Citation Nr: A21019751 Decision Date: 12/13/21 Archive Date: 12/13/21 DOCKET NO. 200715-91886 DATE: December 13, 2021 REMANDED Entitlement to service connection for gastroesophageal reflux disorder (GERD) is remanded. REASONS FOR REMAND The appellant is a Veteran who served on active duty from November 1989 to August 1994. In September 2018, the Veteran selected the Higher-Level Review lane when he opted-in to the Appeals Modernization Act (AMA) review system by submitting a Rapid Appeals Modernization Program (RAMP) election form. Such review found a development error and the matter was assigned to the Supplemental Claim review lane for additional development. Following the additional development, an October 21, 2019 AMA rating decision considered the evidence then of record and readjudicated this matter. On October 22, 2019, the Veteran submitted a supplemental claim in this matter and a February 2020 rating decision readjudicated this matter. The Veteran then timely appealed that rating decision to the Board and requested the Board hearing option. On March 9, 2021, a virtual hearing was held before the undersigned; a transcript is in the record. Therefore, the Board's review is limited to evidence on record at the time of the February 26, 2020 rating decision, the Veteran's Board hearing testimony, and evidence received within 90 days following the hearing. The February 2020 rating decision considered the claim of service connection for GERD on the merits (implicitly finding new and relevant evidence was received), found there was a current diagnosis of GERD, and acknowledged that he served in the Southwest Asia theater. The Board is bound by the favorable findings. 38 C.F.R. § 3.104 (c). The Veteran alleges that GERD was diagnosed in service; that he has continuously since service taken over-the-counter medication to treat it; and that it is due to environmental exposures in service, specifically to burn pits, while he was deployed to Southwest Asia. In support of his claim, he submitted 50-pages of private treatment records, a private disability benefits questionnaire (DBQ) (received in September 2018), and a statement from his private provider (Dr. J.M.) (received in November 2018). The 1997 upper GI radiographic studies (cited in the 2018 private DBQ) are not among the private treatment records submitted by the Veteran or otherwise associated with the record. In the statement submitted in support of the claim, the private provider related that he has treated the Veteran since 1994 and that the onset of his GERD occurred in 1992. The provider cited to medical treatises discussing an association between gastrointestinal (GI) system manifestations (to include abdominal pain, heart burn, and chronic dyspepsia) and exposure to unknown chemicals and burn pits in the Gulf war, and opined, "in light of his medical history and the evidence from the studies citied above, it is my medical opinion that the Veteran's GERD is a direct result of his deployment in the Persian Gulf War." On October 2019 VA examination, the VA examiner opined that there was insufficient evidence in the Veteran's service treatment records (STRs) to determine the diagnosis of GERD in service, noting GERD was not diagnosed in service, his separation examination was silent for any gastrointestinal complaints, the private treatment records (currently associated with the record) do not show treatment of GERD prior to 2004, and his private provider does not provide an earlier time of diagnosis or treatment. In the January 2020 addendum opinion to reconcile the VA examiner's opinion with that of the private provider, the October 2019 VA examiner stated he could not revise his negative opinion "without the actual notes from Dr. [J.M.], showing wherein he specifically was treating GERD before the Veteran's RAD or even within one year of it." While the examiner opined that GERD did not manifest in service, he does not address the additional theory of entitlement raised by the Veteran- that his GERD is related to exposure to burn pits. Therefore, the opinion was incomplete, and required clarification. Furthermore, a review of the record found that upon determining new and relevant evidence requiring readjudication was received, the Agency of Original Jurisdiction (AOJ) did not seek the treatment records from the reported provider (Dr. J.M.) that the addendum opinion provider found were critical for a complete opinion. Development to secure such records for inclusion in the claims file is necessary (as they are noted to contain pertinent information). The failure to obtain outstanding private treatment records and ensure that the medical opinion received reflects consideration of the full, accurate record and adequately addresses all theories of entitlement raised are pre-decisional duty to assist omissions that require correction. The matter is REMANDED for the following: 1. Ask the Veteran to complete and submit a VA Form 21-4142 authorizing VA to secure for the record complete clinical records of all evaluations and treatment he has received for his GERD, specifically including those from Dr. J.M., and in particular the reports of the diagnostic studies cited in Dr. J.M.'s opinion. Secure for the record complete (all outstanding) clinical records of the evaluations and treatment from all providers identified. If any private records identified are not received pursuant to VA's request, the Veteran should be so notified and advised that ultimately it is his responsibility to ensure that private medical records are received. 2. After the development sought above is completed, return the record to the October 2019/January 2020 VA examiner for re-review and an addendum opinion regarding the nature and likely etiology of GERD. [If that provider is unavailable or unable to provide the opinion sought, forward the record to another appropriate clinician for review and the opinion sought (if in such circumstances further examination of the Veteran is deemed necessary, such should be arranged).] Upon review of the record (noting specifically the statements regarding his environmental exposures on deployment), the consulting provider should: (a.) Identify the likely etiology for the Veteran's GERD. Specifically, is it at least as likely as not (a 50% or greater probability) that the GERD is etiologically related to his service, to include his reported complaints and self-treatment with over-the counter medication therein and as due to exposures to environmental hazards (to include to burn pits and to any chemicals acknowledged to have occurred therein)? The rationale provided must address the allegation that the GERD was manifested in service/is related to complaints and findings in service and address (express agreement or disagreement with, including rationale) the private medical opinion submitted in support of the claim noted above (with citations to supporting treatise) (b.) If GERD is determined to be unrelated to the Veteran's service and exposures during deployment, identify the etiology for the GERD that is considered to be more likely (and explain why that so). Include rationale for all opinions. If an opinion sought cannot be provided without resort to speculation, explain WHY that is so (e.g., whether the opinion sought is beyond what any medical practitioner might be able to provide, or because available information is inadequate (if so, identify what further information is needed), or because no medical professional could offer such opinion based on the evidence of record and the current state of medical knowledge). GEORGE R. SENYK Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Naumovich, 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.