Citation Nr: 1335917 Decision Date: 11/05/13 Archive Date: 11/13/13 DOCKET NO. 09-03 998 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to service connection for a right shoulder disability. 2. Entitlement to service connection for acid reflux. REPRESENTATION Appellant represented by: Georgia Department of Veterans Services ATTORNEY FOR THE BOARD A.J. Turnipseed, Counsel INTRODUCTION The Veteran served on active duty from October 1967 to November 1970. This matter comes before the Board of Veterans' Appeals (Board) from a January 2007 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) above. This appeal was previously before the Board in August 2012, at which time the Board remanded the claims listed above to the RO, via the Appeals Management Center (AMC) in Washington, DC, for further evidentiary development. All requested development has been conducted and the appeal has been returned to the Board for further consideration. In May and August 2013, the Veteran submitted additional medical evidence directly to the Board, with a waiver of initial RO consideration of the evidence. Accordingly, this evidence is accepted for inclusion in the record on appeal. See 38 C.F.R. §§ 20.800, 20.1304 (2012). For reasons explained below, the issue of service connection for acid reflux 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. FINDINGS OF FACT 1. Right shoulder arthritis was not present within the first post-service year. 2. The most competent, credible, and probative evidence of record establishes that any current right shoulder arthritis is not of any clinical significance. 3. The most competent, credible, and probative evidence of record preponderates against a finding that the Veteran's current right shoulder disability, specifically diagnosed as adhesive capsulitis, was incurred in service or is otherwise casually related to active military service. CONCLUSION OF LAW The criteria for service connection for a right shoulder disability are not met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION VA's Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). Proper notice from VA must inform the claimant of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In addition, the notice requirements of the VCAA apply to all elements of a service-connection claim, including: (1) Veteran status; (2) existence of a disability; (3) a connection between the Veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. VCAA notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). Where complete notice is not timely accomplished, such error may be cured by issuance of a fully compliant notice, followed by readjudication of the claim. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant VCAA notification followed by readjudication of the claim, such as a statement of the case or supplemental statement of the case, is sufficient to cure a timing defect). In the instant case, the Board finds that VA has satisfied its duty to notify under the VCAA. Specifically, an April 2006 letter, sent prior to initial unfavorable AOJ decision issued in January 2007, advised the Veteran of the evidence and information necessary to substantiate his service connection claims, as well as his and VA's respective responsibilities in obtaining such evidence and information. Additionally, the April 2006 letter also informed him of the information and evidence necessary to establish a disability rating and an effective date in accordance with Dingess/Hartman, supra. As such, the Board finds that the Veteran has been provided all required notice. Next, VA has a duty to assist the Veteran in the development of the claims. This duty includes assisting him in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). The claims file contains the Veteran's service treatment records, as well as post-service reports of private and VA treatment. In the August 2012 remand, the RO/AMC was directed to afford the Veteran a VA examination to address right shoulder disability. This was done in February 2013. The examination was conducted in accordance with VA regulations and was otherwise adequate. In sum, the Board finds that there was substantial compliance with the February 2013 remand directives. See Stegall v. West, 11 Vet. App. 268 (1998; D'Aries v. Peake, 22 Vet. App. 97, 104 (2008). In addition, as noted, a review of the Virtual VA paperless claims processing system includes additional VA treatment records that were considered in the most recent SSOC issued in July 2013. Moreover, the Veteran's statements in support of his claims are of record. The Board has carefully reviewed such statements and concludes that no available outstanding evidence has been identified. The Board has also perused the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the Veteran's appeal. The Board notes that the Veteran was also provided with two VA medical examinations in conjunction with his claim of service connection for a right shoulder disability. See VA examination reports dated September 2009 and February 2013. There is, however, no indication or allegation that the examination or opinion is inadequate to adjudicate the right shoulder claim. As such, the Board concludes that no further examination is necessary is conjunction with that claim. For the above reasons, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). Indeed, VA has satisfied its duty to inform and assist the Veteran at every stage in this case, at least insofar as any errors committed were not harmful to the essential fairness of the proceeding. Therefore, he will not be prejudiced as a result of the Board proceeding to the merits of his claim. Analysis Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection requires competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Depending on the evidence and contentions of record in a particular case, lay evidence can be competent and sufficient to establish a diagnosis and medical etiology of a condition. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009), Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Alternatively, service connection may be established under 38 C.F.R. § 3.303(b) by (a) evidence of (i) the existence of a chronic disease in service or during an applicable presumption period under 38 C.F.R. § 3.307 and (ii) present manifestations of the same chronic disease, or (b) when a chronic disease is not present during service, evidence of continuity of symptomatology. With respect to continuity of symptomatology, the Court of Appeals for Veterans Claims (Court) recently held that, under 38 C.F.R. § 3.303(b), the theory of continuity of symptomatology is an alternative route to establish service connection for specific chronic diseases and can only be used in cases involving those conditions explicitly recognized as chronic under 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The Board will evaluate the claims herein with this holding in mind. In this context, service connection for certain chronic disorders, including arthritis, will be rebuttably presumed to have been incurred in or aggravated by service if manifested to a compensable degree within a specified period of time following active service, e.g., one year for arthritis. 38 U.S.C.A. § 1110, 1137; 38 C.F.R. §§ 3.307, 3.309. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Review of the record reveals the Veteran has a current diagnosis of adhesive capsulitis affecting the right shoulder. See February 2013 VA examination report. Accordingly, the first element of service connection is established. In this context and at the outset, the Board notes that there is radiographic evidence of degenerative changes in the acromioclavicular (AC) and glenohumeral joints of the right shoulder. See March 2008 x-ray report; February 2013 VA examination report; see also November 2004 statement from Dr. W.C. Despite the foregoing, the February 2013 VA examiner stated that the right shoulder arthritis is not of clinical significance, as the AC joint is not the location of the pain currently reported by the Veteran. See February 2013 VA examination report. Indeed, as discussed in detail below, the preponderance of the evidence shows that the Veteran's right shoulder pain is related to his diagnosed cervical spine degeneration and not localized to his right shoulder joint in particular. In addition, the Board notes that the evidence of record does not establish that the Veteran manifested arthritis in the right shoulder during his first post-service year; nor does the evidence competently or credibly establish that any arthritis currently manifested in the right shoulder is due to any incident, event, or disease incurred in service. Therefore, because the preponderance of the evidence establishes that the Veteran's current right shoulder arthritis is of no clinical significance and does not otherwise establish that arthritis was incurred in or as a result of service, the Board will not consider whether service connection is warranted for arthritis of the right shoulder, to include on a presumptive basis as a chronic disability. The Veteran seeks service connection on the theory that his current right shoulder disability - specifically diagnosed as adhesive capsulitis - is related to his military service. He has asserted that his disability resulted from carrying ammunition boxes on both shoulder while in the field in Vietnam. In this regard, he has specifically described carrying one box one each shoulder, as well as on the back of his neck, which resulted in neck and shoulder pain. He has also attributed his current disability to the difficult living conditions in the field in Vietnam, with prolonged, ongoing exposure to excess hot or cold or wet conditions. See statements from the Veteran dated August 2005, June 2006, and April 2009. The service treatment records (STRs) do not contain any complaints, treatment, or findings related to a right shoulder injury or disability incurred during service. Nevertheless, the Veteran is competent to report the events that occurred during service. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) ("Competent lay evidence" is evidence provided by a person who has personal knowledge derived from his own senses). In addition, in the case of any Veteran who has engaged in combat with the enemy in active service during a period of war, satisfactory lay or other evidence that an injury or disease was incurred or aggravated in combat will be accepted as sufficient proof of service connection if the evidence is consistent with the circumstances, condition or hardships of such service, even though there is no official record of such incurrence or aggravation. See 38 U.S.C.A. § 1154(b); 38 C.F.R. § 3.304(d); see also Collette v. Brown, 82 F.3d 389, 392 (1996). In this case, the Veteran's assertions of conditions in Vietnam and of his duties carrying ammunition are supported by submitted statements by fellow soldiers, by the Veteran's own statements, and by submitted photographs from the Veteran's service in Vietnam. As a result, his assertions are conceded as consistent with the circumstances and hardships of his wartime experience. 38 U.S.C.A. § 1154(a), (b) (2012). In addition, the Veteran's service Form DD 214 reflects that he received a Combat Action Ribbon for his service in Vietnam. As such, the Veteran's report of injuring his right shoulder as a result of carrying ammunition boxes in service must be considered competent lay evidence of such, even if the STRs do not contain any complaints, treatment, or findings of any such right shoulder injury or disability. Nevertheless, the reduced evidentiary burden of 38 U.S.C.A. § 1154(b) applies only to the question of service incurrence and not to the question of a nexus to service. See Libertine v. Brown, 9 Vet. App. 521, 522-23 (1996). Section 1154(b) does not establish service connection for a combat Veteran. Instead, section 1154(b) aids a combat Veteran by relaxing the adjudicative evidentiary requirements for determining what happened in service. A Veteran still must establish his claim by competent evidence tending to show a current disability and a nexus between that disability and those service events. See Gregory v. Brown, 8 Vet. App. 563, 567 (1996); see also Kessel v. West, 13 Vet. App. 9, 17-19 (1999). In this case, while there is current evidence of a right shoulder disability and lay evidence of an in-service shoulder injury, the Board finds the most competent, credible, and probative evidence of record preponderates against a finding that the Veteran's current right shoulder disability is related to his military service. At the outset, the Board notes that, while there is competent evidence of an in-service shoulder injury, clinical evaluation of the Veteran's upper extremities was consistently normal throughout service, without any subjective or clinical evidence of right shoulder pain or disability, including at separation from service in November 1970. See reports of medical examination dated May 1967, August 1968, and November 1970. As such, a chronic right shoulder disability was not shown during service or at separation from service. Nevertheless, the Veteran has reported having shoulder difficulties since service. See June 2006 statement from the Veteran; September 2009 VA examination report. This evidence, while competent and relevant to the present appeal, is not considered probative in determining whether the current right shoulder disability is related to service. Indeed, while there is competent lay evidence of continued right shoulder symptoms after service, the evidence does not show that the Veteran's symptoms have resulted in a diagnosis of arthritis (as discussed above) or any other conditions explicitly recognized as chronic under 38 C.F.R. § 3.309(a). As such, any assertion of continuity of symptomatology is insufficient to support the grant of service connection in this case. See Walker v. Shinseki, supra. The Veteran has asserted that he sought treatment for his right shoulder in September 1986 from a private physician, Dr. J.A.G.; however, Dr. J.A.G. has informed VA that the Veteran is not in his system and, thus, there is no contemporaneous medical evidence of the treatment provided in the 1980s or the diagnosis rendered at that time. In this regard, while the Veteran is competent to report that he was treated for shoulder problems in the 1980s, his assertions in this regard are not accepted as a competent diagnosis of a right shoulder disability at that time. The Court has held that lay persons are not are not generally competent to render an opinion regarding the diagnosis or etiology of a disease or injury. See Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). Nevertheless, lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). In this case, however, the Board notes that a right shoulder disability, such as adhesive capsulitis and arthritis, are not the types of disabilities that are capable of lay observation, as a diagnosis of any such disability is medical in nature and requires clinical testing. It is not argued or shown that the Veteran is qualified through specialized education, training, or experience to render a diagnosis of a cervical spine disability. Therefore, the Veteran is not considered competent to identify a right shoulder disability, including adhesive capsulitis or arthritis. In addition, there is no medical evidence of record that shows the "shoulder problems" experienced by the Veteran in the 1980s were diagnosed as or attributed to an actual right shoulder disability. See Sanchez-Benetez v. West, 13 Vet. App. 282 (1999), appeal dismissed in part and vacated and remanded in part sub nom. Sanchez-Benitez v. Principi, 259 F.3d 1356 (Fed. Cir. 2001) (holding that mere "pain alone, without a diagnosed or identifiable underlying malady or condition, does not in and of itself constitute a disability for which service connection may be granted"). Moreover, as noted, there is no contemporaneous medical evidence of a chronic right shoulder disability during service or for several years thereafter. Therefore, based on the foregoing, the Board finds the Veteran's lay assertions are not competent to establish a diagnosis of a right shoulder disability during the 1980s. See Jandreau, supra. The first time the Veteran is shown to have a chronic right shoulder disability is in approximately 2004, more than 30 years after he was separated from service. See November 2004 statement from Dr. E.W. This gap of more than 30 years in the record militates against a finding that the in-service shoulder injury resulted in a chronic right shoulder disability during service and also rebuts any assertion of continuity of symptomatology since service. See Maxson v. West, 12 Vet. App. 453 (1999). This evidence also preponderates against the grant of service connection of a presumptive basis, as the evidence does not show the Veteran manifested right shoulder arthritis to a compensable degree during his first post-service year. See 38 U.S.C.A. § 1101, 1112, 1113, 1137; 38 C.F.R. § 3.307, 3.309(a). In evaluating this claim, the Board finds probative that there is no medical evidence or opinion of record which relates the Veteran's current right shoulder disability to military service. Instead, the preponderance of the evidence establishes that the current right shoulder disability is a result of his post-service employment or, in the alternative, to his non-service-connected cervical spine disability. The evidence shows that, when the Veteran sought treatment for his shoulder problems in November 2004, he reported having a history of shoulder pain, especially with abduction. While Dr. E.W. noted the Veteran had right shoulder arthritis, he also noted, however, that there was no direct trauma to the joint and that the Veteran worked as a mail handler. Notably, in February 2008, Dr. E.W. provided an additional statement indicating that he had treated the Veteran for many years and he was "certain" the Veteran's shoulder pain was a result of his line of employment as a mail carrier for over 35 years. This assertion is supported by the other post-service evidence of record which shows that, since service, the Veteran has variously reported having shoulder pain that was aggravated by delivering mail and sleeping on his right side. See January 2008 record from Dr. T.Y.; October 2009 VA treatment record. In evaluating this claim, the Board also finds probative that the Veteran has reported experiencing shoulder pain in conjunction with pain in his cervical spine or neck. The evidence shows that, while receiving treatment for a cervical spine disability, the Veteran reported that his neck pain extended into his shoulders and upper extremities. See VA treatment records dated January 2006, March and April 2008, and September and October 2009. In September 2009, the Veteran's pain was described as cervical spine radicular pain. The Veteran was afforded a VA examination in February 2013 to determine if his current right disability is related to his military service. The VA examiner noted the Veteran's report of pain from the base of the right side of his neck, shoulder, and front chest area, as well as his report that his neck and shoulder pain became severe in 2008 but was aggravated over the years. The Veteran reported that his symptoms stated in September 1968 from carrying ammunition and digging; however, he reported that his symptoms were minor at the time. He stated that his symptoms got worse and he complained of back pain in January 1970, after which he was relieved of duty for several days. He also reported receiving treatment in the mid-70s but he stated things got worse in 2008, after which he was treated with injection in his neck and shoulders. After interviewing the Veteran, conducting a physical examination, and reviewing the claims file, the VA examiner opined that it is less likely as not that the Veteran's adhesive capsulitis is associated with service. In making this determination, the VA examiner acknowledged the evidence showing treatment for back pain during service in January and April 1970, but the examiner also noted that medical examination was normal in November 1970. The VA examiner also noted that there is no evidence of treatment for a shoulder condition in service or until 2008. The VA examiner further noted that shoulder x-rays are normal, except for minor AC degenerative joint disease (which the VA examiner determined was not of clinical significance). In this context, the VA examiner stated it is likely the Veteran's adhesive capsulitis is secondary to cervical spondylitis, as the location of the pain is not in his AC joint but, instead, is suggestive of referral from the neck. The VA examiner also noted that, after leaving service, the Veteran worked for the fire department for two years and was a mail carrier for 39 years, both of which he noted could lead to the symptoms of which the Veteran is complaining. The Board finds that the February 2013 VA examination was adequate for evaluation purposes, as the examiner reviewed the claims file, interviewed the Veteran, and conducted a physical examination. There is also no indication or allegation that the VA examiner was not fully aware of all relevant facts in this case or that he misstated any relevant fact. In fact, the VA examiner provided an opinion that was based upon the Veteran's lay assertions and the medical evidence of record, and the Board notes that the examiner's opinion was supported by a complete rationale. In this regard, the VA examiner's opinion is supported by the other evidence of record, specifically the service and post-service treatment records, which do not contain any evidence showing that the Veteran's current right shoulder disability is likely related to any event or injury that occurred during military service but, instead, show that the current right shoulder disability is a result of the Veteran's post-service employment and/or his cervical spine disability. Accordingly, the February 2013 VA examination and opinion is considered the most competent, credible, and probative evidence of record with respect to whether the Veteran's current right shoulder disability is related to his military service. In evaluating this claim, the Board also finds probative that there is no opposing evidence of record which establishes a nexus between the Veteran's current right shoulder disability and service. In fact, as noted, the preponderance of the evidence establishes that the shoulder pain the Veteran experienced after service was a result of his post-service employment or his cervical spine disability, not any event, injury, or disease incurred during service. In this regard, the Board has considered the Veteran's lay assertions of a nexus between his right shoulder disability and service. As noted above, it is not argued or shown that the Veteran is otherwise qualified through specialized education, training, or experience to offer an opinion on the relationship between his claimed right shoulder disability and service. In addition, the Veteran has only offered conclusory statements regarding the relationship between his current right shoulder disability and service, while, on the other hand, the February 2013 VA examiner took into consideration all the relevant facts in providing his opinion, which was based upon all relevant facts in this case, as well as his medical expertise. As such, the Veteran's statements regarding a nexus between his current right shoulder disability and military service are outweighed by the other evidence of record, inclusive of the February 2013 VA opinion, and, as such, is not considered competent or probative evidence favorable to his claim. Therefore, based on the foregoing, the Board finds that the third element of direct service connection has not been met because a causal connection between the Veteran's current right shoulder disability and a service disease or disability has not been established. In summary, and for the foregoing reasons and bases, the Board finds the preponderance of the most competent, credible, and probative evidence is against the grant of service connection for a right shoulder disability. Because the evidence preponderates against the Veteran's claim, the benefit-of-the-doubt doctrine is not for application. See Gilbert, supra. ORDER Entitlement to service connection for a right shoulder disability is denied. REMAND The Veteran is seeking to establish service connection for acid reflux. In support of his claim, he has asserted that he experienced difficulties with upper gastrointestinal symptoms during service and that his symptoms have continued since that time. See statement from the Veteran and lay statements dated May and June 2006; see also April 2013 VA examination report. In August 2012, the Board remanded this claim to conduct additional evidentiary development, to specifically include scheduling him for a VA examination to determine if any current gastrointestinal disorder, including acid reflux or gastroesophageal reflex disease (GERD), was likely caused by service. The Veteran was afforded a VA examination in April 2013, at which time he was diagnosed with GERD. The examiner opined, however, that the claimed condition was less likely than not incurred in or caused by an in-service injury, event, or illness, stating only that the claims file was reviewed by there was no documentation of acid reflux or GERD noted. The VA examiner noted that the Veteran's assertions and the assessments related to him by medical personnel were considered; however, he did not provide any additional information or details in support of his conclusion. While the April 2013 VA examiner stated that he reviewed the claims file and considered the Veteran's assertions in support of his claim, the Board finds that the opinion and rationale provided by the VA examiner are vague and inadequate. Indeed, it appears the VA examiner provided a negative nexus opinion based on the lack of documentation of acid reflux or GERD in the record, while there is competent lay evidence of gastrointestinal symptoms during and since service, as well as post-service evidence which clearly shows treatment for acid reflux from private sources as early as 1987 and thereafter. See, e.g., June 2007 statement from Dr. T.Y.; VA treatment records. Given the scant rationale provided by the VA examiner, the Board is unable to determine if the VA examiner considered all relevant facts in this case, including the competent lay evidence of continuity of symptomatology after service. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (the probative value of a medical opinion is determined by whether the examiner was informed of sufficient facts upon which to base an opinion and whether the report contains data, conclusions, and a complete rationale in support thereof). As such, the Board finds that an additional medical opinion is needed. The evidentiary record, including the paper and electronic claims file contained on Virtual VA, contains VA treatment records from the Atlanta, Georgia, VA Medical Center and its associated clinics dated from 2006 to September 2012. As such, on remand, any outstanding VA treatment records, including those dated from September 2012 to the present, should be obtained for consideration in the Veteran's appeal. Therefore, to ensure that VA has met its duty to assist the claimant in developing the facts pertinent to the claim, the case is REMANDED for the following action: 1. Obtain any outstanding VA treatment records dated from September 2012 to the present and associate them with either the paper or paperless claims file (Virtual VA). Duplicate treatment records need not be associated with the record. Any negative attempts to obtain this evidence must be documented in the claims file. 2. Once all outstanding evidence has been associated with the claims file, or it has been determined that either the records do not exist or that further efforts to obtain them would be futile, request that the April 2013 VA examiner review the claims file, including this remand, and provide an addendum to his previous examination report that addresses the following: a. Is it at least as likely as not (i.e., a probability of 50 percent) that the Veteran's current GERD was incurred in or is otherwise related to his military service? b. In answering the foregoing, the examiner must acknowledge and discuss the competent lay evidence establishing that the Veteran started having stomach problems during service and the competent lay evidence of continuity of symptomatology after service. The examiner should also consider the post-service evidence of record which shows the Veteran has received medication treatment for symptoms of peptic ulcer disease since approximately 1987. c. A rationale must be provided for each opinion offered. If the foregoing cannot be answered on a medical or scientific basis and without invoking processes relating to guesses or judgment based upon mere conjecture, the examiner should clearly and specifically so specify in the report and explain why this is so. 3. After completing the above actions, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran's claim should be readjudicated. If the claim remains denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. The Board intimates no opinion as to the ultimate outcome of this case. The Veteran need take no action unless otherwise informed, and 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 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 Department of Veterans Affairs