Citation Nr: 1335118 Decision Date: 11/01/13 Archive Date: 11/13/13 DOCKET NO. 10-27 610 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUES 1. Entitlement to service connection for tonsillitis. 2. Entitlement to service connection for gastrointestinal reflux disease (GERD) (also claimed as heartburn, gastrointestinal problems and shrunken esophagus). 3. Entitlement to service connection for a psychiatric disorder, to include major depression. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD A. Fagan, Associate Counsel INTRODUCTION The Veteran had active service from August 1967 to May 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Pittsburgh, Pennsylvania. In March 2011, the Veteran testified at a Travel Board hearing. At the hearing, the Veteran submitted additional evidence with a waiver of initial RO consideration. See 38 C.F.R. § 20.1304 (2013). In June 2011, the Board remanded the appeal for additional development. The issue of service connection for GERD is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required on his part. FINDINGS OF FACT 1. The most probative evidence indicates that the Veteran does not currently suffer from a diagnosed tonsil disability related to service. 2. A current psychiatric disorder, variously diagnosed as major depressive disorder, depression, and mood disorder not otherwise specified, is not due to the Veteran's period of service. CONCLUSIONS OF LAW 1. The criteria for establishing service connection for tonsillitis have not been met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2013). 2. The criteria for establishing service connection for a psychiatric disorder have not been met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Veterans Claims Assistance Act The Veterans Claims Assistance Act (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2012)) redefined VA's duty to assist the appellant in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2013). The notice requirements of the VCAA require VA to notify the Veteran of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, the VA will attempt to obtain. 38 C.F.R. § 3.159(b). The requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between the Veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO). Id; see also Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, insufficiency in the timing or content of VCAA notice is harmless if the errors are not prejudicial to the claimant. Conway v. Principi, 353 F.3d 1369, 1374 (Fed. Cir. 2004) (VCAA notice errors are reviewed under a prejudicial error rule). In a July 2009 letter issued prior to the decision on appeal, VA notified the Veteran of the information and evidence needed to substantiate his claims of entitlement to service connection, to include notice of what part of that evidence is to be provided by the Veteran and what part VA will attempt to obtain. That letter also informed the Veteran of how disability evaluations and effective dates are assigned. The claim was readjudicated in the April 2012 supplemental statement of the case. As to the duty to assist, VA obtained service treatment records and VA treatment records. The Veteran has not indicated there are any additional available records that VA should seek to obtain on his behalf. VA has provided the Veteran with examinations in connection with his tonsillitis and psychiatric claims. The respective July 2011 medical opinions provided are adequate for adjudicative purposes. The examiners reviewed the claims file, discussed the pertinent evidence of record, and provided rationales for the ultimate conclusions. Additionally, the prior remand instructions were substantially complied with. Instructions pertinent to the claim being decided included obtaining ongoing VA treatment records and scheduling the Veteran for VA examinations. In response, ongoing VA treatment records were obtained in April 2012, and the Veteran was afforded VA examinations in July 2011. All of the actions previously sought by the Board through its prior development request have been, where possible, completed as directed. See Stegall v. West, 11 Vet. App. 268, 270-71 (1998). Following remand and development, a supplemental statement of the case (SSOC) was issued the April 2012, which continued the previous denials. Finally, the Veteran provided relevant testimony during a March 2011 hearing before the undersigned Veterans Law Judge (VLJ). In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. § 3.103(c)(2) requires that the hearing officer who chairs a hearing fully explain the issues and suggest the submission of evidence that may have been overlooked. Bryant v. Shinseki, 23 Vet. App. 488 (2010). Here, the VLJ identified the issues on appeal and asked the Veteran to identify evidence relevant to the claims. Furthermore, the VLJ asked specific questions directed at identifying whether the Veteran met the criteria for service connection, and the Veteran testified as to his history of treatment and relevant symptoms since service. The Veteran is not shown to be prejudiced and the Board finds that no further action pursuant to Bryant is necessary. As discussed above, the VCAA provisions have been considered and complied with. The Veteran was notified and aware of the evidence needed to substantiate his claims, the avenues through which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence. The Veteran was an active participant in the claims process by providing evidence and argument. Thus, he was provided with a meaningful opportunity to participate in the claims process and has done so. Any error in the sequence of events or content of the notices is not shown to have any effect on the case or to cause injury to the Veteran. Therefore, any such error is harmless and does not prohibit consideration of these matters on the merits. See Dingess, supra; see also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). II. Service Connection The Board has reviewed all the evidence in the Veteran's paper and electronic claims files. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2013). Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a chronic condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. § 3.303(b); see also Walker v. Shinseki, 708 F.3d 1331, 1340 (Fed.Cir.2013) (holding that only conditions listed as chronic diseases in § 3.309(a) may be considered for service connection under 38 C.F.R. § 3.303(b) (2012). Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). For certain chronic disorders, including psychoses, service connection may be presumed to have been incurred in service if the disease becomes manifest to a compensable degree within one year following separation from service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309. Depression, however, does not constitute psychoses for which service connection may be granted on a presumptive basis. Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table). Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability. See 38 U.S.C.A. §§ 1110; 1131. In the absence of proof of present disability there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); see also Degmetich v. Brown, 104 F.3d 1328 (1997) (38 U.S.C.A. § 1131 requires existence of present disability for VA compensation purposes); see also Wamhoff v. Brown, 8 Vet. App. 517, 521 (1996). In adjudicating a claim for VA benefits, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). A. Tonsillitis Following a review of the record, the Board finds that service connection for tonsillitis is not warranted. Service treatment records show that on report of medical history completed in April 1967, the Veteran indicated that he was advised to have his tonsils removed. The examiner noted that the Veteran's tonsils were not out. It was also noted that they were said to be enlarged. On entrance examination conducted in April 1967, the Veteran's mouth and throat were evaluated as normal. The records show that the Veteran received treatment for tonsillitis in February 1969. In March 1969, he was noted to have hypertrophic tonsils on physical examination. On report of medical history completed in May 1969, the Veteran indicated in the affirmative that he had ear, nose or throat trouble. On discharge examination conducted in May 1969, the Veteran's mouth and throat were evaluated as normal. Post-service VA treatment records dated from March 2000 through March 2012 are negative for treatment or diagnosis of tonsillitis or any chronic tonsil disorder. In August 2000, the Veteran reported on review of systems that he "still has large tonsils," and tonsils were noted to be prominent on physical examination. However, neither tonsillitis nor any other tonsil disability was diagnosed at that time. In 2010, the Veteran reported to VA clinicians that he has had problems with swollen glands for years which comes and goes, and sometimes he gets a sore throat with it. In January 2011, the Veteran reported a chronic sore throat, stating that his throat still bothers him once in a while. It was noted that he did not keep a prior ears, nose, and throat (ENT) appointment. Physical examination of the throat revealed diffuse erythema of the pharynx, and the right tonsillar area appeared to be confluent with his uvula. The provider assessed chronic sore throat in smoker, and recommended a CT scan. However, subsequent treatment records do not show that the Veteran followed up with that recommendation. During his March 2011 Board hearing, the reiterated that he has had problems with his glands swelling and stated that he has had problems ever since service. The Veteran was afforded a VA examination in July 2011, during which the examiner noted the Veteran's history of tonsillitis during service. The Veteran denied specific throat complaints at the time of the examination, including discharge or pustules in the throat, and further denied any history of surgery in the pharynx or tonsillar abscess formation requiring medical treatment. He had not been on antibiotics recently, nor had he been on chronic antibiotics for known upper respiratory infections. The examiner noted that there were no specific proven recurrent tonsillitis problems over the years. Physical examination revealed normal pharynx and normal uvula. There was no erythema or swelling, nor were there signs of obstruction. The examiner diagnosed normal nose, sinus, larynx, and pharynx, and no sign of recurrent tonsillitis. He further found that there was no current or residual disability from the Veteran's bout of tonsillitis in service. The Board finds the July 2011 opinion to be the most probative evidence of record. The opinion was based on a review of the claims file, physical examination of the Veteran, and medical expertise. Prejean v. West, 13 Vet. App. 444 (2000) (factors for assessing the probative value of a medical opinion include the physician's access to the claims folder and the Veteran's history, and the thoroughness and detail of the opinion). Moreover, the opinion is consistent with over 10 years of VA treatment records, which are negative for a diagnosis of tonsillitis. Significantly, there are no contrary medical opinions of record. The Board acknowledges the Veteran's March 2011 Travel Board hearing testimony, as well as his lay statements in support of his claim. Further, while he is competent to testify as to his symptoms, as a lay person, he is not competent to diagnose such symptoms as tonsillitis, as such matter requires medical testing and training to determine. Accordingly, his opinion as to the diagnosis or etiology of tonsillitis is not competent medical evidence. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis). The Board finds the VA examiner's opinion is significantly more probative than the Veteran's lay assertions. In short, the VA examiner has concluded that there is no objective evidence to substantiate a current or chronic tonsil disability, and available treatment records do not show otherwise. To the extent that the Veteran contends that he suffers from throat pain, pain alone is not a disability for which service connection may be granted. See Sanchez-Benitez v. West, 13 Vet. App. 282, 285 (1999), appeal dismissed in part, vacated and remanded in part sub nom. Sanchez-Benitez v. Principi, 259 F.3d 1356 (Fed. Cir. 2001). Even if, arguendo, the Board were to accept his statements at face value, there remains no competent evidence that he currently suffers from tonsillitis or a tonsil disability, and "in the absence of proof of a present disability, there can be no valid claim." Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Furthermore, the examiner found no residuals of the in-service tonsillitis. In the absence of a currently diagnosed tonsil disability, there is no reasonable basis to establish service connection. See Degmetich, 104 F.3d 1328 (38 U.S.C.A. § 1131 requires existence of present disability for VA compensation purposes). The evidence in this case is not so evenly balanced so as to allow application of the benefit-of-the-doubt rule as required by law and VA regulations. See 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102. The preponderance is against the Veteran's claim, and therefore, his claim for service connection must be denied. B. Psychiatric Disorder The Veteran contends that he suffers from a psychiatric disorder that manifested in or is otherwise related to service. In testimony before the Board and in statements made during VA treatment, the Veteran has asserted psychiatric problems related to an incident in service during which a friend committed suicide or, alternatively, attempted suicide. Service treatment records show that in November 1967, the Veteran received mental health treatment during advanced infantry training. He reported feeling depressed and not liking the Army; he wanted to get away, "even if it amounted to taking a few pills." He was diagnosed with an acute situational reaction manifested by sullenness, pessimism, sadness, underlying hostility and dependency, and low frustration tolerance. Subsequent service treatment records are silent for mental health complaints or treatment. The Veteran reported a history of depression or excessive worry on his May 1969 separation examination, specifically noting treatment in November 1967 for depression. However, no psychiatric diagnosis was rendered at the time of separation, and the separation examiner indicated that psychiatric evaluation was normal. Post-service VA treatment records show treatment for depression beginning around August 2010. At that time, the Veteran reported "a lot of memories from Vietnam" and stated that a buddy of his committed suicide over there. He also reported a general change of personality after being in the military. He stated that he has carried negative feelings about his time in the military throughout his adult life. He was initially assessed with mood disorder NOS. During a subsequent intake examination also in August 2010, the Veteran denied exposure to combat or traumatic experiences. However, he indicated that he hated the military, was unable to tolerate what was going on in the military service, and had no interest in being in the military but was drafted. He also reported marital difficulties, a history of job instability, and a history of physical abuse from his father. A VA psychologist diagnosed rule out major depressive disorder, secondary to multiple life issues and stressors, and partner relationship problem. During subsequent individual psychotherapy treatment for major depression, the Veteran self-reported a long history of depression beginning with being drafted in 1967. He further reported financial strain, job instability, and a history of physical abuse from his father. An assessment was made of depression linked to unresolved past traumatic and other current life events. Subsequent VA treatment records dated through March 2012 show that the Veteran did not follow-through with mental health treatment and, by September 2011, had reported that his depression was improved. Significantly, records dated prior to August 2010 are essentially negative for psychiatric complaints and, in fact, show that the Veteran consistently denied psychiatric symptoms upon prompting for depression, mood disorder, and/or PTSD screenings. In March 2011, the Veteran testified during a Board hearing that a friend who was in basic training with him, P.W., cut his wrists and was subsequently discharged from service. He testified that he did not see P.W. do it, but saw the bandages and talked with him afterwards. He then thought about cutting his own wrists because he wanted out too, but could not do it. When asked if he believed that his current depression is related to that incident, the Veteran stated that he still thinks about P.W. a lot. The Veteran was afforded a VA mental disorders examination in July 2011, during which he reported his history of in-service observation for depression in November 1967. He denied any type of combat or traumatic events in the military, but reported that he was unhappy with and did not want to be in the military. He indicated that he thought about hurting himself in order to get out of the service since one of his bunkmates had attempted to cut his wrists and was given a General discharge. He stated that the military was one of the worst experiences of his life. He denied formal psychiatric treatment in service following his observation stay. Nor had he received any treatment for psychiatric conditions since service. The examiner noted that, while the Veteran underwent initial VA treatment in August 2010, he did not follow through with treatment. The examiner further noted that in August 2010, the Veteran reported severe marital difficulties and depression and anxiety related to financial troubles, job security, and marital problems. The Veteran openly acknowledged to the VA examiner that there was nothing going on in his life that could logically be related to the fact that he had a bad time in the military. Following a review of the claims file, available medical records, and the foregoing clinical evaluation, the July 2011 VA examiner opined that the Veteran's current psychiatric disability is in not in any way related to his military service, did not arise in service, and is not otherwise related to an incident in service. The examiner found that the Veteran's in-service acute situational reaction related to not wanting to be in the military had resolved, noting that the Veteran was able to continue in service and obtain an honorable discharge. The examiner further found that the Veteran's current psychiatric disorder, diagnosed as recurrent major depressive disorder, was not related to service but instead, to depression and anxiety associated with life circumstances. He pointed out that during an August 2010 VA intake examination, the Veteran's complaints related to marital difficulties, finances, and job security. The examiner noted that while the Veteran described his time in the military as being very uncomfortable, irritating, and aggravating, he did not relate his depression to having been in the military. After a careful review of the evidence, the Board finds that service connection for a psychiatric disorder is not warranted. Here, the medical evidence of record does not establish a direct connection between any currently diagnosed psychiatric disorder, including major depressive disorder, and service, to include treatment for an acute situational reaction therein. The July 2011 VA opinion, indicating that the Veteran's current psychiatric disorder is not related to service, provided an adequate rationale that was based on a review of treatment records, the Veteran's account of symptomatology and treatment, clinical evaluation, current diagnoses, as well as medical expertise. Accordingly, the Board affords it significant probative value. Prejean v. West, 13 Vet. App. 444 (2000) (factors for assessing the probative value of a medical opinion include the physician's access to the claims folder and the Veteran's history, and the thoroughness and detail of the opinion). Significantly, there is no contrary medical evidence of record. Additionally, that July 2011 VA opinion is consistent with other evidence of record. For instance, during August 2010 VA mental health treatment, the Veteran reported stressors related to financial strain, marital difficulties, job instability, and physical abuse in childhood by his father. He was assessed with rule-out major depressive disorder secondary to multiple life issues and stressors, and depression linked to unresolved past traumatic and other current life events. The Board acknowledges that the Veteran has asserted that his current psychiatric disorder is related to service. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issue in this case, a psychiatric disability falls outside the realm of common knowledge of a lay person. In this regard, while the Veteran can competently report the onset and symptoms of a psychiatric disorder, any actual diagnosis of a psychiatric disorder requires clinical evaluation and/or objective testing to diagnose, and can have many causes. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis). Moreover, whether symptoms the Veteran experienced in service or following service are in any way related to any current psychiatric disorder requires medical expertise to determine. See Clyburn v. West, 12 Vet. App. 296, 301 (1999) ("Although the veteran is competent to testify to the pain he has experienced since his tour in the Persian Gulf, he is not competent to testify to the fact that what he experienced in service and since service is the same condition he is currently diagnosed with."). To the extent that the Veteran himself believes that he has a current psychiatric disorder that is due to service, as a lay person, he is not shown to possess any specialized training in the medical field. The Veteran's opinion as to the etiology of his claimed current psychiatric disorder is not competent medical evidence, as such question requires medical expertise to determine. Id. In any event, the Board concludes that the medical evidence, which fails to show a nexus between a current psychiatric disorder and the Veteran's service, is of greater probative value than the lay contentions of the Veteran. Furthermore, to the extent that the Veteran asserts that his current psychiatric symptoms have been recurring since in service, the Board finds the Veteran's assertions not credible, notwithstanding the fact that service connection cannot be established based on continuity of symptomatology for diagnosed depression. In this regard, the Veteran was not treated for psychiatric problems in service after his November 1967 episode, and while he reported a history of depression or excessive worry on his May 1969 separation examination, he specifically noted a history of depression in November 1967. Regardless, the Veteran routinely and affirmatively denied depression or depressive symptoms during VA treatment prior to August 2010. For example, VA treatment records dated in March 2000, November 2001, March 2003, May 2004, May 2005, September 2006, January 2008, January 2009, and February 2010, show negative depression and/or PTSD screens based on the Veteran's responses to questions involving the presence of symptoms such as feeling down, feeling depressed, restless sleep, nightmares, fear, hopelessness, or having little interest or pleasure in doing things. The Board acknowledges that the Veteran reported a history of depression since service during his initial August 2010 VA mental health intake evaluation; however, that assertion is belied by his consistent prior denials of depressive symptoms. That statement was also offered after the Veteran filed his June 2009 claim for service connection and the Board accords it less probative value than his reports made in furtherance of treatment prior to August 2010. See Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) (VA cannot ignore a veteran's testimony simply because the veteran is an interested party; personal interest may, however, affect the credibility of the evidence). The Board finds it likely that had the Veteran a 40-year history of depression, he would have reported such symptoms when provided the opportunity to and specifically prompted during VA treatment dated from March 2000 to August 2010. See AZ v. Shinseki, No.2012-7046, 2013 WL 5420978, at *9-11 (Fed. Cir. Sept. 30, 2013) (recognizing the widely held view that the absence of an entry in a record may be considered evidence that the fact did not occur if it appears that the fact would have been recorded if present). The Board also acknowledges the Veteran's testimony that a friend in service cut his wrists in an attempt to get out of service. To the extent that that testimony was offered to establish a traumatic event in service, the Board finds the testimony not credible. The Veteran expressly denied experiencing traumatic events in service during August 2010 VA treatment and during his July 2011 VA examination. Moreover, the Veteran's statements regarding the actual incident are somewhat lacking in credibility as they are internally inconsistent. For instance, upon seeking initial VA mental health treatment in August 2010, the Veteran reported that he had thoughts of Vietnam where his buddy "committed suicide." Notwithstanding the fact that the Veteran served in Korea and has not otherwise alleged Vietnam service, the Veteran subsequently testified in March 2011 that his friend cut his wrists but survived and was discharged from service. Given the foregoing, the Board accords little probative weight to the Veteran's lay statements in general, including statements offered regarding the course of his psychiatric symptoms. See Buchanan v. Nicholson, 451 F.3d 1331, 1336-1337 (2006) (the lack of contemporaneous medical records, the significant time delay between the affiants' observations and the date on which the statements were written, and conflicting statements of the veteran are factors that the Board can consider and weigh against a veteran's lay evidence). The foregoing notwithstanding, there continues to be no medical opinion relating the Veteran's current psychiatric disorder to his period of active service. Thus, even if the Veteran's assertions of in-service and post-service symptomatology are true, the assertions do not substantiate his claim for service connection for his currently-diagnosed major depressive disorder. As previously noted, the Veteran is not competent to create the requisite nexus between his current psychiatric disorder and service. In summary, the preponderance of the evidence is against service connection for a psychiatric disorder. As such, the benefit of the doubt doctrine does not apply and the claim must be denied. 38 C.F.R. § 3.102. ORDER Service connection for tonsillitis is denied. Service connection for a psychiatric disorder is denied. REMAND After a review, the Board observes that further development is required prior to adjudicating the Veteran's claim for service connection for GERD. Pursuant to the Board's prior remand, the Veteran was afforded a VA gastrointestinal disorder examination in July 2011. The examiner opined that the Veteran's GI condition preexisted service and did not worsen beyond the normal progression of the disorder during service. In support of that conclusion, the examiner stated that the Veteran "had indigestion prior to military service and had taken antacids." However, that statement is seemingly contradicted by the Veteran's April 1967 entrance examination report which notes that, while the Veteran did have a history of indigestion, he had none in the last two months and "had never required medication" for his condition. The Board also notes out that service treatment records associated with the Veteran's claims file include service treatment records relevant to a GI condition belonging to a different veteran. Given the foregoing evidence suggesting that the examiner relied on an inaccurate factual premise in formulating his opinion, the Board finds that a new opinion is necessary that considers only this Veteran's service treatment records and is based upon an accurate factual predicate. Also on remand, further efforts should be made to obtain potentially outstanding relevant service treatment records. In this regard, available service treatment records show that in October 1967, an upper GI series was recommended, and in November 1967, x-rays of the Veteran's stomach were made at Fort Gordon. However, the results of those diagnostic tests are not of record. Accordingly, remand is necessary to ensure that any potentially outstanding relevant service treatment records are associated with the claims file. Finally, relevant ongoing medical records should also be obtained, to include any VA treatment records. 38 U.S.C.A. § 5103A(c) (West 2002); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim). Accordingly, the case is REMANDED for the following action: 1. Contact the National Personnel Record Center, Fort Gordon, and/or any other appropriate facility, and request outstanding service treatment records relating to gastrointestinal-related diagnostic testing performed on the Veteran during service, to include an upper GI series and/or stomach x-rays. If any requested records are unavailable, then the file should be annotated as such and the Veteran should be so notified. 2. Ask the Veteran to provide the names, addresses, and approximate dates of treatment of all health care providers, both VA and private, who have treated him for any gastrointestinal disorder. After securing any necessary releases, the RO/AMC should request any records identified which are not duplicates of those contained in the claims file. If any requested records are unavailable, then the file should be annotated as such and the Veteran should be so notified. In addition, obtain all relevant ongoing VA treatment records dating since March 2012 from the VA Medical Center in Pittsburgh, Pennsylvania. 3. Then, return the claims file to the VA examiner who performed the July 2011 VA esophagus and hiatal hernia examination, if available, to obtain an opinion as to whether any gastrointestinal disorder is related to service. If the July 2011 examiner is not available, the Veteran's claim folder should be reviewed by another appropriate examiner. The claims file must be provided to and be reviewed by the examiner in conjunction with the examination. Following review of the claims file, to include review of currently associated service treatment records, the examiner should provide opinions as to the following questions: a) Is it at least as likely as not (50 percent probability or greater) that a current gastrointestinal disorder, to include GERD arose during service or is otherwise related to any incident of service, taking into account the in-service complaints of stomach pain and epigastric distress? b) Did any gastrointestinal disorder clearly exist prior to active service? If so, did the disorder undergo a permanent worsening beyond normal progression (aggravation) in service? If so, is any current gastrointestinal disorder related to that aggravation in service? A rationale for all opinions expressed should be provided. 4. After the development requested above as well as any additional development deemed necessary has been completed, the record should again be reviewed. If the benefit sought on appeal remains denied, then the Veteran and his representative should be furnished with a supplemental statement of the case and be given the opportunity to respond thereto. The case should then be returned to the Board for further appellate consideration, if in order. The Veteran 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. A. BANFIELD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs