Citation Nr: 1801956 Decision Date: 01/10/18 Archive Date: 01/23/18 DOCKET NO. 07-35 231 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUES 1. Entitlement to an earlier effective date prior to September 17, 2015 for a 30 percent rating for right upper extremity radiculopathy. 2. Entitlement to a rating in excess of 20 percent for left upper extremity radiculopathy prior to June 1, 2015. 3. Entitlement to a rating in excess of 30 percent for left upper extremity radiculopathy from June 1, 2015. 4. Whether new and material evidence has been submitted to reopen a claim for service connection for right ear hearing loss. 5. Entitlement to service connection for gastroesophageal reflux disease (GERD), also claimed as acid reflux. REPRESENTATION Appellant represented by: John S. Berry, Attorney at Law ATTORNEY FOR THE BOARD Gregory T. Shannon, Associate Counsel INTRODUCTION The Veteran served on active duty for training from June 1985 to September 1985, and on active duty from December 1990 to April 1991 and from October 2004 to December 2005. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska. The Board previously remanded the issues related to rating left upper extremity radiculopathy in February 2015 and February 2016, and they are now properly before the Board. The other issues on appeal are before the Board for the first time. The issue of service connection for gastroesophageal reflux disease, also claimed as acid reflux, is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. From June 23, 2015, but not earlier, the Veteran's right upper extremity radiculopathy has been productive of moderate incomplete paralysis of all radicular group peripheral nerves of the right upper extremity. 2. From May 13, 2013, but not earlier, the Veteran's left upper extremity radiculopathy has been productive of moderate incomplete paralysis of all radicular group peripheral nerves of the left upper extremity, moderate constant pain, moderate paresthesias and/or dysesthesias, moderate numbness, decreased muscle strength and hypoactive muscles, decreased sensation and decreased fine motor skills. 3. In a June 2006 rating decision, the RO denied service connection for right ear hearing loss. The Veteran was notified of his appellate rights, but did not express disagreement or submit new and material evidence within one year. 4. Evidence received since the June 2006 rating decision is cumulative. CONCLUSIONS OF LAW 1. The criteria for an effective date of June23, 2013, but not earlier, for a rating of 40 percent for right upper extremity radiculopathy are met. 38 U.S.C. §§ 5107, 5110 (2012); 38 C.F.R. §§ 3.400, 4.124a (Diagnostic Code 8513), 19.33, 20.302 (2017). 2. Prior to May 13, 2013, the criteria for a rating in excess of 20 percent for left upper extremity radiculopathy have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.321, 4.3, 4.7, 4.124a (2017). 3. From May 13, 2013, the criteria for a rating of 30 percent, but not higher, for left upper extremity radiculopathy have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.321, 4.3, 4.7, 4.124a (2017). 4. The June 2006 rating decision that denied entitlement to service connection for right ear hearing loss is final. 38 U.S.C.A. § 7105 (2012); 38 C.F.R. § 20.1103 (2017). 5. Evidence received since the June 2006 rating decision in relation to the Veteran's claim for entitlement to service connection for hearing loss is not new and material, and, therefore, the claim may not be reopened. 38 U.S.C.A. §§ 5108, 7104 (2012); 38 C.F.R. § 3.156 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duty to Notify and Assist As attachments to the Veteran's notices of disagreement, the representative filed briefings that generally objected to examination adequacy, missing records, consideration of medical treatises, and a variety of other issues, providing lengthy citations of law but without any specific articulation of error or the reasons for the objections. The Board finds that the briefings do not raise a specific, substantive issue of VA's failure to assist the Veteran in the development of his claims. Neither the Veteran nor his representative has raised any other issues with the duty to notify or duty to assist. See Scott v McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to duty to assist argument). The Board also finds that the RO substantially complied with the Board's remand instructions of February 2016 by allowing the Veteran an opportunity to submit private records, scheduling a nerve/radiculopathy examination for the Veteran, readjudicating the claim and issuing a supplemental statement of the case. See Stegall v. West, 11 Vet. App. 268, 271 (1998). After a careful review of the file, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Shinseki v. Sanders, 556 U.S. 396, 407-410 (2009). II. Effective Date for Right Upper Extremity Radiculopathy Rating The Veteran is requesting an effective date earlier than September 17, 2015 for the 30 percent rating of his right upper extremity radiculopathy. Upon review of the evidence of record, the Board finds an earlier effective date is appropriate as is a rating under a more appropriate diagnostic code. The Veteran is right hand dominant. See VA examination from October 30, 2015. In April 2014, the RO granted service connection for radiculopathy, right upper extremity, effective September 13, 2012. The RO assigned an initial noncompensable rating under 38 C.F.R. 4.124a, Diagnostic Code (DC) 8516 without explanation of the choice of this Code pertaining to the ulnar nerve. The Veteran filed the claim currently on appeal in September 2015. VA regulations provide that the effective date of an increased rating claim can be up to one year prior to the date of the claim (here September 2014), depending on when the increase in rating is factually ascertainable. 38 U.S.C. § 5110(b)(2) (2012); 38 C.F.R. § 3.400(o)(2). In the present case, when resolving doubt in favor of the Veteran, a 40 percent rating is factually ascertainable as of June 23, 2015. The evaluation of the same disability under various diagnoses is to be avoided. 38 C.F.R. § 4.14. Where there is a question as to which of the two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Board must consider all potentially applicable diagnostic codes. See Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991). Various nerve groups have different rating criteria. The Veteran is currently rated under 38 C.F.R. § 4.124a, Diagnostic Code 8516, which provides the rating criteria for incomplete paralysis of the ulnar nerve. The Board has considered whether another rating code is "more appropriate" than Diagnostic Code 8510. See Tedeschi v. Brown, 7 Vet. App. 411, 414 (1995). The RO has made conflicting attempts to distinguish manifestations between the neuropathies, as the Veteran was originally rated under the musculospiral nerve. The service-connected condition does not mention the ulnar nerve. Further, the October 2016 Statement of Case noted the RO's reliance on an October 2015 VA examination in assigning an increased rating for the Veteran's right upper extremity radiculopathy, and as discussed below, this examination discussed dysfunction of the Veteran's hand and arm. The Board finds the RO, when granting service connection for this disability in its April 2014 rating decision, and later granting an increased rating, considered all the symptoms that affected the Veteran's right arm and hand without delineating the ulnar nerve and nerves of the radicular group in that arm. Consequently, the Board accepts that the RO's initial grant of service connection for radiculopathy of the right upper extremity included consideration of essentially all of the productive symptoms of the Veteran's right upper extremity, and not merely the right ulnar or muscolospiral nerve. The evidence of record shows involvement of nerves from the neck through the Veteran's right hand, and not just the ulnar nerve. Therefore Board finds that Diagnostic Code 8513, dealing with paralysis of all radicular groups is the more appropriate diagnostic code for evaluation. Under Diagnostic Code 8513, a 20 percent rating is assigned for mild incomplete paralysis in the major extremity as well as in the minor extremity. A 40 percent rating is warranted for moderate incomplete paralysis in the major extremity. Severe incomplete paralysis in the major extremity results in an evaluation of 70 percent. The highest rating of 90 percent regarding the major extremity is reserved for complete paralysis. 38 C.F.R. § 4.124a. Analysis The medical records are silent on the Veteran's upper extremity radiculopathy from September 2014, until June 2015. Upon VA examination on June 1, 2015 for the Veteran's left upper extremity radiculopathy, the examiner did not discuss whether there was paralysis of the Veteran's right upper extremity, but did note a sensory examination was normal with regard to the Veteran's right upper extremity and no symptoms were noted to be attributable to any peripheral nerve conditions. Similarly, a reflex examination was normal as was the Veteran's right wrist, elbow, grip and pinch strength. Treatment records from June 23, 2015 indicate the Veteran reported worsening in his condition and that he wanted to start on medication (Gabapentin). Treatment records from October 30, 2015 note the Veteran reported the Gabapentin was not helpful and that he wanted an increased dose. The Veteran also reported that his symptoms had not gotten any worse. On October 30, 2015, the Veteran also underwent VA examination for evaluation of his service-connected upper extremity disabilities. The RO found the October 30, 2015 examiner's findings to support a 30% rating (moderate incomplete paralysis under DC 8516) for the Veteran's right upper extremity radiculopathy. The Board agrees with the finding of moderate incomplete paralysis and the Veteran has not expressed disagreement with the RO's assessment of a 30% rating. However, in light of the Veteran's report to his primary care physician on October 30, 2015 that his symptoms had not gotten worse since his June 23, 2015 visit, the Board finds moderate incomplete paralysis is supported from that date. Prior to June 23, 2015 such a finding is not supported. As noted above, the VA examination from three weeks prior, on June 1, 2015, did not reveal symptoms consistent with even mild incomplete paralysis of the Veteran's right upper extremity. See 4.124a, Diagnostic Codes 8513 and 8516. Furthermore, as the Board has determined DC 8516 is not the appropriate diagnostic code to use in evaluating the Veteran's right upper extremity radiculopathy, a 30% rating is not appropriate. Under DC 8513, a 40 percent rating is warranted for moderate incomplete paralysis in the major extremity. In light of the above, a rating of 40 percent for the Veteran's right upper extremity radiculopathy is warranted from June 23, 2015, but not earlier. III. Rating of Left Upper Extremity Radiculopathy The Veteran is requesting an increased rating for his left upper extremity radiculopathy. The Veteran filed a claim for his left arm in February 2013. In an April 2013 rating decision, the RO granted service connection with a 20 percent rating effective September 13, 2012. The Veteran appealed this decision and was later granted a 30 percent rating, effective June 1, 2015. See August 5, 2015 Supplemental Statement of the Case. i. In excess of 20 percent prior to June 1, 2015 As an initial matter, the Board notes that the RO granted a 20 percent rating effective September 13, 2012 because that was "the date VA medical records show a worsening." See April 15, 2013 Rating Decision. VA medical records from that day show the Veteran complained of radiculopathy down his right arm on that day, with no mention of his left arm. Despite this, the Board will not disturb the RO's finding. A review of the evidence of record first reveals complaint of left arm radiculopathy in the Veteran's February 2013 claim (numbness in left arm). A December 2012 VA examination for traumatic brain injury revealed no nerve or sensory dysfunction. Similarly, in September 2009 the Veteran denied radiation of pain down his arms. See September 7, 2009 VA treatment note. Upon VA examination in March 2013 of the Veteran's cervical spine, the Veteran reported his left arm was not strong and that his left side couldn't keep up. He also reported that sometimes his left arm felt detached, a kind of burning, and that he may wake with burning pain. The Veteran's muscle strength in his elbows, wrists and fingers was normal with no muscle atrophy. The Veteran's left biceps, triceps and brachioradialis were found to be hyperactive without clonus during a reflex examination. A sensory examination revealed decreased sensation in the left shoulder area. Mild numbness, parestheseas and/or dysesthesias was noted in the left upper extremity. Diffuse weakness in the left upper extremity was also noted as a sign or symptom of the Veteran's radiculopathy. The examiner noted the Veteran's radiculopathy to be mild, on the left, and involving the upper radicular group (C5/C6 nerve roots). In May 2013 the Veteran submitted a claim for radiculopathy in his left hand, stating he was experiencing weakness and loss of use. The Veteran also reported that he could not spread his fingers, which was necessary for his work. A VA examiner reviewed the Veteran's file in October 2013 and opined his right hand radiculopathy was a continuation of his arm radiculopathy. The examiner relied on the Veteran's medical records and medical literature. The RO considered the opinion in evaluating the Veteran's left hand in its October 2013 Statement of the Case. Although the examiner cited the Veteran's right hand, the rationale provided would apply to his left as well. Upon VA examination on June 1, 2015, the Veteran reported that when using a computer for too long his neck would stiffen up and his left arm flared up. The examiner noted the Veteran had moderate numbness, paresthesias and/or dysesthesias of the left upper extremity. The Veteran's muscle strength was 4/5 for his left elbow, wrist and pinch, but grip was normal (5/5). No muscle atrophy was found and the Veteran's reflexes were normal. Sensation was decreased in the left shoulder (C5), inner/outer forearm (C6/T1) and hand/fingers (C6-8). Radiculopathy with moderate incomplete paralysis of the upper radicular group and middle radicular group was found. The examiner stated there "is no evidence on clinical exam and MRI of the neck that suggests the left 'lower' radicular group to be involved at this time per this examiners opinion." In the period between the March 2013 VA examination and the June 1, 2015 examination, there are no records reflecting treatment of the Veteran's left upper extremity radiculopathy or statements from the Veteran or other lay observers regarding his condition, except the Veteran's May 2013 statements regarding his left hand. In light of this, competent evidence concerning the nature and extent of the Veteran's disability has primarily been provided by the medical personnel who have examined him during the current appeal and who have rendered pertinent opinions in conjunction with the evaluations. The medical findings directly address the criteria under which the Veteran's left upper extremity disability is evaluated. As such, the Board finds these records to be the most probative evidence with regard to whether an increased rating is warranted. The March 2013 examiner opined mild radiculopathy and the examination findings are consistent with such an opinion and not a higher rating, in that the Veteran's signs and symptoms were found to be mild, including his hyperactive muscles. The June 2015 examiner opined moderate radiculopathy and the examination findings were consistent with such an opinion and not a higher rating, including moderate numbness, paresthesias and/or dysesthesias. In light of the Veteran's May 2013 statements regarding weakness and loss of use in his left hand, the October 2013 opinion that the Veteran's hand was a continuation of his arm radiculopathy, and the lack of an examination until June 2015, the Board resolves doubt in favor of the Veteran and finds the Veteran's moderate radiculopathy to have begun May 13, 2013, the date he completed his statement. A rating in excess of 30 percent prior to May 13, 2013 is not warranted. The Board notes that even if the code for all radicular groups were applied (Diagnostic Code 8513), the rating for mild and moderate is the same as for the upper and middle radicular groups and would not result in a higher rating. See 38 C.F.R. § 4.124a, Diagnostic Codes 8510-8513. ii. In excess of 30% from May 13, 2013 As noted above, a June 23, 2015 treatment record reveals the Veteran reported feeling radiculopathy in his fingers, hands and lower arms. The Veteran also reported that it was hard to hold a pencil, that he had to press hard to write, that he could get cramps in his hands and that he could not do fine motor skills like buttoning sleeves on a shirt. The Veteran was not on any medication, but wanted to start Gabapentin. The Veteran was prescribed the medication, referred to physical therapy and advised to get an MRI. On August 3, 2015 the Veteran attempted to have an MRI of his cervical spine taken, but he was unable to complete the examination due to pain and muscle spasms. As noted above, treatment records reflect Gabapentin did not work and the Veteran was given an increased dose on October 30, 2015. The record from that day also notes the Veteran was not able to get a cervical MRI or get into physical therapy. The Veteran reported in February 2016 that the Gabapentin was not working and that it may be making him feel tired and strange after the increased dose. The Veteran was advised he could try another medication and was sent Venlafaxine two days later. The Veteran also reiterated that it was hard to hold a pen and that he had to press hard to write, which causes a callus on his middle finger. The Board notes the Veteran is right hand dominant. See VA examination from October 30, 2015. In June 2016 the Veteran contacted VA regarding an MRI that had been scheduled for him, and the Veteran stated he would like to hold off on having it done as he was really busy at work and couldn't take time off. Upon VA examination in September 2016, the Veteran reported numbness/tingling that starts at the base of his neck and radiated down into his left arm and left hand. He also reported being on Gabapentin. The examiner found the Veteran to have moderate constant pain, moderate paresthesias and/or dysesthesias, and moderate numbness of his left upper extremity. His muscle strength was normal with no muscle atrophy. The Veteran's left biceps, triceps and brachioradialis were found to be hypoactive during a reflex examination. The Veteran was found to have decreased sensation in the inner/outer left forearm (C6/T1) and left hand/fingers (C6-8). The examiner noted moderate incomplete paralysis of the left upper radicular nerve group (5th and 6th cervicals). All other nerves and nerve groups were noted to be normal. The examiner noted the Veteran's condition did not impact his ability to work. In adjudicating the Veteran's claims the Board must assess the competence and credibility of the Veteran. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Washington v. Nicholson, 19 Vet. App. 362, 368-69 (2005). The Board acknowledges that the Veteran is competent to give evidence about what he observes or experiences concerning his disabilities. See Layno v. Brown, 6 Vet. App. 465 (1994). He is not, however, competent to identify a specific level of disability according to the appropriate diagnostic code. Such competent evidence concerning the nature and extent of the Veteran's left upper extremity radiculopathy has been provided by the medical personnel who have examined him during the current appeal and who have rendered pertinent opinions in conjunction with the evaluations. The medical findings directly address the criteria under which the Veteran's left upper extremity disability is evaluated. As such, the Board finds these records to be the most probative evidence with regard to whether an increased rating is warranted. In order for the Veteran to obtain a higher rating for his left upper extremity radiculopathy, the evidence of record would have to demonstrate severe incomplete paralysis or complete paralysis. Review of the Veteran's records does not support such a finding. Since June 1, 2015, the Veteran has consistently been found to have moderate incomplete paralysis. Additionally, the Veteran's signs and symptoms have been found to be no more than moderate in nature, including, but not limited to, moderate constant pain, moderate paresthesias and/or dysesthesias, and moderate numbness. In light of this, a rating in excess of 30 percent from May 13, 2012 is not warranted. IV. Right Ear Hearing Loss - New and Material Evidence In June 2006, the RO issued a rating decision denying, in pertinent part, service connection for right ear hearing loss, because the evidence of record did not show a current right ear hearing disability. The Veteran was advised of the decision and his appellate rights. However, he did not appeal or submit new and material evidence within one year. Therefore, the June 2006 decision is final. The Veteran submitted an application to reopen his claim of service connection for right ear hearing loss in February 2016. Generally, a claim which has been denied in an unappealed Board decision or an unappealed RO decision may not thereafter be reopened and allowed. 38 U.S.C. §§ 7104(b) and 7105(c) (2012). The exception to this rule is 38 U.S.C. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. New evidence means existing evidence not previously submitted to agency decision makers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a) (2017). The U.S. Court of Appeals for Veterans Claims (Court) interpreted the language of 38 C.F.R. § 3.156(a) as creating a low threshold. See Shade v. Shinseki, 24 Vet. App. 110, 116-17 (2010). The Court emphasized that the regulation is designed to be consistent with 38 C.F.R. § 3.159(c)(4), which "does not require new and material evidence as to each previously unproven element of a claim." Shade, 24 Vet. App. at 120. The Court in Shade also stated "the determination of whether newly submitted evidence raises a reasonable possibility of substantiating the claim should be considered a component of the question of what is new and material evidence, rather than a separate determination to be made after the Board has found that evidence is new and material." Shade, 24 Vet. App. at 118. For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). Impaired hearing is considered a disability for VA purposes when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater; or, when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. The Veteran's auditory threshold findings and speech recognition score do not meet the requirements for a current disability. In June 2006, the RO granted service connection for left ear hearing loss but denied service connection for right ear hearing loss because a June 2006 audio examination that found the Veteran did not have hearing loss that met the VA criteria for defective hearing. In May 2016, the Veteran underwent another VA audio examination, which revealed the following: HERTZ CNC 500 1000 2000 3000 4000 % Right Ear 5 10 5 30 25 98 The examiner diagnosed the Veteran with right ear sensorineural hearing loss. The Board finds this to be new evidence, in that it was not previously considered and does indicate the Veteran has been diagnosed with some hearing loss. However, the Board also finds that the examination report is cumulative in that it provides further evidence that the Veteran does not have a right ear hearing disability for VA purposes. Therefore, it does not relate to an unestablished fact necessary to substantiate the claim.and does not raise a reasonable possibility of substantiating the claim. Accordingly, the low bar in Shade is not met and Veteran's application to reopen the claim of service connection for right ear hearing loss is denied. ORDER Entitlement to an effective date of June 23, 2015, but not earlier, for an increased rating of 40 percent, under DC 8513, for right upper extremity radiculopathy is granted. Entitlement to a rating in excess of 20 percent for left upper extremity radiculopathy prior to May 13, 2013 is denied. Entitlement to a rating in excess of 30 percent, but not higher, for left upper extremity radiculopathy from May 13, 2013 is granted. The application to reopen the claim of entitlement to service connection for bilateral hearing loss is denied. REMAND The Veteran served as a U.S. Army hospital food specialist with service in Southwest Asia in 1990-91 and 2004-05. The Veteran seeks service connection for GERD, also claimed as acid reflux. VA obtained a medical opinion on the etiology of the Veteran's GERD in May 2016, but not an examination. The medical professional examined the Veteran's record and opined the Veteran's GERD was not caused or aggravated by his posttraumatic stress disorder with depression and alcohol use. This opinion did not address whether the disorder was directly caused or aggravated by any aspect of service including whether it is a qualifying chronic disability (functional gastrointestingal disorder) associated with Persian Gulf War service. The examiner stated "it would be resorting to speculation to state the GERD/reflux was truly aggravated beyond normal progression by the PTSD with depression/alcohol use". With regard to causation, the examiner stated the Veteran's GERD "risk factors . . . are the causes of his GERD/reflux." The examiner also stated these risk factors "are clearly noted" in the Veteran's medical records from Omaha VA Medical Center (OVAMC). However, review of the Veteran's medical record does not reveal a list of risk factors and the examiner did not provide them in the report that contained the examiner's opinion. Additionally, since this opinion was provided, the Veteran's representative has raised the possibility that the Veteran's medication may have caused or aggravated his GERD and that the examiner did not address this. See Correspondence dated June 24, 2016. The representative did not identify a specific medication, but the Board notes the Veteran has a history of adverse side effects from medication. See VA treatment record from August 21, 2008 (discontinued Citalopram and Zolpidem due to side effects). In light of this contention, the lack of an in person examination and apparent lack of risk factors found in the record, the Board will remand the issue of entitlement to service connection for GERD/acid reflux in order to update the record and for the Veteran to have an examination in which he can explain his theory of entitlement, and the examiner can provide a more comprehensive opinion. Accordingly, the case is REMANDED for the following action: 1. Obtain all outstanding VA treatment records, to include records from OVAMC that identify the Veteran's risk factors for GERD/acid reflux. If the AOJ determines the requested records are already of record or do not exist, a memorandum to that effect should be added to the claim file. 2. Schedule the Veteran for an examination for GERD/acid reflux with an appropriate medical professional. The Veteran's lay history of symptomatology and theory of entitlement should also be recorded and considered. Based on the examination of the Veteran and a thorough review of the record, the examiner should provide an opinion on: a. Whether it is at least as likely as not (50 percent probability or higher) that GERD/acid reflux is proximately due to or aggravated beyond the normal progression by a service-connected disease or illness, either individually or in combination, to include treatment of such diseases or illnesses; and b. Whether the GERD/acid reflux disorder was caused or aggravated by any aspect of the Veteran's active service including as a chronic qualifying disability arising from service in the Persian Gulf War If aggravation beyond the normal progression is found, the degree of aggravation and baseline prior to aggravation should be specifically identified, if possible. Supporting rationale for all opinions expressed must be provided. If the examiner is unable to provide any required opinion, he or she should explain why. 3. After undertaking any additional development deemed appropriate, adjudicate the claim in light of any additional evidence added to the record. If the benefit sought on appeal remains denied, the Veteran and his representative should be furnished with a Supplemental Statement of the Case. 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). ____________________________________________ J. W. FRANCIS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs