Citation Nr: 0534284 Decision Date: 12/19/05 Archive Date: 12/30/05 DOCKET NO. 95-38 050 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston- Salem, North Carolina THE ISSUE Entitlement to service connection for gastroesophageal reflux disease (GERD) as secondary to service-connected post- traumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Van Stewart, Associate Counsel INTRODUCTION The veteran had active service from August 1966 to September 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal of an April 1995 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina which, among other things, denied service connection for GERD. This case was remanded by the Board for additional development in September 1999, and again in July 2003 and August 2004. FINDING OF FACT The veteran's GERD has been made worse by his service- connected PTSD. CONCLUSION OF LAW The veteran has GERD that is aggravated by service-connected disability. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.310(a) (2005); Allen v. Brown, 7 Vet. App. 439 (1995). REASONS AND BASES FOR FINDING AND CONCLUSION The veteran was service-connected for PTSD in April 1995. By that same rating decision service connection was denied for GERD, which the veteran claims is secondary to his PTSD. The veteran's service medical records (SMRs) show he reported to sick call one time complaining of an upset stomach, but there are no complaints of or treatment for GERD. The record shows that the veteran underwent surgeries in February 1982 and October 1993. The record also shows he suffered an on-the-job crush injury to his left leg in February 1993. This injury resulted in two additional surgeries. The veteran was not able to gainfully work subsequent to his February 1993 injury. Of record is a letter from the veteran's private gastroenterologist, W.S., M.D., dated in August 1994. Dr. S. noted that he had done an upper endoscopy on February 1992 with findings of GERD, antral erosions, and duodenitis. Dr. S. noted the veteran's 1993 injury, and noted that that injury had left the veteran disabled and on worker's compensation. The veteran related to Dr. S. that the psychological trauma associated with being unable to work had aggravated his underlying GERD. Dr. S. stated that he agreed that this was a reasonable assumption. Also of record are several written statements from the veteran's psychologist, H.G., Ed.D. In a February 1997 treatment summary, Dr. G. noted that the veteran "reported that because of his high anxiety he is being treated for ulcers." The summary did not specify the source(s) of the veteran's "high anxiety." The veteran was afforded a fee-based examination in April 2000, given by P.E., M.D. Dr. E. referenced a February upper GI series (which is of record) that did not show any mass, ulceration, displacement, hiatal hernia, or reflux. This examiner noted the upper endoscopy by Dr. S. on February 1992 which found GERD, antral erosions, and duodenitis. Dr. E. also diagnosed GERD, but determined that the diagnosis of GERD is less likely than not related to PTSD. He noted that stress may sometimes make reflux disease worse, but it is unlikely to be the etiology. Dr. E. opined that the veteran's GERD is most likely due to transient incompetence of his lower esophageal sphincter. Dr. E.'s rationale for this opinion was that the veteran did not have any symptoms or clinical signs to explain any other etiology for his GERD. The veteran was afforded a fee-based examination in September 2001 in connection with his claim for an increased evaluation of his service-connected PTSD. The examiner listed several injuries and diseases in the veteran's medical history. GERD was not one of those listed. The veteran was afforded another VA examination in June 2002 in connection with his GERD claim. The examiner diagnosed GERD. In a September 2002 addendum, this examiner opined that, in his medical judgement, there is no direct relation between the veteran's PTSD and his GERD. Of record is a February 2003 letter from the veteran's psychologist, Dr. G.. Dr. E. noted that, while he is a psychologist and not a psychiatrist (i.e., not a medical doctor), based on 28 years of experience, he stated that "unequivocally, there is a strong correlation between [the veteran's GERD] symptoms and his psyche." The veteran was afforded another VA psychiatric examination given in February 2004. The veteran related that he had had stomach complaints in service, but did not seek medical help for them. The veteran related that he did not seek medical attention until he developed bleeding hemorrhoids decades after service. This examiner noted that it was significant that the veteran reported no worsening of GI symptoms from Vietnam until treatment in the early 1990s. This examiner also noted that the veteran stopped working only after his job-related injury. The examiner opined that, taking into consideration all the factors, the severity of the veteran's GERD symptoms, but not the illness itself, is at least as likely as not a consequence of his anxiety. Because of the conflicting opinions regarding the etiology of the veteran's GERD, on the most recent remand the veteran was afforded a gastrointestinal (GI) examination and a psychiatric examination to determine whether or not the veteran's GERD and PTSD are related. The GI examiner noted that the veteran's symptoms are characteristic and sufficient to make a diagnosis of GERD without the need for an additional endoscopy. The examiner noted that the veteran's GERD symptoms had been markedly reduced by taking Pepcid. Nevertheless, the examiner noted that the veteran had continuing symptoms of "modest severity" requiring medication about three times per month. The examiner concluded that GERD is a condition where stress and anxiety can significantly influence symptoms, and, in this case, this examiner opined that the veteran's symptoms have probably been increased to some extent due to his ongoing PTSD-related stress and anxiety. The veteran was afforded a VA psychiatric examination in July 2005. This examiner agreed with previous examiners who had opined that anxiety can worsen gastrointestinal disturbances such as GERD. However, the examiner noted that he could not say with reasonable medical certainty that the veteran's GERD is exacerbated primarily by his PTSD. The examiner continued that the confounding factors in this veteran's case include, but are not limited to, stresses that developed in childhood, current financial stress, and stress related to dealing with VA. This examiner also noted that the veteran's GERD symptomatology did not appear to begin in a coincident fashion with his PTSD symptomatology. Service connection may be granted for disability resulting from disease or injury incurred or aggravated during active service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303. Service connection may also be granted for any injury or disease diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). Generally, service connection requires (1) medical evidence of a current disability, (2) medical evidence, or in certain circumstances lay testimony, of in- service incurrence or aggravation of an injury or disease, and (3) medical evidence of a nexus between the current disability and the in-service disease or injury. Caluza v. Brown, 7 Vet. App. 498 (1995). Further, disability which is proximately due to or the result of a service-connected disease or injury is considered service connected, and when thus established, this secondary condition is considered a part of the original condition. 38 C.F.R. § 3.310(a); Allen v. Brown, 7 Vet. App. 439 (1995). In Allen, the court held that the term "disability" refers to impairment of earning capacity, and that this definition mandates that any additional impairment of earning capacity resulting from an already service-connected condition, regardless of whether or not the additional impairment is itself a separate disease or injury caused by the service-connected condition, shall be compensated. Id. at 448. Here, the veteran claims that his GERD was caused or made worse by his service-connected PTSD. Nevertheless, as noted above, no medical evidence shows that PTSD caused GERD. Although examiners have not been entirely clear as to the exact cause of GERD, what does appear clear is their conclusion that the cause was not PTSD. Notwithstanding the absence of a direct relationship, there are instances when a non-service-connected disorder may be aggravated by a service-connected disability. In such instances, a claimant is to "be compensated for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation." Id. at 448 (emphasis added). The medical evidence of record is mixed as to whether or not the veteran's GERD is made chronically worse by his service- connected PTSD. On the one hand is the medical opinion of the April 2000 VA gastroenterologist that the veteran's GERD is less likely than not related to PTSD, but, rather is most likely transient incompetence of the lower esophageal sphincter. The veteran's private gastroenterologist, Dr. S., agreed with the veteran that it was likely that the psychological trauma associated with being unable to work had aggravated his underlying GERD. On the other hand, there is the opinion of Dr. G. that there is a strong connection between GERD and the veteran's psyche. The Board notes that Dr. G.'s opinion was unsupported by medical rationale, and did not indicate to what degree the veteran's service- connected PTSD, as a discrete part of his psyche, may be connected to his GERD. As noted, in between are several opinions that support of the notion that the veteran's GERD has, at least to some as yet unquantified degree, been aggravated by his PTSD. Thus, the Board finds that the evidence is at least in equipoise. Consequently, the Board finds, with resolution of reasonable doubt in the veteran's favor, that his GERD has been made worse by his service-connected PTSD. A grant of secondary service connection is thus warranted. 38 C.F.R. § 3.102. (The degree of impairment for which compensation may be paid is not a question now before the Board. The Board's decision is limited to an award of service connection for the veteran's GERD.) The Board notes that the standard for processing claims for VA benefits was changed, effective November 9, 2000, with the signing into law of the Veterans Claims Assistance Act of 2000 (VCAA) Pub. L. No. 106- 475, 114 Stat. 2096, (codified as amended at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2005)). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). The VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in his possession that pertains to the claim. 38 C.F.R. § 3.159(b)(1). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004); see also Mayfield v. Nicholson, 19 Vet. App. 103 (2005). The Board notes that the veteran was apprised of VA's duties to both notify and assist in correspondence dated in August 2004. (Although the notice required by the VCAA was not provided until after the RO adjudicated the appellant's claim, "the appellant [was] provided the content-complying notice to which he [was] entitled." Pelegrini, 18 Vet. App. at 122. Consequently, the Board does not find that the late notice under the VCAA requires remand to the RO. Nothing about the evidence or any response to the RO's notification suggests that the case must be re-adjudicated ab initio to satisfy the requirements of the VCAA.) Specifically regarding VA's duty to notify, the notification to the veteran apprised him of what the evidence must show to establish entitlement to service connection on a secondary basis, what evidence and/or information was already in the RO's possession, what additional evidence and/or information was needed from the veteran, what evidence VA was responsible for getting, and what information VA would assist in obtaining on the veteran's behalf. The RO requested that the veteran ensure that all pertinent evidence be submitted (including that in his possession) or that it be identified so that the RO could assist in obtaining it. The RO also provided a statement of the case (SOC) and multiple supplemental SOCs reporting the results of the RO's reviews, and the text of the relevant portions of the VA regulations. Regarding VA's duty to assist, the RO obtained the veteran's SMRs and VA and private medical records, and secured multiple examinations in order to ascertain any possible relationship between GERD and service-connected PTSD. VA has no duty to inform or assist that was unmet. ORDER Service connection for gastroesophageal reflux disease (GERD) as secondary to PTSD on an aggravation basis is granted. ________________________________ MARK F. HALSEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs