Citation Nr: 1319804 Decision Date: 06/19/13 Archive Date: 06/27/13 DOCKET NO. 07-18 064 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for a chronic upper gastrointestinal disorder, claimed as acid reflux disease and hiatal hernia. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Bernard T. DoMinh, Counsel INTRODUCTION The Veteran served on two separate periods of active duty in the United States Navy from July 1984 to February 1985 and from February 2004 to November 2004, including periods of active duty for training (ACDUTRA) and inactive duty training (INACDUTRA) in the Naval Reserve. His service records indicate that he served in combat in Iraq in 2004, for which he was decorated with the Global War on Terror Service Medal with the United States Marine Corps Combat Operations Insignia. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a July 2006 rating decision by the St. Petersburg, Florida, Regional Office (RO) of the Department of Veterans Affairs (VA) which, inter alia, denied the Veteran's claim of entitlement to service connection for a chronic upper gastrointestinal disorder (claimed as acid reflux disease and hiatal hernia). During the course of the appeal, the Board remanded the case to the RO via the Appeals Management Center (AMC) in Washington, D.C., for additional evidentiary development. Following the development conducted pursuant to the latest Board remand in March 2012, the Veteran's claim was readjudicated and denied in a February 2013 rating decision/supplemental statement of the case. The case was returned to the Board that same month and the Veteran now continues his appeal. FINDINGS OF FACT 1. A chronic upper gastrointestinal disorder (to include acid reflux disease and hiatal hernia) did not have its onset during the Veteran's first period of active military service (i.e., July 1984 to February 1985), or was otherwise manifest to a compensable degree within one year following separation from this period of active military service. 2. The clear and unmistakable objective medical evidence (obvious or manifest) demonstrates that a chronic upper gastrointestinal disorder (to include acid reflux disease and hiatal hernia) pre-existed the Veteran's second period of active service (i.e., February 2004 to November 2004). 3. The clear and unmistakable objective medical evidence (obvious or manifest) demonstrates that the chronic upper gastrointestinal disorder (to include acid reflux disease and hiatal hernia), which pre-existed the Veteran's second period of active service, was not permanently worsened beyond its natural progression therein, and is not secondary to a service-connected disability. CONCLUSIONS OF LAW 1. A chronic upper gastrointestinal disorder (to include acid reflux disease and hiatal hernia) was not incurred in the Veteran's first period of active duty in July 1984 to February 1985 and is not be presumed to have been incurred during this period of active duty. 38 U.S.C.A. §§ 1111, 1112, 1113, 1131, 1137 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012). 2. A chronic upper gastrointestinal disorder (to include acid reflux disease and hiatal hernia) that pre-existed the Veteran's second period of active duty in February 2004 to November 2004 was not permanently aggravated during this period of active duty. 38 U.S.C.A. §§ 1110, 1153 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.306 (2012). 3. A chronic upper gastrointestinal disorder (to include acid reflux disease and hiatal hernia) was not proximately due to, the result of, or aggravated by a service-connected disability. 38 U.S.C.A. §§ 1110, 1131, 1137 (West 2002 & Supp. 2012); 38 C.F.R. § 3.310 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veterans Claims Assistance Act of 2000 (VCAA) and VA's duty to assist. With respect to the claim decided herein, the Board notes at the outset that, in accordance with the VCAA, VA has an obligation to notify claimants what information or evidence is needed in order to substantiate a claim, as well as a duty to assist claimants by making reasonable efforts to get the evidence needed. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A and 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012); see also Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). Generally, the notice requirements of a claim have five elements: 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). VCAA notice must also: (1) inform the claimant about the information and evidence necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; (3) inform the claimant about the information and evidence the claimant is expected to provide; and (4) request that the claimant provide any evidence in his possession that pertains to the claim. See 38 U.S.C. § 5103(a); 38 C.F.R. § 3.159(b); Beverly v. Nicholson, 19 Vet. App. 394, 403 (2005) (outlining VCAA notice requirements). During the course of the appeal, § 3.159(b) was revised and the requirement that VA request that the claimant provide any evidence in his possession that pertains to the claim was removed from the regulation. The current claim was filed in February 2005. A fully compliant VCAA notice letter was dispatched to the Veteran in February 2011, well after the July 2006 rating decision now on appeal. The letters addressed the issue on appeal and fully satisfied the above-described mandates, as well as the requirements that the Veteran be informed of how VA calculates degree of disability and assigns an effective date for the disability, as prescribed in Dingess v. Nicholson, 19 Vet. App. 473 (2006). Although a timing of notice defect exists as fully compliant notice did not precede the initial adjudication of the Veteran's claim, this defect is cured by the subsequent readjudication of the claim on the merits following issuance of fully compliant VCAA notice, most recently in a February 2013 rating decision/supplemental statement of the case. See Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). VA also has a duty to assist the Veteran in obtaining evidence necessary to substantiate a claim. 38 U.S.C.A. § 5103A(a) ("The Secretary shall make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the . . . claim"). This duty includes assisting the Veteran in obtaining records and providing medical examinations or obtaining medical opinions when such are necessary to make a decision on the claim. 38 U.S.C.A. § 5103A(b), (c), (d) (setting forth Secretary's various duties to claimant). VA informed the Veteran of its duty to assist in obtaining records and supportive evidence. The Board observes that the Veteran's service medical and personnel records relating to his established periods of active duty and ACDUTRA and VA clinical records for the period spanning 2004 to 2011, including reports of VA medical examinations addressing the upper gastrointestinal disability at issue, dated in March 2006 and May 2011, have been obtained and associated with the claims file, or are otherwise viewable on the Virtual VA electronic information database. The Board has reviewed the aforementioned examination reports and notes that the Veteran's claims file was reviewed by the VA clinicians who performed them, and that these examiners provided adequate discussion of their clinical observations and rationales to support their individual findings and conclusions within the context of the Veteran's pertinent clinical history as contained within his claims file. The examinations are therefore deemed adequate for rating purposes. See Barr v. Nicholson, 21 Vet. App. 303, 311-12 (2007); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). The Board notes that it previously remanded this case in February 2011 and March 2012 for the primary purpose of obtaining all available medical and administrative records relating to the Veteran's periods of active Naval service and ACDUTRA and INACDUTRA in the Naval Reserve, including to verify whether or not the Veteran was ever in ACDUTRA status between December 2002 and December 2003, given that there was Naval Reserve medical records dated in December 2003 showing his treatment with Nexium medication for gastroesophageal reflux disease (GERD) for one year previously. This evidence had to be fully developed prior to adjudicating the claim on the merits and his GERD was a disease process for which VA compensation could be awarded if the evidence demonstrated that it was incurred during a period of ACDUTRA. See 38 U.S.C.A. §§ 101(24), 106, 1110 (2012). The claims file shows that from March 2012 and February 2013, the RO/AMC conducted extensive and exhaustive efforts to obtain all records relating to any periods of ACDUTRA or INACDUTRA that the Veteran may have had, with particular attention directed to the period from December 2002 to December 2003. The RO/AMC contacted the Veteran's Naval Reserve headquarters in Orlando, Florida, the Defense Personnel Records Information Retrieval System (DPRIS), and the Defense Finance Accounting Service (DFAS), as well as contacting the Veteran directly, requesting that it be provided with copies of all pertinent medical and administrative records relating to his periods of active duty, ACDUTRA, and INACDUTRA. Notwithstanding this exhaustive search, which produced some additional records which have been duly associated with the evidence, the search failed to obtain any records that demonstrated ACDUTRA during the period from December 2002 to December 2003. The RO/AMC's contact reports show that in response to VA's requests for any records in his possession that may establish ACDUTRA during the period from December 2002 to December 2003, the Veteran stated that he possessed such records and would provide them to VA. However, the Veteran did not thereafter produce any such records despite follow-up requests by VA. In this regard, the United States Court of Appeals for Veterans Claims (Court) has held that VA's duty to assist is not always a one-way street and that if a veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). In a February 2013 memorandum, VA made a formal finding that it developed the evidence as thoroughly as possible, including contacting the Veteran, the DPRIS, and the DFAS; that the search was negative for any records relating to his ACDUTRA or INACDUTRA for the period from December 2002 - December 2003; and that any further search for these record would be futile. The Board notes that this memorandum erroneously referred to the Veteran's Naval Reserve records sought as "National Guard" records. In a May 2013 informal hearing presentation, the Veteran's representative called attention to this error and requested that VA conduct another new search as this mischaracterization of the records could have been the reason why no Naval Reserve records were obtained. The Board finds that no such corrective action is required as, notwithstanding VA's error in its February 2013 memorandum, all prior documents relating to its actual search for the Veteran's records clearly identified them as being associated with Naval Reserve service and therefore no actual confusion with National Guard service resulted. The mischaracterization of the military records sought by VA in its February 2013 memorandum did not actually result in VA's lack of success in obtaining any additional outstanding Naval Reserve records pertinent to the Veteran's involvement in the Naval Reserve. In view of the foregoing discussion, the Board concludes that the RO/AMC has substantially complied with the directives of the Board's remand of March 2012 and therefore no additional remand for corrective action is required. [See Stegall v. West, 11 Vet. App. 268 (1998): A remand by the Board confers on a veteran or other claimant the right to VA compliance with the remand order and imposes on the Secretary a concomitant duty to ensure compliance with the terms of such an order. However, in Dyment v. West, 13 Vet. App. 141, 146-47 (1999), the Court held that exact compliance with the directives of a Board remand are not necessarily required if the purpose of the remand has been met, such that the post-remand development is in substantial compliance with the Board's remand instructions.] The Veteran having otherwise been provided with adequate opportunity to submit or identify relevant evidence in support of his claim and having submitted nothing further in this regard, the Board finds that the record does not need to be held open any longer, and that no further delay in the adjudication of this appeal with respect the claim decided herein is warranted. Based on the foregoing, the Board finds that the VA fulfilled its VCAA duties to notify and to assist the Veteran in the evidentiary development of the claim decided herein, and thus no additional assistance or notification is required. The Veteran has suffered no prejudice that would warrant a remand, and his procedural rights have not been abridged. See Bernard v. Brown, 4 Vet. App. 384 (1993). The Board will therefore proceed with the adjudication of this appeal. 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, the evidence submitted by the appellant 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 claim. The appellant 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 claimant). 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). Entitlement to service connection for a chronic upper gastrointestinal disorder, claimed as acid reflux disease and hiatal hernia. Service connection involves many factors, but basically means that the facts, shown by the evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service, or if pre-existing such service, was aggravated therein. This may be accomplished by affirmatively showing inception or aggravation during service or through the application of statutory presumptions. 38 C.F.R. § 3.303(a). With chronic disability or disease shown as such in service (or manifested to at least a compensable degree within the one-year presumptive period following separation from service under 38 C.F.R. § 3.307 for gastric and/or duodenal ulcers) so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. This rule does not mean that any notation of an upper gastrointestinal abnormality during service will permit service connection for a chronic upper gastrointestinal disorder, first shown as a clear-cut clinical entity, at some later date. For the showing of chronic disease in service there is required 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." When the disease identity is established, there is no requirement of evidentiary showing of continuity. Continuity of symptomatology is required only where the condition noted during service (or in the presumptive period) is not, in fact, shown to be chronic, or where the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b). Service connection may be granted for any disease diagnosed after discharge from active duty when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). The Board notes at this juncture that service connection may also be granted for disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a) (2012). In this regard, the Board observes that the Veteran is presently service-connected for post-traumatic stress disorder (rated 50 percent disabling), left knee degenerative joint disease (rated 10 percent disabling), left knee sprain status-post partial meniscectomy (rated 10 percent disabling), right carpal tunnel syndrome (rated 10 percent disabling), left carpal tunnel syndrome (rated 10 percent disabling), tinnitus (rated 10 percent disabling), and plantar fasciitis of the right foot (rated noncompensably disabling). His combined disability rating under 38 C.F.R. § 4.25 (2012) is 70 percent and he is currently in receipt of a total rating under 38 C.F.R. § 4.16(a) for individual unemployability. A review of the record, however, does not show that the Veteran raises any claim of service connection for a chronic upper gastrointestinal disorder on a secondary basis to any of his multiple service-connected disabilities. Furthermore, the record does not contain any objective medical evidence or opinion indicating a secondary relationship between the Veteran's chronic upper gastrointestinal disorder and any of his service-connected disabilities, or that his chronic upper gastrointestinal disorder is otherwise aggravated by a service-connected disability. Therefore, the Board concludes that there is no basis to award VA compensation for a chronic upper gastrointestinal disorder as secondary to, or aggravated by a service connected disability. See 38 C.F.R. § 3.310(a), (b) (2012). To establish direct service connection for a claimed disorder, there must be (1) medical evidence of current disability; (2) medical, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999); see also Degmetich v. Brown, 104 F.3d 1328 (Fed. Cir. 1997); Brammer v. Derwinski, 3 Vet. App. 223 (1992). In order to establish service connection for a claimed disability the facts must demonstrate that a disease or injury resulting in current disability was incurred in active military service or, if pre-existing active service, was aggravated therein. 38 U.S.C.A. §§ 1110, 1131 (West 2002 & Supp. 2012); 38 C.F.R. § 3.303 (2012). For purposes of 38 U.S.C.A. §§ 1110, 1131, and 1137, every veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C.A. § 1111 (West 2002 & Supp. 2012). The plain language of this statute provides that the presumption of soundness is rebutted only if clear and unmistakable evidence establishes both that (1) the condition existed prior to service and (2) the condition was not aggravated by service. See Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004); Patrick v. Shinseki, 668 F.3d 1325, 1329 (Fed. Cir. 2011). The Federal Circuit's interpretation of 38 U.S.C. § 1111 in Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004), is an authoritative statement of what that statute has meant since the date of its enactment in 1958. In Patrick v. Shinseki, 668 F.3d 1325, 1329 (Fed. Cir. 2011), the Federal Circuit further stated that "[w]e ma[k]e clear. . . that '[u]nlike changes in regulations and statutes, which are prospective, our interpretation of a statute is retrospective in that it explains what the statute has meant since the date of enactment." As explained in Wagner, 370 F.3d at 1096, and more recently in Patrick, "both the plain language and legislative history of section 1111 make clear that the presumption of soundness can only be rebutted by clear and unmistakable evidence both that a condition existed prior to service and that it was not aggravated by service." Patrick, 668 F.3d at 1328. A claimant is not required to show that the disease or injury increased in severity during service before VA's duty under the second prong of this rebuttal standard attaches. VAOGCPREC 3-2003 (July 16, 2003); see generally Cotant v. Principi, 17 Vet. App. 116, 124 (2003). In the case of wartime service or peacetime service after December 31, 1946, the presumption of soundness on entry into service (except for those defects or infirmities noted on entrance examination) may be overcome only where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. VAOGCPREC 3-2003 (July 16, 2003). The Court has noted that the implementing regulation for the forerunner of 38 C.F.R. § 1111, which was VA Regulation 1063 (1946), stated that the term "clear and unmistakable" means obvious or manifest. Cotant v. Principi, 17 Vet. App. At 127-128 (2003) (the Court cited the definition set forth in Paragraph D of VA Regulation 1063). The Court has stated that the word "unmistakable" means that an item cannot be misinterpreted and misunderstood, i.e., it is undebatable. Vanerson v. West, 12 Vet. App. 254, 258 (1999) (citing Webster's New World Dictionary 1461 (3rd Coll. ed. 1988); cf. Crippen v. Brown, 9 Vet. App. 412, 418 (1996) (stating that "clear and unmistakable error" means an error that is undebatable); Russell v. Principi, 3 Vet. App. 310 (1992) (en banc) ("The words 'clear and unmistakable error' are self-defining. They are errors that are undebatable, so that it can be said that reasonable minds could only conclude that the original decision was fatally flawed."). The Court has stated that the standard of proof for rebutting the presumption of soundness is not merely evidence that is cogent and compelling, i.e., a sufficient showing, but evidence that is clear and unmistakable, i.e., undebatable .... [and] the question is not whether the Secretary has sustained a burden of producing evidence, but whether the evidence as a whole, clearly and unmistakably demonstrates that the injury or disease existed prior to service. Cotant v. Principi, 17 Vet. App. at 132 (2003), citing Vanerson v. West, 12 Vet. App. at 26 (1999). If a disability is found to have pre-existed service, then service connection may be predicated only upon a finding of aggravation during service. Paulson v. Brown, 7 Vet. App. 466, 468 (1995). A pre-existing injury or disease will be considered to have been aggravated by active military, naval, or air service, where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 U.S.C.A. § 1153 (West 2002 & Supp. 2012); 38 C.F.R. § 3.306(a) (2012). The Federal Circuit Court of Appeals (Federal Circuit) has held that a corollary to the Secretary's definition of "disability" in 38 C.F.R. § 4.1 is that an increase in disability must consist of worsening of the enduring disability and not merely a temporary flare-up of symptoms associated with the condition causing the disability. Davis v. Principi, 276 F.3d 1341, 1344 (Fed. Cir. 2002). The Federal Circuit stated: "[e]vidence of a temporary flare-up, without more, does not satisfy the level of proof required of a . . . veteran to establish an increase in disability." Davis, 276 F.3d at 1345; see Jensen v. Brown, 19 F.3d 1413, 1416 (Fed. Cir. 1994) (The Federal Circuit held that 38 U.S.C.A. § 1153 requires some increase in the severity of the pre-existing condition causally related to military service). Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during, and subsequent to service. 38 U.S.C.A. § 1153 (West 2002 & Supp. 2012); 38 C.F.R. § 3.306(b) (2012). As relevant, the medical evidence pertinent to the Veteran's first period of active duty (i.e., from July 1984 to February 1985) shows that his gastrointestinal system was clinically normal on service medical examination prior to entering this period of service in March 1984. The Veteran also denied having any history of gastrointestinal trouble on the medical history questionnaire accompanying the March 1984 examination. The records show no treatment for any gastrointestinal complaints throughout this period of active duty. On separation examination in December 1984, his gastrointestinal system was clinically normal and he denied having any history of gastrointestinal trouble. Naval Reserve medical records relating to the period from 1986 to 2002 show normal gastrointestinal findings on clinical examinations conducted in May 1986, April 1989, September 2000, and September 2002. Naval Reserve administrative records show that the Veteran served on ACDUTRA for approximately one week in May 1987 and approximately two weeks in March 1988. No other periods of ACDUTRA are indicated in the current evidence of record. The above evidence demonstrates that a chronic upper gastrointestinal disorder, including GERD, acid reflux disease, or a hiatal hernia, did not have its onset during the Veteran's first period of active duty, nor was peptic ulcer disease clinically manifest to a minimally compensable degree within one year following the Veteran's separation from his first period of active duty in February 1985. Therefore, to the extent that he claims entitlement to VA compensation for a chronic upper gastrointestinal disorder for his first period of military service from July 1984 to February 1985, the Board must deny this part of the Veteran's claim based on consideration of the foregoing objective clinical evidence. Although no chronic upper gastrointestinal disorder is objectively indicated as late as September 2002, a Naval Reserve Annual Certification of Physical Condition dated in July 2003 reflects that the Veteran was on a prescribed regimen of the medication Nexium. A subsequent Annual Certificate of Physical Condition dated in December 2003 reflects that the Veteran had been on the Nexium regimen on a regular basis for the past one-year period (i.e., since approximately December 2002) for treatment of GERD, with a clinical notation that his GERD symptoms had resolved with this medication regimen. As previously discussed, the Board notes that there is no official military record that establishes that the Veteran served on ACDUTRA at any time in December 2002. Therefore, based on the facts of the present case, service connection for GERD may not be granted on the basis of a chronic upper gastrointestinal disease process incurred during ACDUTRA. See 38 U.S.C.A. §§ 101(24), 106, 1110 (2012). The Veteran was activated for full-time active duty in the Navy in February 2004 and served thereafter until November 2004. Service medical records relating to this second period of active duty do not indicate that a chronic upper gastrointestinal disorder was clinically noted upon his entry into service in February 2004. Therefore, the presumption of soundness attaches with respect to the state of his upper gastrointestinal system at the time of his admission for active duty on this date and can only rebutted by clear and unmistakable evidence that the upper gastrointestinal disorder at issue both pre-existed his entry into active duty during this period and was not aggravated (which his to say permanently worsened beyond its natural progression) therein. 38 C.F.R. § 1111. For the reasons set forth below, the Board finds that the presumption of sound condition has been rebutted by clear and unmistakable evidence that the Veteran's gastrointestinal disorder pre-existed service; and that clear and unmistakable evidence shows that such pre-existing disability was not aggravated by service. The Veteran's service medical record show that following his entry into active duty in February 2004, he was treated on a single occasion in May 2004 for viral gastroenteritis manifested by abdominal cramps and diarrhea. The Board notes that this involved the Veteran's lower gastrointestinal tract and not his upper gastrointestinal tract, which is the site of the claimed disorder at issue. As such, the May 2004 treatment note does not constitute evidence of an increase in the severity of the claimed upper gastrointestinal disorder in service. An Annual Certification of Physical Condition dated in November 2004 notes that the Veteran was "under care in [the] past 12 months for acid reflux." He was discharged from active duty in early November 2004. VA medical records dated 2004 to 2011 show ongoing treatment for GERD, acid reflux disease, and hiatal hernia. The report of a March 2006 VA gastrointestinal examination shows a diagnosis of GERD. According to the clinician (self-identified in the report as a physician's assistant), he reviewed the Veteran's claims file and believed the date of onset of GERD was in 2004, when the Veteran developed reflux symptoms while stationed in Iraq, which he treated only with over-the-counter antacid medication, which somewhat relieved his symptoms. He did not seek medical treatment for his GERD in service. An upper gastrointestinal (UGI) series was performed post-service in mid-November 2004. The March 2006 examination report states that the Veteran "had a long history of GERD symptoms," and that "[a]ll symptoms have worsened since he was returned from Iraq." The March 2006 examiner opined that it was at least as likely as not (50/50 probability) that the Veteran's acid reflux was caused by, or was a result of military service. The report of a May 2011 VA gastrointestinal examination shows a diagnosis of acid reflux disease and hiatal hernia. The examiner was a physician who presented his credentials as the Chief of Gastroenterology of the VA Medical Center where the examination was performed. He reported that he reviewed the Veteran's claims file in its entirety. The physician noted that the Veteran served on active duty from February 2004 to November 2004. In reviewing the records, the examiner noted that during the Veteran's pre-deployment examination in 2004, he stated that he was on Nexium and that a prior Annual Certification of Physical Condition in December 2003 shows that the Veteran was on Nexium for the past one-year period for treatment of GERD, which resolved with medication. After separating from service in November 2004, he underwent a UGI that revealed a hiatal hernia and reflux into his esophagus. A March 2008 esophagogastroduodenoscopy (EGD) revealed a hiatal hernia but normal esophageal mucosa and no evidence of a Barrett's esophagus. Since separating from service in November 2004, the Veteran gained 20 to 35 pounds of weight. His present complaints include heartburn and reflux, primarily at night, which were alleviated with medication. The examining physician presented the following opinion: By review of the records it is well documented that this patient had symptoms of reflux prior to being on active duty [for the period of February - November 2004]. Therefore there is no evidence of his active duty [in 2004] causing his reflux and hiatal hernia. Following service [separation in November 2004], he was found to have a hiatal hernia and reflux which does nothing other than to confirm the already suspected problem which was being treated with Nexium. Since his discharge [from active duty in November 2004] he has gained significant weight[,] which can make his symptoms worse, but there is no evidence that his tour of active duty has aggravated his esophageal reflux. In my medical opinion as a gastroenterologist, this patient's findings of a hiatal hernia and esophageal reflux were neither caused by or aggravated by his active duty service [for the period of February - November 2004]. As indicated above, there are two conflicting opinions regarding the relationship of the Veteran's chronic upper gastrointestinal disorder and his second period of active duty in 2004. The March 2006 opinion states that the Veteran's current chronic upper gastrointestinal disorder had its onset during his second period of active duty and is directly linked to service, whereas the May 2011 opinion states that the Veteran's current chronic upper gastrointestinal disorder had pre-existed his entry into his second period of active duty and was not aggravated therein. When facing conflicting medical opinions, the Board must weigh the credibility and probative value of each opinion, and in so doing, the Board may favor one medical opinion over the other. See Evans v. West, 12 Vet. App. 22, 30 (1998) (citing Owens v. Brown, 7 Vet. App. 429, 433 (1995)). The Board must account for the evidence it finds persuasive or unpersuasive, and provide reasons for rejecting material evidence favorable to the claim. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994). In determining the weight assigned to this evidence, the Board also looks at factors such as the health care provider's knowledge and skill in analyzing the medical data. See Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993); see also Black v. Brown, 10 Vet. App. 279, 284 (1997). In another precedent decision, Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008), the Court discusses, in great detail, how to assess the probative weight of medical opinions and the value of reviewing the claims folder. The Court held that claims file review, as it pertains to obtaining an overview of the claimant's medical history, is not a requirement for medical opinions. The Court added, "[i]t is the factually accurate, fully articulated, sound reasoning for the conclusion, not the mere fact that the claims file was reviewed, that contributes probative value to a medical opinion." In the Nieves-Rodriguez decision, the Court vacated the Board's decision because the Board had dismissed one of the two favorable private medical opinions solely on the basis that the physician had not reviewed the claims folder, without an explanation of why that failure compromised the value of the medical opinion. By contrast, the Court held that, in rejecting the other private medical opinion, the Board had offered adequate reasons and bases for doing so (the doctor had overlooked pertinent reports regarding the Veteran's medical history), and thus, the Board's rejection was not based solely on the failure to completely review the claims file. While the Board has considered the March 2006 opinion as summarized above, in which the opining examiner believed that the Veteran's GERD had its onset during his second period of active duty in 2004, we find that it has little probative value in this regard. Notwithstanding the examiner's notation that he had reviewed the claims file in conjunction with the examination, he failed to discuss the relevance of the medical records dated prior to the Veteran's entry into his second period of active duty in 2004, which show clear evidence of his treatment with Nexium medication for GERD in 2003. It is evident to the Board that the March 2006 examiner did not adequately review the claims file, for had he done so he would not have presented a nexus opinion to the effect that onset of GERD occurred in service in 2004 without at least first refuting the prior medical reports that clearly show treatment for GERD in 2003 and indicate such treatment as early as December 2002. The Board further notes that the credentials of the March 2006 clinician are that of a physician's assistant. While the Board acknowledges that the physician's assistant is certainly a trained, licensed, and qualified medical professional and that it is not our intent to disparage his individual competence or his profession in general, the Board finds that the professional credentials of this physician's assistant are outweighed by the clinician who conducted the subsequent VA examination in May 2011. The May 2011 examiner is both a physician and the Chief of Gastroenterology at the VA Medical Center where the examination was conducted. The Board therefore assigns the highest probative value to this VA physician's medical opinion issued in May 2011. The opinion offered by this Chief of Gastroenterology does not support a favorable determination regarding the Veteran's claim. As noted above, this examining physician opined that the Veteran's acid reflux disease and hiatal hernia predated his entry into his second period of active service in February 2004, and that the acid reflux disease and hiatal hernia were neither caused by nor aggravated during this period of active service from February - November 2004. The Board's review of the VA physician's report of May 2011 shows that the opinion expressed was well-reasoned and supported by rationale consistent with other evidence of record, to include a detailed review of the medical records and the Annual Certification of Physical Condition reports dated prior to the Veteran's second period of active service in 2004, which clearly demonstrate his treatment for GERD with a regimen of Nexium medication over the entirety of the previous year. Thus, the Board finds that the May 2011 opinion of the VA Chief of Gastroenterology constitutes clear and unmistakable (obvious or manifest) evidence demonstrating that the Veteran's chronic upper gastrointestinal disorder (to include acid reflux disease and hiatal hernia) existed prior to his entry into his second period of active duty commencing in February 2004. The Board further finds that the May 2011 opinion also constitutes clear and unmistakable (obvious or manifest) evidence demonstrating that the Veteran's chronic upper gastrointestinal disorder (to include acid reflux disease and hiatal hernia) was not aggravated, which is to say permanently worsened beyond its natural progression, by his period of active service in February - November 2004. Therefore, the Board concludes that the aforementioned medical opinion has rebutted the presumption of the Veteran's sound medical condition with regard to the state of his upper gastrointestinal system upon his entry into service in February 2004; and concomitantly rebuts the presumption of aggravation of any such disorder by clear and unmistakable evidence. See 38 U.S.C.A. § 1111 (West 2002 & Supp. 2012). Although lay persons such as the Veteran are competent to provide opinions on some medical issues, the specific matter here (acid reflux disease and hiatal hernia and whether or not such disease - as a diagnosed clinical entity - had its onset in, or was aggravated by active service in 2004) falls outside the realm of common knowledge of a lay person. Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (lay persons not competent to present a medical opinion as to whether an internal disease process had its onset in, or was otherwise aggravated (i.e., permanently worsened beyond its natural progression) by military service). To the extent that the Veteran states that his chronic upper gastrointestinal disorder is related to his military service, the Board notes that GERD/acid reflux and hiatal hernia are not readily amenable to mere lay diagnosis, as the evidence shows it is verifiable only through medical examination and medical imaging studies using special gastroscopic instruments by a trained physician or gastroenterological specialist. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); & Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007). The Veteran is not competent to self-diagnose his GERD/acid reflux and hiatal hernia and he has not been shown to possess the requisite medical training, expertise, or credentials needed to render such a diagnosis or a competent opinion as to their medical causation, time of onset, and whether such conditions were aggravated by his military service. Otherwise, nothing in the record demonstrates that the Veteran received any special training or acquired any medical expertise in diagnosing and evaluating upper gastrointestinal disorders. King v. Shinseki, 700 F.3d 1339, 1345 (Fed.Cir.2012). In addition, to the extent his lay assertions and statements are competent and probative regarding the existence of relevant upper gastrointestinal symptomatology prior to, during, and after his period of service in 2004, they are found to be outweighed by the more competent and probative medical opinion of May 2011, which concluded that such symptoms and the medical evidence of record were not sufficient to link the Veteran's GERD/acid reflux and hiatal hernia to his active military service. In view of the foregoing discussion, the Board must deny the Veteran's appeal for service connection for a chronic upper gastrointestinal disorder, to include acid reflux disease and hiatal hernia, as the preponderance of the evidence is against allowing his claim. Because the evidence in this case is not approximately balanced with respect to the merits of this claim, the benefit-of-the-doubt doctrine is not for application. 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for a chronic upper gastrointestinal disorder, to include acid reflux disease and hiatal hernia, is denied. ____________________________________________ JONATHAN B. KRAMER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs