Citation Nr: 1759959 Decision Date: 12/22/17 Archive Date: 01/02/18 DOCKET NO. 11-25 567 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUE Entitlement to service connection for gastroesophageal reflux disease (GERD), including as due to an undiagnosed illness. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Michael T. Osborne, Counsel INTRODUCTION The Veteran had active service from September 1989 to September 1993, including in the southwest Asia theater of operations during the Persian Gulf War. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin, which denied, in pertinent part, the Veteran's claim of service connection for GERD, including as due to an undiagnosed illness. The Veteran disagreed with this decision in August 2010. He perfected a timely appeal in September 2011. In October 2014 and in May 2017, the Board remanded the currently appealed claim to the Agency of Original Jurisdiction (AOJ) for additional development. Unfortunately, as is explained below in greater detail, the appeal is REMANDED again to the AOJ. VA will notify the Veteran if further action is required on his part. REMAND The Veteran contends that he incurred GERD during active service. He alternatively contends that an undiagnosed illness initially experienced while he was deployed to the southwest Asia theater of operations during the Persian Gulf War caused or aggravated (permanently worsened) his GERD. The Board recognizes that this appeal has been remanded previously, most recently in May 2017. Having reviewed the record evidence, and although the Board is reluctant to contribute to "the hamster-wheel reputation of Veterans law" by remanding this appeal again, additional development is required before the underlying claim can be adjudicated on the merits. Cf. Coburn v. Nicholson, 19 Vet. App. 427, 434 (2006) (Lance, J., dissenting) (finding that repeated remands "perpetuate the hamster-wheel reputation of Veterans law"). The Board notes that, in both of its October 2014 and May 2017 remands, it directed the AOJ to obtain a medical nexus opinion concerning the nature and etiology of the Veteran's GERD. The Board noted in both of its prior remands that the medical nexus opinions provided in June 2009 and in December 2014, respectively, were inadequate for VA adjudication purposes. A review of the most recent etiology opinion (provided by the same VA examiner who provided the prior deficient opinions in June 2009 and in December 2014) shows that it is inadequate for VA adjudication purposes as well. The VA examiner who provided an opinion in May 2017 still provided an inadequate rationale for his opinion because he found the lack of in-service and post-service treatment records dated prior to 2001 to be persuasive support for his negative nexus opinion concerning the contended etiological relationship between the Veteran's GERD and active service. The Board observes in this regard that it is well-settled that the absence of contemporaneous records does not preclude granting service connection for a claimed disability. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (finding lack of contemporaneous medical records does not serve as an "absolute bar" to the service connection claim); Barr v. Nicholson, 21 Vet. App. 303 (2007) ("Board may not reject as not credible any uncorroborated statements merely because the contemporaneous medical evidence is silent as to complaints or treatment for the relevant condition or symptoms"). Accordingly, because the May 2017 VA examiner's opinion found the lack of in-service and post-service treatment records dated prior to 2001 to be persuasive support for a negative nexus opinion concerning the contended etiological relationship between the Veteran's GERD and active service, this opinion is inadequate for VA adjudication purposes. The Board next observes that, to date, there is no competent medical opinion addressing the contended etiological relationship between the Veteran's GERD and active service. Each of the medical nexus opinions provided by the same VA examiner in June 2009, October 2014, and in May 2017 have been found to be inadequate for VA adjudication purposes. Accordingly, the Board finds that, on remand, this appeal should be sent to a different VA clinician than the examiner who provided the prior opinions and another etiology opinion should be obtained by the AOJ. Because it is undisputed that the Veteran is diagnosed as having and currently treated for GERD, it is not necessary to schedule him for another VA examination. In Stegall v. West, 11 Vet. App. 268 (1998), the Court held that a remand by the Board confers on the appellant, as a matter of law, the right to compliance with the remand orders. It was error for the RO/AMC to re-certify this appeal to the Board in October 2017 without complying with the May 2017 remand instructions. Given this error, another remand is required. Accordingly, the case is REMANDED for the following action: 1. Forward the claims file and a copy of this REMAND to a different VA clinician than the examiner who provided the prior medical opinions in June 2009, October 2014, and in May 2017. This VA clinician should be asked to review the Veteran's claims file, including his service treatment records, post-service VA treatment records, and lay statements concerning the continuity of his GERD symptomatology since active service. Based on a review of the claims file, this VA clinician is asked to opine whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran's GERD is related to active service or any incident of service. This VA clinician next is asked to opine whether it is at least as likely as not (i.e., a 50 percent or greater probability) that an undiagnosed illness initially experienced by the Veteran while he was deployed to the southwest Asia theater of operations during the Persian Gulf War caused or aggravated (permanently worsened) his GERD. A complete rationale should be provided for any opinion(s) expressed. The Veteran does not need to be scheduled for another examination. The VA clinician is advised that the Veteran served in the southwest Asia theater of operations during the Persian Gulf War. This clinician also is advised that the lack of contemporaneous records showing a diagnosis of or treatment for GERD, alone, is insufficient rationale for a medical nexus opinion. 2. Review the claims file and determine whether there has been substantial compliance with these REMAND directives. If not, please take appropriate corrective action. See Stegall v. West, 11 Vet. App. 268 (1998). 3. Readjudicate the appeal. 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. §§ 5109B, 7112 (West 2012). _________________________________________________ L. M. BARNARD Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (West 2012), 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) (2017).