Citation Nr: 1306406 Decision Date: 02/25/13 Archive Date: 03/01/13 DOCKET NO. 08-19 347 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for gastroesophageal reflux disease (GERD). REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD K. Curameng, Counsel INTRODUCTION The Veteran had active duty service from May 1967 to April 1970. This matter came to the Board of Veterans' Appeals (Board) from a February 2007 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). This matter was remanded in January 2010, September 2010 and February 2011 for further development. A review of the record shows that the RO has complied with all remand instructions by taking appropriate action to obtain VA treatment records and post-service medical records identified by the Veteran, providing a VA examination, obtaining an opinion supported by rationale, and issuing supplemental statements of the case. See Stegall v. West, 11 Vet. App. 268 (1998). The Veteran testified at a hearing before the Board at the RO in October 2009. A transcript is of record. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDING OF FACT GERD was not manifested during the Veteran's active duty service or for many years thereafter, nor is GERD otherwise related to such service. CONCLUSION OF LAW GERD was not incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. § 3.303 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (VA) has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). Duty to Notify Upon receipt of a complete application, VA must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 U.S.C.A. § 5103(a). The notice requirements apply to all five elements of a service connection claim: 1) veteran status; 2) existence of a disability; 3) a connection between the veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The notice must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App. 112 (2004). The notice requirements may be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). The RO provided the appellant pre-adjudication notice by a letter dated in November 2006. The notification complied with the specificity requirements of Dingess v. Nicholson, 19 Vet. App. 473 (2006) identifying the five elements of a service connection claim; and Quartuccio v. Principi, 16 Vet. App. 183 (2002), identifying the evidence necessary to substantiate a claim and the relative duties of VA and the claimant to obtain evidence. The Veteran has received all essential notice, has had a meaningful opportunity to participate in the development of his claim, and is not prejudiced by any technical notice deficiency along the way. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). In any event, the Veteran has not demonstrated any prejudice with regard to the content of the notice. See Shinseki v. Sanders, 129 S.Ct. 1696 (2009) (Reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination). See also Mayfield v. Nicholson, 444 F.3d 1328, 1333-34 (Fed. Cir. 2006). Duty to Assist VA has obtained service, VA and private treatment records; reviewed the Veteran's Virtual VA file; assisted the Veteran in obtaining evidence; afforded the Veteran VA examinations in November 2010; obtained a March 2011 opinion; and afforded the Veteran the opportunity to give testimony before the Board at the RO in October 2009. VA has also obtained a May 2012 expert medical opinion questionnaire. In October 2012, two medical expert opinions were obtained. In November 2012, the Veteran was informed that he had 60 days from the date of the letter to submit any additional evidence or argument. In a January 2013 statement, the Veteran's representative waived the 60-day period to respond. All known and available records relevant to the issues on appeal have been obtained and associated with the Veteran's claims file; and the Veteran and his representative have not contended otherwise. VA has complied with the notice and assistance requirements and the Veteran is not prejudiced by a decision on the claim at this time. Analysis The issue before the Board involves a claim of entitlement to service connection for GERD. Applicable law provides that service connection will be granted if it is shown that the veteran suffers from disability resulting from an injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. That an injury occurred in service alone is not enough; there must be chronic disability resulting from that injury. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection is warranted for a disability, which is proximately due to, or the result of a service-connected disease or injury. 38 C.F.R. § 3.310. The Court has also held that service connection can be granted for a disability that is aggravated by a service-connected disability and that compensation can be paid for any additional impairment resulting from the service-connected disorder. Allen v. Brown, 7 Vet. App. 439 (1995). Applicable law also provides that a veteran who, during active service, served during a certain time period in the Republic of Vietnam during the Vietnam era shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that he was not exposed to any such agent during service. 38 U.S.C.A. § 1116; See also Veterans Education and Benefits Expansion Act of 2001, Pub. L. No. 107-103, 115 Stat. 976 (2001). Regulations further provide, in pertinent part, that if a veteran was exposed to an herbicide agent (such as Agent Orange) during active military, naval, or air service, the following diseases shall be service-connected if the requirements of 38 C.F.R. § 3.307(a)(6) are met even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 C.F.R. § 3.307(d) are also satisfied: AL amyloidosis, chloracne or other acneform disease consistent with chloracne; Type II diabetes mellitus; Hodgkin's disease; ischemic heart disease; all chronic B-cell leukemias; multiple myeloma; non-Hodgkin's lymphoma; Parkinson's disease; acute and subacute peripheral neuropathy; porphyria cutanea tarda; prostate cancer; respiratory cancers; and soft-tissue sarcoma. The Secretary of Veterans Affairs has determined that there is no positive association between exposure to herbicides and any other condition for which the Secretary has not specifically determined that a presumption of service connection is warranted. See Notice, 59 Fed. Reg. 341-46 (1994); see also Notice, 61 Fed. Reg. 41, 442-49 (1996). The Board is charged with the duty to assess the credibility and weight given to evidence. Wensch v. Principi, 15 Vet. App. 362, 367 (2001); Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). In weighing credibility, VA may consider interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of the witness. Caluza v. Brown, 7 Vet. App. 498 (1995). The Board may weigh the absence of contemporaneous medical evidence against the lay evidence in determining credibility, but the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). A veteran is competent to report symptoms that he experiences at any time because this requires only personal knowledge as it comes to him through his senses. Layno, 6 Vet. App. at 470; Barr v. Nicholson, 21 Vet. App. 303, 309 (2007) (when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation). Service treatment records document complaints of stomach cramps on various occasions from May 1967 to August 1967; bronchitis in June 1967; sore throat in February 1970; and cough in August 1971 (in which diagnosis included possible bronchitis). However, there was no diagnosis of GERD or any indication that GERD was suspected. Further, in separation examination in May 1971, clinical evaluation of the lungs and chest, and abdomen were normal. In his contemporaneous medical history, the Veteran checked the appropriate boxes to indicate past/current history of pain/pressure in the chest, chronic cough, frequent indigestion, and stomach/intestinal trouble. During the October 2008 hearing before the Board at the RO, the Veteran testified that he believed his GERD was a result of the chemicals he used in service to clean radars. The Veteran was afforded a VA examination in April 2010. After interviewing and examining the Veteran, and after review the claims file, the VA examiner provided a brief comment that the GERD was not related to service. When the Veteran was afforded another VA examination in November 2010, the VA physician opined that it was less likely than not that the Veteran's claimed GERD was a result of exposure to trichloroethylene or carbon tetrachloride. The claims file was returned to the VA examiner for clarification. In response, the VA examiner stated in March 2011 that service treatment records were silent about GERD and the May 1971 separation examination was normal. The VA examiner reiterated that it is less likely as not that the Veteran's GERD was manifested during service and not causally related to service. The VA examiner also stated that the preponderance of the medical evidence does not show trichloroethylene and carbon tetrachloride in the etiology of GERD. However, there was no clear discussion of the rationale for such opinion. In April 2012, the Board submitted a request for a medical expert opinion. In May 2012, an opinion was provided by the Chief of Gastroenterology at the Central Texas Veterans Health Care System, who reviewed the Veteran's medical records. He noted that the Veteran claimed that GERD symptoms started between 1971 and 1980. He further noted that the May 1971 separation examination was normal, that the Veteran had been treated for GERD multiple times since and that he had undergone endoscopies in 1985, 1986 and 1990. He was not able to find complaints of GERD while in service and noted that it was possible that the Veteran had symptoms during this time. He reviewed Dr. Tan's letter and the most recent VA examinations. He stated that trichloroethylene and carbon tetrachloride exposure can produce a variety of GI symptoms including nausea, vomiting and gastritis. He was not able to find medical evidence linking trichloroethylene and carbon tetrachloride in the etiology of GERD or Hiatal Hernia. He opined that it is less likely that the hiatal hernia or GERD was caused by exposure to the aforementioned chemicals. On a questionnaire, the following was added: "Evaluation by toxicologist, expert in chemical explosives, may help further." Accordingly, in August 2012, the Board requested an opinion from a toxicologist. A response was received in October 2012 from a toxicologist associated with the Post-Deployment Health Strategic Healthcare Group. After reviewing the Veteran's claims file and scientific literature, it was her opinion that neither exposure to trichloroethylene nor carbon tetrachloride was sufficient to cause GERD/hiatel hernia. She noted that there is no scientific evidence that exposure to trichloroethylene leads to development of GERD/hiatal hernia. She noted that the Veteran offered as a nexus that GERD developed secondary to asthma or chronic obstructive pulmonary disease (COPD), and there is scientific literature that details an association between them. She stated that while trichloroethylene has been linked to persistent airway hyperreactivity in cases of occupational exposures, it is not likely that the chemical was inhaled by the Veteran at levels high enough to result in this type of airway hyperreactivity. Similarly, she said, carbon tetrachloride is not linked to any of the aforementioned conditions and would not be expected to cause the current disability. She concluded that it was less likely than not that exposure to trichloroethylene and/or carbon tetrachloride during service caused GERD/hiatal hernia. The only medical evidence to the contrary is a November 2009 statement from Thomas Brown, DO, who checked the appropriate box to note that the Veteran's GERD is at least as likely as not caused by or a result of service. However, no rationale was provided. The other medical evidence is a July 2010 letter from Thomas B. Tan, M.D., who appears to offer an opinion that the GERD was causally related to chemical exposure during service. He stated that the Veteran had worked spraying trichloroethylene and carbon tetrachloride without protective clothing and/or respirators, and that the chemicals are carcinogens found in Agent Orange. He stated that the Veteran contracted bronchitis as a result of inhaling the chemicals, which developed into asthma and COPD that finally resulted in GERD. He stated that research by the Centers for Disease Control and Prevention (CDC), Surgeon General M.D. Anderson, and John Hopkins has shown that trichloroethylene exposure causes cancer and can be attributed to the related conditions mentioned. He noted that the Veteran's exposure to these chemical is consistent with his time in service. He additionally noted that as a Board certified physician with 25 years specialized in Medical Oncology, and after review of available medical records, he opined that the current diagnosis is a direct result of trichloroethylene exposure. As noted in the expert medical opinion, the Veteran's exposure to such chemicals was not enough to cause his current disability. Additionally, service connection on a secondary basis is not warranted because the Veteran is not service connection for bronchitis, asthma or COPD. The Board acknowledges the Veteran's assertion that GERD was a result of the chemicals he used in service. In a statement received in March 2012, he asserted that since his skin disability has been related to service, then GERD must be service-connected as well. While it is true that VA has granted service connection for the Veteran's skin lesions as due to exposure to the chemical in question during service, it does not automatically follow that other disorders, such as GERD, are likewise causally related to such exposure. The Board has recognized the medical nature of the underlying question and has directed various actions outlined above to obtain appropriate medical opinions. The Board also acknowledges the Veteran's explanation of why no GERD noted in service treatment records. In a statement received in March 2012, the Veteran stated that he did not go to sick call unless his commanding officer or First Sergeant urged him to do so since complaining of any medical problem was frowned upon. The Board does not find this statement credible as he was seen for symptoms of stomach cramps, sore throat and cramps while in service on various occasions. Nevertheless, there was no diagnosis of GERD. The Veteran's current assertions are inconsistent with what he reported, or failed to report, during service. To the extent that the Veteran may be asserting that he suffered symptoms of GERD during service and has every since, the Board finds such assertions not credible in view of the overall record which shows inconsistencies in the Veteran's actions. For example, the Veteran did not include GERD in a claims for VA benefits in 1990, twenty years after service. If he in fact has believed all along that he has suffered from GERD since service, it is reasonable to expect that he would have filed for this disorder in 1990 when filing for another unrelated disorder. To the extent that the Veteran has suggested a relationship between COPD and GERD as reflected in internet articles printed in May 2010 and April 2012, the August 2012 expert opinion persuasively argues against any of the cited disorders being causally related to the Veteran's exposure to chemicals. After thorough review of the evidence currently of record, the Board is led to the conclusion that there is not such a state of equipoise of the positive evidence with the negative evidence to permit a favorable determination in this case. 38 U.S.C.A. § 5107(b). The weight of the evidence is against the Veteran's claim. The Board has considered the Veteran's arguments, but the negative medical opinions based on review of the Veteran's file and pertinent medical literature result in a situation where the preponderance of the evidence is against the Veteran's claim. ORDER The appeal is denied. ____________________________________________ ALAN S. PEEVY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs