Citation Nr: 1311958 Decision Date: 04/10/13 Archive Date: 04/19/13 DOCKET NO. 01-00 357A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to service connection for a hiatal hernia. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD E. D. Anderson, Counsel INTRODUCTION The Veteran served on active duty from January 1988 to November 1999. This appeal comes before the Board of Veterans' Appeals (Board) from a January 2003 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. In October 2005, the Veteran testified at a hearing before the Board. A transcript of the hearing is associated with the claims file. The Veterans Law Judge (VLJ) who presided at the October 2005 Board hearing is no longer employed at the Board. The law requires that the VLJ who conducts a hearing on an appeal must participate in any decision on that appeal. 38 U.S.C.A. § 7107(c) (West 2002); 38 C.F.R. § 20.707 (2012). Accordingly, a June 2012 letter was sent to the Veteran offering him an opportunity to testify at another Board hearing. The Veteran indicated in a June 2012 response that he did not wish to appear at another hearing and requested that his case be considered on the evidence of record. As such, the Board will proceed with appellate review. In a June 2009 decision, the Board denied service connection for a hiatal hernia. The Veteran subsequently appealed to the United States Court of Appeals for Veterans Claims (Court). The attorney for the appellant and the Secretary of Veterans Affairs filed a Joint Motion for Partial Remand in August 2010. By Order of the Court, this issue was returned to the Board. The Board again remanded this claim in April 2011 for further development in accordance with the instructions in the joint motion. In August 2012, the Board remanded this matter to the RO via the Appeals Management Center (AMC) in Washington, D.C. to afford the Veteran a VA medical examination. The action specified in the August 2012 Remand completed, the matter has been properly returned to the Board for appellate consideration. See Stegall v. West, 11 Vet. App. 268 (1998). In February 2013, the Veteran submitted additional medical evidence, but waived RO review. See 38 C.F.R. § 20.1304(c)(2012). FINDING OF FACT The Veteran's hiatal hernia did not have onset in service and was not caused or permanently aggravated by the Veteran's active military service. CONCLUSION OF LAW The criteria for entitlement to service connection for a hiatal hernia have not been met. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 U.S.C.A. § 3.303 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION The Board has reviewed all of the evidence in the claims folder. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Indeed, the Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to these claims. The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Board must note that in reviewing this case the Board has not only reviewed the Veteran's physical claims file, but the Veteran's file on the "Virtual VA" system to insure a total review of the evidence. Service Connection Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303(a) (2012). In general, service connection requires competent and credible evidence of (1) a current disability; (2) 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 Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third elements is through a demonstration of continuity of symptomatology. Barr v. Nicholson, 21 Vet. App. 303 (2007); see Savage v. Gober 10 Vet. App. 488, 495-97 (1997); see also Clyburn v. West, 12 Vet. App. 296, 302 (1999). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post- service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Savage, 10 Vet. App. at 495-96; see Hickson v. West, 12 Vet. App. 247, 253 (lay evidence of in-service incurrence is sufficient in some circumstances for purposes of establishing service connection); 38 C.F.R. § 3.303(b). However, in Walker v. Shinseki, ___ F.3d ___, No. 2011-7184, 2013 WL 628429 (Fed. Cir. Feb. 21, 2013), the Federal Circuit held that the theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic by 38 C.F.R. § 3.309(a). The condition at issue, hiatal hernia, is not a "chronic disease" listed under 38 C.F.R. § 3.309(a), therefore 38 C.F.R. § 3.303(b) does not apply. See Walker v. Shinseki, ___ F.3d ___, No. 2011-7184, 2013 WL 628429 (Fed. Cir. Feb. 21, 2013); see also 38 C.F.R. § 3.303(a) (2012). Service connection may 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) (2012). As an initial matter, the Board acknowledges that the Veteran's original claims folder was lost. Although some of the Veteran's service treatment records have been associated with his claims file, some remain missing. As such the Board has a heightened obligation to explain its findings and conclusions and carefully consider the benefit-of-the-doubt rule. Cuevas v. Principi, 3 Vet. App. 542, 548 (1992); O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). The Board reviewed the available service treatment records and there is no indication of treatment for or a diagnosis of hernia in service. The Veteran was treated for gastritis in May 1992, with no evidence of chronic complaints or treatment. He also complained of stomach pain in October 1989 and July 1991. As the Board noted above, the complete service treatment records are not available. However, neither a hiatal hernia nor gastritis was diagnosed or mentioned in a May 1999 General Medical Examination. At an April 2000 VA General Medical Examination, the Veteran complained of a "sour stomach" and was found to have transient gastritis that the examiner attributed to dietary problems. Thereafter, a November 2001 VA treatment record shows that the Veteran had been prescribed Ranitidine, a medication used to treat GERD symptoms. The earliest diagnosis of a hiatal hernia appears to be in March 2002. Following complaints of chest pain, an upper GI endoscopy was performed at Christian Hospital Northeast which revealed a hiatal hernia. A February 2003 private treatment record and March 2003 VA treatment record also reflect diagnoses of GERD. In an August 2006 VA Compensation and Pension Examination, the examiner examined the Veteran and found that he was diagnosed with a hiatal hernia in 2003. In an October 2006 addendum, she stated that the Veteran's symptoms of chest pain and possible dysphagia are consistent with GERD, but that he likely has a component of functional disorder which would explain his abdominal pain and bloating. In a September 2007 addendum to the VA examination, the examiner noted that the Veteran reported that his symptoms began in service; however, she could not find any objective evidence that supported this assertion. Based on the Veteran's report, the examiner could not opine that that the hiatal hernia was related to service. After the Board remanded this claim in April 2011, a VA opinion was requested by the agency of original jurisdiction (AOJ) to address the likelihood that the Veteran's hiatal hernia was related to service. In the April 2012 report, the examiner made findings with regard to chronicity in service and continuity of symptoms after service. Specifically, the examiner found that while the Veteran did have a current disability, he did not have a chronic gastrointestinal disability in service or continuity of symptoms in the years immediately following service. However, the examiner stated that he would not render a nexus opinion as he had not been requested to do so In August 2012, the Board again remanded this matter with instructions to the examiner to render an opinion whether it was at least as likely as not (fifty percent or greater) that the Veteran's hiatal hernia and/or GERD were the result of his military service. In a September 2013 VA examination report, a VA physician concluded that it is less likely than not that the Veteran's hiatal hernia and/or GERD were incurred in or caused by his active military service. She explained, In-service medical records reveal intermittent GI complaints more consistent with viral gastroenteritis, transient in nature and without clinical residuals, as well as gastritis signs and symptoms. There were no in-service symptoms suggestive of a hiatal hernia or GERD while in service or within 1 year of separation from active military service. By this, the examiner found no subjective report of or objective documentation of symptoms of post-prandial nausea and/or vomiting, increased belching/burping associated with regurgitation of partially digested foods, metallic taste, actual regurgitation, or any degree of dysphagia to solids and/or liquids consistent with any degree of GERD +/-esophagitis. To the contrary, those symptoms referenced to in the 2507 as "having symptoms such as having stomach acid and taking medication for it at the April 2000 VA examination just several months following his separation examination from service in late 1999 and that a November 2001 VA treatment record shows that he had been prescribed medication to treat symptoms of GERD" are more suggestive of empiric treatment for the "stomach acid" as there had been no actual symptoms of GERD; only symptoms related to gastritis. THESE CONDITIONS ARE NOT SYNONYMOUS. By this, GERD-gastroesophageal reflux clearly implies symptoms of gastric acid/contents refluxing into the lower 1/3 of the esophagus resulting in mucosal irritation/damage of that portion of the esophagus. Gastritis implies irritation of the (solely) stomach lining/gastric mucosal with presentation of purely abdominal symptoms (pain, cramping, sour/acid stomach). Of note, and interestingly, both conditions are treated with meds to decrease the acidity level of gastric acid; these include meds such as Mylanta, ranitidine, omeprazole (prilosec). Additionally, the in-service symptoms and those reported in the 1-2 years following separation from active military service, though seemingly similar in symptom report to GERD/HH, do not correlate clinically with the hiatal hernia diagnosed in 3/2002. Based on all the above evidence, the Board finds that entitlement to service connection for a hiatal hernia must be denied. While the Veteran complained of stomach pain on several occasions in service and was once diagnosed with gastritis, these complaints not only occurred infrequently, but occurred relatively early in his period of service and there is no evidence of complaints of or treatment for any gastro-intestinal condition during the Veteran's last six years of service. The limited and transient nature of the Veteran's complaints suggests any gastrointestinal condition he suffered from in service was of an acute, rather than chronic nature. At his 1999 VA examination, the Veteran did not complain of gastritis, GERD, a hiatal hernia, or any related disability. He did complain of a "sour stomach" in April 2000, several months after separation from service, but his complaints were attributed to transient gastritis, likely related to the Veteran's diet, and not to a hiatal hernia. The earliest available evidence that the Veteran suffers from a hiatal hernia is in March 2002, more than two years after the Veteran's separation from service. Significantly, none of the Veteran's treatment providers or VA examiners has ever opined that his current disability had onset in service or was caused by or otherwise related to the Veteran's active military service. Indeed, some of the most probative evidence against the Veteran's claim was provided by the September 2012 VA examiner who opined that neither the Veteran's hiatal hernia or his GERD were incurred in or caused by his active military service. The September 2012 VA examiner discussed in great detail why the Veteran's in-service symptoms were inconsistent with his current disability. Her conclusions are supported by the conclusions of the other VA examiners. The August 2006 VA examiner stated in her September 2007 addendum that despite the Veteran's claims that his hiatal hernia had onset in service, she was unable to find any objective evidence to support his claims. And while the April 2012 refused to offer an opinion concerning the etiology of the Veteran's disability, he did conclude that there was no evidence of a chronic gastrointestinal disability in service or for several years after service, providing further evidence against the Veteran's claim. While the Veteran himself may sincerely believe that his hiatal hernia had onset in service or was caused by his military service, he has not demonstrated that he has any knowledge or training in determining the etiology of such conditions. In other words, he is a layman, not a medical expert. The Board recognizes that there is no bright line rule that laypersons are not competent to offer etiology opinions. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (rejecting the view that competent medical evidence is necessarily required when the determinative issue is medical diagnosis or etiology). Evidence, however, must be competent evidence in order to be weighed by the Board. Whether a layperson is competent to provide an opinion as to the etiology of a condition depends on the facts of the particular case. In Davidson, the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) drew support from Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) for support for its holding. Id. In a footnote in Jandreau, the Federal Circuit addressed whether a layperson could provide evidence regarding a diagnosis of a condition and explained that "[s]ometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issue in this case, whether the Veteran currently has a hiatal hernia due to his active service, falls outside the realm of common knowledge of a lay person. Id. This connection or etiology is not amenable to observation alone. As the September 2012 VA examiner explained in her examination report, although conditions such as gastritis and GERD may share symptoms and may be treated with the same medications, they are not synonymous. Thus, while the Veteran is competent to report the gastrointestinal symptoms he suffered from in service, as well as presently, he is not qualified to diagnose his current disability or determine its etiology. Hence, the Veteran's opinion of the etiology of his current disability is not competent evidence and is entitled to low probative weight. For all the above reasons, entitlement to service connection for a hiatal hernia is denied. The evidence in this case is not so evenly balanced so as to allow application of the benefit-of- the-doubt rule. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102 (2012). The Duty to Notify and Assist 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. 2010); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the U.S. Court of Appeals for Veterans Claims held that, upon receipt of an application for a service-connection claim, 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating, or is necessary to substantiate, each of the five elements of the claim, including notice of what is required to establish service connection and that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Here, the Veteran was sent a VCAA letter in July 2002 that addressed the notice elements pertaining to his claim for service connection for a hiatal hernia. Another VCAA letter was sent in February 2005 which addressed his service connection claims. These letters informed the Veteran of what evidence was required to substantiate his claim and of the Veteran's and VA's respective duties for obtaining evidence. The Veteran was also asked to submit evidence and/or information in his possession to the AOJ. In July 2006, the Veteran was also provided with notice of the provisions as set forth in Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Although the VCAA duty to notify was satisfied subsequent to the initial AOJ decisions, the Board finds that this error was not prejudicial to the appellant because the actions taken by VA after providing the notice have essentially cured the error in the timing of notice. Not only has the appellant been afforded a meaningful opportunity to participate effectively in the processing of his claim and given ample time to respond, but the AOJ also readjudicated the issues by way of a Supplemental Statement of the Case issued in March 2009, after the notice was provided. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006) (where notice was not provided prior to the AOJ's initial adjudication, this timing problem can be cured by the Board remanding for the issuance of a VCAA notice followed by readjudication of the claim by the AOJ); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant VCAA notification followed by readjudication of the claim, such as an SOC or SSOC, is sufficient to cure a timing defect). Additionally, any timing error regarding Dingess notice was harmless. Given that service connection is being denied, no rating or effective date will be assigned with respect to the claimed condition. For this reason, it is not prejudicial to the appellant for the Board to proceed to finally decide this appeal as the timing error did not affect the essential fairness of the adjudication. Further, the Veteran has neither alleged nor proven that prejudice resulted from this error, and therefore, the Board determines that none resulted. See Shinseki v. Sanders, 129 S.Ct. 1696, 1704, 1705, 1706 (noting that "the party that seeks to have a judgment set aside because of an erroneous ruling carries the burden of showing that prejudice resulted"). VA also has a duty to assist the veteran in the development of the claim. This duty includes assisting the veteran in the procurement of service medical records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). The RO has obtained the Veteran's available service treatment records, as well as VA treatment records. The Veteran submitted has submitted private treatment records and was provided an opportunity to set forth his contentions during the October 2005 video-conference hearing before a Veterans Law Judge. The appellant was afforded a VA medical examination in April 2000, August 2006, April 2012, and September 2012. The September 2012 VA examination is adequate and probative for VA purposes because the examiner relied on sufficient facts and data, provided a rationale for the opinion rendered, and there is no reason to believe that the examiner did not reliably apply reliable scientific principles to the facts and data. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Significantly, neither the appellant nor his representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. Hence, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). ORDER Entitlement to service connection for a hiatal hernia is denied. ____________________________________________ D. MARTZ AMES Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs