VA examiner should discuss the Veteran's documented gastrointestinal complaints in service and post service and provide an explanation as to why these symptoms are or are not related to any current diagnoses. The examiner should set forth all examination findings, along with the complete rationale for all conclusions reached. If an opinion cannot be given without resorting to mere speculation than the VA examiner must state so and further provide a reason for such conclusion. 3. The RO should review the claims file to ensure that all the foregoing requested development is completed, and, thereafter, arrange for any additional development indicated. The RO should then readjudicate the claim on appeal. If any benefit sought remains denied, the RO should issue an appropriate SSOC (Supplemental Statement of the Case) and provide the Veteran and her representative the requisite time period to respond. The case should then be returned to the Board for further appellate review, if otherwise in order. No action is required of the appellant unless he is notified. The purposes of this remand are to ensure notice is complete, and to assist the Veteran with the development of his claims. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). No action is required of the appellant until further notice. The Board takes this opportunity to advise the appellant that the conduct of the efforts as directed in this remand, as well as any other development deemed necessary, is needed for a comprehensive and correct adjudication of his claims. His cooperation in VA's efforts to develop his claims, including reporting for any scheduled VA examination, is both critical and appreciated. The appellant is also advised that failure to report for any scheduled examination may result in the denial of a claim. 38 C.F.R. § 3.655. 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). _________________________________________________ MARJORIE A. AUER 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).