Citation Nr: 0002799 Decision Date: 02/04/00 Archive Date: 02/10/00 DOCKET NO. 97-30 301 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES Entitlement to service connection for hiatal hernia. Entitlement to service connection for chest pain. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Todd R. Vollmers, Associate Counsel INTRODUCTION The veteran had active service from September 1969 to September 1971. This case came before the Board of Veterans' Appeals (Board) on appeal from a decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina, in July 1997 that denied the claimed benefits. This case was previously Remanded in February 1999 for further development. REMAND The veteran's service medical records indicate that while in service in May 1970 he was treated for stomach cramps, and a diagnosis of acute gastroenteritis was noted. Records show that in July 1970, the veteran complained of chest pain upon swallowing, with a burning pain radiating from the mid sternal region up to the left upper quadrant. The records also note that in August 1971, the veteran complained of stomach cramps with epigastric pain. This case was Remanded in February 1999 for further development, to include a VA examination. The examiner was requested to: " render an opinion as to whether it is at least as likely as not that the veteran's complaints during service were initial manifestations of current hiatal hernia." The Board notes that the VA examination conducted in May 1999 did not include the requested opinion. The examiner merely stated that it was virtually impossible to determine when the hiatal hernia developed, and that it was not unlikely that it could have been present before the onset of symptoms. This opinion does not sufficiently address the question requested on Remand. The United States Court of Appeals for Veterans Claims (Court) has indicated that a remand by the Board confers on the veteran, as a matter of law, the right to compliance with the remand orders. The Court further indicated that it constitutes error on the part of the Board to fail to insure compliance. Stegall v. West, 11 Vet. App. 268 (1998). Accordingly, this case is again REMANDED to the RO for the following additional actions: 1. The RO should request that the veteran provide the names and addresses of all health care providers, VA or private, who have treated him for hiatal hernia since July 1999. The RO should then request all previously unobtained records for association with the claims folder. 2. The RO should then schedule the veteran for a gastrointestinal examination. The claims file must be made available to and be reviewed by the examiner in conjunction with the examination. The examination should include all appropriate testing, and fully describe all current symptomatology and pertinent clinical findings and diagnoses. The examiner should be requested to render an opinion as to whether it is at least as likely as not that the veteran's complaints during service, as noted above, were initial manifestations of the currently diagnosed hiatal hernia. 3. Following completion of the foregoing, the RO must review the claims folder to ensure that all of the requested development has been completed. Any incomplete development should be remedied by appropriate corrective action. The RO should then readjudicate the veteran's claim and, if the decision remains adverse to the veteran, provide the veteran and his representative with a supplemental statement of the case and the applicable time to respond. Thereafter, subject to current appellate procedures, the case should be returned to the Board for further appellate consideration, if appropriate. The appellant need take no action until otherwise notified, but has the right to submit additional evidence and argument on the matter or matters the Board has remanded to the regional office. Kutscherousky v. West, 12 Vet. App. 369 (1999). The purpose of this REMAND is to ensure due process of law. No inference should be drawn regarding the final disposition of the claim as a result of this action. This claim must be afforded expeditious treatment by the RO. 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 The Veterans' Benefits Improvements Act of 1994, Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A. § 5101 (West Supp. 1999) (Historical and Statutory Notes). In addition, VBA's Adjudication Procedure Manual, M21-1, Part IV, directs the ROs to provide expeditious handling of all cases that have been remanded by the Board and the Court. See M21-1, Part IV, paras. 8.44- 8.45 and 38.02-38.03. C. W. Symanski Member, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 1991 & Supp. 1999), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (1999).