Citation Nr: 1308484 Decision Date: 03/13/13 Archive Date: 03/20/13 DOCKET NO. 10-46 031 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUES 1. Entitlement to service connection for an acid reflux disability. 2. Entitlement to service connection for disc herniation at the L5 to S-1 vertebrae with canal stenosis. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD G. Slovick, Associate Counsel INTRODUCTION The Veteran served in the Army National Guard with periods of active duty from June 1996 to October 1996, and from January 2003 to April 2004. This matter is before the Board of Veterans' Appeals (Board) on appeal of a rating decision in February 2010 of a Department of Veterans Affairs (VA) Regional Office (RO), which denied the Veteran's claims for service connection. In March 2012, the Veteran testified before the undersigned Veterans Law Judge at a travel Board hearing. A transcript of that hearing is of record. The issue of entitlement to service connection for disc herniation at the L5 to S-1 vertebrae with canal stenosis is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT The preponderance of the evidence is against a finding that an acid reflux disability is related to service. CONCLUSION OF LAW The criteria for service connection for acid reflux are not met. 38 U.S.C.A. §§ 1110, 5103, 5103A (West 2002) 38 C.F.R. §§ 3.303, 3.304 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and to Assist Upon receipt of a complete or substantially complete application, VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 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. In his March 2012 hearing, the Veteran waived any error in the content or timing of the notice provided to him; VA's duty to notify is considered satisfied. The Veteran's service treatment records, VA medical treatment records, and private treatment records have been obtained. 38 U.S.C.A. § 5103A, 38 C.F.R. § 3.159. The Veteran has not been afforded a VA examination to determine the nature and etiology of his acid reflux. However, a VA examination or opinion is necessary only if the evidence of record (a) contains competent evidence that the claimant has a current disability, or persistent or recurrent symptoms of disability; (b) establishes that the Veteran suffered an event, injury, or disease in service; (c) indicates that the claimed disability or symptoms may be associated with the Veteran's service or other service- connected disability, and (d) does not contain sufficient medical evidence for VA to make a decision on the claim. See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159; McClendon v. Nicholson, 20 Vet. App. 79 (2006). The requirement to examine the Veteran is not triggered as the evidence of record does not meet these initial evidentiary thresholds. There is no indication in the record that any additional evidence, relevant to the issues decided, is available and not part of the claims file. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of the case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 486 (2006); Shinseki v. Sanders/Simmons, 129 S. Ct. 1696 (2009). Service Connection Service connection will be granted if it is shown that the veteran suffers from a disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty, during active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. "Active military, naval, or air service" includes active duty, any period of active duty for training (ACDUTRA) during which the individual concerned was disabled from a disease or injury incurred in the line of duty. 38 U.S.C.A. § 101(21), (24); 38 C.F.R. § 3.6(a). Active military, naval, or air service also includes any period of inactive duty for training (INACDUTRA) during which the individual concerned was disabled from an injury incurred in the line of duty. Id. Accordingly, service connection may be granted for disability resulting from disease or injury incurred in, or aggravated, while performing ACDUTRA, or from an injury incurred or aggravated while performing INACDUTRA. Id. To establish service connection, there must be a competent diagnosis of a current disability; medical or, in certain cases, lay evidence of in-service occurrence or aggravation of a disease or injury; and competent evidence of a nexus between an in-service injury or disease and the current disability. Hickson v. West, 12 Vet. App. 247, 252 (1999); see Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent lay evidence is any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2). This may include some medical matters, such as describing symptoms or relating a contemporaneous medical diagnosis. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The showing of a chronic disease in service requires a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." Continuity of symptomatology after discharge is required where the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. 38 C.F.R. § 3.303(b). In this case, chronicity and continuity of symptomatology under 38 C.F.R. § 3.303(b) do not apply, because acid reflux is not a chronic disease enumerated in the regulation listing named chronic diseases in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, No. 2011-7184, 2013 WL 628429 (Fed.Cir. Feb. 21, 2013). (The continuity of symptomatology avenue to service connection under regulation creating presumption of service connection for chronic diseases manifesting during service and then again at any later date is available only for chronic diseases enumerated in the only regulation listing named chronic diseases). 38 C.F.R. §§ 3.303(b), 3.309(a). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. The Veteran's service treatment records include a February 2004 post deployment medical assessment which noted the Veteran's complaint of frequent indigestion or heartburn. The Veteran's service treatment records are otherwise silent as to complaints of or treatment for digestive symptoms. Post-service VA medical center records include an April 2007 diagnosis of gastrointestinal reflux disease. Treatment records also include October 2009 diagnoses of H. Pylori bacteria and gastritis. A November 2009 treatment note includes a diagnoses of dyspepsia. The Veteran is not shown to have had a chronic acid reflux condition during active service. A single treatment note reports digestive symptoms and the Veteran is not shown to have reported any disorder thereafter. Further, acid reflux is not a chronic disease enumerated in the regulation listing named chronic diseases in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, No. 2011-7184, 2013 WL 628429 (Fed.Cir. Feb. 21, 2013). While the Veteran is competent to describe personal observations of digestive symptoms, he is not competent to diagnose his symptoms as a chronic disorder. No factual foundation has been established to show that the Veteran is qualified through specialized education, training, or experience to identify the presence or diagnosis of acid reflux. Thus, his claim that his digestive symptoms are related to service cannot, by itself, support a finding of service connection. The evidence of record does not include any competent medical evidence which links the Veteran's current digestive symptoms to his service. The evidence of record does not show the incurrence of a chronic disability in service; does not show continuous symptoms of a chronic disability after service; and does show a competent nexus opinion which demonstrates that the Veteran's symptoms are related to his service. The preponderance of the evidence is against the claim for service connection for an acid reflux disability; there is no doubt to be resolved; and service connection is not warranted. ORDER Entitlement to service connection for an acid reflux disability is denied. REMAND The Veteran's service treatment records reveal multiple complaints of back pain, to include a complaint of back pain during active duty. See December 1996, October 2001 and February 2004 service treatment records. The Veteran's records do not demonstrate an in-service diagnosis of a back disability. The Veteran's post-service treatment records, however, include a June 2007 radiology report which revealed a herniated disc at L5 to S-1. The Veteran reported that he has experienced back pain since his active duty service. See March 2012 Hearing Transcript, p. 7. The Board, as a finder of fact, finds the Veteran's assertions both competent and credible, as his claims are corroborated by the medical evidence of record. The evidence does not, however, include any competent evidence linking the Veteran's active duty service to his present back disorder. As the evidence of record indicates that there may be a link between the Veteran's service and his back disability, a VA examination is necessary. McClendon v. Nicholson, 20 Vet. App. 79 (2006). Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for a VA spine examination by an appropriate medical professional. The entire claims file (i.e., the paper claims file and any medical records contained in Virtual VA, CAPRI, and AMIE) must be reviewed by the examiner. If the examiner does not have access to Virtual VA, any relevant treatment records contained in the Virtual VA file that are not available on CAPRI or AMIE must be printed and associated with the paper claims file so they can be available to the examiner for review. 2. The examiner is to provide an opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that a lumbar spine disability is related to service. The examiner must accept as true the Veteran's assertions that his back symptoms have continued since service. The examination report must include a complete rationale for all opinions expressed. If the examiner feels that the requested opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). 3. Review the claims file to ensure that all of the foregoing development has been completed, and arrange for any additional development indicated. Then readjudicate the claim on appeal. If the benefit sought remains denied, issue an appropriate supplemental statement of the case and provide the Veteran and his representative an appropriate period of time to respond. The case is to then be returned to the Board for further appellate review. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ RONALD W. SCHOLZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs