Citation Nr: 1452167 Decision Date: 11/25/14 Archive Date: 12/02/14 DOCKET NO. 12-21 824 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical and Regional Office Center in Fargo, North Dakota THE ISSUES 1. Entitlement to service connection for gastroesophageal reflux disease (GERD). 2. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Elizabeth Jalley, Counsel INTRODUCTION The Veteran served on active duty with the Air National Guard from April 2001 to June 2001, from September 2001 to November 2001, from January 2002 to August 2002, from June 2003 to December 2003, from October 2004 to January 2006, and from February 2006 to March 2006, with additional periods of active duty for training and inactive duty training. This case comes before the Board of Veterans' Appeals (Board) on appeal from an August 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Fargo, North Dakota. In November 2012, the Veteran testified at a personal hearing before the undersigned Veterans Law Judge. A transcript of this hearing was prepared and associated with the claims file. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The Veteran has claimed entitlement to service connection for GERD and tinnitus. With respect to the claim of entitlement to service connection for GERD, the Board notes that pre-service private medical records reflect that the Veteran underwent a laparoscopic nissen fundoplication in 1999 to treat severe esophagitis. In his March 2000 enlistment examination report, his abdomen and viscera were found to be clinically normal other than laparoscopic nissen fundoplication scars and a right lower quadrant appendectomy scar. The examination report noted a "HX OF REFLUX ESOPHAGITIS. NO BARRETS. RESOLUTION WITH OPERATIVE THERAPY," and "HX OF REFLUX - 100% RESOLUTION WITH LAPROSCOPIC NISSEN FUNDOPLICATION." There is no subsequent examination report of record in the Veteran's service treatment records. A veteran will be considered to have been in sound condition when examined and accepted for service, except as to disorders noted on entrance into service, or when clear and unmistakable evidence demonstrates that the disability existed prior to service and was not aggravated by service. Only such conditions as are recorded in examination reports are to be considered as noted. 38 U.S.C.A. § 1111 (West 2002); 38 C.F.R. § 3.304(b). In cases where the disease or injury at issue is not noted on the entrance examination, a two-pronged test is for consideration in determining whether the presumption of soundness has been rebutted. First, VA must show by clear and unmistakable evidence that the disease or injury existed prior to service. Second, VA must show by clear and unmistakable evidence that the preexisting disease or injury was not aggravated by service. VAOPGCPREC 3-2003 (July 16, 2003). See Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). A threshold requirement for applicability of the 38 U.S.C.A. § 1111 presumption of soundness on entry into service is that the Veteran must have served on active duty for a continuous period of 90 days or more. In the case at hand, only three periods of the Veteran's service spanned at least 90 days (from January 2002 to August 2002, from June 2003 to December 2003, and from October 2004 to January 2006). Therefore, only those three periods are entitled to potential application of the presumption of soundness. See Grose v. Brown, 4 Vet. App, 144, 147 (1993). In the case at hand, the Veteran underwent a VA examination in July 2010, but the resulting examination report does not contemplate the presumption of soundness doctrine. The Board therefore finds it necessary to remand this claim for an appropriate opinion. In addition, the Board notes that the July 2010 VA examination report did not explain the basis for finding that there is "no evidence on history or exam of exacerbation of reflux beyond that to be expected by natural progression of the condition." Any new opinion should discuss the impact, if any, that the Veteran's physical activity in service would have had on his 1999 laparoscopic nissen fundoplication and gastroesophageal disability. With respect to the tinnitus claim, the Veteran contends that he first noticed his tinnitus in 2004 or 2005 following his work around jets on a flight line. He also believes there is a relationship between his tinnitus and his duties in explosive ordnance disposal. The Veteran underwent VA examination in July 2010. The resulting examination report reflects that the examiner was unable to resolve the issue of whether the Veteran's tinnitus is connected to his military service without resort to speculation. The examiner noted that the "Veteran indicates onset of tinnitus was approximately in 2004-2005 after being exposed to flightline noise to include jets and being exposed to explosions." She also noted that there was no line of injury investigation and that "[t]he report of time of onset is not during his active duty time." The Board finds this opinion is inadequate, and that a remand for a new opinion is necessary. First, the Board notes that the examiner was incorrect in saying that the Veteran's reported time of onset (2004 to 2005) was not during his active duty service. The record contains a DD Form 214 that reflects the Veteran had a period of active duty service that spanned from October 2004 to January 2006. This information is potentially relevant in the case at hand and must be provided to the examiner who renders the opinion on remand. Second, the Board notes that service connection may be granted for disability resulting from disease or injury incurred or aggravated while performing active duty for training, or from injury incurred or aggravated while performing inactive duty training. 38 U.S.C.A. §§ 101, 106, 1110, 1131. Acoustic trauma is considered an injury, and therefore, service connection is potentially available for tinnitus that is found to be due to acoustic trauma that occurred during a period of active duty for training or inactive duty training. This information may be relevant in the case at hand and must be made available to the examiner who renders an opinion on this issue. While this case is on remand, the Veteran should be given the opportunity to identify any relevant medical records, and all appropriate steps to obtain such records should be completed. Accordingly, the case is REMANDED for the following action: 1. Ask the Veteran to provide the names, addresses, and approximate dates of treatment of all health care providers who have treated him for his GERD or tinnitus. The Veteran should also be notified that he may submit these records himself. After securing any necessary releases, request any identified records. If any requested records are unavailable, then the file should be annotated as such and the Veteran should be so notified. 2. Following completion of the above, arrange for the Veteran to undergo an appropriate VA examination to determine the nature and etiology of any current gastroesophageal disability. The claims folders must be thoroughly reviewed by the examiner in connection with the examination, and a complete history should be elicited directly from the Veteran. Any tests and studies deemed necessary by the examiner should be conducted. All findings should be reported in detail. The examiner should identify any pertinent pathology found and should diagnose any current relevant disabilities. The following questions are limited to the periods of active service spanning from January 2002 to August 2002, from June 2003 to December 2003, and from October 2004 to January 2006: (a) Is it clear and unmistakable (i.e., highest degree of medical certainty) that the Veteran had a pre-existing gastroesophageal disability at the time of his January 2002, June 2003, or October 2004 entrances into active duty? (b) If YES, is it clear and unmistakable (i.e., highest degree of medical certainty) that the Veteran's pre-existing gastroesophageal disability WAS NOT aggravated beyond the natural progress of the disorder by his active military service during the period(s) in question? In other words, please determine whether it is clear and unmistakable that there was no increase in disability during those periods of service or that it is clear and unmistakable that any increase in disability was due to the natural progress of the pre-existing condition. The following question is applicable to all periods of the Veteran's active military service: (c) Is it at least as likely as not (i.e., 50 percent or greater probability) that the Veteran's current gastroesophageal disability was caused or aggravated by, or is otherwise etiologically related to, any symptomatology noted during service? In addressing this question, please discuss the Veteran's contention that his in-service duties may have affected the 1999 laparoscopic nissen fundoplication and caused his gastroesophageal symptoms to return. The term "as likely as not" does not mean merely within the realm of medical possibility, rather that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of causation as it is to find against it. In comparison, "clear and unmistakable evidence" means "with a much higher certainty than 'at least as likely as not' or 'more likely than not.'" The examiner should provide a complete rationale for the conclusions reached. If the examiner believes that an opinion cannot be provided without resorting to speculation, then he/she must provide a detailed medical explanation as to why this is so. 3. Following completion of the above, arrange for the Veteran to undergo a VA examination to determine whether the Veteran's current tinnitus is related to his military service. The claims folders must be thoroughly reviewed by the examiner, and a complete history should be elicited directly from the Veteran. Any tests and studies deemed necessary should be conducted. All findings should be reported in detail. The VA examiner should express an opinion as to whether it is at least as likely as not (a 50 percent probability or more) that the Veteran's tinnitus had its onset during, or is otherwise etiologically related to, his military service, to include as a result of in-service acoustic trauma. For purposes of this opinion, the examiner should consider the Veteran's reports of in-service noise exposure while working on a jet flight line and in explosive ordnance disposal to be credible. The examiner should be notified that the Veteran's periods of active duty spanned from April 2001 to June 2001, from September 2001 to November 2001, from January 2002 to August 2002, from June 2003 to December 2003, from October 2004 to January 2006, and from February 2006 to March 2006, and that he had additional periods of active duty for training and inactive duty training. The examiner should be notified that acoustic trauma is considered an injury, and therefore, service connection is potentially available for tinnitus that is found to be due to acoustic trauma that occurred during a period of active duty for training or inactive duty training. Therefore, the examiner is advised that service connection for tinnitus as a result of acoustic trauma suffered during active duty for training or inactive duty training is not precluded by applicable law. Any opinion expressed must be accompanied by a complete rationale. If the examiner believes that an opinion cannot be provided without resorting to speculation, then he/she must provide a detailed medical explanation as to why this is so. 4. After the development requested above has been completed, again review the record. If any benefit sought on appeal remains denied, the Veteran and his representative should be furnished a supplemental statement of the case and given the opportunity to respond thereto. Thereafter, the case should be returned to the Board, if in order. The Board intimates no opinion as to the ultimate outcome of this case. The appellant need take no action unless otherwise notified. The appellant 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. 2014). _________________________________________________ DEBORAH W. SINGLETON 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) (2014).