Citation Nr: 1801751 Decision Date: 01/10/18 Archive Date: 01/23/18 DOCKET NO. 17-07 908 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUES 1. Entitlement to an increased disability rating for a gastrointestinal disability, currently rated as 20 percent disabling. 2. Entitlement to service connection for gastroesophageal reflux disease (GERD). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD B. P. Keeley, Associate Counsel INTRODUCTION This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). The Veteran served on active duty in the United States Navy from January 1961 to January 1965. The Veteran testified before the undersigned Veterans Law Judge (VLJ) at a November 2017 Board video conference hearing. A transcript of that hearing has been associated with the claims file. This matter comes before the Board of Veterans' Appeals (Board) on appeal form a March 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Portland, Oregon. The Board notes that when a Veteran makes a claim, he is seeking service connection for symptoms regardless of how those symptoms are diagnosed or labeled. As such the Board has re-characterized the issue of entitlement to an increased disability rating for history of duodenal peptic ulcer disease with upper gastrointestinal hemorrhage (now rated as gastritis/duodenitis and helicobacter pylori) as entitlement to an increased disability rating for a gastrointestinal disability. See, Clemons v. Shinseki, 23 Vet. App. 1 (2009). Under the same principal outlined in Clemons, given the closely related symptoms associated with gastroesophageal reflux disease (GERD), the Board further recognizes the issue of service connection for GERD as an inferred claim that is inextricably intertwined with the increased rating claim that has been perfected for appeal. As such, it is identified above as an additional issue that must be adjudicated. Harris v. Derwinski, 1 Vet. App. 180 (1991) (two issues are "inextricably intertwined" when they are so closely tied together that a final Board decision on one issue cannot be rendered until the other issue has been considered). This is a paperless appeal located on the Veterans Benefits Management System (VBMS), Virtual VA paperless claims processing system, and Caseflow Reader. The Board has reviewed the electronic records maintained these systems to ensure consideration of the totality of the evidence. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The Veteran maintains that he is entitled to an increased disability rating for his gastrointestinal disability. The Board notes that the Veteran was last examined by VA for rating purposes when the Veteran was afforded a VA esophageal conditions examination, as well as a VA stomach and duodenal conditions examination, in November 2016. A diagnosis of GERD was noted. Noted symptoms were persistently recurrent epigastric distress, pyrosis, reflux, regurgitation, substantial arm pain, and sleep disturbance from esophageal reflux. It was noted that the Veteran's 2013 esophagogastroduodenoscopy revealed duodenitis and gastritis, but no duodenal or gastric ulcer. The examiner stated the Veteran's GERD is not related to his service connected condition. It was noted that the Veteran takes continuous medication for his stomach/duodenum symptoms, and has symptom recurrence of four or more per year. Abdominal pain that was continuous and only partially relieved by standard ulcer therapy was noted. Incapacitating episodes were not noted. The examiner stated the Veteran's GERD is not a progression of his gastritis/duodenitis. The Board notes that the examiner did not provide any rationale for his conclusion that the Veteran's GERD is not related to his gastrointestinal disability. Furthermore, the Board notes that the Veteran testified regarding the issue of an increased rating for his gastrointestinal disability at the November 2017 hearing. The veteran stated that he has occasional nausea and vomiting, once or twice a month, and mainly at night when he is sleeping. The Veteran then described acid reflux that causes him to vomit through his mouth and nose. Finally, the Veteran stated that his symptoms are the same since 1964. The AOJ has not adjudicated the issue of entitlement to service connection for GERD. For the above reasons, and for the sake of judicial efficiency, the Board infers a claim of entitlement to service connection for GERD as being inextricably intertwined with the issue of an increased rating for a gastrointestinal disorder and remands both matters to afford the Veteran a VA examination to determine the nature and etiology of his GERD and to provide a complete picture of the Veteran's gastrointestinal disability. McClendon v. Nicholson, 20 Vet. App. 79, 81 (2006); Delisio v. Shinseki, 25 Vet. App. 45 (2011). Additionally, see 38 C.F.R. § 19.9 (2017). VA has a duty to make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C. § 5103A (a) (2012); 38 C.F.R. § 3.159 (c), (d) (2017). Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. Provide the Veteran with notice pursuant to 38 C.F.R. § 3.159 as to how to substantiate his claim for service connection, to include as secondary, for GERD. 2. Obtain all outstanding VA treatment records. All records obtained must be associated with the claims file. 3. After, and only after, completion of step one above, arrange for the Veteran to undergo a VA examination with a gastroenterologist to determine the nature and etiology of his GERD and to assess the current manifestations and severity of the Veteran's gastrointestinal disability: a. For the Veteran's GERD: The examiner must review the Veteran's claims file and elicit a full history from the Veteran regarding his GERD. All necessary tests and studies should be accomplished, and all clinical findings should be reported in detail. After the record review, and a thorough examination and interview of the Veteran, the VA examiner should offer an opinion as to the following: Whether it is at least as likely as not (i.e., probability of 50 percent or greater) that the Veteran's GERD had its onset during active service or is otherwise related to service. Whether it is at least as likely as not (a probability of 50 percent or greater) that the Veteran's GERD is due to or caused by a service-connected disability, including the Veteran's gastrointestinal disability. Whether it is at least as likely as not (a probability of 50 percent or greater) that the Veteran's GERD is aggravated (any increase in disability) beyond the natural progress by the Veteran's service-connected gastrointestinal disability. If aggravation is found, the examiner is asked to address the following issues to the extent feasible: 1) the baseline manifestations of GERD, and 2) the increased manifestations which, in the examiner's opinion, are proximately due to the Veteran's service-connected gastrointestinal disability. b. For the Veteran's gastrointestinal disability: The examiner must review the Veteran's claims file and elicit a full history from the Veteran regarding his symptoms of gastrointestinal disability. All necessary tests and studies should be accomplished, and all clinical findings should be reported in detail. All opinions provided for each of the disabilities examined must be thoroughly explained, and a complete and detailed rationale for any conclusions reached should be provided (a bare conclusory statement will be deemed inadequate). The examiner is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it. It is not sufficient to base an opinion on a mere lack of documentation of complaints in the service or post-service treatment records. 4. If, after completing the requested actions and all additional development deemed warranted, the benefits sought remain denied, furnish to the Veteran a Supplemental Statement of the Case and afford them the appropriate time period for response before the claims file is returned to the Board for further appellate consideration. 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 (2012). _________________________________________________ MICHAEL A. PAPPAS Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (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).