Citation Nr: 1641352 Decision Date: 10/21/16 Archive Date: 11/08/16 DOCKET NO. 02-14 258 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for a gastrointestinal (GI) disorder, characterized as gastroesophageal reflux disorder (GERD) with hiatal hernia. REPRESENTATION Appellant represented by: Nancy Foti, Attorney-at-Law WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD W.T. Snyder, Counsel INTRODUCTION The Veteran served on active duty from May 1978 to April 1981. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an April 2002 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas, that denied the claim. The case has been remanded a number of times for additional development, most recently in January 2013. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND Among the additional development directed in the January 2013 Board remand was that an examination of the Veteran be conducted to obtain a medical nexus opinion. The examination was conducted and opinion rendered in August 2015. (08/12/2015 VBMS-C&P Exam-DBQ GI) The examiner opined that it is not at least as likely as not that the Veteran's current GI symptoms are due to or aggravated by his service-connected pancreatitis. The examiner opined further that there is no clear evidence that the Veteran's GERD had its onset in active service; thus, it is not at least as likely as not that the Veteran's currently diagnosed GERD is causally connected to his in-service symptoms documented in the service treatment records (STRs). Id., pp. 3-4. The Board agrees with the Veteran's attorney that the medical examiner may have applied too strict a standard, "clear evidence." (07/18/2016 VBMS-BVA Letter) Further, included with the attorney's response to the August 2015 Supplemental Statement of the Case (SSOC) was a private medical opinion of T.R.C., MD. (07/18/2016 VBMS-Third Party Correspondence) Dr. C reviewed the claims file, to include the Veteran's STRs, and opined that the symptoms documented in the STRs were in fact indicative of GERD. She opined further that the in-service diagnosis of pancreatitis was not a completely accurate assessment of the sole laboratory test on which the diagnosis was based. In any event, Dr. C opined that the Veteran's current GI symptoms, to include GERD, are in fact causally connected to the symptoms documented in the STRs. Dr. C's report was not part of the claims file in August 2015; hence, it was not available to the VA examiner for comment. A discussion of Dr. C's opinion by the VA medical professional will be helpful to the Board's continued appellate review of the case. Accordingly, the case is REMANDED for the following action: 1. Send the claims file to the VA examiner who conducted the August 2015 examination and rendered a negative nexus opinion for an addendum to the August 2015 examination report. Advise the examiner that the applicable standard of review for all aspects of the case is not clear evidence, but at least a 50-percent probability. Ask the examiner to specifically comment on Dr. C's July 2016 report and to indicate agreement or disagreement with her findings and opinion. The examiner must provide a full explanation and rationale for any agreement or disagreement. In the event the examiner who conducted the August 2015 VA examination is no longer available, refer the claims file to an equally qualified examiner. 2. Should the substitute examiner advise the requested opinion cannot be rendered without an examination of the Veteran, the AOJ will arrange the examination. After completion of all of the above, the AOJ will re-adjudicate the claim on appeal. If the decision remains in any way adverse to the Veteran, he and his representative should be provided with a SSOC. Then return the case to the Board. The Veteran 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). _________________________________________________ ERIC S. LEBOFF 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).