Citation Nr: 21067041 Decision Date: 11/03/21 Archive Date: 11/03/21 DOCKET NO. 16-58 674 DATE: November 3, 2021 ISSUE Entitlement to service connection for upper gastrointestinal disability, claimed as acid reflux. REMANDED Entitlement to service connection for upper gastrointestinal disability, claimed as acid reflux is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from November 1987 to January 1995 and from January 2004 to February 2005. This case comes before the Board of Veterans' Appeals (the Board) from an October 2013 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). This matter was previously remanded by the Board in December 2018 and April 2021 for further development. Although the Board regrets further delay, it finds that for the reasons explained below, that this matter must be remanded once again for further development. Please note that the case has been advanced on the docket pursuant to 38 C.F.R. § 20.900 (c). Entitlement to service connection for upper gastrointestinal disability, claimed as acid reflux is remanded. The Veteran contends that his upper gastrointestinal disability (GI) is etiologically related to his active- duty service. The Veteran's October 1987 enlistment examination does not reflect that he had a gastrointestinal disability prior to entering his first period of active-duty service. An April 1989 treatment note reflects that while on active duty, the Veteran complained of an upset stomach. The Veteran's enlistment examination prior to entering his second period of active- duty service in January 2004 is missing from the record. A review of the STRs, which were in close proximity to his second period of active-duty service, show that the Veteran listed acid reflux as a current medical problem on his May 2005 Initial Medical Review Annual Medical Certificate, and reported undergoing surgery on his esophagus in October or November 2002. The STRs also show that in October 2005, he sought treatment for acid reflux and reported undergoing a Nissen fundoplication for GERD two years prior and received a diagnosis of esophageal reflux. The Veteran was afforded a May 2006 VA General Medical Examination at which time the Veteran was diagnosed hiatal hernia and GERD. The examiner at that time did not provide an opinion on the etiology of the Veteran's upper gastrointestinal disability. The Veteran was most recently afforded a VA examination in May 2021 and an addendum opinion was issued in September 2021. The examiner diagnosed GERD, structure of the esophagus and esophageal sphincter stretching. The examiner explained, in part, that upon review of the claims file it showed that the Veteran's current disability began in between his periods of active duty and therefore was less likely than not related to his active-duty service. In providing a rationale the examiner explained that the Veteran had an anatomical structure disorder, previously noted as hiatal hernia, which can cause GERD. The examiner also explained that although the Veteran was treated for a GI illness in April 1989, this condition was acute, and he did not report related symptoms at his time of separation from his first period of active duty. Therefore, the examiner concluded that the condition began in between periods of active- duty service. Because the Veteran endorsed symptoms of reflux in May 2005 and August 2005, the examiner concluded that although the condition was not related to his military service dates, the Veteran's gastrointestinal disability symptoms continued during his second active-duty period. The Board however finds that the May 2021 VA opinion is inadequate for adjudication purposes. The examiner, in opining that the Veteran's GI disability was a pre-existing disorder, did not attempt an analysis consistent with 38 U.S.C. § 1111 and 38 C.F.R. § 3.304. In this regard, in such cases where a preexisting disorder is not noted at service entrance, the burden is on VA by a "clear and unmistakable evidence" standard to show both a) the disorder preexisted service and b) the preexisting disorder was not aggravated in or during service. See Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004); Bagby v. Derwinski, 1 Vet. App. 225, 227 (1991). The Secretary (of VA) may rebut the second prong of the presumption of soundness through demonstrating, by clear and unmistakable evidence, either that (1) there was no increase in disability during service, or (2) any increase in disability was due to the natural progression of the condition. Quirin v. Shinseki, 22 Vet. App. 390, 397 (2009) (citing Wagner, 370 F.3d at 1096) (emphasis added); see also Horn v. Shinseki, 25 Vet. App. 231 (2012). To allow for proper legal analysis of a veteran's claim as it pertains to the claimed disability, medical clarification may be necessary as to whether the veteran's condition is a congenital or developmental "disease" or "defect." See id.; Quirin v. Shinseki, 22 Vet. App. 390, 395 (2009). If the claimed disorder is a disease, an opinion may be required as to whether it was as likely as not aggravated by the veteran's period of active service beyond its natural progression. If the claimed disorder is a defect, an opinion may be required as to whether it was as likely as not subject to a superimposed disease or injury during military service that resulted in disability apart from the congenital or developmental defect. Congenital or developmental defects themselves are not diseases or injuries within the meaning of the applicable legislation and are generally not subject to service connection. 38 C.F.R. §§ 3.303(c), 4.9 (2015); see Winn v. Brown, 8 Vet. App. 510, 516 (1996). Service connection is only possible if there is evidence of additional disability due to aggravation during service of the congenital defect by superimposed disease or injury. See VAOPGCPREC 82-90; Monroe v. Brown, 4 Vet. App. 513, 514-15 (1993); Carpenter v. Brown, 8 Vet. App. 240, 245 (1995); VAOPGCPREC 67-90; VAOPGCPREC 11-99. In the present case, the Board finds that a remand is necessary to obtain a medical opinion which addresses whether it is clear and unmistakable that any upper gastrointestinal disability preexisted either period of the Veteran's active-duty service and, if so, whether it was clearly and unmistakably not aggravated by his active-duty service. The Board points out that although the record reflects that the Veteran has been previously diagnosed hiatal hernia, the April 2021 examiner did not continue this diagnosis and appeared to indicate, rather, the proper diagnosis was due to an anatomical structure disorder. The Board therefore also finds that clarification is needed as to all diagnosed upper GI disabilities during the appeal period and whether any condition is a congenital or developmental "disease" or "defect." See Quirin v. Shinseki, 22 Vet. App. 390, 395 (2009). Once VA undertakes the effort to provide an examination when developing a claim, the exam must be an adequate one. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). As such this matter must be remanded for an addendum medical opinion. The matters are REMANDED for the following action: 1. Obtain any outstanding and relevant private and/or VA treatment records. Should such exist, associate such with the claims file. 2. Forward the claims file to the examiner who conducted the May 2021 VA examination, or if the examiner is unavailable, another suitably qualified examiner, for completion of an addendum opinion to determine the nature and etiology of any upper GI disability demonstrated at any time during the appeal period. If the examiner determines that another in-person examination of the Veteran is required to provide the below-requested information, then such an examination should be scheduled. The claims file, and a copy of this remand, must be made available to the examiner for review, and the examination report must reflect that such a review was performed. The examiner is asked to address the following: a) Identify the diagnosis of any upper gastrointestinal disability(s) present since the Veteran filed his claim for service connection or within close proximity thereto. The examiner should address and reconcile any current findings with any other previous diagnosis of an upper GI disability (s) during the period on appeal. b) Does the evidence of record clearly and unmistakably (i.e., it is undebatable) show that the Veteran has any upper gastrointestinal disability (s) diagnosed during the appeal period which pre-existed either period of active duty service, and if so, whether it is a pre-existing condition that is not congenital, or a congenital condition? c) If a pre-existing condition by clear and unmistakable evidence existed, is it at least as likely as not (50 percent or greater likelihood) that the pre-existing upper GI condition underwent any worsening (i.e., increase in severity) during service? d) If so, is there clear and unmistakable evidence (undebatable) that such worsening of the pre-existing condition(s) during service was due to the natural progress of the disease? e) If the Veteran's pre-existing condition is a congenital defect, is there evidence of additional disability due to aggravation during service of the congenital defect by any superimposed disease or injury? f) If there is not clear and unmistakable evidence that any currently diagnosed upper gastrointestinal disability(s) preexisted service and is not congenital, then the Veteran must be considered to have been sound at entry without a diagnosis of an upper GI disability. Based upon that premise, is it at least as likely as not (a probability of 50 percent or greater) that the Veteran has any diagnosed upper gastrointestinal disability that had its onset during active service or is related to any in-service injury, event, or disease. A detailed rationale must be provided for any opinion offered. 3. After completing the requested actions, readjudicate the claim in light of all pertinent evidence and legal authority. If the benefit sought remains denied, furnish to the Veteran and his representative with 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. 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. It further is reiterated that this matter has been advanced on the Board's docket. 38 U.S.C. § 7107(a)(2); 38 C.F.R. § 20.900(c). Michael A. Pappas Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Nettey, 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.