Citation Nr: 1336647 Decision Date: 11/12/13 Archive Date: 11/22/13 DOCKET NO. 10-01 022 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in New Orleans, Louisiana THE ISSUES 1. Entitlement to service connection for sinusitis. 2. Entitlement to service connection for gastroesophageal reflux disease (GERD). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD M. Mills, Associate Counsel INTRODUCTION The Veteran served on active duty from October 2005 to April 2006. She had an earlier period of active duty for training (ACDUTRA) from May 1996 to October 1996 and a member of the Army National Guard from February 1996 to September 2007. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in November 2008 by RO in St. Paul, Minnesota. Jurisdiction currently resides with the RO in New Orleans, Louisiana. A review of Veterans Benefits Management System and Virtual VA paperless claims processing system reveals that they contain VA treatment records relevant to the issues on appeal. The issues of entitlement to a temporary total rating based upon convalescence and a claim of service connection for mental condition to include a chronic adjustment disorder with anxious and depressed mood have been raised by the record, but have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction and refers these matters to the AOJ for appropriate action. The appeal is being remanded to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required of his part. REMAND After having carefully considered the record, the Board finds that the claims on appeal must be remanded for further development. The Veteran asserts that her sinusitis and GERD originated while she was serving on active duty and have continued since that time. In the case involving a compensation claim, VA's duty to assist includes providing a medical examination or obtaining a medical opinion when necessary to make a decision on the claim. 38 U.S.C.A. § 5103A(d) (West 2002 ); 38 C.F.R. § 3.159(c)(4) (2012). As for the claimed sinusitis, a June1996 service treatment records during her period of active duty for training noted that the Veteran complained of sinus congestion. A July 1996 record from the same period of active duty for training noted a diagnosis of possible sinusitis. The requirement under VCAA for a VA examination, that the evidence "indicates" that the veteran's disability "may" be associated with the veteran's service, is a low threshold. See McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). Thus, a medical opinion on the nature and etiology of the Veteran's current disorder should be obtained. The Veteran also is seeking service connection for GERD. Significantly, she is currently service connected for a hiatal hernia. During service, there was a June 2006 determination that the sliding hiatal hernia was incurred in the line of duty. The first diagnosis of GERD was rendered in 2002, and the Veteran reports experiencing symptoms of this condition since the time of service. See December 2009 Substantive Appeal. A June 2013 private evaluation noted GERD treated with continuous medication. To the extent that the evidence of record does not address whether there is a medical link between the two, the Board cannot assume that the two disorders are interrelated. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (the Board is prohibited from exercising its own independent judgment to resolve medical questions). A medical opinion should be obtained to resolve this issue. Accordingly, the case is REMANDED to the RO for the following action: 1. The RO should have the Veteran scheduled for a VA examination to ascertain the nature and likely etiology of the claimed sinusitis. Any and all indicated evaluations, studies and tests deemed necessary by the examiner should be accomplished. The examiner is requested to review all pertinent records associated with the claims file and render an opinion as to the following: Whether it is at least as likely as not (at least a 50 percent probability) that any current sinus disability had its clinical onset during her period of active duty for training from May to October 1996 or the subsequent period of active service from October 2005 to April 2006 or otherwise is due to an event or incident of her service. A clear rationale for all opinions is required, to include a discussion of the facts and medical principles involved. Copies of all pertinent records in the Veteran's claims file, or in the alternative, the claims file, must be made available to the examiner for review in connection with the examination. 2. The RO should take appropriate steps to have the Veteran scheduled for a VA examination to determine the nature and likely etiology of the claimed GERD. All tests deemed necessary should be conducted. After reviewing the record and examining the Veteran, the examiner should opine as to whether it is at least as likely as not (i.e. probability of 50 percent or greater) that any current GERD represents a disability that is separate and distinct from the already service-connected hiatal hernia. If so, the examiner should opine as to whether it is at least as likely as not that the GERD is either caused or aggravated by the service-connected hiatal hernia. A complete rationale should be provided. 3. After completing all indicated development, the RO should readjudicate the claims remaining on appeal in light of all the evidence of record. If any benefit sought on appeal remains denied, then the Veteran and his representative should be furnished a fully responsive Supplemental Statement of the Case (SSOC) and afforded a reasonable opportunity for response. Thereafter, if indicated, the case should be returned to the Board for the purpose of appellate disposition. The Veteran 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). ______________________________________________ STEPHEN L. WILKINS 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) (2013).