Citation Nr: 1611783	
Decision Date: 03/23/16    Archive Date: 03/29/16

DOCKET NO.  11-02 068	)	DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Togus, Maine


THE ISSUE

Entitlement to service connection for esophagitis, also claimed as a throat condition and gastroesophageal reflux disease (GERD).  


REPRESENTATION

Appellant represented by:	Michael J. Kelley, Attorney


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

T. Azizi-Barcelo, Counsel

INTRODUCTION

The Veteran had active service from April 1972 to June 1974. 

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2009 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA). 

In July 2011, the Veteran testified at a Board video conference hearing over which the undersigned Veterans Law Judge presided.  A transcript of that hearing has been associated with the claims file.  

In March 2015 the Board reopened the claim for service connection for esophagitis and remanded the claim for service connection for additional development.  The Board also remanded the Veteran's claim for service connection for posttraumatic stress disorder (PTSD) and situational anxiety disorder, as well as the claim for service connection for an eye condition.   In a December 2015 rating decision, the Appeals Management Center granted service connection for dry eye and PTSD with situational anxiety disorder.  Therefore, these issues have been resolved and are not on appeal before the Board.  See generally Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997), and Barrera v. Gober, 122 F.3d 1030 (Fed. Cir. 1997).

The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ).  VA will notify the appellant if further action is required.


REMAND

In March 2015 the Board remanded the appeal, in pertinent part, to obtain a VA examination to determine the current nature of any gastroesophageal disorder present, and to obtain an opinion as to whether such is related to service.  Evidence in the claims file, specifically the January 2016 Supplemental Statement of the Case, indicates that the Veteran underwent an April 6, 2015 VA examination to evaluate his claim.  However this report is missing from the Veteran's claims file, VBMS and VVA.  VA generated documents are constructively part of the record before the Board even where they are not actually contained in the record.  Bell v. Derwinski, 2 Vet. App. 611 (1992).  It follows that undertaking adjudication without the missing VA examination report would be erroneous.  Therefore, a remand is necessary so this report can be obtained.

Accordingly, the case is REMANDED for the following action:

1.  Associate a copy of the April 6, 2015 VA gastroesophageal examination listed in the January     2016 Supplemental Statement of the Case.

2.  Obtain any outstanding VA treatment records dated since March 2015.

3.  After the development requested above has been completed to the extent possible, the AOJ should again review the record.  If the benefits sought on appeal remain denied, the appellant and representative, if any, should be furnished a supplemental statement of the case and given the opportunity to respond thereto before the case is returned to the Board.

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 2014).


_________________________________________________
K.A. BANFIELD
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).