Citation Nr: 21003615 Decision Date: 01/22/21 Archive Date: 01/22/21 DOCKET NO. 14-28 207A DATE: January 22, 2021 ORDER Entitlement to service connection for gastroesophageal reflux disease (GERD) is denied. REMANDED Entitlement to service connection for bilateral varicose veins, to include as secondary to coronary artery disease (CAD) is remanded. Entitlement to service connection for a bilateral foot disorder, to include as secondary to CAD is remanded. FINDING OF FACT The preponderance of the evidence is against a finding that the Veteran’s GERD first manifested during or was otherwise caused or aggravated by the Veteran’s military service. CONCLUSION OF LAW The criteria for service connection for GERD are not met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2019) REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1969 to April 1971. This appeal comes to the Board of Veterans’ Appeals (Board) from a June 2012 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). The Board remanded the Veteran’s claim for entitlement to service connection for a gastrointestinal disorder to the Agency of Original Jurisdiction (AOJ) in September 2016 and November 2018 with instructions for the AOJ to obtain outstanding relevant records and a VA examination of the Veteran’s claim considering those records. While the AOJ sent multiple letters to the Veteran requesting he complete authorization forms allowing the AOJ to obtain the outstanding relevant records, the Veteran did not reply to the AOJ’s requests or submit the outstanding records. The duty to assist is not a one-way street. Olsen v. Principi, 3 Vet. App. 480 (1992). As neither the Veteran nor his representative have indicated they are willing to provide the authorization forms to VA or would like to make additional efforts to locate outstanding records, the Board will proceed to adjudicate the claim based on the evidence of record. Service connection is granted on a direct basis when there is competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. 38 U.S.C. §§ 1110, 1131; Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a), (d). In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the Court stated that “a veteran need only demonstrate that there is an ‘approximate balance of positive and negative evidence’ in order to prevail.” To deny a claim on its merits, the preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996) (citing Gilbert, 1 Vet. App. at 54). While the Board finds first two Shedden elements are met in this case, the Board finds the preponderance of the evidence is against a finding that the third element is met. VA examinations in the record show the Veteran has a current disability of GERD, and the Veteran’s service records document a diagnosis of gastroenteritis in April 1971. See January 2017 VA esophageal conditions examination and October 2019 addendum opinion. However, the VA examiner opined that additional evidence including relevant outstanding private treatment records from treatment facilities where the Veteran indicated he was treated shortly after his separation from service is needed to determine whether or not the Veteran’s current symptoms of GERD are related to his in-service complaints. The record contains no other nexus opinions on this issue from competent medical professionals. The Board ultimately finds the evidence currently of record does not establish that the third Shedden element is met. While the Veteran is competent to report symptoms such as stomach pain, regurgitation, and other symptoms that he can feel or observe with his senses, the Board finds the Veteran has not demonstrated he possesses the education, training, or experience necessary to identify the etiology of his GERD and establish a continuity or relationship between the symptoms he experienced during his military service and his current symptoms (e.g. a relationship between the documented history of gastroenteritis symptoms and his current disability of GERD). The Veteran has not responded to VA’s many efforts to obtain his authorization to obtain outstanding relevant records the VA examiner determined are necessary to render an opinion on this matter, and the Board finds further development efforts would be futile. Accordingly, the Veteran’s claim is denied. REASONS FOR REMAND In March 2020, the Board remanded the Veteran’s claims for service connection for bilateral varicose vein and foot disabilities to the AOJ to obtain outstanding relevant records and adequate VA examinations of the disabilities before readjudicating the claims. While the AOJ began conducting additional development relevant to the case including obtaining additional records and VA examinations, a review of the record indicates the case was erroneously returned to the Board before the AOJ completed its review and readjudicated the claims. Therefore, the Board will remand these matters to the AOJ to ensure that it substantially complies with the March 2020 remand directives and readjudicates the claims after reviewing the totality of the evidence. The matters are REMANDED for the following action: The AOJ must review the March 2020 remand order and ensure it substantially complies with the Board’s remand directives including obtaining outstanding relevant treatment records and ensuring the VA examinations are compliant with the Board’s prior remand directives. Thereafter, the AOJ must readjudicate the Veteran’s claims for service connection for bilateral varicose vein and foot disorders. If the AOJ denies a claim, the AOJ must issue a Supplemental Statement of the Case and provide it to the Veteran and current representatives. After the Veteran has had adequate opportunity to respond, the appeal must be returned to the Board for appellate review. C. TRUEBA Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Michael Duffy, 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.