Citation Nr: 1318170 Decision Date: 06/04/13 Archive Date: 06/11/13 DOCKET NO. 07-38 804 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for a chronic gastrointestinal disorder to include gastroesophageal reflux disease (GERD). REPRESENTATION Appellant represented by: Kristina Morgan, Attorney WITNESSES AT HEARING ON APPEAL The appellant and his spouse ATTORNEY FOR THE BOARD K. J. Kunz, Counsel INTRODUCTION The Veteran served on active duty from March 1968 to August 1970. This appeal comes before the Board of Veterans' Appeals (Board) from an April 2006 rating decision by the St. Petersburg, Florida Regional Office (RO) of the United States Department of Veterans Affairs (VA). In that decision, the RO denied service connection for GERD. In March 2009, the Veteran had a Travel Board hearing before the undersigned Veterans Law Judge. In June 2012, the Board remanded the GERD service connection issue for the development of additional evidence. The Board is satisfied that there has been substantial compliance with the remand directives. The Board will proceed with review. See Stegall v. West, 11 Vet. App. 268 (1998). The Board has reviewed both the Veteran's paper claims file and the Veteran's file on the Virtual VA electronic file system, to ensure a total review of the evidence. FINDINGS OF FACT 1. Stomach symptoms and Giardia lamblia infestation treated in service resolved in service without residual pathology. 2. GERD diagnosed after service is not attributable to Giardia lamblia infestation or other disease in service. CONCLUSION OF LAW Current GERD was not incurred or aggravated in service. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. § 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2011)) redefined VA's duty to assist a claimant in the development of a claim for VA benefits. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2012). The notice requirements of the VCAA require VA to notify the Veteran of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, VA will attempt to obtain. 38 C.F.R. § 3.159(b). The United States Court of Appeals for Veterans Claims (Court) has stated that the requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between the veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO). Id.; see also Pelegrini v. Principi, 18 Vet. App. 112 (2004). Insufficiency in the timing or content of VCAA notice is harmless, however, if the errors are not prejudicial to the claimant. Conway v. Principi, 353 F.3d 1369, 1374 (Fed. Cir. 2004) (VCAA notice errors are reviewed under a prejudicial error rule). The RO provided the Veteran VCAA notice in letters issued in January 2006 and December 2007. Those letters addressed the information and evidence necessary to substantiate a claim for service connection for GERD, and informed the Veteran how VA assigns disability ratings and effective dates. The letters also addressed who was to provide the evidence. The claims file contains the Veteran's service treatment records, post-service treatment records, VA examination reports, and a transcript of the March 2009 Travel Board hearing. The reports of VA examinations are adequate to address the Veteran's claim for service connection for GERD. In response to the instructions in the June 2012 Board remand, the RO obtained more recent treatment records and a new VA medical examination with file review and opinion. The Board is satisfied that there has been substantial compliance with the remand directives, such that the Board may proceed with review of the claim that the Board remanded. See Stegall v. West, 11 Vet. App. 268 (1998). The Board finds that the Veteran was notified and aware of the evidence needed to substantiate the claim on appeal, as well as the avenues through which he might obtain such evidence, and the allocation of responsibilities between the Veteran and VA in obtaining such evidence. The Veteran has actively participated in the claims process by providing evidence and argument. Thus, he was provided with a meaningful opportunity to participate in the claims process, and he has done so. Any error in the sequence of events or content of the notice is not shown to have affected the essential fairness of the adjudication nor to have caused injury to the Veteran's interests. See Pelegrini, 18 Vet. App. at 121. Therefore, any such error is harmless, and does not prohibit consideration of that claim on the merits. See Conway, 353 F.3d at 1374, Dingess, 19 Vet. App. 473; see also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). Gastrointestinal Disorder including GERD The Veteran contends that his chronic GERD began during service. Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. In addition, service connection may be granted for any disease diagnosed after service when all the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). The Court has explained that, in general, service connection requires (1) evidence of a current disability; (2) medical evidence, or in certain circumstances lay evidence, of in-service incurrence or aggravation of a disease or injury; and (3) evidence of 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). The Court has stated that, under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden element 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). Under 38 C.F.R. § 3.303(b), if a chronic disease or injury is shown in service, subsequent manifestations of the same chronic disease or injury at any later date, however remote, may be service connected, unless clearly attributable to intercurrent causes. For a showing of a chronic disorder in service, the mere use of the word chronic will not suffice; rather, there is a required combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. The provisions of 38 C.F.R. § 3.303(b) have been interpreted as an alternative to service connection only for the specific chronic diseases listed in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The Board must assess the credibility and weight of all the 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. See Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 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 there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a claim, VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107. To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. The Veteran's service treatment records show that in February 1969 he was seen at the dispensary for nasal and chest congestion, sore throat, and diarrhea. He had a fever. The treating clinician's impression was viral upper respiratory infection. The next day the Veteran reported that he also had nausea and vomiting. In September 1969, the Veteran was seen with a two to three day history of diarrhea and stomach cramps. Laboratory testing of a stool sample revealed a Giardia lamblia infestation. The clinician prescribed a ten day course of an antibiotic. On medical examination of the Veteran in August 1970 for separation from service, no digestive system disorder was noted. Private medical treatment records from 2002 forward contain a diagnosis of GERD from 2003 forward. The GERD diagnosis is also reflected in VA treatment records from 2005 forward. The Veteran participated in the VA Agent Orange Registry in February 2005. He reported that during service he had a stomach problem due to parasite infestation. He stated that the residuals of that illness were frequent stomach upset and vomiting. In an August 2005 statement, the Veteran reported that that during service he had stomach problems due to a parasite, and that presently he vomited frequently and had indigestion. In a November 2007 statement, the Veteran reported that he had been vomiting for over 39 years. In the March 2009 Travel Board hearing, the Veteran reported that during service in Vietnam he began to have stomach problems. He indicated he had incurred a parasitic infection, but that it took a while for service clinicians to figure out the source of his symptoms. He stated that after service he continued to vomit frequently, and that in about 1972 he received hospital treatment for gastritis. He stated that the frequent vomiting had continued over a period of about 40 years. He reported that the physician treating him since about 2002 prescribed medication for GERD. The Veteran's wife reported that the Veteran threw up frequently before taking medication for GERD. She stated that the Veteran told her about the parasite infection in Vietnam. In December 2010, a VA clinician reviewed the Veteran's claims file. The clinician expressed the opinion that the Veteran's stomach condition is not related to the symptoms treated in service in 1969 with antibiotics. The clinician explained that the condition treated in 1969 was an acute condition unrelated to GERD and was not a precursor to GERD. The Veteran had a VA esophageal conditions examination in November 2012. The Veteran's claims file was not provided to the examiner to review. The history the Veteran provided included hospitalization for stomach symptoms around 1974 with upper and lower gastrointestinal studies that were normal. Noting those normal studies in 1974, the examiner expressed the opinion that it is less likely that the Veteran had a gastrointestinal disorder in service that is related to his GERD. In January 2013, the Veteran's claims file was provided to the physician who examined the Veteran in November 2012, and the examiner reviewed that file. The examiner noted that the Veteran had Giardia lamblia in service in 1969. The examiner stated that the evidence did not indicate that the Veteran had residual problems from that infection after service. The examiner opined that the treatment should have cleared the infection and any associated symptoms. The RO returned the file to the examiner a second time with follow-up questions. In February 2013, the examiner noted that the Veteran's service exit examination did not indicate a chronic gastrointestinal disorder. The examiner again opined that it is less likely than not that the Veteran's current GERD is associated with the Giardia lamblia infection that was treated during service. The Veteran reports that the stomach symptoms he experienced during service continued through the present. He was treated for digestive system symptoms in service in 1968 and 1969, and a Giardia lamblia infection was diagnosed in 1969. His 1970 service separation examination, however, did not show any ongoing infection or stomach symptoms. The Veteran is competent to recall that he had stomach symptoms both before and after service. The Board finds his account of his symptom history to be credible. As a lay person, however, the Veteran is not competent to address the medical question as to whether symptoms experienced during service and symptoms after service had the same cause, and were manifestations of the same disease. The VA physician who considered the issue opined that the antibiotic likely would have resolved the infection, such that post-service symptoms are not related to the infection during service. The physician based that opinion in part on the service separation examination report which is silent for complaints or findings of chronic or recurrent gastrointestinal problems or symptoms. Whether the GERD diagnosed after service is related to the symptoms and Giardia lamblia infection during service is a medical question. The physician's competent medical opinion that the symptoms during service and the symptoms after service from separate disorders carries greater evidentiary weight than the Veteran's lay report that he had digestive symptoms during and soon after service. As the evidence of greater persuasive weight indicates that the post-service GERD is separate from and not a continuation of the Giardia lamblia infection during service, the preponderance of the evidence is against service connection for the Veteran's post-service GERD. ORDER Entitlement to service connection for GERD is denied. ____________________________________________ MICHELLE L. KANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs