Citation Nr: 21002311 Decision Date: 01/13/21 Archive Date: 01/13/21 DOCKET NO. 15-17 490 DATE: January 13, 2021 REMANDED Entitlement to service connection for gastroesophageal reflux disease (GERD) and hiatal hernia is remanded. REASONS FOR REMAND Entitlement to service connection for gout and service connection for neck disability were originally on appeal as well. However, in a June 2020 rating decision, the RO granted service connection for these claims, representing a full grant of benefits. Accordingly, these issues are no longer before the Board. The only remaining issue on appeal is listed on the title page. The Veteran testified before the undersigned Veterans Law Judge in a July 2018 videoconference hearing. A transcript of that hearing has been associated with the file. The Board remanded the matter in February 2019 for additional development. However, the Board finds that the remand directives have not been substantially complied with and another remand is required. Stegall v. West, 11 Vet. App. 268. As stated in the Board remand, the Veteran contends that he was first diagnosed with GERD between 2004 to 2008. The October 2019 VA Esophageal Conditions Disability Benefits Questionnaire confirms a 2006 diagnosis date of hiatal hernia /GERD. An August 2006 private report of operation shows a diagnosis of hiatal hernia. In a May 2019 rating decision, the RO described, and a May 2019 correspondence confirmed that the Veteran’s service between November 2003 to November 2004 and from August 2005 to September 8, 2005 as service on active duty. The AOJ obtained an independent medical opinion (IMO) in July 2020. The examiner opined that the Veteran’s GERD and hiatal hernia are less likely than not due to his military service. The rationale provided was that there was no record to show a specific incident which would explain the cause of the Veteran’s hiatal hernia or GERD symptoms. The only military incident that would cause a hiatal hernia is trauma, which is not documented in the record. This rationale is inadequate as it relies solely on the lack of evidence or trauma. Additionally, the examiner did not account for the Veteran’s reporting. The examiner noted the 2006 diagnosis of the GERD/hiatal hernia, but did not factor this in his opinion as the August 22, 2006 diagnosis occurred less than 12 months from the Veteran’s September 8, 2005 separation. Lastly, the actual opinion reads as vague and not reliable as the examiner stated, “I would say” that his GERD is not related to service. For all these reasons, an additional remand is required in order to obtain an adequate medical opinion. The November 2020 Brief appears to raise the theory of entitlement on a secondary basis. The Veteran’s representative argued that gout is a result of a build-up of uric acid crystals which takes time to gradually develop and this gradual development can be true of GERD and hiatal hernia. As such, on remand the Board will request a medical opinion on a secondary theory of entitlement. The matter is REMANDED for the following action: 1. Forward the Veteran’s claims file to an appropriate examiner for a supplemental opinion, preferably to an examiner other than the one who provided the July 2020 opinion. The examiner is requested to provide an opinion regarding the etiology of the Veteran’s GERD/hiatal hernia. The Veteran was afforded a VA examination in October 2019, so an additional examination is not required. However, the examiner is encouraged to have an examination in person or virtually if he/she feels the examination can assist him/her in providing a detailed, adequate opinion. The need for another examination is left to the discretion of the medical professional offering the opinion. The examiner should respond to the following: (a.) Whether it is at least as likely as not (i.e., probability of 50 percent) that the Veteran’s GERD or hiatal hernia is otherwise related to an event, injury, or disease incurred during any period of active service. (b.) Whether it is at least as likely as not (i.e. 50 percent or greater probability) that the Veteran’s GERD or hiatal hernia is proximately due to or caused by his service-connected gout. (c.) Whether it is at least as likely as not (i.e., 50 percent probability or greater) that the Veteran’s GERD or hiatal hernia was aggravated (worsened in severity beyond a natural progression) by his service-connected gout. (d.) The examiner is asked to specifically address the Veteran’s contentions that incidents of service led to the development of his GERD or hiatal hernia, to include exercising and or lifting heavy objects. (e.) The examiner is asked to specifically address the fact that the August 2006 diagnosis of GERD/hiatal hernia is less than 12 months post the Veteran’s September 2005 separation. The examiner is advised that the mere absence of treatment records or trauma is not wholly dispositive as to whether the Veteran’s GERD or hiatal hernia is a result of his military service. Any opinion offered must be supported by a complete rationale. H.M. WALKER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Talamantes 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.