Citation Nr: 1218861 Decision Date: 05/29/12 Archive Date: 06/07/12 DOCKET NO. 11-00 030A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Hartford, Connecticut THE ISSUE Entitlement to service connection for gastroesophageal reflux disease (GERD). REPRESENTATION Appellant represented by: Connecticut Department of Veterans Affairs WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD N. Holtz, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Navy from March 1982 to March 1988. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2010 rating decision of the Department of Veterans' Affairs (VA) Regional Office (RO) in Hartford, Connecticut. In that decision, the RO denied service connection for GERD. In December 2010, the Veteran testified at a hearing before a Decision Review Officer (DRO) in Hartford, Connecticut. In his January 2011 substantive appeal (VA Form 9), the Veteran requested a videoconference hearing before the Board, and a hearing was scheduled for June 2011. Despite receiving adequate notice of that hearing by way of an April 2011 letter, he failed to attend his scheduled hearing. As such, the Board deems the hearing request withdrawn. See 38 C.F.R. § 20.704(d) (2011). FINDING OF FACT The evidence shows continuity of the Veteran's GERD symptoms since military service. CONCLUSION OF LAW The criteria for service connection for GERD have been met. 38 U.S.C.A. §§ 1131, 5107 (West 2002); 38 C.F.R. § 3.303 (2011). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) Initially, the Board notes that the Veteran has been provided all required notice and that the evidence currently of record is sufficient to substantiate his claim for service connection for GERD. Therefore, no further VCAA development with respect to the matter decided herein is required under 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2011) or 38 C.F.R. § 3.159 (2011). Analysis Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may also be granted for disease that is diagnosed after discharge from military service, when all of the evidence establishes that such disease was incurred in service. 38 C.F.R. § 3.303(d); Cosman v. Principi, 3 Vet. App. 503, 505 (1992). More generally speaking, service connection requires that there be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in- service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in- service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). The absence of any one element will result in the denial of service connection. Coburn v. Nicholson, 19 Vet. App. 427, 431 (2006). The Veteran contends that his current GERD diagnosis is the same disorder as that diagnosed in service, and that his symptoms have continued from the time of his service to the present. Direct service connection requires competent and credible evidence of a current disability. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The medical evidence of record includes complaints in February 2005 and March 2008 of a history of GERD symptoms. At a May 2010 VA examination, the Veteran was diagnosed with "GERD with reports of almost daily epigastric pain." Thus, the first element of a service connection claim, current disability, is satisfied. Direct service connection also requires competent and credible evidence of an in-service occurrence or aggravation of a disease or injury and medical evidence of a nexus between the claimed in-service disease or injury and the current disability. Davidson, 581 F.3d 1313. Alternately, service connection may be established by a continuity of symptomatology, without necessarily evidence of continuity of treatment, between a current disorder and service. 38 C.F.R. § 3.303(b); see also Wilson v. Derwinski, 2 Vet. App. 16, 19 (1991). There is competent and credible evidence of an in-service occurrence of GERD, in that the Veteran was diagnosed with GERD in November 1986, during service. At that time he was treated with Maalox. He was seen in December 1986 for follow-up regarding his GERD, and at a second follow-up in January 1987, it was noted that the disorder was "well controlled [with] antacids." The last service record to note the Veteran's GERD was a June 1987 occupational exposure to radiation examination that noted a November 1986 history of GERD that was "resolved." While the record does not include a continuity of treatment for GERD, the Board finds that there is competent and credible evidence of a continuity of the GERD symptomatology. The Veteran did not seek regular treatment for his various medical conditions, as reflected by the paucity of treatment records since service. He did inform his treatment provider in February 2005 that he had experienced GERD symptoms for "a long time" and that his diagnosis was noted in the Navy. As of February 2005, he had GERD symptoms almost daily, independent of his position or diet. He was started on Zantac 150 to address his symptoms. A January 2007 VA primary care treatment note indicated that the Veteran's GERD was resolved with the use of Zantac. In March 2008, the Veteran again told a provider that he had GERD "a long time," and noted that it was diagnosed during service. The February 2005 and March 2008 statements to treatment providers are notable in that they were each made years before the Veteran submitted a claim for service connection for GERD, and each suggest a long history of symptomatology related to the initial in-service diagnosis. The Veteran was provided a VA examination for his GERD in May 2010. At that time, he reported epigastric pain since about 1985, and that he was treated with antacids or possibly ranitidine in service. The GERD symptoms had worsened in the previous 12 months, causing a daily bile taste and/or actual refluxed stomach contents, causing some sleep awakening. The examiner diagnosed the Veteran with GERD at that time, noting that ranitidine helped, but did not completely control the "almost daily epigastric pain." The Veteran's file was sent to a VA doctor for a nexus opinion in June 2010. The doctor noted the Veteran's in-service GERD diagnosis and treatment. The doctor noted the absence of any record of GERD symptoms in the separation examination report, and the lack of any treatment from the time of separation until February 2005. The doctor opined that "[t]here was a lapse of time from [the Veteran's] initial symptoms in service to recurrent symptoms many years later in 2005. Based on the lack of documentation to substantiate any chronicity of his service symptoms, it is less likely that his current GERD is related to GERD noted in service." The Veteran's testimony at the December 2010 DRO hearing was consistent with his treatment, and specifically related the GERD symptomatology back to service. He acknowledged having steady problems with acid reflux since service, and that he self-medicated with antacids. He stated that, as of 2005, he had been self-medicating his GERD for years, but the pain had worsened to the point that he could hardly eat, and he began to think that something was seriously wrong. The Board notes that a review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal. It is the Veteran's contention that his currently diagnosed GERD had its onset during his active service, and has continued since that time. In this regard, a lay person, such as the Veteran, is competent to report observable symptoms such as indigestion and pain. See Layno v. Brown, 6 Vet. App. 465, 469-70 (1994). Moreover, lay evidence concerning continuity of symptoms after service, if credible, is ultimately competent, regardless of the lack of contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The issue then becomes whether the Veteran's lay evidence is found to be credible. "Determination of credibility is a function for the [Board of Veterans' Appeals]." Smith v. Derwinski, 1 Vet. App. 235, 237 (1991). In this case, the Board finds no evidence of record which would cast suspicion on the Veteran's credibility. While there is no evidence that he sought treatment for his GERD symptoms between separation and 2005, the record is clear that he did not seek treatment regularly for any of his diagnosed conditions. Indeed, in a March 2008 record, his treatment provider noted that it was the first time the Veteran had shown up in 15 months, and that he had missed many follow-up examinations. The provider stated that he would "not take responsibility for [the Veteran's] health care if he [was] not more compliant with his medical care." Thus, the lack of treatment for GERD is consistent with the Veteran's lack of treatment for other medical problems, including his service-connected sleep apnea. These factors lend credence to the Veteran's statements that his symptoms of GERD have continued since the time of his active service. He has consistently represented, since years before submitting a claim for service connection, that his symptoms have continued since service. From his initial VA treatment in 2005, through his 2010 examination and his hearing before a DRO, he has asserted that the GERD symptomatology continued since service, and that he has self-medicated with antacids to control his symptoms. There is no evidence before the Board that undermines the Veteran's credibility in this regard. Thus, he is found to be credible and continuity of symptomatology is established. The Board finds that the June 2010 VA medical opinion that the Veteran's currently-diagnosed GERD is unrelated to service to be unpersuasive, and of little probative weight. The examiner failed to address the Veteran's reports of a continuity of symptomatology since service in formulating her opinion, relying solely on the lack of a continuity of treatment. As noted above, service connection requires a continuity of symptomatology, not necessarily a continuity of treatment. 38 C.F.R. § 3.303(b); Wilson, 2 Vet. App. at 19. Accordingly, the benefit sought on appeal is granted. 38 U.S.C.A. §§ 1131, 5107(b); 38 C.F.R. 3.303. ORDER Entitlement to service connection for GERD is granted, subject to governing criteria applicable to the payment of monetary benefits. ____________________________________________ ERIC S. LEBOFF Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs