Citation Nr: 1601219 Decision Date: 01/12/16 Archive Date: 01/21/16 DOCKET NO. 09-09 033 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Wichita, Kansas THE ISSUE Entitlement to service connection for gastroesophageal reflux disease (GERD), to include as secondary to service-connected posttraumatic stress disorder (PTSD) and as secondary to medications used as treatment for service-connected disabilities. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD T. Susco, Associate Counsel INTRODUCTION The Veteran, who is the appellant in this case, served on active duty from September 1967 to September 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Wichita, Kansas, which, in pertinent part, denied service connection for acid reflux. In January 2015, the Board remanded the appeal to the RO for additional development. For the reasons discussed below, the matter has not been properly returned to the Board for appellate consideration, and another remand is required. See Stegall v. West, 11 Vet. App. 268 (1998). This appeal was processed using both the "Virtual VA" system and the "Veterans Benefits Management System" paperless claims processing system. Accordingly, any future consideration of the Veteran's case should take into consideration the existence of this electronic record. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). REMAND Another remand is required in this case to ensure that there is a complete record upon which to decide the Veteran's claim of entitlement to service connection for GERD. See 38 C.F.R. § 19.9 (2015). VA has a duty to make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the claim for the benefits sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A(a) (West 2014); 38 C.F.R. § 3.159(c), (d) (2015). In January 2015, the Board previously remanded the claim for additional development. Specifically, the Board, in pertinent part, found that there was no medical opinion of record addressing the Veteran's contention that his GERD is associated with medications taken to treat his service-connected PTSD or right knee disability. Therefore, the Board requested a supplemental VA medical opinion to assist in determining the likely etiology of the Veteran's GERD, and, as relevant, requested that the VA examiner opine as to the likelihood that the Veteran's GERD was either caused or permanently aggravated by the medication taken for his service-connected PTSD or right knee disability. In the April 2015 supplemental medical opinion, the VA examiner indicated that the first objective evidence of symptoms related to GERD contained in the record was in a September 2000 esophagogastroduodenoscopy report. The VA examiner further indicated that she contacted the Veteran via telephone to inquire about the Veteran's current medication regimen. The Veteran reported not taking any current medications for either his PTSD or his right knee disability. Regarding PTSD, the VA examiner indicated that the Veteran was diagnosed with PTSD in 2012 and "there is no documentation of medications being prescribed"; therefore, "the claim of his GERD being caused by his medication for his PTSD is not substantiated." Regarding the right knee disability, the VA examiner indicated that the Veteran underwent a total knee replacement in 2008 and "there is no documentation of continued knee pain or treatment for knee pain with analgesics, even over the counter analgesics. Therefore, since this veteran is not taking any medication for his knee pain the claim of his GERD being caused by his medication for his knee pain is not substantiated." When VA undertakes to obtain a medical opinion, it must ensure that the opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303 (2007). In review of the opinion provided by the VA examiner regarding GERD and its relationship to medications taken for a right knee disability, the Board finds this opinion to be inadequate for adjudication purposes. The VA examiner correctly noted the Veteran's 2008 total knee replacement and the lack of documented symptoms or treatment in the claims file for a right knee disability following the total knee replacement. However, as the VA examiner noted medical documentation of symptoms of GERD as early as 2000, a discussion of the Veteran's current medication regimen as the cause of his GERD is misplaced. Moreover, private medical records document treatment of a right knee disability for many years prior to the total knee replacement that included the use of medications. Specifically, a September 2006 private treatment record reflects that the Veteran had been taking Celebrex for nine years. See also June 2008 Private Treatment Record (noting past use of Celebrex); see also July 2008 Private Treatment Record (noting past use of Tylenol and Ultram); but see March 2008 Private Treatment Record (noting Celebrex prescribed for hand pain). As the VA examiner did not consider the Veteran's past usage of medications for a right knee disability, the Board finds this opinion incomplete for adjudication purposes. Accordingly, an addendum medical opinion is needed to adequately consider the likely etiology of the Veteran's GERD as it relates to the history of medication usage for the service-connected right knee disability. Accordingly, the case is REMANDED for the following actions: 1. The AOJ should refer the case to the VA examiner who provided the April 2015 VA opinion (or suitable substitute) for an addendum medical opinion regarding the nature and etiology of the Veteran's current GERD as it relates to the history of medication usage for the service-connected right knee disability. The entire claims file, including a copy of this Remand, must be made available to, and be reviewed by, the VA examiner. Another examination is not required; however, if the VA examiner indicates that she cannot respond to the Board's questions without examination of the Veteran, another examination should be afforded to the Veteran. Based upon a review of the relevant evidence of record, the VA examiner should offer the following opinions: Is it at least as likely as not (a 50 percent probability or greater) that the Veteran's GERD was (i) caused or (ii) aggravated (permanently worsened) by the history of medication usage for the service-connected right knee disability? If the opinion is that the history of medication usage for the service-connected right knee disability aggravated the Veteran's GERD, the VA examiner should specify, so far as possible, the degree of disability resulting from such aggravation. The term "at least as likely as not" does not mean merely within the realm of medical possibility, but 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. A thorough explanation must be provided for the opinions rendered. If the examiner cannot provide the requested opinions without resorting to speculation, he or she should expressly indicate this and provide a supporting rationale as to why an opinion cannot be made without resorting to speculation. 2. After completion of the above and compliance with the requested actions has been ensured, readjudicate the issue on appeal on the basis of the additional evidence of record. If the determination remains adverse to the Veteran, he and his representative should be furnished with a Supplemental Statement of the Case. An appropriate period of time should then be allowed for a response before the record is returned to the Board for further review. 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 2014). _________________________________________________ K. J. Alibrando Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), 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) (2015).