Citation Nr: 1310554	
Decision Date: 04/01/13    Archive Date: 04/11/13

DOCKET NO.  10-00 869	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Atlanta, Georgia


THE ISSUE

Whether new and material evidence has been received to reopen a claim of entitlement to service connection for gastroesophageal reflux disease (GERD).


ATTORNEY FOR THE BOARD

T. Mainelli, Counsel


INTRODUCTION

The Veteran served on active duty from November 1983 to December 2004.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2007 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia.

A review of the Virtual VA electronic records storage system does not reflect any additional, pertinent documents that are not associated with the paper claims folder.


FINDINGS OF FACT

1.  A final March 2006 RO rating decision denied a claim of service connection for GERD on the basis that GERD was not shown to have been incurred during active service.

2.  Additional service treatment records (STRs) received in September 2008 do not contain any evidence relevant to the claim of service connection for GERD.

3.  Evidence received since the final March 2006 RO rating decision denying service connection for GERD is not new and material as it does not pertain to the basis for the prior final denial.


CONCLUSIONS OF LAW

1.  A March 2006 RO rating decision, which denied a claim of service connection for GERD, is final.  38 U.S.C.A. § 7105(c) (West 2002); 38 C.F.R. §§ 3.156, 20.201, 20.300, 20.302, 20.1103 (2005) [(2012)]. 

2.  New and material evidence has not been received since the March 2006 RO rating decision that denied a claim of service connection for GERD; that claim is not reopened.  38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

VA's Duties to Notify and Assist

As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and a duty to assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. §§ 3.159, 3.326(a). 

Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the Veteran and his representative, if any, 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).  Proper notice from VA must inform the Veteran of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the Veteran is expected to provide.  Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). 

In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the United States Court of Appeals for Veterans Claims (Court) held that 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) also require VA to provide the Veteran with notice of what information and evidence not previously provided, if any, will assist in substantiating, or is necessary to substantiate, each of the elements of the claim, including notice of what is required to establish service connection and that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. 

In the context of claims to reopen, VA must notify the Veteran of both the evidence and information that is necessary to reopen the claim and the evidence and information that is necessary to establish entitlement to the underlying claim for the benefit that is being sought.  Kent v. Nicholson, 20 Vet. App. 1 (2006).  To satisfy this requirement, VA is required to look at the prior denial and to provide the claimant with a notice letter that describes what evidence would be necessary to substantiate those elements required to establish service connection that were found insufficient in the previous denial. 

The Veteran filed an application to reopen his claim of entitlement to service connection for GERD in May 2007.  A pre-adjudicatory RO letter dated June 8, 2007 fully satisfied the VCAA timing and content requirements.   This letter informed the Veteran that his claim for service connection for GERD was previously denied in March 2006 on the basis there was no evidence that GERD was caused by an injury, event, and/or disease in service.  The Veteran was also advised as to the types of evidence and/or information deemed necessary to both reopen and substantiate his claim, the respective duties upon himself and VA in developing his claim, and the criteria for establishing a disability rating and effective date of award, should service connected be granted.

Relevant to the duty to assist, the Veteran's complete STRs were obtained.  The Veteran has not reported the existence of any other relevant records in the possession of a federal agency, to include VA and the Social Security Administration.  The record contains post-service TRICARE records, and the Veteran has not identified any additional, outstanding records necessary to decide his appeal.  As the claim to reopen is denied, there is no duty on the part of VA to provide medical examination or opinion.  38 C.F.R. § 3.159(c)(4)(C)(iii).

Thus, the Board finds that VA has fully satisfied the duty to assist.  In the circumstances of this case, additional efforts to assist or notify the Veteran in accordance with the VCAA would serve no useful purpose.  See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to requirements of the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the Veteran); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the Veteran are to be avoided).  Therefore, the Veteran will not be prejudiced as a result of the Board proceeding to adjudicate this claim. 

Analysis

The Veteran seeks to establish his entitlement to service connection for GERD.  As the record reflects a prior final denial with respect to this claim, the Board has an initial obligation to assess whether it has jurisdiction to review this claim on the merits regardless of RO findings.  Rowell v. Principi, 4 Vet. App. 9, 15 (1993); Barnett v. Brown, 8 Vet. App. 1 (1995), aff'd, 83 F.3d 1380 (Fed. Cir. 1996).

The record reflects that, in March 2006, the RO denied a claim of entitlement to service connection for GERD on the basis that such disability was not shown to have been incurred in service.  The Veteran was provided notice of this decision and his appellate rights by letter dated March 22, 2006.  However, the Veteran did not timely appeal this decision.   See 38 C.F.R. § 20.302 (a) (a notice of disagreement (NOD) must filed within one year from the date of notice of decision).  

Additionally, the Veteran did not submit any written statement or evidence to the record within one year of the March 22, 2006 RO notice of denial to preclude finality pending a readjudication of the claim.  38 C.F.R. § 3.156(b); Jennings v. Mansfield, 509 F.3d 1362, 1368 (Fed.Cir. 2007) (holding that, pursuant to 38 C.F.R. § 3.156(b), an RO decision only becomes final after the appeal period has run with any interim submissions before finality being considered part of the original claim).

The record reflects that the RO received the Veteran's complete set of STRs in September 2008.  VA will reconsider a claim, rather than require new and material evidence, if those records are "relevant" and "existed" at the time the original decision was made.  38 C.F.R. § 3.156(c)(1).

The Veteran has generally asserted that he first manifested GERD symptoms in service.  He has argued that GERD symptoms of dry cough and upper back pain were misdiagnosed by military physician assistants who did not possess the requisite knowledge to identify his disease entity.

At the time of the March 2006 adjudication, the RO had benefit of review of "SMRs'" (service medical records, i.e., STRs) submitted by the Veteran's representative on May 23, 2005.  These STRs included formal military examination reports and a multitude of STRs, including extensive cardiology and neurology consultations.  Of relevance in this case, these STRs include evaluations for dry cough in March 2001 and December 2003 as well as an evaluation for a small left lower lung density identified on a chest x-ray.

The complete set of STRs received in September 2008 includes dental records, which were not previously considered by the RO, as well as some additional STRs.  The term "relevant" refers to evidence having a tendency to make the existence of any fact that is of consequence of the determination at issue more probable or less probable than it would be without the evidence.  See BLACK'S LAW DICTIONARY, 1291 (6th ed. 1990).  It is synonymous with the term "material."  Id.  VA defines material evidence as existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim.  38 C.F.R. § 3.156(a).

After a careful comparison of the STRs of record at the time of the March 2006 decision and the complete records received in September 2008, the Board finds that the STRs which were not reviewed by the RO in March 2006 are not relevant to the claim at hand.  In this respect, none of the previously unconsidered STRs include any references to the GERD symptoms claimed by the Veteran, and do not include any evidence tending to make it more probable that the Veteran manifested GERD during active military service.  Thus, the provisions of 38 C.F.R. § 3.156(c) do not apply to the particular facts of this case as the newly received STRs are not "relevant" to the claim.

Accordingly, for the reasons discussed above, the RO's March 2006 rating decision which denied service connection for GERD is final.  38 U.S.C.A. § 7105(c) (West 2002); 38 C.F.R. §§ 3.156, 20.201, 20.300, 20.302, 20.1103 (2005) [(2012)].

Generally, a claim which has been denied in an unappealed RO decision or an unappealed Board decision may not thereafter be reopened and allowed.  38 U.S.C.A. §§ 7104(b), 7105(c).  However, 38 U.S.C.A. § 5108 provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. 

For purposes of this decision, new evidence means existing evidence not previously submitted to agency decisionmakers.  38 C.F.R. § 3.156(a); see also 66 Fed. Reg. 45620 (August 29, 2001).  Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim.  Id.  New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim.  Id.  

Evidence is presumed credible for the purposes of reopening unless it is inherently false or untrue.  Duran v. Brown, 7 Vet. App. 216, 220 (1994); Justus v. Principi, 3 Vet. App. 510, 513 (1992).  The evidence relied upon in reopening the claim must be both new and material.  Smith v. West, 12 Vet. App. 312 (1999). 

Evidence is new and material if it raises a reasonable possibility of substantiating the claim if, when considered with the old evidence, it would at least trigger the Secretary's duty to assist by providing a medical opinion.  Shade v. Shinseki, 24 Vet. App. 110 (2010).  VA will provide a medical examination or obtain a medical opinion where there is: (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) evidence establishing that an event, injury, or disease occurred in service, or within a qualifying presumptive period; and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the Veteran's service, but (4) there is insufficient competent medical evidence on file for the Secretary to make a decision on the claim.  38 U.S.C.A. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4)(i).  The third prong of this criteria, which requires that the evidence of record "indicate" that the claimed disability or symptoms "may be" associated with the established event, is a low threshold.  See McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006).

Service connection is established for disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty, during periods of active wartime service.  38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.309(a).  In general, service connection requires a claimant to satisfy a three element test: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability
and the disease or injury incurred or aggravated during service - the so-called 'nexus' requirement.  Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).

In some circumstances, certain chronic diseases listed at 38 C.F.R. § 3.309(a) may be presumed to have been incurred in service if manifest to a compensable degree within one year from discharge from service, provided further that the rebuttable presumption provisions of 38 C.F.R. § 3.307 are also satisfied.  38 U.S.C.A. §§ 1112, 1113, 1137; 38 C.F.R. § 3.309(b).

For the showing of chronic disease in service, there are required a combination of manifestations sufficient to identify a disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word chronic.  38 C.F.R. § 3.303(b).  Continuity of symptomatology is required only where the condition noted during service is not, in fact, shown to be chronic or when the diagnosis of chronicity may be legitimately questioned.  Id.  When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim.  Id.

However, the continuity and chronicity provisions of 38 C.F.R. § 3.303(b) only apply to the chronic diseases enumerated in 38 C.F.R. § 3.309(a).  Walker v. Shinseki, ___ F.3d ___, No. 2011-7184, 2013 WL 628429 (Fed. Cir. Feb. 21, 2013), overruling Savage v. Gober, 10 Vet. App. 488, 495-96 (1997) (applying 38 C.F.R. § 3.303(b) to a chronic disease not listed in 38 C.F.R. § 3.309(a) as "a substitute way of showing in-service incurrence and medical nexus.")

In the case at hand, the Veteran's disease entity of GERD is not among the list of chronic diseases listed within 38 C.F.R. § 3.309(a).  Thus, the provisions of 38 C.F.R. §§ 3.303(b) and 3.309(a) do not apply in this case.

In its evaluation, the Board shall consider all information and lay and medical evidence of record.  38 U.S.C.A. § 5107(b).  When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Board shall give the benefit of the doubt to the claimant.  Id.  Another way stated, VA has an equipoise standard akin to the rule in baseball that "the tie goes to the runner."  Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  Notably, the benefit of the doubt doctrine is not applicable based on pure speculation or remote possibility.  See 38 C.F.R. § 3.102.  However, the benefit of the doubt doctrine does not apply to a new and material analysis.  Annoni v. Brown, 5 Vet. App. 463, 467 (1993). 

Evidence before the RO in March 2006 included the Veteran's report of being diagnosed with GERD, following x-rays and an upper GI, at MacDill Air Force Base (AFB).  The portions of the Veteran's STRs of record at that time did not reflect treatment for, or diagnosis of, GERD.  In pertinent part, the record did reflect a March 2001 STR wherein the Veteran sought treatment for a dry cough of 2-months duration that was unaccompanied by congestion or fever.  A chest x-ray was interpreted as showing a small left lower lung density with a recommendation for a computed tomography (CT) scan.  The Veteran was prescribed an inhaler based upon an assessment of questionable (?) chronic cough.  A CT scan of the chest in April 2001 was interpreted as showing a chest nodule consistent with a calcified granuloma.

The Veteran was seen in December 2003 for a dry cough accompanied by a productive cough, sore throat, headache, vomiting and nausea.  Physical examination was significant for red and swollen nares, a wet cough, and coarse breath sounds (BS).  The Veteran was prescribed Zithromax based on an assessment of acute bronchitis.

An October 2005 VA examination report included the Veteran's history of belching, coughing, and occasional heartburn, which had been present for approximately 4 years.  He described an improvement of symptoms after being treated with Prevacid.  The Veteran also described having been prescribed Singulair, as it was thought that his cough was due to allergies, but he did not notice any improvement of symptoms.  The examiner diagnosed GERD currently controlled with Prevacid and noted that such was initially diagnosed several months previously.

As noted above, the March 2006 RO rating decision denied the Veteran's service connection claim for GERD on the basis that such disease was not shown to have been incurred during active service.

Evidence added to the record since the March 2006 RO rating decision includes a complete set of the Veteran's STRs.  These include the March 2001 and December 2003 STRs evaluating cough symptoms which had been considered by the RO in the March 2006 decision.  The previously unconsidered STRs do not reflect treatment for, or diagnosis of, GERD.  There is also no reference to the GERD symptoms reported by the Veteran.

Medical records from MacDill AFB show that, in September 2005, the Veteran sought treatment for a 7-month history of a cough.  In August 2005, he had been prescribed eye drops for severe coughing, and had been taking over-the-counter Benadryl, which did not work.  He was referred for an evaluation of possible GERD.  An esophagram that same month resulted in impressions of massive GERD as well as mucosal abnormality within the distal esophagus which was likely distal esophagitis.  A November 2008 VA examiner diagnosed the Veteran's chronic cough symptoms as being caused by allergic rhinitis, and exacerbated by medications to treat hypertension.

Additionally, the Veteran has asserted that he had many visits in service due to coughing, and that his in-service symptoms of dry cough heaves and upper back pain were diagnosed as GERD within one year of service discharge.  He has also asserted that the military physician assistants were not versed or knowledgeable enough to entertain a diagnosis of GERD, and that he had been misdiagnosed during active service.

Here, the medical records from MacDill AFB are new as they were not previously considered by the RO in the March 2006 decision.  However, they are not material to the basis for the prior final decision, i.e., whether GERD first manifested during active service.  These records merely confirm a diagnosis of GERD after service, which was established by the October 2005 VA examiner.  They do not include any medical opinion that the Veteran's GERD either first manifested during active service, or is causally related to an event during active service.  Thus, this evidence is not material and cannot serve as a basis for reopening the claim.  See Cornele v. Brown, 6 Vet. App. 59, 62 (1993); Mintz v. Brown, 6 Vet. App. 277, 280 (1994) (medical evidence which merely documents continued diagnosis and treatment of disease, without addressing the crucial matter of medical nexus, does not constitute new and material evidence).

The Board must also find that the Veteran's allegations and arguments also do not constitute new and material evidence.  In this respect, the Veteran reiterates his contentions made to the VA examiner in October 2005 that he manifested GERD symptoms of belching, coughing, and occasional heartburn during active service for which military examiners prescribed an inhaler (Singulair).  The Veteran has added an additional symptom of experiencing upper back pain during service which, for purposes of this opinion, the Board presumes as true.  Duran, 7 Vet. App. at 220; Justus, 3 Vet. App. at 510.  However, the Veteran's argument is cumulative in nature as it essentially reiterates a theory of continuity of symptomatology which was previously considered by the RO.  The additional symptom of upper back pain, when considered in the previously reported continuous symptoms of belching, coughing, and occasional heartburn since active service, does not give rise to a new basis for determining that the Veteran has experienced persistent or recurrent symptoms of a disability that may be associated with service - thus, giving rise to a duty to provide examination under 38 U.S.C.A. § 5103A(d)(2) and 38 C.F.R. § 3.159(c)(4)(i).  See McLendon, 20 Vet. App. at 83; Shade, 24 Vet. App. 110 (2010).  

Notably, the September 2005 records from MacDill AFB include the Veteran's report of a 7-month history of cough.  This would place the onset of the cough symptom leading to a GERD diagnosis in approximately February 2005, i.e., after service discharge in December 2004.  Thus, this reported history cannot be viewed as corroborating his prior allegations of persistent or recurrent symptoms since service.  See generally Bostain v. West, 11 Vet. App. 124, 128 (1998) (corroborative evidence may constitute new and material evidence).

The Veteran has also made more specific allegations that military examiners did not have the requisite knowledge to diagnose GERD and, thus, misdiagnosed his coughing symptoms as another disease entity.  This is essentially an elaboration of a theory reported to the VA examiner in 2005 that has previously been considered by the RO, and cannot serve as a basis for reopening the claim.  Bingham v. Principi, 421 F.3d 1346, 1349 (Fed. Cir. 2005) (holding that separate theories in support of a claim for a particular benefit are not equivalent to separate claims and that a final denial on one theory is a final denial on all theories).

Finally, the Veteran once again reiterates his opinion that his GERD first began in service due to chronic symptoms of belching, coughing, upper back pain and occasional heartburn since service.  The Veteran is clearly competent to report this type of symptomatology as it is clearly capable of lay observation.  Barr v. Nicholson, 21 Vet. App. 303 (2007); Washington v. Nicholson, 19 Vet. App. 362 (2005); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007).  However, the RO had previously considered these facts in the March 2006 rating decision.

Moreover, the Veteran is not shown to possess the type of training, experience and expertise to diagnose a gastrointestinal disorder such as GERD.  The Veteran himself essentially corroborates this point as he has argued that the military physician assistants did not have the requisite training and knowledge to recognize that his inservice symptoms were GERD, rather than a cough treatable by an inhaler or acute bronchitis treated with antibiotics.  Based on the facts of this particular case, the Board finds that the Veteran has failed to present evidence which is both new and material to the basis for the prior final denial.  As such, the Veteran's application to reopen must be denied.

ORDER

New and material evidence not having been received, the claim of entitlement to service connection for GERD is not reopened, and the appeal is denied. 



____________________________________________
A. JAEGER
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs