Citation Nr: 1210063 Decision Date: 03/16/12 Archive Date: 03/28/12 DOCKET NO. 03-29 268A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for chronic gastritis, to include as secondary to service-connected bilateral knee chondromalacia. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARINGS ON APPEAL Appellant ATTORNEY FOR THE BOARD S. Mishalanie, Counsel INTRODUCTION The Veteran served on active duty from June 1979 to October 1981. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2003 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas, in which the RO, in pertinent part, denied service connection for a stomach disorder. In March 2004 and October 2005, the Veteran testified before Decision Review Officers (DROs) at the RO; transcripts of both hearings are of record. In September 2008 and January 2010, the Board remanded the claim to the RO, via the Appeals Management Center (AMC) for additional development. FINDING OF FACT Chronic gastritis is aggravated by medication used to treat the Veteran's service-connected bilateral knee chondromalacia. CONCLUSION OF LAW Aggravation of chronic gastritis is the result of medication used to treat service-connected bilateral knee chondromalacia. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.310 (prior to October 10, 2006). REASONS AND BASES FOR FINDING AND CONCLUSION The Veterans Claims Assistance Act (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2011). However, as the Board is granting the claim for service connection for chronic gastritis, there are no further VCAA duties in this case. Wensch v. Principi, 15 Vet. App 362, 367-368 (2001). Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). The regulations also provide that service connection may be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection may also be granted for disability which is proximately due to or the result of a service-connected disease or injury. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.310(a). This includes any increase in disability (aggravation) that is proximately due to or the result of a service connected disease or injury. Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either caused or aggravated by a service-connected disease or injury. Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). Effective October 10, 2006, the section heading of 38 C.F.R. § 3.310 was retitled "Disabilities that are proximately due to, or aggravated by, service-connected disease or injury." Paragraph (b) of 38 C.F.R. § 3.310 was redesignated as paragraph (c), and a new paragraph (b) was added, which states: (b) Aggravation of nonservice-connected disabilities. Any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease, will be service connected. However, VA will not concede that a nonservice-connected disease or injury was aggravated by a service-connected disease or injury unless the baseline level of severity of the nonservice- connected disease or injury is established by medical evidence created before the onset of aggravation or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity of the nonservice- connected disease or injury. The rating activity will determine the baseline and current levels of severity under the Schedule for Rating Disabilities (38 CFR part 4) and determine the extent of aggravation by deducting the baseline level of severity, as well as any increase in severity due to the natural progress of the disease, from the current level. The amendment is to be applied prospectively as it is more restrictive; it is not for application in the present claim because it was filed in December 2001. When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b) (West 2002). In this case, the Veteran claims that the use of medication to treat his service-connected bilateral knee chondromalacia causes or aggravates his gastritis. During the DRO hearings, he said that nonsteroidal anti-inflammatory drugs (NSAIDs), including aspirin, first began causing gastric problems during service. At that time, he was taking these medications to treat his knee pain. He said that he continued to have gastric problems after service and later developed gastroesophageal reflux disease (GERD). He said he took Ranitidine to treat his gastric problems. The Veteran's service treatment records reflect that his knee pain was treated with aspirin and other NSAIDs. Various records note that he was allergic to aspirin. In November 1980, he complained of stomach cramps, chills, diarrhea, and vomiting. The impression was gastritis. In March 1981, he complained that Motrin was upsetting his stomach and it was noted that his medication should be changed to Cama (a combination of aspirin and antacid); however, the following month he was prescribed Motrin. In June 1981, the Veteran complained that all the NSAIDs except Zomax upset his stomach. Later that month, he complained of vomiting and was diagnosed with gastroenteritis. The October 1981 discharge examination report indicates the Veterans abdomen and viscera were normal. On the corresponding report of medical history, he denied stomach, liver and intestinal trouble and adverse reaction to serum, drug, or medications; however he endorsed frequent indigestion. Post-service, the Veteran has a long history of treatment for polysubstance abuse and psychiatric problems. He also has had periodic treatment for neck and knee pain. Various records note that certain medications caused stomach problems. For example, a July 1994 VA treatment record notes that he was taking Tylenol and Maalox and that aspirin caused gastritis. In October 2001, he reported Etodolac caused an upset stomach and dark stools. He said that Celebrex, Cava, Motrin, and other NSAIDs "rip up his stomach." It was noted that he was taking Zantac and that the stomach problems were chronic. An August 2003 record notes a diagnosis of GERD. In October 2003, he stated that he had a history of bright red blood per rectum (BRBPR) when he took NSAIDs and had GERD. A March 2004 record notes that the Veteran was taking Celecoxib (NSAID) and ranitidine (used to treat ulcers and GERD). The report of a July 2004 VA examination reflects the Veteran's complaints of heartburn, gas, indigestion, and colicky upper abdominal pain. The impression was a history of chronic gastritis, contained on medication; esophageal reflux disease; and hepatitis C. The examiner (Dr. J.R.) opined that it was "less likely than not" that the Veteran's current gastritis was related to the stomach cramps and gastroenteritis that he was treated for in service. The report of a February 2007 VA examination reflects similar complaints. The examiner (Dr. J.R.) opined that the presumptive diagnosis was reflux; although it has not been definitively diagnosed. He further opined that the Veteran's current symptoms were less likely than not a result of the intestinal symptoms that were documented in service. The report of a March 2008 VA examination for the Veteran's knees indicates that he denied taking any medication; however, an August 2008 VA outpatient treatment record indicates he was prescribed Etodolac and Zantac. The report of July 2009 VA examination reflects similar complaints. The Veteran said that he was not taking medication because he could not afford it. During the examination, he was confused and fell asleep intermittently. He said he had used his last $10 on cocaine. The examiner's impression was chronic gastritis with symptoms of anorexia and nausea and chondromalacia without current treatment. The examiner (Dr. J.R.) noted that the record did not reflect any continuity of difficulty with regards to his knee pain and gastric symptoms. The examiner further opined that it was less likely than not that the gastritis symptoms were secondary to the treatment for the knees. In January 2010, the Board remanded the claim to obtain a VA medical opinion regarding whether the Veteran's treatment for service-connected bilateral knee chondromalacia aggravated his gastritis. Since the VA examiner (Dr. J.R.) had retired, another examiner reviewed the Veteran's claims file and offered an opinion in April 2010. Addendums were provided in May 2010 and December 2011. The VA examiner noted that the Veteran had been on Celebrex and Vioxx in the past and was recently on Motrin (800mg 3x/day) and that it is well known that NSAIDs can cause and aggravate symptoms of dyspepsia, gastritis, and GERD. The examiner opined that it was "more likely than not" that these medications aggravated the Veteran's symptoms while he is using them and may cause long term erosions leading to chronic worsening of symptoms. The examiner indicated that it was medically impossible to determine the amount of aggravation, but estimated that NSAIDS caused 50 percent of the Veteran's documented symptoms. The examiner stated that there was no medically valid way to separate the gastric effects of NSAIDS, alcohol, and cocaine use because they all caused the same symptoms. The examiner further opined that it was possible that without the gastric insult of alcohol and cocaine, the Veteran's stomach might be able to tolerate NSAIDS without causing problems. In this case, the medical evidence of record indicates that the Veteran's current gastritis is not related to the symptoms he had during service. Hence, the Board finds no basis for service connection on a direct basis. As regards a secondary basis for service connection, the VA examiner (Dr. J.R.) opined that the Veteran's current gastritis was not caused by the treatment for his knees. However, the question of aggravation remains. The evidence reflects that the Veteran's gastritis is aggravated by NSAIDs, alcohol, and cocaine use. The April 2010 VA examiner surmised that without alcohol and cocaine, the Veteran's stomach might be able to handle NSAIDs. However, the Board points out that the Veteran has a long history of gastric complaints associated with NSAIDs that began even before his chronic alcohol and cocaine use. Furthermore, where it is not possible to distinguish the effects of nonservice-connected conditions (alcohol and cocaine use) from those of a service-connected condition (bilateral knee chondromalacia), the reasonable doubt doctrine dictates that all symptoms be attributed to the service-connected disability. See Mittleider v. West, 11 Vet. App. 181 (1998). In this case, the VA examiner has indicated that it is medically impossible to make such a distinction. Here, the April 2010 VA examiner opined that the it was more likely than not that the Veteran's gastric symptoms are aggravated by the NSAIDs used to treat his service-connected bilateral knee chondromalacia and that such worsening might cause long-term chronic gastric erosions leading to chronic worsening of symptoms. Although the examiner used somewhat equivocal language regarding whether the Veteran's underlying condition has been permanently worsened, resolving reasonable doubt in the Veteran's favor, the Board finds that service connection for chronic gastritis, on the basis for aggravation, is warranted. ORDER Entitlement to service connection (aggravation) for chronic gastritis is granted. ____________________________________________ H. N. SCHWARTZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs