Citation Nr: 1504605 Decision Date: 01/30/15 Archive Date: 02/09/15 DOCKET NO. 11-04 968 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky THE ISSUES 1. Entitlement to service connection for a stomach disorder, characterized as gastroesophageal reflux disease (GERD), to include as secondary to a service-connected disability. 2. Entitlement to service connection for a sleep disorder, to include as secondary to GERD. REPRESENTATION Appellant (the Veteran) is represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD L. Cramp, Counsel INTRODUCTION The Veteran had active duty service from June 1971 until November 1972. This appeal comes before the Board of Veterans' Appeals (Board) from a July 2010 rating decision of the RO in Louisville, Kentucky. In January 2014, the Veteran testified at a Board hearing chaired via videoconference by the undersigned Veterans Law Judge, and accepted such hearing in lieu of an in-person hearing before a Member of the Board. 38 C.F.R. § 20.700(e) (2014). A transcript of the hearing is associated with the claims file. In a decision dated in May 2014, the Board denied these issues. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Veterans Court). In an Order dated in November 2014, pursuant to a Joint Motion for Remand of October 2014, the Veterans Court vacated the Board's May 2014 decision and remanded these issues back to the Board for development consistent with the Joint Motion. FINDINGS OF FACT 1. The evidence relating GERD to a service-connected disability has attained relative equipoise with the evidence against the claim. 2. The Veteran has a diagnosed Axis I sleep disorder that is related to his service-connected GERD. CONCLUSIONS OF LAW 1. GERD is proximately due to or a result of a service-connected disability. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.310 (2014). 2. Axis I sleep disorder is proximately due to or a result of a service-connected disability. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.310 (2014). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran claims that his GERD was caused or aggravated by prolonged ibuprofen treatment for his service-connected disabilities. He also contends that he suffers from a sleep disorder due to GERD. The Veteran has not asserted that his claimed disorders began in service, nor do the service treatment records show such onset. Post-service evidence similarly does not reflect symptomatology related to the claimed disorders on appeal for many years following discharge. The first diagnosis of GERD was not until 1997, 25 years after discharge, and a sleep disorder was not diagnosed until 2010, 38 years after discharge. Service connection may be granted for disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Service connection may also be established for the degree of disability resulting from aggravation of a nonservice-connected disability by a service-connected disability. See also Allen v. Brown, 7 Vet. App.439, 448 (1995). In order to prevail on the issue of secondary service connection, the record must show: (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical nexus evidence establishing a connection between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). The evidence establishes a current diagnosis of GERD. Moreover, service connection is in effect for a left wrist disability and a left finger disability, for which the Veteran contends he has taken ibuprofen over an extended period. The Board's decision thus turns on whether the evidence establishes a relationship between the service-connected disabilities and the diagnosis of GERD. There are numerous medical records documenting the Veteran's long history of ibuprofen use, and January 2012 and July 2010 VA medical opinions indicate that his GERD is related to his use of ibuprofen. Thus, there appears to be no dispute regarding the causal role of ibuprofen in the Veteran's GERD. However, there is some conflict in the evidence as to whether the Veteran's long-standing ibuprofen use was to any significant degree for service-connected disabilities. The RO obtained a medical opinion in July 2010. The VA examiner opined that "it is less likely as not that the [V]eteran's current stomach pain is linked to the service connected treatment of left finger." The rationale for this opinion was that the Veteran had a left second finger injury in 1971, which was "a minor injury that quickly healed." According to the examiner, it is unlikely that the Veteran would continue taking pain medications for healed injuries. Also significant to the examiner, the Veteran was diagnosed with rheumatoid arthritis before he was enrolled in the VA system in 2000. At that time he was taking ibuprofen. The examiner stated his belief that the Veteran was taking ibuprofen for his nonservice-connected rheumatoid arthritis and not for his service-connected left finger injury. In contrast to the July 2010 opinion, an October 2008 VA orthopedic consultation report states that the Veteran has a history of a blast injury to his left hand and wrist in the 1970s. He has gone on to develop significant posttraumatic arthritis of that wrist. He notes he has also previously been told he had rheumatoid arthritis and has been on Plaquenil since the 1980s. However, he has never developed any other symptoms in any of his other joints, making a rheumatoid arthritis diagnosis questionable. He has significant pain in the left wrist with any activity. He takes ibuprofen regularly for this and due to some stomach irritation from ibuprofen takes omeprazole. In resolving the apparent conflict in the opinion evidence, the Board notes that the July 2010 VA examiner made a crucial error in his analysis which significantly undermines the probative weight that can be placed on it. The examiner acknowledged only a minor left finger injury in service. However, service connection has been granted not only for left finger impairment as a residual of the injury, but for left wrist impairment resulting in a left wrist fusion. Thus, by the language of the opinion, the examiner only considered a portion of the service-connected residuals. Moreover, the examiner's description of the service-connected disability as minor appears not to be supported by the record. Notably, the left wrist residuals are assigned a disability rating of 60 percent since October 2011 and 40 percent prior to October 2011. Such ratings, in addition to the 10 percent rating for the left finger impairment, reflect significant impairment in the Veteran's use of his left hand and not a minor injury which healed fully and quickly, as characterized by the July 2010 examiner. The Board of course acknowledges that the Veteran has a long history of various nonservice-connected injuries (see discussion in December 11, 1974 VA examination report), and that it can never be definitively shown that his ibuprofen use was for service-connected or nonservice-connected factors. However, definitive attribution is not necessary. It need only be shown that the evidence in favor of a relationship between ibuprofen use and the service-connected disabilities is in relative equipoise with the evidence against such a relationship. The Board notes that a VA examination was conducted in January 1973, shortly after service separation. At that time, the Veteran reported that his left hand hurt when he tried to use it. He was unable to fully clench the left fist. He was unable to fully extend the left index finger. He reported pain when using the left hand at work. He reported that he had to transfer to another job due to this disability. In a January 1974 treatment report, the left hand injury was considered to be "significantly disabling for occupation and recreation purposes." In a June 7, 1996 VA outpatient note, the Veteran was found to have traumatic arthritis resulting from the in-service injury. In a December 5, 1996 VA outpatient note, the Veteran was described as having severe contractures in the left hand status post blasting cap in hand 1971, with spells of edema and pain. It was specifically noted that he was taking prednisone and ibuprofen for this injury. In a June 1, 1998 outpatient initial visit, the Veteran was described as status post trauma in 1971 secondary to a blasting cap causing injury to his left hand. It was noted that the Veteran still has problems in that area with tenderness arthritis and swelling, but that he states that otherwise he feels very healthy. Medications included ibuprofen 800 mg, two per day, and that he "has been on this since 1971." Thus, despite having numerous other injuries in addition to his left hand, the post-service treatment records support the Veteran's assertion that he was taking ibuprofen during this period, and that the ibuprofen was taken at least in part for the left hand injury. Highly significant in the June 1998 report is the specific notation that the Veteran had been taking ibuprofen since 1971, and the fact that his only complaint was his left hand. He was otherwise feeling healthy. This underscores that the ibuprofen was being taken primarily for the service-connected injury. Regarding the attribution by the July 2010 examiner of the Veteran's ibuprofen use to rheumatoid arthritis, a review of the record reveals that this diagnosis is not confirmed. The diagnosis appears in several VA orthopedic notes around 2008. However, there are several specific findings that the diagnosis was not supported. Notably, the October 2008 orthopedic surgery consultation discussed above reveals the examiner's observation that the Veteran has previously been told he had rheumatoid arthritis and has been on Plaquenil since the 1980s; however he has never developed any other symptoms in any of his other joints, making a rheumatoid arthritis diagnosis "questionable." The examiner went on to describe the diagnosis as "unlikely." Instead, the examiner diagnosed probable posttraumatic left wrist degenerative joint disease. The Veteran subsequently underwent a left wrist fusion on November 4 2008. In sum, the July 2010 VA opinion is based on an apparent mischaracterization of the pertinent facts. While additional evidentiary development could certainly be ordered to obtain another opinion, the Board finds that this is not necessary. The evidence in favor of a relationship between GERD and a service-connected disability has attained the point of relative equipoise with the evidence against the claim. With resolution of all reasonable doubt in favor of the claim, the Board concludes that service connection for GERD is warranted. The evidence also establishes an etiological relationship between a diagnosed sleep disorder and the service-connected GERD. The Veteran was afforded a VA Mental Disorders examination in July 2010 at which time the examiner entered an Axis I diagnosis of "[s]leep disorder due to general medical condition (pain)." The pain was identified as stomach pain, and the examiner explained that nighttime symptoms of GERD/stomach pain adversely affect sleep. As the Veteran's diagnosed sleep disorder has been related by competent medical evidence to his service-connected GERD, the Board also finds that service connection for the Axis I sleep disorder is warranted. Duties to Notify and Assist As the Board is granting the claims, they are substantiated and there are no further VCAA duties. Wensch v. Principi, 15 Vet App 362, 367-368 (2001); see also 38 U.S.C.A. § 5103A(a)(2) (Secretary not required to provide assistance "if no reasonable possibility exists that such assistance would aid in substantiating the claim"); VAOPGCPREC 5-2004 (the notice and duty to assist provisions of the VCAA do not apply to claims that could not be substantiated through such notice and assistance). CONTINUED ON NEXT PAGE-ORDER ORDER Service connection for GERD is granted. Service connection for Axis I sleep disorder is granted. ____________________________________________ JONATHAN B. KRAMER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs