Citation Nr: 20021640 Decision Date: 03/26/20 Archive Date: 03/26/20 DOCKET NO. 16-23 322 DATE: March 26, 2020 ORDER Entitlement to service connection for a neck disability is dismissed. REMANDED Entitlement to service connection for a gastrointestinal disability, to include gastroesophageal reflux disease (GERD), is remanded. FINDING OF FACT The claim of entitlement to service connection for a neck disability was granted by the Department of Veterans Affairs (VA) Regional Office (RO), effective December 29, 2011, in a September 2014 rating decision; therefore, there is no longer a case or issue in controversy. CONCLUSION OF LAW The Board lacks jurisdiction over the issue of entitlement to service connection for a neck disability because the issue has been granted in full at the Agency of Original Jurisdiction (AOJ); therefore, the issue is dismissed. 38 U.S.C. §§ 7104, 7105; 38 C.F.R. §§ 19.7, 20.101, 20.200, 20.202, 20.205. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1991 to August 1991, and from January 2003 to March 2004, including service in southwest Asia. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a June 2013 rating decision by a VA Regional Office (RO), which denied entitlement to the benefits sought on appeal. Entitlement to service connection for a neck disability Generally, the Board’s jurisdiction is predicated upon an appeal having been filed on an issue or issues in controversy. 38 U.S.C. §§ 7104, 7105; 38 C.F.R. §§ 19.7, 20.101. An appeal consists of a timely filed notice of disagreement (NOD), a statement of the case (SOC), and a timely substantive appeal. 38 U.S.C. § 7105, 38 C.F.R. § 20.200. The RO denied the Veteran’s claims for entitlement to service connection for a neck disability in a June 2013 rating decision. The Veteran filed a timely NOD in June 2013. The Veteran received an SOC in March 2016, and the Veteran perfected his appeal to the Board by a May 2016 VA Form 9 substantive appeal. However, in a September 2014 rating decision, the RO granted service connection for the Veteran’s neck disability, effective December 29, 2011. Thus, the issue of entitlement to service connection for a neck disability has been granted in full; therefore, it is no longer before the Board. 38 U.S.C. §§ 7104, 7105; 38 C.F.R. §§ 19.7, 20.101, 20.200, 20.202. It is unclear to the Board why the RO issued a statement of the case in March 2016, after it had already granted the Veteran’s claim. However, the fact remains, service connection was already granted. Accordingly, the claim for service connection for a neck disability must be dismissed. REASONS FOR REMAND Entitlement to service connection for a gastrointestinal disability, to include GERD, is remanded. The Veteran claims that service connection is warranted for his claimed GERD disability. The Veteran specifically contends that his current GERD symptoms began during his active service in Southwest Asia and have continued ever since separation. The Veteran was afforded an examination for his claimed GERD disability in May 2013. The May 2013 examiner confirmed a diagnosis of hiatal hernia with associated reflux. The examiner stated that the Veteran had no functional limitation from his condition, and that his condition was not documented on studies performed in 2003 while deployed to Iraq. The examiner stated that the Veteran’s condition is less likely than not related to a motor vehicle accident from 2011 or 2013. The Board finds the March 2019 examiner’s opinion to be inadequate. It is not clear whether the examiner fully addressed the Veteran’s lay statement’s as to onset and presence of gastrointestinal symptoms. Specifically, it is not clear whether the examiner fully considered the Veteran’s competent lay statement that his GERD symptoms began during his deployment to Iraq in 2004, and that the Veteran has intermittently complained of the issue since separation. Furthermore, the examiner only provided an opinion on whether the Veteran’s gastrointestinal symptoms were related to a motor vehicle accident in 2011 or 2013 and did not discuss whether the Veteran’s condition was related to environment exposures or whether he has had consistent symptoms since separation from service. Accordingly, remand is appropriate to obtain an additional VA medical opinion regarding the etiology of the Veteran’s claimed gastrointestinal disability, to include GERD, in light of the Veteran’s competent lay statements regarding the onset of his GERD symptoms. The matters are REMANDED for the following action: Obtain an addendum medical opinion from a qualified VA medical professional to determine the nature and etiology of any current gastrointestinal disability to include GERD. The examiner should review the claims folder, and then respond to the following: Is it at least as likely as not (i.e., a likelihood of 50 percent or more) that a gastrointestinal disability, to include GERD, is due to active service, to include environmental exposures during service in Southwest Asia? Please review and consider the lay assertions of record, to include the Veteran’s statements regarding onset of his GERD symptoms during his deployment to Iraq in 2004 and intermittently since. See VBMS, document labeled Correspondence, receipt date 06/13/2019. Also, note that the Veteran is competent to describe any symptoms he may have experienced since service discharge, particularly symptoms of GERD. Additionally, the examiner must consider the Veteran’s treatment for GERD symptoms noted in his service treatment records, particularly between 2003 and 2004. See VBMS, document labeled Medical Treatment Record – Government Facility, receipt date 03/06/2013, see also VBMS, document labeled Medical Treatment Record – Government Facility, receipt date 11/01/2011. The examiner is asked to explain the reasons behind any opinions expressed and conclusions reached. Lay contentions must be considered and weighed in making the determination as to whether a nexus exists. 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. Bethany L. Buck Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board David M. Sebstead, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.