Citation Nr: 1340803 Decision Date: 12/11/13 Archive Date: 12/20/13 DOCKET NO. 11-11 639 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Anchorage, Alaska THE ISSUE Entitlement to service connection for a gastrointestinal disorder. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Rory Reyhan Layne, Associate Counsel INTRODUCTION The Veteran served on active duty from December 1959 to March 1980. This matter comes before the Board of Veterans' Appeals (Board) on appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Anchorage, Alaska, based on a 2010 rating decision from the VA RO in Fort Harrison, Montana. The appeal is remanded to the RO via the Appeals Management Center, in Washington, DC. REMAND A review of the Veteran's claims file reveals that additional development is warranted prior to appellate review of the claim. The Veteran filed a claim seeking service connection for gastroesophageal reflux disease (GERD)/hiatal hernia; but, his claims file also contains diagnoses of mild gastritis and esophageal dysmotility. See Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009) (when determining the scope of a claim, the Board must consider "the claimant's description of the claim, the symptoms the claimant describes, and the information the claimant submits or that the Secretary obtains in support of that claim"). However, the record does not fully address all of the Veteran's diagnosed gastrointestinal (GI) disorders; specifically whether they were caused or aggravated by his military service. Initially, the record indicates that the disorders diagnosed during the pendency of the claim were mild gastritis and esophageal dysmotility. However, the sole nexus opinion of record, a March 2011 VA examination, only addresses gastritis. Specifically, the VA examiner diagnosed mild gastritis, esophageal dysmotility, with GERD not being found on clinical examination. As to the etiology, the examiner opined that the Veteran's currently diagnosed gastritis was not a result of military service. The examiner explained that the Veteran had "only one episode of abdominal pain in service. The current problem is the esophageal dysmotility . . . . the mild gastritis is likely as not (50% probability) from smoking. There was no indication of swallowing difficulty in the service records. The 9/2009 barium swallow history says he had dysphagia for 2 years, around 2007." Moreover, the examiner's opinion as to whether the Veteran's gastritis is related to his military service is inadequate. See Barr v. Nicholson, 21 Vet. App. 303, 307 (2007); see also Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (noting that when the medical evidence of record is insufficient, in the opinion of the Board, the Board must supplement the record by seeking an advisory opinion or ordering a medical examination). Accordingly, the case is remanded for the following action: 1. The RO must contact the Veteran and afford him the opportunity to identify or submit any additional pertinent evidence in support of his claim. Based on his response, the RO must attempt to procure copies of all records which have not previously been obtained from identified treatment sources. All attempts to secure this evidence must be documented in the claims file by the RO. If, after making reasonable efforts to obtain named records the RO is unable to secure same, the RO must notify the Veteran and (a) identify the specific records the RO is unable to obtain; (b) briefly explain the efforts that the RO made to obtain those records; (c) describe any further action to be taken by the RO with respect to the claim; and (d) that he is ultimately responsible for providing the evidence. The Veteran and his representative must then be given an opportunity to respond. 2. The claims file and all electronic records must be made available to the examiner that conducted the March 2011 VA examination. The examiner must be informed and consider that although a disorder may not have been present during military service, service connection may still granted for a disorder that is first shown after service, if it is determined that it is related to the Veteran's military service. Accordingly, after a review of the evidence of record, the examiner must provide an addendum opinion as to whether the previous diagnoses of gastritis and esophageal dysmotility are related to his military service. A complete rationale for all opinions must be provided. If the examiner cannot provide the requested opinion without resorting to speculation, it must be so stated, and the examiner must provide the reasons why an opinion would require speculation. The examiner must indicate whether there was any further need for information or testing necessary to make a determination. Additionally, the examiner must indicate whether any opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner. 3. If the March 2011 examiner determines another examination is needed in order to provide the required opinion, or if the March 2011 examiner is not available, the Veteran must be afforded the appropriate VA examinations to determine whether any gastrointestinal disorder found or previously diagnosed, to include gastritis and esophageal dysmotility is related to his military service. All pertinent symptomatology and findings must be reported in detail. Any indicated diagnostic tests and studies must be accomplished. The claims file and all electronic records must be made available to the examiner, and the examiner must specify in the examination report that these records have been reviewed. The examiner must specify the dates encompassed by the electronic records that were reviewed. The examiner must be informed and consider that although a disorder may not have been present during military service, service connection may still granted for a disorder that is first shown after service, if it is determined that it is related to the Veteran's military service. Accordingly, based on the clinical examination, a review of the evidence of record, and with consideration of the Veteran's statements, the examiner must state whether any currently or previously diagnosed gastrointestinal disorder, to include gastritis and esophageal dysmotility, is related to the Veteran's active duty service. A complete rationale for all opinions must be provided. If the examiner cannot provide the requested opinion without resorting to speculation, it must be so stated, and the examiner must provide the reasons why an opinion would require speculation. The examiner must indicate whether there was any further need for information or testing necessary to make a determination. Additionally, the examiner must indicate whether any opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner. The report prepared must be typed. 4. If it is determined that another examination is necessary, the RO must notify the Veteran that it is his responsibility to report for any examination scheduled, and to cooperate in the development of the claim. The consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2013). In the event that the Veteran does not report for a scheduled examination, documentation must be obtained and associated with the Veteran's claims file that shows that notice scheduling the examination was sent to his last known address. Documentation must be also be obtained and associated with the Veteran's claims file demonstrating any notice that was sent was returned as undeliverable. 5. After the development requested has been completed, the RO must review the examination reports to ensure that they are in complete compliance with the directives of this Remand. If a report is deficient in any manner, the RO must implement corrective procedures at once. 6. The RO must then readjudicate the claim and thereafter, if the claim on appeal remains denied, the Veteran and his representative must be provided a supplemental statement of the case. After the Veteran and his representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. No action is required by the Veteran until he receives further notice; however, he may present additional evidence or argument while the case is in remand status at the RO. Kutscherousky v. West, 12 Vet. App. 369 (1999). _________________________________________________ JOY A. MCDONALD 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).