Citation Nr: 1317545 Decision Date: 05/29/13 Archive Date: 06/06/13 DOCKET NO. 08-08 921 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUE Entitlement to service connection for a gastrointestinal disorder, to include gastroesophageal reflux disease (GERD). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Christopher Murray, Counsel INTRODUCTION 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). The Veteran had active military service from April 1945 to July 1946 and from September 1950 to June 1951. This case comes before the Board of Veterans' Appeals (Board) on appeal of a December 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado. In June 2011, a hearing was held before the undersigned Veterans Law Judge (VLJ) of the Board. Relevant to this proceeding, in Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103(c)(2) (2012) requires that the VLJ who chairs a hearing fulfill two duties to comply with the above regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, during the hearing, the VLJ explained the issues that were before the Board. The representative and the VLJ asked questions to ascertain whether the Veteran had submitted evidence in support of his claims. In addition, the VLJ sought to identify any pertinent evidence not currently associated with the claims folder that might have been overlooked or was outstanding that might substantiate the claims. Moreover, the Veteran has not asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), or otherwise identified any prejudice in the conduct of the hearing. By contrast, the hearing focused on the elements necessary to substantiate the claims. As such, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2) and that the Board can adjudicate the claims based on the current record. This case was remanded to the Agency of Original Jurisdiction (AOJ) for additional development in October 2011. It was again before the Board in January 2013, at which time the claim was again remanded for further development. The requested development having been completed, the case is once again before the Board for appellate consideration of the issue on appeal. FINDING OF FACT A chronic gastrointestinal disorder was not manifested in active service; any current gastrointestinal disorder, to include GERD, is not otherwise etiologically related to active service and is not caused or chronically worsened by a service-connected psychiatric disability. CONCLUSION OF LAW A gastrointestinal disorder was not incurred in or aggravated by active service and is neither proximately due to nor aggravated by a service-connected disability. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.310 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist When VA receives a complete or substantially complete application for benefits, it 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. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). See also Quartuccio v. Principi, 16 Vet. App. 183 (2002); Pelegrini v. Principi, 18 Vet. App. 112 (2004). VA's duty to notify has been satisfied through notice letters dated December 2005 and February 2006 that fully addressed all notice elements. These letters informed the Veteran of what evidence was required to substantiate his claim on both a direct and secondary basis, and of the Veteran's and VA's respective duties for obtaining evidence. The Veteran was requested to submit any evidence in his possession and has been afforded a meaningful opportunity to participate effectively in the processing of his claim and given ample time to respond. During the pendency of this appeal, on March 3, 2006, the Court issued a decision in Dingess v. Nicholson, 19 Vet. App. 473, 484 (2006), which held that the VCAA notice must include notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. A March 2006 VCAA letter provided such notice. In light of the above, the Board finds that all notices required by VCAA and implementing regulations were furnished to the Veteran and that no useful purpose would be served by delaying appellate review to send out additional VCAA notice letters. VA must also make reasonable efforts to assist the appellant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claims. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159 (2012). Service treatment records are associated with claims file. All post-service VA and private treatment records identified by the Veteran have also been obtained. The Veteran has not identified any additional records that should be obtained prior to a Board decision. Therefore, VA's duty to further assist the Veteran in locating additional records has been satisfied. See 38 U.S.C.A. § 5103A(d); see also 38 C.F.R. § 3.159 (c)(4) (2012); Wells v. Principi, 327 F. 3d 1339, 1341 (Fed. Cir. 2002). As noted above, the instant claim was most recently remanded in January 2013 for additional development, specifically obtaining a new VA medical opinion and readjudicating the claim. The Veteran was provided a VA examination in April 2013, which is adequate for the purposes of determining service connection as it involved a review of the Veteran's pertinent medical history as well as a clinical evaluation of the Veteran, and provides an etiological opinion with supporting rationale. See generally Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). The claim was then readjudicated by an April 2013 supplemental statement of the case. There has been substantial compliance with the Board's previous remand, and adjudication of the instant claim may proceed. See Stegall v. West, 11 Vet. App. 268, 271 (1998). In light of the foregoing, the Board is satisfied that all relevant facts have been adequately developed to the extent possible; no further assistance to the appellant in developing the facts pertinent to the issue on appeal is required to comply with the duty to assist. 38 U.S.C.A. §§ 5103 and 5103A; 38 C.F.R. § 3.159. Analysis Under 38 U.S.C.A. § 7104, Board decisions must be based on the entire record, with consideration of all the evidence. The law requires only that the Board address its reasons for rejecting evidence favorable to the claimant. Timberlake v. Gober, 14 Vet. App. 122 (2000). The Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378 (Fed. Cir. 2000). 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 asserts service connection for a gastrointestinal disorder as directly related to active service, identifying in-service treatment for stomach pains. Alternatively, he asserts service connection is warranted on a secondary basis as due to or aggravated by a service-connected psychiatric disability. For the sake of clarity, the Board will address the Veteran's theories of entitlement separately below. Direct Service Connection Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. In order to prevail on the issue of service connection there must be competent evidence of a current disability; medical evidence, or in certain circumstances, 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. See Hickson v. West, 12 Vet. App. 247, 253 (1999); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). Further, where the veteran asserts entitlement to a chronic disease but there is insufficient evidence of a diagnosis in service, service connection may be established under 38 C.F.R. § 3.303(b) by demonstrating a continuity of symptomatology since service, but only if the chronic disease is listed under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). However, as GERD is not listed as a chronic disease under 38 C.F.R. § 3.309(a), the provisions of 38 C.F.R. § 3.303(b) pertaining to continuity of symptomatology do not apply in the instant case. For disabilities that are not listed as chronic under 38 C.F.R. § 3.303(b), the only avenue for service connection is by showing in-service incurrence or aggravation under 38 C.F.R. § 3.303(a), or by showing that a disease that was first diagnosed after service is related to service under 38 C.F.R. § 3.303(d). With respect to direct service connection, while the evidence reveals that the Veteran currently suffers from a gastrointestinal disorder, diagnosed as GERD, the competent, probative evidence of record does not etiologically link the Veteran's current disability to his service or any incident therein. Service treatment records associated with the Veteran's first period of active service are void of complaint, treatment or diagnosis of any gastrointestinal disorder. A September 1950 examination conducted at the beginning of his second period of active service revealed no gastrointestinal disorder. At the time of reenlistment, the Veteran denied stomach or intestinal trouble of any sort. In November 1950, the Veteran complained of pains "in the pit of his stomach," and was treated at the U.S. Naval Hospital. Physical examination was essentially negative for any abnormal findings. He was diagnosed with pylorospasms of unknown cause in December 1950 and with passive dependency reaction and psychogenic gastrointestinal reaction in March 1951. A May 1951 physical evaluation board determined the Veteran was physically unfit for active duty by reason of an "emotional disorder manifested by gastrointestinal symptoms" and recommended his discharge. Service records show the Veteran was honorably discharged in June 1951 by reason of physical disability. The record supports the Veteran's assertion of gastrointestinal symptomatology during his second period of active service. However, the contemporaneous evidence of record, including reports of medical treatment and physical examinations performed at the time, clearly indicates any such symptomatology was due to a psychiatric condition as opposed to a physical gastrointestinal disorder. Further, as discussed in more detail below, a VA examiner has concluded that the Veteran's in-service gastrointestinal symptomatology is separate from his current complaints and has since resolved. As such, the Board finds the Veteran did not suffer a chronic gastrointestinal disorder during active service. Post-service medical evidence includes the reports of a number of VA examinations, VA treatment records and a private opinion submitted in support of the Veteran's claim. At an October 1951 gastrointestinal examination, the Veteran complained of occasional cramping pains in the mid-abdomen about thirty minutes after eating a meal too fast. On examination, he was found to be very mildly tender on deep palpation of the epigastrium. At the time, a diagnosis of pylorospasm, associated with "irritable duodenum" was rendered. Following the October 1951 VA examination report, there is no competent medical evidence which addresses the Veteran's claimed gastrointestinal disorder until October 2001, a period of 50 years. At this time, the Veteran sought to establish VA treatment and reported a prior medical history of "acid stomach" all his life with good relief from high-dose ranitidine. He did not indicate a history of private medical treatment for this condition, and a diagnosis of a gastrointestinal disorder was not rendered at the time. An April 2003 VA gastroenterology note indicates the Veteran reported 50+ years of GERD symptoms and several years of dysphagia. The assessment at the time was "lifelong GERD symptoms" with current dysphagia. A diagnosis of GERD was confirmed by a June 2003 VA endoscopy, which also noted longstanding reflux symptoms. The Veteran submitted a January 2006 statement from C.M.C., a retired veterans' advocate and Ph.D. In her statement, C.M.C. notes that she had known the Veteran's family for several years and has consulted with him on his stomach problems. She further opined that the Veteran's current stomach problems are related to the in-service treatment described above, noting in particular his discharge in 1951 due to physical disability. No discussion of the current medical evidence was provided, nor was a rationale offered for the positive opinion. A VA examination was provided in September 2006, at which time the examiner reviewed the Veteran's medical history, including the report of a June 2003 esophagogastroduodenoscopy. While a current diagnosis of GERD was rendered, an etiological opinion regarding direct service connection was not offered, noting that the examiner cannot state whether or not GERD was a recognized clinical entity at the time of the Veteran's active service. Another VA examination was provided in November 2011, which also included a physical examination of the Veteran and thorough review of the claims file, including in-service and post-service treatment records, as well as the Veteran's self-reported history. Following a review of the Veteran's pertinent medical history and physical examination, the VA examiner found the Veteran's current GERD is less likely than not etiologically related to active service. In this regard, the examiner noted that the claims file includes a report of a gastrointestinal series which does not identify a hiatal hernia or reflux while on active duty. Therefore, the examiner concluded that the x-ray study more likely eliminates GERD as present at that time. The examiner further stated that the Veteran's current symptoms indicate a diagnosis of GERD and distal esophagitis, though the date of onset is not certain. A final VA examination, conducted by the November 2011 VA examiner, was provided in April 2013, at which the VA examiner elected to conduct another physical examination to clarify details of the Veteran's history and examination. The VA examiner found no evidence that the Veteran's current gastrointestinal disorder (GERD) occurred in his period of active service. In this regard, the VA examiner noted that the Veteran's in-service description of pain in the pit of his stomach is completely different from his current complaints of retrosternal burning distress with an acid taste in the throat. The examiner concluded that the gastrointestinal symptoms described by the Veteran in service represented a separate gastrointestinal disorder for which he does not presently suffer any symptoms. In deciding whether the Veteran's currently diagnosed GERD is etiologically related to his active service, it is the responsibility of the Board to weigh the evidence and decide where to give credit and where to withhold the same and, in so doing, accept certain medical opinions over others. Evans v. West, 12 Vet. App. 22, 30 (1998). That responsibility is particularly onerous where medical opinions diverge. At the same time, the Board is mindful that it cannot make its own independent medical determinations and that there must be plausible reasons for favoring one medical opinion over another. Id.; see also Colvin v. Derwinski, 1 Vet. App 171 (1991). The Board finds the positive medical evidence contained in the VA treatment records and January 2006 statement from C.M.C. to be of less significant probative value in comparison to other evidence of record, particularly the November 2011 and January 2013 VA opinions. Initially, the Board notes that neither the April 2003 VA treatment record nor the January 2006 statement from C.M.C. provides a rationale or clinical basis for their findings and opinion. With regard to medical evidence, an assessment or opinion by a health care provider is never conclusive and is not entitled to absolute deference. Further, a bare conclusion, even one reached by a health care professional, is not probative without a factual predicate in the record. Miller v. West, 11 Vet. App. 345, 348 (1998). With respect to the VA treatment records indicating the Veteran has suffered from GERD symptoms for "50+ years" and C.M.C.'s statement that the Veteran has suffered from his current stomach problems since service, the Board observes there is no evidence the VA physician or C.M.C. reviewed the Veteran's service treatment records, but rather based the statements on the Veteran's reported history. The Board may not disregard competent medical evidence solely on the rationale that it was based on a history given by the Veteran. See Kowalski v. Nicholson, 19 Vet. App. 171 (2005). However, as discussed in detail by the April 2013 VA medical opinion, the Veteran currently experiences separate and discernible symptomatology than that suffered in service more than 50 years ago. As concluded by the VA examiner, this difference in symptomatology indicates the condition suffered by the Veteran in service is not the GERD he now experiences. As neither the VA physician who authored the April 2003 VA treatment record nor C.M.C. took such differences into account, the statements that the Veteran's GERD symptoms have persisted for 50+ years and he has suffered his current stomach problems since service, are not probative evidence. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (medical evidence based upon an inaccurate factual premise has no probative value). In comparison, the November 2011 and April 2013 VA examiner's negative opinions contain a rationale based on clinical evidence, namely citing the results of gastrointestinal testing and treatment conducted in service, and the differences between the Veteran's in-service and current symptomatology. As such, the Board assigns significant probative weight to the November 2011 and April 2013 VA examination reports. Evans, 12 Vet. App. 22. The Board acknowledges that the Veteran and his spouse have claimed that he suffers from a gastrointestinal disorder, namely GERD, that is etiologically related to active service. However, while they are competent to report (1) symptoms observable to a layperson, e.g., pain or vomiting; (2) a diagnosis that is later confirmed by clinical findings; or (3) a contemporary diagnosis, they are not competent to independently render a medical diagnosis or opine as to the specific etiology of a condition. See Davidson v. Shinseki, 581 F.3d 1313 (2009). Consequently, these lay assertions of medical diagnosis or etiology cannot constitute evidence upon which to grant the claim for service connection. Lathan v. Brown, 7 Vet. App. 359, 365 (1995). In sum, the Board finds that there is no evidence of a chronic gastrointestinal disorder in service. The threshold question therefore is whether there is sufficient medical evidence to establish an etiological link between the Veteran's current GERD his period of active service. The preponderance of the evidence is against this aspect of the Veteran's claim. As discussed above, the positive medical evidence is afforded little probative value, and two VA medical opinions have determined that the Veteran's GERD is not etiologically related to his active service. Accordingly, the Board concludes that the preponderance of the evidence is against the claim for service connection for a gastrointestinal disorder as directly related to the Veteran's period of active duty service. The benefit of the doubt rule does not apply. See 38 U.S.C.A. § 5107 . Secondary Service Connection Service connection may be established on a secondary basis upon a showing that the disability for which the claim is made is proximately due to or the result of service-connected disease or injury or that service-connected disease or injury has chronically worsened the disability for which service connection is sought. 38 C.F.R. § 3.310 (2006); Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). During the course of the appeal there was an amendment to the provisions of 38 C.F.R. § 3.310. See 71 Fed. Reg. 52744 -47 (Sept. 7, 2006). The amendment sets a standard by which a claim based on aggravation of a non-service-connected disability by a service-connected one is judged. Although VA has indicated that the purpose of the regulation was merely to apply the Court's ruling in Allen, it was made clear in the comments to the regulation that the changes were intended to place a burden on the claimant to establish a pre-aggravation baseline level of disability for the non-service-connected disability before an award of service connection may be made. This had not been VA's practice, which suggests that the recent change amounts to a substantive change. To whatever extent the revised regulation may be more restrictive than the previous one, the Board will afford the Veteran review under the old version of the regulation. See VAOPGCPREC 7-2003 (Nov. 19, 2003). With respect to secondary service connection, the Veteran contends that his currently diagnosed GERD is proximately due to his service-connected anxiety disorder. Alternatively, he argues that this condition has been aggravated by his service-connected anxiety disorder. More specifically, he asserts that his GERD is due to or aggravated by medication prescribed to treat his service-connected anxiety disorder. See, e.g., June 2011 Board hearing transcript at 15. A February 2003 VA mental health medication note suggests the Veteran's anxiety "certainly...could worsen his GERD...." However, such language does not rise to the level of at least as likely as not. See Obert v. Brown, 5 Vet. App. 30, 33 (1993) (medical opinions expressed in terms of "may" also imply "may not" and are speculative). Service connection may not be based on resort to speculation or remote possibility. 38 C.F.R. § 3.102; Stegman v. Derwinski, 3 Vet. App. 228 (1992); Obert, 5 Vet. App. at 33. The Board accordingly affords this statement little weight in assessing the etiology of the Veteran's current gastrointestinal disorder. A November 2011 VA examination report contains a competent medical opinion that there is no scientific basis to relate the reflux of stomach contents retrograde into the esophagus due to a psychiatric disorder. Further, the VA examiner stated that, if the Veteran's GERD were aggravated by his anxiety disorder, his current symptomatology would be "far more frequent and substantially more severe" than it appears at the present time. Based on a review of scientific evidence and his own observation of patients with similar symptomatology, the VA examiner opined that it is not as likely as not that GERD is due to or aggravated by the service-connected anxiety disorder. The same VA examiner reached an identical negative conclusion in an April 2013 VA examination report. The examiner noted that GERD is caused by an abnormally functioning sphincter, and there is no evidence that psychiatric disorders affect the mechanism of the gastroesophageal sphincter in a matter to cause or facilitate reflux of gastric contents into the esophagus. As to the Veteran's assertion that his psychiatric medication aggravates his GERD, the VA examiner noted that the Veteran reported that he has not taken any medication for his psychiatric condition "for years." Further, after reviewing the medical record, the VA examiner determined that the Veteran has not been prescribed psychotropic drugs to treat his anxiety disorder in the recent past and, therefore, one would not expect a continued or late development of GERD due to a psychotropic drug that was stopped. The Board affords the November 2011 and April 2013 VA examinations significant probative weight, as they involve a review of the Veteran's pertinent medical history and consideration of scientific evidence and the VA physician's own observations of other patients. The Veteran has not provided any other competent medical opinion indicating that his GERD has been caused or aggravated by his service-connected anxiety disorder. The Board acknowledges that the Veteran himself has claimed that he suffers from GERD that is the result of or has been aggravated by his service-connected anxiety disorder. However, he is not competent to independently render a medical diagnosis or opine as to the specific etiology of a condition. See Davidson, 581 F.3d at 1313; Lathan, 7 Vet. App. at 365. Accordingly, the Board concludes that the preponderance of the evidence is against the claim for service connection for a gastrointestinal disorder on a secondary basis, and the benefit of the doubt rule does not apply. See 38 U.S.C.A. § 5107 . ORDER Service connection for a gastrointestinal disorder is denied. ____________________________________________ S. L. Kennedy Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs