Citation Nr: 1318316	
Decision Date: 06/05/13    Archive Date: 06/11/13

DOCKET NO.  04-26 611	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida


THE ISSUE

Entitlement to service connection for gastroesophageal reflux disorder (GERD), to include as due to an undiagnosed illness.


REPRESENTATION

Appellant represented by:	Veterans of Foreign Wars of the United States


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

M. Scott Walker, Counsel


INTRODUCTION

The Veteran served on active duty from March 1983 to May 1993, from December 2003 to May 2005, and from January 2008, to February 2008. 

This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2003 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida.

In August 2008, a hearing was held before a Veterans Law Judge (VLJ).  The VLJ who presided at that hearing has retired from the Board.  The law requires that the VLJ who conducts a hearing on an appeal must participate in any decision made on that appeal.  38 U.S.C.A. § 7107(c); 38 C.F.R. § 20.707.  As such, the Veteran was issued a letter in August 2012 informing him of his right to attend a hearing before another VLJ.  The letter also informed him that if he did not respond to the letter within 30 days from the date of the letter, the Board would assume he did not want another hearing and would proceed accordingly.  The 30-day period expired and with no response from the Veteran, the Board will proceed with deciding this appeal.

This matter was previously before the Board in November 2008, May 2010, and October 2012.  Requested development having been completed, the issue is properly before the Board for adjudication.


FINDING OF FACT

GERD did not have its onset in service, nor is it otherwise attributable to service, to include as the result of exposure to environmental and/or toxic agents while serving in the Persian Gulf.  



CONCLUSION OF LAW

GERD was not incurred in or aggravated by active service, to include as the result of exposure to environmental and/or toxic agents while serving in the Persian Gulf.  38 U.S.C.A. §§ 1101, 1110, 1117, 1118, 1131, 1153 (West 2002); 38 C.F.R. §§ 3.303, 3.304, 3.306, 3.317  (2012).


REASONS AND BASES FOR FINDING AND CONCLUSION

The Board has thoroughly reviewed all the evidence in the Veteran's claims file.  Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all of the evidence submitted by the Veteran or on his behalf.  See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence).  The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claims.  The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein.  See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran).  

Further, 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.  See Gilbert v. Derwinski, 1 Vet. App. 49 (1990).



I.  VA's Duties to Notify and Assist

Before addressing the merits of the issues of entitlement to service connection for GERD, the Board notes that VA has a duty to notify and a duty to assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. §§ 3.159, 3.326(a).

Proper notice from VA must inform the claimant and his representative, if any, prior to the initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ) of any information and any medical or lay 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.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002).  These notice 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 v. Nicholson, 19 Vet. App. 473 (2006).  Information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded must be included.  Id.

Neither the Veteran nor his representative has alleged prejudice with respect to notice, as is required.  See Shinseki v. Sanders, 129 S. Ct. 1696 (2009); Goodwin v. Peake, 22 Vet. App. 128 (2008); Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007).  None is found by the Board.  Indeed, VA's duty to notify has been more than satisfied.  The Veteran was notified via letter dated in October 2002 of the criteria for establishing service connection, the evidence required in this regard, and his and VA's respective duties for obtaining evidence.  These letters accordingly addressed all notice elements and predated the initial adjudication by the AOJ/RO in August 2003.  He also was notified of how VA determines disability ratings and effective dates if service connection is awarded.  Nothing more is required in this case.

Further, the Veteran's available service treatment records and pertinent post-service medical records have been obtained, to the extent available.  See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2012).  The Veteran has alleged that there are additional outstanding service records, but the RO has undertaken comprehensive attempts to search alternate and secondary military record sources, to include a June 2009 request to the Alabama Army National Guard, to no avail.  The records associated with the claims file cover the substantial periods of active duty, and are felt to be complete.  However, in light of the question, a heightened obligation to assist the Veteran in the development of his case has been applied.  See O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991).  

The Board finds that no additional evidence, which may aid the Veteran's claim or might be pertinent to the bases of the claim, has been submitted, identified or remains outstanding, and the duty to assist requirement has been satisfied.  

The duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim, as defined by law.  See Green v. Derwinski, 1 Vet. App. 121 (1991).  Here, a VA examination was provided in November 2012 to ascertain whether the Veteran's GERD diagnosis was etiologically-related to service, to include his service in the Persian Gulf.  To that end, when VA undertakes to provide a VA examination, it must ensure that the examination is adequate.  See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007).  The opinion obtained is adequate, as the examiner provided findings relevant to the issue at hand, as well as a rationale in support of his opinion.  Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA opinion with respect to the issue on appeal has been met.  See 38 C.F.R. § 3.159(c)(4) (2012).    

As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless.  See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006).


II. Service Connection

The Veteran has claimed entitlement to service connection for GERD.  He contends that his current diagnosis is causally-related to his periods of active service, to include as due to an undiagnosed illness associated with his Gulf War service.  In order to establish service connection on a direct basis, the record must contain: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service.  Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).  Aggravation by service is presumed when a pre-existing condition worsens over the course of service.  38 U.S.C.A. § 1153; 38 C.F.R. § 3.306.

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 required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time.  38 C.F.R. § 3.303(b) (2012).  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); GERD is not a listed chronic condition, and the Veteran has not been diagnosed with an ulcer, which is listed.  Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).

Pertinent laws and regulations make special provisions for a Persian Gulf Veteran who exhibits objective indications of an undiagnosed illness or certain medically unexplained chronic multisymptom illnesses, including gastrointestinal signs or symptoms.  See 38 U.S.C.A. § 1117, 1118 (West 2002); 38 C.F.R. §§ 3.317 (2011).  A Persian Gulf veteran is a veteran who served on active military, naval, or air service in the Southwest Asia theater of operations during the Persian Gulf War, as this Veteran has been shown to have done.  38 C.F.R. § 3.317(d).

It is the policy of VA to administer the law under a broad interpretation, consistent with the facts in each case with all reasonable doubt to be resolved in favor of the claimant; however, the reasonable doubt rule is not a means for reconciling actual conflict or a contradiction in the evidence.  38 C.F.R. § 3.102 (2011).

At the outset, the Board notes that the evidence of record does contain diagnoses of GERD and a hiatal hernia, status post Toupet fundoplication (a procedure to treat conditions such as heartburn and acid reflux).  As such, the first element of service connection has been satisfied, as the evidence of record demonstrates a diagnosis for the claimed disorder.  The Board notes as well that in light of the formal diagnosis, the provisions applicable to undiagnosed illnesses manifested as gastrointestinal conditions cannot benefit the Veteran.

Turning to the Veteran's service treatment records, the Board notes that there is no evidence of complaints, treatment, or diagnosis of GERD or a hiatal hernia during any of the Veteran's periods of active service.  The Veteran underwent an upper GI series in November 1985, due to complaints of chest pain.  At that time, barium passed through the esophagus with normal power and mobility, with no evidence of reflux or a hiatal hernia.  The stomach, to include the fundus and body of the antrum displayed no abnormalities.  The duodenal bulb and duodenal sweep were normal.  Ultimately, the impression was a negative upper GI.  The chest pain was speculated to be cardiac in nature.  

After the first period of service, the record shows a diagnosis of reflux disease in August 1997 following complaints of chest pain and a sore throat, with no cardiac etiology.  The Veteran noted that the pain was worse after fatty meals, and he also complained of nocturnal reflux.  A laparoscopic Toupet fundoplication was performed in September 1997, with preoperative and postoperative diagnoses of GERD, and a hiatal hernia was found following the procedure.

The Board stresses that when the Veteran re-entered active duty, the GERD and hiatal hernia must be considered pre-existing conditions; the laparoscopic surgery was noted at examination, and so the presumption of soundness does not apply.  38 U.S.C.A. § 1111; 38 C.F.R. § 3.304.  Moreover, while records of later periods of service include references to the history of surgery, at no time during active service did the Veteran report or complain of GERD symptoms.  He had no treatment on active duty.

A VA medical opinion was provided in July 2010, albeit unaccompanied by a physical examination.  After a review of the claims file, the examiner opined that the Veteran suffered from GERD and a hiatal hernia, and that these GI disorders amounted to a known clinical diagnosis.  It was further stated that it was less likely as not that GERD was related to service, to include exposure to toxic agents in the Persian Gulf.  It was noted that the Veteran's in-service GI series was negative, and that there was no objective evidence of GERD or a hiatal hernia within the Veteran's service treatment records.

The Veteran's claim was remanded by the Board in October 2012 so as to provide the Veteran with a complete GI examination.  As such, he was afforded a comprehensive VA examination in November 2012.  At that time, the Veteran reported a history of retrosternal discomfort beginning circa 1987 while stationed in Germany.  Per the Veteran, he was evaluated at that time and given a "chalk substance" to drink.  He stated that he was diagnosed with a hiatal hernia, and although he was unsure if he was diagnosed with GERD, he was informed that he had "acid coming back" in his esophagus.  He indicated that, by 1994, he was using heartburn medication on a regular basis, and he visited a private doctor who performed a scope procedure.  The Veteran noted that the doctor "had never seen something so devastating."  At that time, the doctor indicated that a laparoscopic Toupet was needed.  He stated that his symptoms improved immediately after surgery, though he recently started using heartburn medication again (non-prescription).  

Following an upper GI series, the Veteran was diagnosed with a fixed hiatal hernia with associated GERD.  The examiner noted that each diagnosed disorder meets the criteria for a disease with a clear and specific etiology and diagnosis, and not caused by or related to Gulf War environmental exposure and/or toxic agents in the Persian Gulf.  As no chronic GI disorder was demonstrated in service, the examiner determined that these conditions were not caused by service, and that there was no relationship to any currently-service connected disability.  Instead, the examiner found that the Veteran's GI disorders were most likely the result of an elevated body mass index (BMI), currently rated at 32.4, and/or age, as supported by the preponderance of medical literature.  

The Board notes that, although the record contains numerous treatment reports documenting ongoing treatment for GERD, not a single medical professional has opined that the Veteran's claimed disorder was incurred during service, or that GERD was related to exposure to environmental or toxic agents during his Gulf War service.  As the Veteran has a diagnosis of a gastrointestinal condition, the presumptions applicable to Persian Gulf Veterans cannot be applied to establish a nexus.

The Board has considered whether the presumption of aggravation must be applied in light of the pre-existence of the condition in relation to the Veteran's second and third periods of service.  However, the presumption is triggered only when worsening of the condition is shown.  Service treatment records show no complaints or treatment on active duty, which is corroborated by the Veteran's April 2012 assertion that after his 1997 surgery, he was doing well until only recently.

As to the Veteran's assertions regarding GERD and their relationship to service,  it is well established that lay evidence must be considered, and competent lay evidence can be sufficient in and of itself to show a nexus in some instances.  The Board, however, retains the discretion to make credibility determinations and otherwise weigh the evidence submitted, including lay evidence.  See Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006).  This would include weighing the absence of contemporary medical evidence against lay statements.

Acknowledgement is given to the Veteran's assertions that his GERD began during service, or is related to Gulf War exposure.  In that regard, he is deemed competent to report symptoms of GERD, such as heartburn or chest pain.  See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007).  However, these recent assertions are not fully credible, as they are inconsistent with the service treatment records and other statements from the Veteran, such as that in April 2012.  

To the extent that records from the 1980's do document symptoms, such as substernal chest pain, which could be a sign of GERD, the Veteran is competent and credible in describing them.  However, laypersons are competent to diagnose a disability only if (1) the condition is simple to identify (such as a broken leg), (2) he is reporting a contemporaneous medical diagnosis, or (3) his description of symptoms at the time supports a later diagnosis by a medical professional.  Id.  Here, the Veteran has not demonstrated competence to provide an opinion as to the relationship between those symptoms and GERD.  See Jandreau.  Even if the Veteran did have some competence to relate his documented 1985 chest pain to GERD, the reasoned medical conclusions and objective testing which contemporaneously eliminated gastrointestinal causes for the complaints would outweigh his lay opinion. 

Based on the foregoing, the Board finds that there is no competent or credible lay or medical evidence of record linking the Veteran's claimed disorder to his period of active service, to include his Gulf war service.  The Board may not base a decision on its own unsubstantiated medical conclusions but, rather, may reach a medical conclusion only on the basis of independent medical evidence in the record.  Neither the Board nor the Veteran is competent to supplement the record with unsubstantiated medical conclusions.  See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991).  Conversely, health professionals are experts and are presumed to know the requirements applicable to their practice and to have taken them into account in providing a diagnosis.  See Colvin.  Despite the presence of VA treatment records throughout the appellate period, as well as private records, multiple VA opinions, and his service treatment records, the preponderance of the competent evidence is against the finding of a relationship between the Veteran's currently-diagnosed GERD and service, to include as due to an undiagnosed illness, on a direct, presumptive, or aggravated basis.  Service connection is not warranted.



ORDER

Entitlement to service connection for gastroesophageal reflux disorder (GERD) is denied.



____________________________________________
WILLIAM H. DONNELLY
Acting Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs