Citation Nr: 1315830 Decision Date: 05/14/13 Archive Date: 05/15/13 DOCKET NO. 09-40 053 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for gastrointestinal disability, including gastroesophageal reflux disease (GERD) with esophageal ulcer, and/or hiatal hernia, to include as secondary to service-connected posttraumatic stress disorder (PTSD). ATTORNEY FOR THE BOARD J. Fussell, Counsel INTRODUCTION The Veteran served on active duty from July 1984 to May 1992 and from December 2003 to March 2005. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2008 rating decision and an April 2009 rating decision by the VA RO in St. Petersburg, Florida. A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal, except as otherwise stated herein. In an April 2012 statement, the Veteran indicated that although he was previously represented by Disabled American Veterans, he wished to revoke representation and represent himself. The Veteran's statement is sufficient to revoke his previous power of attorney. See 38 C.F.R. § 20.607, 20.608 (2012). Moreover, a February 2013 letter from the Board requested that the Veteran clarify whether he desired representation in his appeal. He responded later that month in writing, stating again that he wished to represent himself. Accordingly, because there has been no withdrawal of this request, and the Veteran has not submitted a new power of attorney for any other organization or individual to serve as his representative, the Board recognizes the Veteran as now proceeding pro se in the current appeal. The Board remanded this case in July 2012 for additional development. That having been accomplished, the case has been returned to the Board. Since the December 2012 Supplemental Statement of the Case (SSOC), the Veteran has submitted additional evidence directly to the Board which was not previously of record. However, he executed a waiver of initial RO consideration of that evidence. See 38 C.F.R. § 20.800, 20.1304 (2012). The Board recognizes that the Veteran's claimed disability has been variously characterized. The RO previously characterized the Veteran's hiatal hernia and GERD as separate issues. However, the Board finds, as explained, in part, below, that the claim on appeal is more appropriately characterized as reflected on the title page. FINDINGS OF FACT 1. All notification and development action needed to fairly adjudicate the matter on appeal has been accomplished. 2. The service records document that the Veteran was treated during his second period of active service for GERD. A gastroesophageal (GE) ulcer was demonstrated by an upper GI series within one year of discharge from that period of service, and the Veteran had a GE ulcer during the appeal period, even though it has now resolved. 3. Collectively, the competent opinion and other evidence is, at least, in relative equipoise on the question of whether there exists a medical nexus between the GERD as well as a GE ulcer and the Veteran's second period of military service. 4. A hiatal hernia was first shown several years after the Veteran's last period of active service and is not shown to be related to that period of service, to his service-connected PTSD, or to his GERD and acute GE ulcer. CONCLUSIONS OF LAW 1. Resolving all reasonable doubt in the Veteran's favor, the criteria for service connection for GERD with a GE ulcer are met. 38 U.S.C.A. §§ 1110, 1112, 1131, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309 (2012). 2. The criteria for service connection for a hiatal hernia are not met. 38 U.S.C.A. §§ 1110, 1131, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Due Process Considerations VA has a duty to notify and assist a claimant in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, et seq (effective November 9, 2000) (Veteran Claims Assistance Act of 2000 (VCAA)); see also 38 C.F.R. §§ 3.102, 3.156(a), 3.159. This notice was intended to be provided prior to an initial adjudication of a claim. Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004) (Pelegrini II). By letter dated in July 2008, prior to the initial adjudication of the claim for service connection for GERD with GE ulcer, the RO advised the Veteran of the evidence needed for claim substantiation. 38 U.S.C.A. § 5103(a). See also Quartuccio v. Principi, 16 Vet. App. 183 (2002). By letter dated in January 2009, prior to the initial adjudication of the claim for service connection for a hiatal hernia, the RO advised the Veteran of the evidence needed for claim substantiation. 38 U.S.C.A. § 5103(a). See also Quartuccio v. Principi, 16 Vet. App. 183 (2002). Those letters also explained what evidence VA would obtain or assist in obtaining and what information or evidence the claimant was responsible for providing. 38 U.S.C.A. § 5103(a). For claims, as here, pending before VA on or after May 30, 2008, 38 C.F.R. § 3.159 was amended to eliminate the requirement that VA also request that the submission of evidence in the claimant's possession that might help in claim substantiation. See 73 Fed.Reg. 23353 (Apr. 30, 2008). Also, those letters provided the general information pertaining to VA's assignment of disability ratings and effective dates, as well as the type of evidence that impacts those determinations. Hence, the July 2008 and January 2009 letters meet the requirements described in Dingess/Hartman and Pelegrini and also meet the VCAA's timing of notice requirement. As for the duty to assist, the RO obtained the Veteran's service treatment records (STRs), VA treatment records, and private clinical records. The Veteran was provided a VA gastrointestinal (GI) examination in August 2008 and an addendum thereto was obtained in April 2009, the reports of which are of record. He had another VA examination in October 2012 because, as stated in the 2012 Board remand, the information obtained was not considered to be adequate for adjudication purposes. Also pursuant to the Board remand, by letter of July 2012 from the Appeals Management Center (AMC), the Veteran was contacted concerning the other matters addressed in that remand, i.e., to submit any additional evidence or information relevant to his claim. The Board is entitled to assume the competence of a VA examiner and the adequacy of a VA medical examiner's opinion unless either is challenged. See Sickels v. Shinseki, 643 F.3d 1362, 1366 (Fed. Cir. 2011). The Veteran has alleged that the most recent October 2012 VA examiner reviewed only the STRs and a prepared statement that the Veteran brought to the examination. However, the report of that examination reflects that the examiner specifically stated that he had reviewed the entire claims file. Also, the Veteran asserted that the October 2012 VA examiner did not address the matter of continuity of symptomatology. However, as will be explained, continuity of symptomatology is applicable only for chronic diseases listed at 38 C.F.R. § 3.309(a), and here the Veteran is only shown to have had a GE ulcer, which studies show has now resolved. Moreover, the substance of the examiner's opinion does address that matter of continuity, even if the word "continuity" was not used by the examiner. As to this, there is nothing magical about the use of certain words, e.g., "continuity" or "aggravation." The October 2012 VA examiner did not specifically use the term "aggravation" when addressing the matter of whether, as contended, the service-connected PTSD aggravated the claimed GI conditions. "It is not required that a medical opinion regarding secondary service connection be stated in the precise terms found in [38 C.F.R.] § 3.310 to be considered adequate. To the contrary ... a physician's choice of language is not error where, as here, his opinion is unambiguous and sufficient to comply substantially with the purpose for which it was sought. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999). The physician's task is to opine as to medical causation; the Board is charged with finding facts and applying the requisite legal standards." Kittrell v. Shinseki, No. 08-3001, slip op. at 2 (U.S. Vet. App. Nov. 10, 2010); 2010 WL 4671873 (Vet.App.) (unpublished nonprecedential memorandum decision); aff'd Kittrell v. Shinseki, No. 2011-7102 ((Fed.Cir. Feb. 17, 2012); 2012 WL 884871 (C.A.Fed.). Here, in light of the questions posited to the examiner, the review of the claims files, the clinical history recorded, and physical examination of the Veteran, the Board finds that the opinions obtained in 2012 are adequate to adjudicate the claim. While the case had been remanded for specific opinions as to whether some of the claimed disabilities were caused or aggravated by the service-connected PTSD, the opinion rendered, when taken in context, sufficiently and clearly addressed that matter. Therefore, the Board finds that there was substantial compliance with the Board remand. Substantial, rather than absolute or strict, remand compliance is the appropriate standard for determining remand compliance under Stegall v. West, 11 Vet. App. 268 (1998); see also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (citing Dyment v. West, 13 Vet. App. 141, 146-47 (1999)). Therefore, as there is no indication or allegation that other relevant evidence remains outstanding, the Board finds that the duty to assist has been met. 38 U.S.C.A. § 5103A. II. Background A December 1983 examination for enlistment was negative, as was an adjunct medical history questionnaire. During hospitalization in January 1991 for a finger injury, it was noted that the Veteran smoked a pack of cigarettes daily. The Veteran declined to have an examination for separation from his first period of active duty. In a June 1992 claim for VA compensation benefits, the disabilities for which the Veteran sought compensation did not include any GI disability. On VA general medical examination in July 1992, the Veteran did not relate having any GI complaints. On examination, his digestive system was normal. A January 1995 examination for enlistment into the Army National Guard was negative, and in an adjunct medical history questionnaire, the Veteran had no pertinent complaints. National Guard records also show that an April 2000 periodic examination was negative and specifically noted that the Veteran did not have a hernia. In an adjunct medical history questionnaire, the Veteran had no pertinent complaints. Private clinical records of the Sacred Heart Hospital show that in July 2001, the Veteran was seen for neck pain, but that report also contains a notation under chronic medical problems of "GERD." The examination for entrance into the Veteran's second period of active duty (when he was apparently called up for active duty) is not on file. Records during the Veteran's second period of active duty include a November 2004 clinical record which noted that he complained of stress-induced heartburn. He stated that during his mobilization, he had been treated with Prilosec by a general practitioner but that he had run out of the Prilosec and treated the symptoms with Tums instead. He reported getting heartburn which would awaken him at night and that he was uncomfortable after meals. The assessment was stress-induced GERD. He was prescribed Prilosec and was told to decrease his intake of salt, caffeine, and spicy foods. He was to return for a follow-up if the condition worsened or if the medication was ineffective. He was also told to decrease the size of his meals and not to eat too late at night. A February 2005 STR shows that the Veteran complained of acid reflux. He reported having gone on sick call for acid reflux and having been prescribed medication. He indicated that he was taking Prevacid. VA outpatient treatment (VAOPT) records show that in December 2005, the Veteran complained of indigestion with, at times, severe reflux. Because of this, an upper GI X-ray series (UGI series) was done in December 2005 for his history of recurrent reflux symptoms, and significant GERD was suspected. The UGI series revealed a small spontaneous gastroesophageal reflux when in a supine position, as well as findings consistent with esophagitis and a tiny ulcer in the GE junction. An attached commentary by the Veteran's VA treating physician noted that the Veteran's acid reflux was irritating his lower esophagus. The physician found that the medication the Veteran had begun taking at his last visit should help but that he should avoid foods which aggravated acid reflux. The Veteran was ultimately discharged from the Army National Guard in 2006 due to PTSD. The Veteran's claim for service connection for GERD and an ulcer was received in June 2008. A VA endoscopy in June 2008 revealed a small linear ulcer in the distal esophagus, a hiatal hernia, and apparent reflux in the esophagus. The pylorus and duodenum were normal. On VA GI examination in August 2008, the Veteran's medical records were reviewed, including the inservice clinical notations in November 2004 and February 2005, as well as past UGI series. It was noted that the Veteran continued to smoke. His current medication was Omeprazole. He had a past history of stress-induced GERD. He reported that he start having symptoms of GERD during miliary service in about 2005. He now had heartburn and regurgitation of acid. It was reported that an August 2008 UGI series had revealed a tiny sliding hiatal hernia and previously noted findings consistent with esophagitis, and also, that a tiny ulcer at the GE junction had resolved. The diagnoses were a tiny sliding hiatal hernia, not caused by or related to military service, and no objective findings of GERD at present. It was noted that the present UGI series had shown that the prior findings of esophagitis and a tiny ulcer at the GE junction had resolved, but the tiny sliding hiatal hernia was a new finding in 2008. On VA psychiatric examination in September 2008, the Veteran reported that his stomach was always burning and that he continued to smoke. A November 2008 addendum to a June 2008 UGI series revealed that a gastric biopsy at the time of a June 2008 esophagogastroduodenoscopy (EGD) revealed no evidence of malignancy and no evidence of Helicobacter pylori. The Veteran's claim for service connection for a hiatal hernia was received in December 2008. In April 2009, the case was referred for an addendum to the 2008 VA GI examination for the purpose of a rationale as to the 2008 VA examiner's conclusion that a hiatal hernia was not caused by or related to military service. However, in April 2009, the Veteran's claims file was not available to the examiner for review. It was stated that a tiny sliding hiatal hernia had been diagnosed in December 2008 and was not caused by or related to military service because a UGI series during service was negative for a hiatal hernia. A private EGD in April 2012 noted a 1 centimeter hiatal hernia and "ulceroerosive" esophagitis. A VA EGD in April 2012 found moderately severe esophagitis in the distal third of the esophagus, a hiatal hernia at the GE junction, and erosive gastritis of the antrum, but the Veteran had a normal body of the stomach, cardia, fundus and duodenum. The Veteran has submitted information from the Internet concerning heartburn, which indicates that it could be somewhat arbitrary to decide when heartburn should be called acid reflux disease, also known as GERD. Reportedly, only one out of every three people with GERD had esophageal changes that were visible on X-rays. In May 2012, the Veteran's treating VA physician reported that the Veteran had erosive esophagitis which began during the Iraq war in November 2004. A July 2012 VA Progress Note by the Veteran's treating VA physician noted that the Veteran continued to smoke cigarettes. He had daily GERD symptoms. His worry, anxiety, and stress definitely had a cascading effect on his symptoms, especially the burning. This in turn led to more anxiety, which actually worsened his acid reflux. His symptoms had all started "while he was in theatre in about 2004" and had continued unabated since the onset. He had had multiple upper endoscopies and X-ray studies, but according to the Veteran, no study was done while he was on active duty. His chronic medical problems included a hiatal hernia and reflux esophagitis. The assessments were severe GERD and PTSD likely contributing to the severity of his symptoms. A July 2012 statement from the Veteran's supervisor, who had known the Veteran for 20 years, addressed the Veteran's GI symptoms. Since his return from Iraq in 2005, the Veteran had had a lot of stomach problems that caused a loss of work time, and he continued to have such problems. On VA examination in October 2012, the Veteran's claims file was reviewed in its entirety. It was noted that he continued to smoke and drink alcohol 2 to 3 times weekly. The Veteran's typed statement, presented at the examination, indicated that his GI problems started during deployment to Iraq from February 2004 to March 2005. He reported having been treated by medical staff from November 2004 to February 2005 with a diagnosis of "stress induced GERD," for which he was given Prilosec, Prevacid, and Tums. Prior to deactivation, he reported having GI problems. Nine months after service discharge, in September 2005, a UGI series had found GERD, findings consistent with esophagitis, and a tiny ulcer at the GE junction. An endoscopy in June 2007 had found a small linear ulcer in the distal esophagus, a hiatal hernia, and reflux in the esophagus, but there was a normal pylorus and duodenum. The Veteran reported that an August 2008 UGI series had found a tiny sliding hiatal hernia, esophagitis, and resolved ulcer. He reported that his GERD had not resolved and that he was still taking medications. He stated that an April 2012 endoscopy had confirmed a hiatal hernia, "Class C ulcer erosive esophagitis," and mild antral erythema and erosion. The examiner reviewed the UGI series and endoscopies, including what was reported to be an August 1992 UGI series done for epigastric pain, which was reportedly normal. The diagnoses included a small hiatal hernia of unknown clinical significance that was not caused by service or a service-connected condition. The hiatal hernia was first documented in 2008 by a UGI series, and had been absent in a UGI series in 2005. Another diagnosis was esophagitis that was not caused by service or a service-connected condition. The examiner reported that it was clearly documented that the episode of esophagitis in 2005 had resolved. The current esophagitis thus could not be the same or caused by something that no longer existed. Also, tissue sampling (for pathology analysis) had been taken in order to determine the etiology of the episodes. The examiner further stated that there was no evidence to sustain a current diagnosis of GERD because of the results of the 2008 UGI series and the April 2012 endoscopy. The Veteran's subjective symptoms could be secondary to the current episode of esophagitis or could be completely isolated as they had been in 1992 when he complained of epigastric burning but had a normal UGI series with no GERD, hiatal hernia, or esophagitis. Yet another diagnosis was gastritis, which was not caused by service or a service-connected condition because it was first documented in 2012 and had not been present in 2005 or 2008. The examiner further cited medical literature and stated that as to any association between PTSD and GERD, there was not one single medical study that supported a nexus between the two disabilities. Multiple theories had been proposed, but not one single theory had been demonstrated. Thus, the nexus of this association could not be sustained by medical literature and therefore had "no face value." The "PCM" opinion was based on "his" personal belief and could not be substantiated by current medical knowledge. Also, in spite of the Veteran's insistence, a current endoscopy did not support the Veteran's belief because an April 2012 endoscopy made no mention of reflux, nor did a 2008 UGI series. The examiner noted that according to medical literature, the causes of esophagitis included alcohol use, smoking, dietary indiscretions, vomiting, surgery, or radiation and chemicals, as well as taking medications without plenty of water. Other causes of esophagitis were eosinophilic esophagitis (an autoimmune disorder), viruses, HIV, and other causes. As to hiatal hernias, the examiner noted that these were quite common and in most cases went unnoticed. Over half of those who developed hiatal hernias would remain symptom-free. However, when hiatal hernia co-existed with GERD, in which stomach acid back flowed into the esophagus, the condition could become exaggerated and progress to acute and sometimes life-threatening conditions, e.g., gastric volvulus or strangulation. An October 2012 UGI series revealed a small sliding hiatal hernia with associated GERD but was otherwise normal. The duodenal bulb and sweep were normal, and no ulcer crater was seen. The Veteran's treating VA physician reported in October 2012 that the Veteran had erosive esophagitis which had begun in Iraq in November 2004. It was reported that all of the Veteran's "CPRS" treatment notes from November 2005 to the present had been reviewed. The physician reported that he had been the Veteran's primary treating physician since December 2005 to the present. He had provided consistent treatment for the Veteran's GERD symptoms during that time. There had been no tests or events that would determine that the symptoms described in 2005 were unrelated to the current symptoms of GERD. A private physician reported in October 2012 that he had evaluated the Veteran for chronic refractory GERD symptoms. After taking a thorough history, it was determined that an EGD would be the best choice to diagnose the Veteran's GERD. At that time, the Veteran's diagnosis was confirmed with both endoscopic and microscopic evaluations. The biopsies obtained in April 2012 revealed chronic esophagitis suggestive of reflux, no active esophagitis or increased eosinophils, and no evidence of Barrett's metaplasia or dysplasia. Therefore, the physician could attest, without reservation, that the Veteran had GERD and not an isolated incidence of esophageal inflammation. III. Principles of Service Connection 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 (West 2002); 38 C.F.R. § 3.303(a) (2012). Service connection may be granted for any disease diagnosed after discharge, when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Certain conditions, such as peptic (gastric or duodenal) ulcers, will be presumed to have been incurred in service if manifested to a compensable degree within 1 year after service. 38 U.S.C.A. § 1112; 38 C.F.R. §§ 3.307, 3.309. As to peptic, gastric, or duodenal ulcers, a proper diagnosis of gastric or duodenal ulcer (peptic ulcer) is to be considered established if it represents a medically sound interpretation of sufficient clinical findings warranting such diagnosis and provides an adequate basis for a differential diagnosis from other conditions with like symptomatology; in short, where the preponderance of evidence indicates gastric or duodenal ulcer (peptic ulcer). Whenever possible, of course, laboratory findings should be used in corroboration of the clinical data. 38 C.F.R. § 3.309(a). Previously, case law allowed for continuity of symptomatology to be used as a basis to grant service connection for diseases not contained in the list of chronic diseases at 38 C.F.R. § 3.309(a). See Savage v. Gober, 10 Vet. App. 448, 495-96(1997). Recently the United States Court of Appeals for the Federal Circuit in Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) explicitly overruled this principle, holding that continuity of symptomatology could establish service connection only for the disorders specifically listed as chronic at 38 C.F.R. § 3.309(a) but not for other disorders which might be chronic in a medical sense, much less for non-chronic disorders. In Walker, 708 F.3d 1331 (Fed. Cir. 2013) the Court interpreted the interplay between 38 C.F.R. §§ 3.303(b), 3.307(a), and 3.309(a) as permitting service connection for chronic diseases listed at 38 C.F.R. § 3.309(a) in two circumstances. First, when a listed chronic disease is shown inservice or within a presumptive period under 38 C.F.R. § 3.307 which requires that it be "well diagnosed beyond question" or "beyond legitimate question." The second circumstance is when a condition is noted during service or a presumptive period but is not shown to be chronic or when a diagnosis of chronicity may be legitimately questioned such that a chronic disease is not shown. In such a case, proven continuity of symptomatology then establishes the nexus with the current existence of the listed chronic disease and also confirms the existence of listed chronic disease during service. Walker, Id. On the other hand, for diseases not listed as a chronic disease at 38 C.F.R. § 3.309(a), service connection must be established under 38 C.F.R. § 3.303(a) (and not § 3.303(b)), which requires that the "nexus" requirement be satisfied (whereas, § 3.303(b) provides for presumptive service connection or service connection by use of continuity of symptomatology). See Walker, Id. Service connection will be granted on a secondary basis for disability that is proximately due to or the result of, or permanently aggravated by, an already service-connected condition. 38 C.F.R. § 3.310(a) and (b). This requires (1) evidence of a current disability; (2) a service-connected disability; and (3) evidence establishing a nexus between the service-connected disability and the claimed disability. Wallin v. West, 11 Vet. App. 509, 512 (1998). Reasonable doubt will be favorably resolved and it exists when there is an approximate balance of positive and negative evidence. It is a substantial doubt and one within the range of probability as distinguished from pure speculation or remote possibility. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. If the Board determines that the preponderance of the evidence is against the claim, it has necessarily found that the evidence is not in approximate balance, and the benefit of the doubt rule is not applicable. Ortiz, 274 F.3d at 1365. IV. Analysis "[T]here is no categorical requirement of 'competent medical evidence ... [when] the determinative issue involves either medical etiology or a medical diagnosis'." Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011); see also Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir. 2009) and Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed.Cir. 2007)); see also 38 U.S.C.A. § 1154(a) and 38 C.F.R. §§ 3.159 (defining competent and lay evidence) and 3.307(b) (addressing lay evidence as to chronicity and continuity of symptoms). Lay evidence may, in some circumstances, establish a medical diagnosis, causation or etiology, i.e., when a layperson (1) is competent to identify the medical condition, (2) is reporting a contemporaneous medical diagnosis, or (3) describes symptoms at the time which supports a later diagnosis by a medical professional. Davidson, 581 F.3d 1313 (Fed.Cir. 2009) (overruling broad holdings in Buchanan v. Nicholson, 451 F.3d 1331 (Fed.Cir. 2006) and Jandreau, Id., that competent medical evidence is required when the determinative issue is either medical etiology or medical diagnosis. See also King v. Shinseki, 700 F.3d 1399 Fed.Cir. 2012); 2012 WL 6029502 (C.A.Fed.) (confirming that Davidson, Id., overruled the broad holdings in Buchanan, Id., and Jandreau, Id.). The credibility of lay evidence may not be refuted solely by the absence of corroborating medical evidence, but it is a factor. Davidson, 581 F.3d at 1316 (Fed.Cir. 2009). Other credibility factors are the lapse of time in recollecting events attested to, prior conflicting statements as opposed to consistency with other statements and evidence, internal consistency, facial plausibility, bias, interest, the length of time between alleged incurrence of disability and the earliest or first corroborating medical or lay evidence thereof, and statements given during treatment (which are usually given greater probative weight, particularly if close in time to the onset thereof). Mere conclusory or generalized lay statements that a service event or illness caused a current disability are insufficient. Waters v. Shinseki, 601 F.3d 1274, 1278 (2010). Although a lay person is competent in certain situations to provide a diagnosis of a simple condition, a lay person is not competent to provide evidence as to more complex medical questions. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). Once lay evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno v. Brown, 6 Vet. App. 465 (1994). Considering the evidence of record in light of the above, and resolving all reasonable doubt in the Veteran's favor, the Board finds that service connection for GERD and a GE ulcer is warranted, but that service connection for a hiatal hernia is not warranted. It is undisputed that the Veteran did not have any GI disability, including any ulcer disease, prior to, during, or even within one year of his May 1992 discharge from his first period of active service, and it is not otherwise contended. Prior to the beginning of the Veteran's second period of active service in December 2003, a July 2001 private clinical record noted a history of GERD. As to this, a Veteran is presumed to be in sound condition upon examination for entrance into active service except for disability found upon such examination. This presumption of soundness can only be overcome if there is (1) clear and unmistakable evidence that the claimed disability pre-existed military service; and, (2) there is clear and unmistakable evidence that it was not aggravated during that period of active service. The burden then falls on VA to rebut the presumption of soundness by clear and unmistakable evidence that an injury or disease manifested in service was both preexisting and not aggravated by service. See 38 U.S.C. § 1111; Wagner, 370 F.3d at 1096; Bagby, 1 Vet. App. at 227. This statutory provision is referred to as the "presumption of soundness," the rebuttal of which requires proof both as to pre-existence (the pre-existence prong) and lack of aggravation (the aggravation prong). The report of examination for entrance into the Veteran's second period of active service is not available. Nevertheless, he is presumed in sound condition at that time, and the 2001 clinical history, standing alone, is insufficient to rebut the presumption of soundness. There remains, however, the question of whether this 2001 notation, rebuts the presumption of soundness when considered together with the other inservice and postservice clinical evidence. The Board concludes that it does not. This is because the standard for rebutting the presumption of soundness requires clear and unmistakable evidence of the pre-existence of a claimed disability. This high evidentiary standard has not been met in this case because there are no other records or even recorded clinical histories indicating that the Veteran had any GI disability prior to his second period of active duty. Thus, the record as a whole does not clearly and unmistakably establish that the Veteran had GI disability, including ulcer disease, prior to his second period of active service. There remains the question of whether the Veteran now has GI disability, including ulcer disease, which was incurred during his second period of active service, or ulcer disease which manifested within one year of his March 2005 discharge from that period of active service. It is clear that the Veteran was treated during his second period of active duty for acid reflux, which was also described as stress-induced GERD. However, there is virtually no clinical evidence of an ulcer or a hiatal hernia during either period of active duty. Nevertheless, a December 2005 UGI series, which was within one year of the Veteran's March 2005 discharge from his second period of active service, revealed a GE ulcer. While present at the junction of the esophagus and the stomach, it is nonetheless a gastric ulcer within the meaning of a peptic ulcer for the purpose of the one year presumption of service connection for chronic diseases listed at 38 C.F.R. § 3.309(a). On the question of current disability, there are conflicting medical opinions. Specifically, there remains the question of whether the Veteran now has the same GI disability, i. e., GERD, which he had during his second period of active service. For the reasons explained, the Board concludes that he does. The Board acknowledges that the record includes conflicting opinions and evidence on question of whether there exists an etiological relationship or nexus between the Veteran's current GI disability and service, which must be weighed in determining whether service connection for a GI disability is warranted. See Hayes v. Brown, 5 Vet. App. 60, 69-70 (1993) (citing Wood v. Derwinski, 1 Vet. App. 190, 192-93 (1992)). See also Guerrieri v. Brown, 4 Vet. App. 467, 470-471 1993). The Board again notes, however, that, when, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin or any other point, such doubt will be resolved in favor of the claimant. 38 C.F.R. § 3.102. See also 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). In this case, the record clearly reflects that the Veteran now has acid reflux. It is this acid reflux which has caused esophagitis. The 2009 VA examiner attempted to distinguish the current acid reflux or esophagitis from a prior episode during military service, but the 2009 examiner relied, at least in part, upon an erroneous history that a 1992 UGI series was negative for GERD. However, a review of the evidence establishes that the Veteran was not afforded a UGI series in 1992, which would have been either during his first period of active duty or within one year thereafter. Posited against this is the opinion of the Veteran's treating VA physician that, after a review of VA medical records, the Veteran had continuously had GERD since November 2004 or at least December 2005, with the latter being only nine months after service and consistent with the treatment the Veteran received during his second period of service. Likewise, a private physician opined that the Veteran's current GERD was not an isolated incidence of esophageal inflammation. Moreover, these opinions are consistent with the Veteran's credible lay statements that he did not have any studies, i.e., UGI series, during either period of military service but that he had experienced continuous heartburn or epigastric burning since his second period of active service. See Davidson, Id., and Jandreau, Id., As to the GE ulcer, the evidence clearly shows that the Veteran had such an ulcer within one year of his second period of active service. However, the 2008 UGI series shows that it has resolved. As to this, for purposes of establishing service connection, a "current disability" includes a disability which existed at the time a claim for VA disability compensation is filed or during the pendency of the claim, even if that disability subsequently resolves. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). In such a case, provided the resolved disability is related to service, a claimant would be entitled to consideration of staged ratings. Id. A gastric ulcer is recognized under VA regulations at § 3.309(a) as a chronic disease. Moreover, even if it is now resolved, service connection is still warranted if it had existed, as it in fact did, during the pendency of the Veteran's appeal. In this case, the Veteran filed his claim for ulcer disease and GERD in June 2008, and in June 2008, an endoscopy confirmed the presence of the GE ulcer. Subsequently though, an August 2008 UGI series showed that it had resolved. Thus, the Veteran had a gastric ulcer, classified as a GE ulcer, during the pendency of his appeal. Because the Veteran had a GE ulcer within one year of his March 2005 discharge from his second period of active service, and it existed during the pendency of his appeal, service connection for a GE ulcer is warranted. However, as to a hiatal hernia, the evidence is clear that this was first documented in 2008 several years after discharge from the Veteran's last period of active service. Neither the treating VA physician's opinion nor the private physician's opinion addressed the etiology of the hiatal hernia or any nexus of it to military service or the GI disabilities for which service connection is deemed warranted herein, i.e., GERD and a GE ulcer, or to the Veteran's service-connected PTSD. Rather, the 2012 VA examiner opined that the hiatal hernia was of unknown clinical significance. When this is considered together with that examiner's stated opinion that the hiatal hernia was not only not caused by service but not caused by a service-connected condition, i.e., PTSD, the logical conclusion is that it was also not aggravated by the service-connected PTSD. Moreover, that examiner's statement that the hiatal hernia was of unknown clinical significance indicates that the hiatal hernia was not aggravated by the Veteran's GERD or his GE ulcer, or both. In sum, for the foregoing reasons and bases, the Board finds that, resolving all reasonable doubt in the Veteran's favor, service connection is warranted for GERD and for a GE ulcer, but that the preponderance of the evidence is against the claim for service connection for a hiatal hernia. ORDER Service connection for a GI disability, including GERD with esophageal ulcer, is warranted. Service connection for a hiatal hernia is denied. ____________________________________________ JENNIFER HWA Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs