Citation Nr: 1631884 Decision Date: 08/10/16 Archive Date: 08/23/16 DOCKET NO. 12-27 351 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to service connection for a gastrointestinal disorder, to include as secondary to service-connected disease or injury. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD J. Tunis, Associate Counsel INTRODUCTION The Veteran served on active duty from April 1975 to April 1981, and from August 1986 to February 2006. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. This matter was previously remanded by the Board in January 2016 for further development and adjudication. As will be discussed further below, the remand directives have been substantially complied with and the matter is now properly before the Board. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The Board has reviewed the record maintained in the Veteran's Virtual VA and Veterans Benefits Management System (VBMS) paperless claims processing system folder. Additional medical records were received after the issuance of the March 2016 supplemental statement of the case. Although no waiver of initial RO consideration of those records has been submitted, the records are not pertinent to the issue on appeal and remand for initial RO consideration is not required. See 38 C.F.R. § 20.1304 (2015). FINDINGS OF FACT 1. The Veteran's gastrointestinal disorder did not have its onset during active service and is not etiologically related to active service. 2. The Veteran's gastrointestinal disorder was not caused or aggravated by a service-connected disability. CONCLUSION OF LAW The criteria for service-connection for a gastrointestinal disorder, to include as secondary to service-connected disability, have not been met. 38 U.S.C.A. §§ 1110, 1131 (West 2014); 38 C.F.R. §§ 3.303, 3.310 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. VA's Duty to Notify and Assist Under the VCAA, VA has a duty to notify a claimant as to the information and evidence necessary to substantiate a claim for VA benefits. VA is required to notify the claimant and the claimant's representative, if any, of any information and medical or lay evidence not previously provided to the Secretary that is necessary to substantiate the claim. As part of that notice, VA is to specifically inform the claimant and the claimant's representative, if any, of any portion of the evidence that is to be provided by the claimant and any part that VA will attempt to obtain on behalf of the claimant. Notice to a claimant must be provided when, or immediately after, VA receives a complete or substantially complete application for VA-administered benefits. See Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004) (applying 38 U.S.C.A. § 5103(a)). The record indicates that the originating agency provided the Veteran with VCAA compliant notice in a September 2010 letter. The VCAA also defines VA's duty to assist a claimant in the development of his or her claim. See 38 U.S.C.A. §§ 5103, 5103A (West 2014). VA must help a claimant obtain evidence necessary to substantiate a claim, unless there is no reasonable possibility that such assistance would aid in substantiating the claim. The required assistance includes providing a medical examination or obtaining a medical opinion when necessary to make a decision on the claim. See 38 U.S.C.A. § 5103A (West 2014); 38 C.F.R. § 3.159 (2015). The Board finds that all available, relevant evidence necessary to decide the issue of entitlement to service connection for a gastrointestinal disorder, to include as secondary to a service-connected disability, has been identified and obtained. The evidence of record includes statements of the Veteran, VA treatment records, VA medical examination reports, and service treatment records. Therefore, the Board finds that the duty to assist has been met with regard to the claim, and the Veteran has not alleged or identified any outstanding evidence or medical treatment records. Moreover, the Veteran underwent a VA examination in April 2012, and VA addendum opinions were obtained in May 2015 and February 2016. The Board finds the VA examination and opinions to be adequate. The examination reports reflect that the examiners reviewed the Veteran's claims folder, took note of the Veteran's medical history and assertions, and evaluated the Veteran's current condition and symptomatology. The Veteran has not asserted that the VA examination was inadequate in any way, and the Board finds that the VA medical examination and opinions are adequate for evaluation purposes. See 38 C.F.R. § 4.2 (2015); Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that VA, when providing a VA examination or obtaining a VA opinion, must ensure that the examination or opinion is adequate). Therefore, the Board finds that VA has met its duties to assist and notify the Veteran. II. Compliance with Stegall As noted in the Introduction, in January 2016, the Board previously remanded this claim for further development. In the January 2016 remand, the Board instructed the RO to obtain an addendum opinion answering the question of whether it is at least as likely as not that the claimed gastrointestinal symptoms, to include gastroesophageal reflux disease (GERD), were caused or permanently aggravated by medications taken for service-connected disease or injury, to include Motrin and other NSAIDs. The examiner was directed to specifically discuss the online sources submitted by the Veteran which "purport to show a link between GERD and NSAID medications, including Motrin. The examiner was to attempt to reconcile these reports with any findings adverse to the Veteran. In accordance with the remand directives the RO obtained an addendum opinion in February 2016. The addendum sufficiently provided an opinion on the question presented and supported the opinion on aggravation with thorough medical knowledge and evidence. The VA examiner reviewed the claims file and provided a medical opinion, outlining the Veteran's medical history, to specifically include his medication history, and currently diagnosed GERD. The examiner provided a detailed dictation of the arguments and studies provided in the online sources that the Veteran provided, and clearly distinguished and reconciled these reports with his findings. Therefore, the February 2016 addendum opinion evidences that the examiner has sufficiently addressed the Board's questions set-forth in the January 2016. In March 2016, the AOJ readjudicated the claim and provided the Veteran with a supplemental statement of the case (SSOC). The Board acknowledges that the VA has adequately developed the Veteran's claim by making sufficient efforts to collect the Veteran's records and by providing the Veteran with appropriate notice, the necessary VA examinations, and an SSOC. Thus, the Board finds that there has been substantial compliance with its prior remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (a remand by the Board confers upon the claimant, as a matter of law, the right to compliance with the remand instructions, and imposes upon the VA a concomitant duty to ensure compliance with the terms of the remand); see also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). III. Service Connection In general, service connection may be granted for disability or injury incurred in, or aggravated by, active military service. See 38 U.S.C.A. §§ 1110, 1131 (West 2014); 38 C.F.R. § 3.303 (2015). In order to establish service connection for a claimed disorder, there must be (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). Where a disease is first diagnosed after discharge, service connection will be granted when all of the evidence, including that pertinent to service, establishes that it was incurred in active service. See 38 C.F.R. § 3.303(d) (2015); Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). A disability can be service-connected on a secondary basis if proximately due to, or the result of, a service-connected condition. See 38 C.F.R. § 3.310(a) (2015). 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 (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448(1995); Wallin v. West, 11 Vet. App. 509, 512 (1998). For certain chronic disorders shown as such in service (or within the presumptive period under 38 C.F.R. § 3.307) so as to permit a finding that the disorder was incurred during service or within the presumptive period, subsequent manifestations of the same chronic disease at a later date, however remote, are service connected. See 38 U.S.C.A. §§ 1101, 1112, 1113 (West 2014); 38 C.F.R. §§ 3.303(b), 3.307, 3.309(a) (2015). When the fact of chronicity in service is not adequately supported, a showing of continuity after discharge is an alternative means of establishing presumed service connection with respect to one of the listed chronic diseases. Competent medical evidence is required, unless non-expert evidence is competent to identify the existence of the condition. See 38 C.F.R. § 3.303(b) (2015). However, as will be explained below, the Veteran has been diagnosed with gastroesophageal reflux disease (GERD), which is not a listed chronic condition. See 38 C.F.R. §§ 3.303(b), 3.307, 3.309(a) (2015). Therefore, the presumptive provisions of service connection do not apply. The determination of whether the requirements of service connection have been met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. See Baldwin v. West, 13 Vet. App. 1, 8 (1999). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each issue shall be given to the claimant. See 38 U.S.C.A. § 5107 (West 2014); 38 C.F.R. §§ 3.102, 4.3 (2015). A claimant need only demonstrate an approximate balance of positive and negative evidence in order to prevail. See Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). For a claim to be denied on the merits, a preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996). The Veteran seeks service connection for a gastrointestinal disorder, primarily asserting service connection on a secondary basis related to his service-connected disabilities, to specifically include his service-connected musculoskeletal disability. See August 2010 Application for Compensation or Pension; see also May 2014 Notice of Disagreement (NOD). However, the Board will address the issue of entitlement to service connection on both a direct and secondary basis. First, the Board notes that the Veteran has a current disability, having been diagnosed with gastroesophageal reflux disease (GERD). See April 2012 VA examination. Therefore, the first element of Hickson has been satisfied. See Hickson, 12 Vet. App. at 253. As for the second element of direct service connection under Hickson, an in-service incurrence or aggravation of a disease or injury, the Veteran does not allege that his GERD is directly related to his active service. Furthermore, the Board notes that the Veteran's service treatment records are silent for any gastrointestinal disorder, to include GERD, with the first diagnosis of GERD reported to be post-service in 2007. Therefore, the second element of direct service connection under Hickson has not been satisfied. Id. Based on the facts of this claim, VA is not required to obtain a medical examination or opinion to address direct service connection of his GERD. VA will provide a medical examination or obtain a medical opinion when the evidence indicates the existence of a current disability or persistent or current symptoms of a disability may be associated with an event, injury, or disease in-service, and the record does not contain sufficient medical evidence to decide the claim. McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). Thus, as there being no evidence of an in-service incurrence, the requirements of McLendon, as they pertain only to direct service connection, have not been met and a medical nexus opinion concerning entitlement to direct service connection for a gastrointestinal disorder, namely GERD, is not required in this case. Because the elements of Hickson have not been met, service connection on a direct basis is not warranted. The Board also considers the Veteran's claim for entitlement to service connection for a gastrointestinal disorder, namely GERD, on a secondary basis. The Veteran contends that his GERD is the result of the use of nonsteroidal anti-inflammatory drugs (NSAIDs), specifically Motrin, which he has taken regularly for many years for his service-connected musculoskeletal disability (arthritis). In the Veteran's August 2010 Application for Compensation or Pension, he stated the following: "I am receiving disability for my left and right knees. The prescription for pain is 800 mg Motrin when pain arrives. I have had these injuries since 1989 and have been taking Motrin for the pain ever since that time. Using this constant regiment of Motrin for pain it has torn my stomach up and has become the cause of my acid reflux. It was at the point I was waking up every night with acid coming from my throat. Since September 2008, I have been on 20 mg of Nexium. Test was performed on my stomach for detectable IgC antibody and the test was negative. Therefore, the only conclusion to my acid reflux is the many years of taking Motrin on a regular basis has finally damaged my stomach to cause acid reflux." The Veteran reiterated this statement in his May 2012 NOD. As previously discussed, the Veteran is diagnosed with GERD. See April 2012 VA examination. Furthermore, the Veteran is currently service connected for the following disabilities: instability of the left knee, degenerative joint disease of the right wrist, degenerative joint disease of the right knee, degenerative joint disease of the left knee, impingement syndrome of the right shoulder, degenerative disc disease of the thoracolumbar spine, tinnitus, residuals of a status post third digit fracture of the right hand, hemorrhoids, genital warts, onychomycosis of the bilateral feet, residuals of status post orthognathic surgery of the jaw, and temporomandibular joint dysfunction with associated bruxism. Therefore, the first and second elements of service connection on a secondary basis, (1) a current disability and (2) a service-connected disability, have been met. See Wallin, 11 Vet. App. at 512. The Board therefore considers the third prong of service connection on a secondary basis, whether there is a nexus between the Veteran's GERD and the Veteran's service-connected disabilities, to specifically include his treatment for such service-connected disabilities. Upon consideration of this third prong, the Board has reviewed the evidence of record, to include the medical opinions and literature of record. Of record is a March 2012 private examination record of a PET scan, written by A. F. S., M.D., which indicates a history of esophageal reflux, but reports the following findings: "peristaltic activity of the esophagus is within normal limits. No hiatal hernia or gastroesophageal reflux is identified. No esophageal stricture is identified. No abnormality of the esophagus, stomach or duodenum is identified. No active ulceration is identified." In April 2012, the Veteran was provided a VA medical examination, and after an examination of the Veteran and a review of the Veteran's entire claims file (to include imaging from March 2012), the Veteran was diagnosed with GERD, but with no hiatal hernia. The examiner opined that "[i]t is less likely than not that the acid reflect is proximately due to or the result of medication taken for years for arthritis of the knees." The examiner noted that the medical record shows active medicines of Motrin, Aspirin, and Xopenex. The examiner explained that Motrin and Aspirin are anti-inflammatory medications and stated that neither of the listed medications is known to cause esophageal reflux. The examiner cited to an online article from www.healingwell.com, which states that certain medicines interfere with the action of the sphincter muscle, which increases the likelihood of backup or reflux of the highly acidic contents of the stomach into the esophagus, but that such medicines include nitrates, theophylline, calcium channel blockers, asnticholinergics, and birth control pills. In May 2015 an addendum opinion, the examiner further opined that the Veteran's GERD is less likely as not aggravated beyond its natural progression by the medication taken for his service-connected disabilities, because GERD "is caused by incompetence of the lower esophageal sphincter (LES), and anti-inflammatory medications such as Motrin have no known deleterious effect on LES function." The examiner supported his opinion with the following rationale: "According to UpToDate 'Pathophysiology of reflux esophagitis' last updated March 11, 2015 with literature review current through April 2015, 'The primary event in the pathogenesis of gastroesophageal reflux disease (GERD) is movement of gastric juice from the stomach into the esophagus. The antireflux barrier at the gastroesophageal junction is anatomically and physiologically complex and vulnerable to several potential mechanisms of reflux. The three dominant pathophysiologic mechanisms causing gastroesophageal junction incompetence are: - Transient lower esophageal sphincter relaxations (tLESRs) - A hypotensive lower esophageal sphincter (LES) - Anatomic disruption of the gastroesophageal junction, often associated with a hiatal hernia.' Review of pathophysiological mechanisms mentions nothing about the contribution of nonsteroidal anti-inflammatory drugs (NSAIDs) to GERD." Furthermore, in the May 2015 addendum opinion, the examiner pointed out that a review of the Veteran's treatment recommendations for GERD do not indicate any mention of discontinuing NSAIDs. The examiner noted that he also completed a literature search of the terms NERD and NSAID and that the search returned a paper relating to the nonsteroidal anti-inflammatory drug diclofenac. As the examiner explained, "[t]his paper by Kondo T, Oshima T, and Tomita T (Clin Gastroenterol Hepatol 2015 January 26), which refers to a double blind, placebo-controlled, 2-period crossover study, reports that 'The nonsteroidal anti-inflammatory drug diclofenac reduces acid-induced heartburn symptoms in healthy volunteers.'" The May 2015 addendum opinion cites another paper, "Aspirin and nonsteroidal anti-inflammatory drug use and the risk of Barrett's esophagus" by Schneider et. al. (Dig Dis Sci 2015 Feb;60(2):436-43), which states, "'Regular use of aspirin or NSAIDS was associated with a decreased risk of Barrett's esophagus, particularly among persons with gastroesophageal symptoms."' The examiner further explained that "Barrett's esophagus is the precursor to esophageal cancer that is seen in longstanding and severe GERD." Thus, the examiner concluded that "[i]f anything, NSAIDS such as Motrin appear to be beneficial for symptoms and effects of GERD, based on review of the current literature," and that "[i]t is for this reason that the Veteran's gastroesophageal reflux disease(GERD) is/was less likely than not (less than 50 percent probability) aggravated beyond its natural progression by his medication Motrin taken for his service connected knees." However, subsequent to the examination and addendum opinion, the Veteran submitted additional online sources that support his contentions that his use of medication has caused or aggravated his currently diagnosed GERD. The Veteran submitted a study from the University of Georgia College of Pharmacy, which showed that "NSAIDs are associated with GERD especially for females, alcohol and tobacco users, and patients with asthma, hiatal hernia, or obesity." The Veteran also submitted information from Drugs.com, which details the risks of Motrin and indicates that Motrin "may also cause serious effects on the stomach or intestines." Additionally, the Veteran cited a WebMD.com source in his September 2012 Substantive Appeal (VA Form-9), which he asserts states that a cause of acid reflux disease is the use of Aspirin or Ibuprofen. As previously addressed, in January 2016, the Board remanded this matter for an additional addendum opinion to address the Veteran's newly submitted and contradictory online sources. Therefore, in February 2016 the VA examiner provided an additional addendum opinion after reviewing the Veteran's claims file, to include the newly submitted online sources. The examiner noted that he was not previously aware of the Georgia College of Pharmacy study, and that "one of the classes of medications that can weaken or loosen the lower esophageal sphincter listed in the [Drugs.com] article is anti-inflammatory medications." However, the examiner pointed out that although the Drugs.com reference states that NSAIDs, including Motrin suspension, "can cause serious gastrointestinal (GI) adverse events including inflammation, bleeding, ulceration, perforation of the stomach, small intestine, or large intestine, which can be fatal," the reference does not mention GERD or reflux as one of these serious effects. The examiner further recognized that the WebMD.com article mentioned in the Veteran's appeal "does indicate that 'you are more likely to get heartburn if you take certain medications, especially some antibiotics and NSAIDs, including Aspirin.'" However, the examiner stated that UpToDate, Drug Information, Ibuprofen, notes "a single reference to ibuprofen and GERD relating only to the injectable form of ibuprofen, specifically ibuprofen lysine (NeoProfen), which can cause gastroesophageal reflux disease. This reference reports 'Gastrointestinal disease (Non-Nectrotizing); 22%, abdominal distention, cholestasis, gastritis, gastroesophageal reflux disease, inguinal hernia, intestinal obstruction.'" Therefore, the examiner explained the following: "In other words, 22 percent of those taking the injectable form of ibuprofen had one of the listed side effects. Gastritis is a known and common side effect in both the injectable and oral formulations of the drug. GERD would be expected to be a much less common side effect than gastritis in the injectable form of the drug, and GERD is NOT listed as an adverse effect of the oral form of the drug. This reference also does not list GERD as a potential side effect of aspirin." The examiner further contradicted the Veteran's submitted sources, and supported his opinion, by noting that the "total number of Ibuprofen tablets given per CPRS was 557 of the 800 MG Motrin tablets," which, he notes, indicates that "the average number of tablets taken per year is 51 tablets or less than 5 per month." Moreover, the examiner again pointed out that even after claiming that the medication was causing or aggravating his GERD, the Veteran not only continued to be prescribed the Ibuprofen, but that he continued to take it. Therefore, the examiner emphasized that, "[i]f NSAIDs were to have an effect on GERD, we would expect the current management of GERD to include a recommendation for stopping NSAID medication, since taking these medications is so common in the general population (consider OTC medications including Advil, Motrin, naproxen, etc.)," and that, "according to UpToDate, 'Medical management of gastroesophageal reflux disease in adults,' last updated 22 January 2016, with literature review current through January 2016, including management algorithm, there is no mention of NSAIDs." Last, the examiner referred to the March 2012 images that indicated "no hiatal hernia or gastroesophageal reflux identified," with "upper GI revealing no abnormalities." The examiner concluded that "the Nexium (esomeprazole) would not be expected to have any effect on the lower esophageal sphincter, so we would expected to see reflux through the incompetent lower esophageal reflux that was claimed to have been permanently injured by the many years of Motrin and Aspirin use." Thus, the examiner found that since this study did not show the esophageal reflux as would be expected to be seen, "it is less likely than not (less than 50 percent probability) that the claimed gastrointestinal symptoms, to include GERD, were caused or permanently aggravated by medications taken for service-connected disease or injury, to include Motrin and other NSAIDs." The Board, therefore, finds that the medical opinions provided by the VA examiner are well-reasoned and well-supported with thorough and extensive rationale. The VA examiner not only examined the Veteran, but also considered the Veteran's entire claims file, to include his service treatment records, private treatment records, and any medical sources provided or cited to by the Veteran. The examiner also considered up-to-date medical knowledge and literature, and extensively cited medical sources to support his opinions. The examiner's opinions sufficiently addressed the Veteran's cited contentions, and adequately provided rationale to explain any and all discrepancies and contradictions between the sources and the examiner's opinions. Although the record contains private treatment records, such records do not contain any nexus opinions to controvert the VA examiner's opinions. Therefore, the Board finds that the examiner's opinion is well reasoned and is entitled to probative weight. See Nieves-Rodriguez v. Peak, 22 Vet. App. 295, 302-05 (2008). While the Veteran contends that his GERD is the result of or has been aggravated by his use of medications to treat his service-connected disabilities, the Veteran, as a layperson, is not competent to provide a medical nexus opinion. While the Veteran, as a layperson, is competent to report his symptoms of GERD, statements offered by the Veteran beyond his perceived symptoms are not competent evidence of a medical nexus and require specific medical training. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); but see 38 C.F.R. § 3.159(a)(1). Furthermore, while the Veteran has cited to online sources that the Veteran asserts indicate a nexus, the Veteran as a layperson, has not received specific medical training to fully interpret such medical literature. Instead, the Board again notes that the VA examiner considered such literature, has interpreted it in his addendum opinions, and has provided a nexus opinion that is both well-reasoned and well-supported. Therefore, the Board finds that the Veteran's contentions with regard to a medical nexus between the Veteran's GERD and his service-connected disabilities, to include the use of medications as treatment for such, are of no probative value. Id. Finally, to the extent that the Veteran contends that his currently diagnosed GERD was incurred within the presumptive period or that his symptoms have continued since discharge, as previously noted, GERD is not a listed chronic condition. See 38 C.F.R. §§ 3.303(b), 3.307, 3.309(a) (2015). Therefore, the presumptive provisions of service connection do not apply. Thus, for the reasons expressed above, the Board finds that the preponderance of the evidence is against the Veteran's claim of entitlement to service connection for a gastrointestinal disorder, namely GERD, on both a direct and secondary basis. (CONTINUED ON NEXT PAGE) ORDER Entitlement to service connection for a gastrointestinal disorder, to include as secondary to service-connected disease or injury, is denied. ____________________________________________ K. J. ALIBRANDO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs