Citation Nr: 1320496 Decision Date: 06/25/13 Archive Date: 07/05/13 DOCKET NO. 10-15 910 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina THE ISSUE Entitlement to service connection for gastroesophageal reflux disease (GERD). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD A. Lindio, Counsel INTRODUCTION The Veteran served on active duty from August 1956 to June 1958. A claim for service connection for GERD was denied by the RO in August 2005. The Veteran timely filed a Notice of Disagreement (NOD) with her decision in October 2005. Although she was furnished a Statement of the Case (SOC) in January 2006, the Veteran did not timely submit a substantive appeal. This appeal to the Board of Veterans' Appeals (Board) arose from a March 2009 rating decision in which the RO denied the Veteran's application to reopen her service connection claim for GERD. In September 2009, the Veteran filed an NOD. An SOC was issued in February 2010, and the Veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals) in March 2010. In May 2011, the Board remanded this case to the RO, via the Appeals Management Center (AMC) in Washington, DC, to clarify the Veteran's intentions regarding her accredited representative for this matter, and her desire for a hearing before the Board. In December 2011, the Veteran submitted a properly completed VA Form 21-22, "Appointment of Veterans Service Organization as Claimant's Representative," electing the Disabled American Veterans as her accredited representative. She also clarified that she did not desire a hearing before the Board. In February 2013, the Board reopened the claim for service connection for GERD and remanded the case to the RO, via the AMC in Washington, DC, for further development. The Board notes that, in addition to the paper claims file, there is a paperless, electronic (Virtual VA) claims file associated with the appellant's claims. A review of the documents in such file reveals that some of the documents in the Virtual VA paperless claims file, i.e., VA treatment records dated from September 2008 to June 2011, are relevant to the issue on appeal and are not duplicative of the evidence in the paper claims file. However, as such evidence was considered by the RO in its preparation of the May 2013 SSOC, there is no prejudice to the Veteran in the Board proceeding to a decision, at this juncture. In June 2013, a Deputy Vice Chairman of the Board granted the motion of the Veteran's representative to advance this appeal on the Board's docket, pursuant to 38 U.S.C.A. § 7107(a)(2)(C) (West 2002) and 38 C.F.R. § 20.900(c) (2012). FINDINGS OF FACT 1. All notification and development actions needed to fairly adjudicate the claim herein decided have been accomplished. 2. Although the Veteran asserts she had gastrointestinal symptoms in service, there is no credible evidence of GERD for years following service and the only medical opinion of record weighs against the claim. CONCLUSION OF LAW 1. The criteria for service connection for GERD are not met. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002 & Supp. 201); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Due Process Considerations 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. 2012)) includes enhanced duties to notify and assist claimants for VA benefits. VA regulations implementing the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2012). Notice requirements under the VCAA essentially require VA to notify a claimant of any evidence that is necessary to substantiate the claim(s), as well as the evidence that VA will attempt to obtain and which evidence he or she is responsible for providing. See, e.g., Quartuccio v. Principi, 16 Vet. App. 183 (2002) (addressing the duties imposed by 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b)). As delineated in Pelegrini v. Principi, 18 Vet. App. 112 (2004), after a substantially complete application for benefits is received, proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim(s); (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in her or his possession that pertains to the claim(s), in accordance with 38 C.F.R. § 3.159(b)(1). The Board notes that, effective May 30, 2008, 38 C.F.R. § 3.159 have been revised, in part. See 73 Fed. Reg. 23,353-23,356 (April 30, 2008). Notably, the final rule removes the third sentence of 38 C.F.R. § 3.159(b)(1), which had stated that VA will request that a claimant provide any pertinent evidence in his or her possession. VA's 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/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA-compliant 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.; Pelegrini, 18 Vet. App. at 112. See also Disabled American Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339(Fed. Cir. 2003). However, the VCAA notice requirements may, nonetheless, be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Id. In this appeal, in a February 2009 pre-rating letter, the RO provided notice to the Veteran explaining what information and evidence was needed to substantiate the claim for service connection for GERD, as well as what information and evidence must be submitted by the Veteran, and what information and evidence would be obtained by VA. That letter also informed the Veteran to submit any evidence in her possession pertinent to the claim (consistent with Pelegrini and the version of 38 C.F.R. § 3.159 then in effect). The letter also included general information pertaining to VA's assignment of disability rating and effective date, as well as the type of evidence that impacts those determinations, consistent with Dingess/Hartman. The later March 2009 rating decision reflects the initial adjudication of the claim after issuance of the February 2009 letter. Therefore, that letter meets the VCAA's content and timing requirements. The Board notes that the Veteran's other than for one record, service treatment records are not associated with the claims file and that inquiries to the National Personnel Records Center (NPRC) reflect that the records were likely destroyed by fire. The RO confirmed such findings in a January 2010 memorandum and a later finding of no records from the NPRC from an additional search conducted in March 2013. In this situation, VA has a heightened duty to assist the Veteran in development of his claim. O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). The RO met this heightened duty here, as it sent the Veteran a letter in January 2010 advising her of the status of her records and informing her of the alternative forms of evidence that can be developed to substantiate the claim, including but not limited to 'buddy certificates' and letters. Dixon v. Derwinski, 3 Vet. App. 261, 263-264 (1992). No further RO action in this regard is warranted. The record also reflects that VA has made reasonable efforts to obtain or to assist in obtaining all relevant records pertinent to the matter herein decided. Pertinent evidence associated with the claims file consists of the one record of in-service treatment and post-service treatment records. The Board also finds that the development ordered in the prior May 2011 and February 2013 Board remanded decisions has been accomplished. In May 2011, the Board remanded this case to clarify the Veteran's intentions regarding her accredited representative for this matter and her desire for a hearing before the Board. In December 2011, the Veteran submitted a properly completed VA Form 21-22, "Appointment of Veterans Service Organization as Claimant's Representative," electing the Disabled American Veterans as her accredited representative. She also clarified that she did not desire a hearing before the Board. In February 2013, the Board remanded the claim to have the RO request that the National Personnel Records Center (NPRC) conduct an alternate search for records of the Veteran's GERD, associate VA medical records with the claims file, request, and if necessary obtain, private medical records identified by the Veteran, and obtain a VA examination. In February 2013, the AMC contacted the Veteran and requested that she provide information regarding her private medical providers, which the Veteran provided the following month. The AMC requested and obtained copies of the identified private medical records and the Veteran also provided additional copies of some records. In February 2013, the AMC also contacted the NPRC to run an alternate search for records. In March 2013, the NPRC found such a search to yield no listing. The AMC also obtained clarification from the Columbia VA Medical Center that there was no record of medical treatment there from prior to May 2006 and associated VA medical records from September 2008 to the present with the Virtual VA claims file. Additionally, the Veteran underwent a VA examination in April 2013, which included medical opinions pertinent to the present claim. The Board notes that in the February 2013 remand portion of the decision, the Board noted that the Veteran provided a September 2008 statement in which she asserted that she was attaching letters from lay witnesses regarding her GERD symptomatology before and after service, but that the record did not disclose that those letters were received. The Veteran had previously been notified of that fact in the March 2009 rating decision, wherein the RO indicated that the Veteran had not submitted any evidence supportive of the claim and did not note any lay evidence statements in the Evidence portion of the decision. In February 2013, the Board indicated that on remand the Veteran should be requested to submit lay witness statements in connection with her appeal, but did not include such a request in the numbered actions necessary for development of the claim. Although the Veteran was not informed of the opportunity to provide such evidence in a letter following the February 2013 Board decision, the May 2013 SSOC did indicate that competent lay evidence could be considered in the Veteran's claim. Additionally, both the Board and the April 2013 VA examiner have considered the Veteran's own reports of chronic symptoms of GERD since service, made following the February 2013 Board decision. Furthermore, the Veteran had actual knowledge of the opportunity to provide additional lay evidence, as demonstrated in the May 2013 Appellant's Post-Remand Brief, wherein her representative provided a discussion on the necessity of the consideration of the Veteran's lay statements. As such, the Board finds that the Veteran effectively had the opportunity to provide additional lay evidence. In summary, the duties imposed by the VCAA have been considered and satisfied. Through identified notice, the Veteran has been notified and made aware of the evidence needed to substantiate this claim, the avenues through which she might obtain such evidence, and the allocation of responsibilities between herself and VA in obtaining such evidence. There is no additional notice that should be provided, nor is there any indication that there is additional existing evidence to obtain or development required to create any additional evidence to be considered in connection with the claim. Consequently, any such error is deemed harmless and does not preclude appellate consideration of the matter herein decided, at this juncture. See Mayfield v. Nicholson, 20 Vet. App. 537, 543 (2006) (rejecting the argument that the Board lacks authority to consider harmless error). See also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). II. Analysis Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Such a determination requires a finding of current disability that is related to an injury or disease in service. Watson v. Brown, 4 Vet. App. 309 (1993); see also Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992). Service connection may be granted for any disease diagnosed after discharge from service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Certain chronic diseases shall be presumed to have been incurred in service if manifested to a compensable degree within a prescribed period post service even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2012). With chronic disease shown as such in service (or within the presumptive period under § 3.307) 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 attributed to intercurrent causes. Continuity of symptomatology is required only where the condition noted during service (or in the presumptive period) is questioned. When the fact of chronicity in service is not adequately supported, then the showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b). The United States Court of Appeals for the Federal Circuit (Federal Circuit) recently clarified that the provisions of 38 C.F.R. § 3.303(b) pertaining to the award of service connection on the basis of continuity of symptomatology are limited to chronic diseases as defined in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). GERD is not among the diseases listed in that section. Considering the pertinent evidence in light of the governing legal authority, the Board finds that service connection for GERD is not warranted. At the outset, the Board notes that all the evidence in the Veteran's claims file (paper and electronic) has been reviewed. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that every item of evidence submitted by the Veteran or obtained on her behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Unfortunately, the Veteran's service treatment and personnel records are not available for review as the records were destroyed in an accidental fire at the National Personnel Records Center in 1973. The only service treatment record that has been associated with the claims file is an October 1957 record for treatment for a "common cold". Thus, at present there is no objective evidence that any claimed disability was present during service. The Board notes, however, that in cases such as this, in which it appears that all of the service treatment reports are not of record, VA has a heightened duty to explain its findings and conclusions and to consider carefully the benefit-of-the doubt rule. O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). Following her June 1958 separation from service, a July 1994 pathology report from Dr. D.M.R. noted that the Veteran had a clinical diagnosis of chronic gastritis, hiatal hernia and had undergone a biopsy of the stomach. Dr. D.M.R. indicated that the biopsy of the stomach revealed moderate acute and chronic gastritis with germinal center formation and intestinalization, helicobacter pylori (H-pylori) type organisms and no evidence of malignancy. A December 2004 letter from Dr. P.M.C. documents that the Veteran was seen for symptoms of GERD (from February 1994 until May 1996) and that in July 1994 she underwent an esophagogastroduodenoscopy. The Veteran was treated by Dr. S.R. since 1999 for various disorders, including GERD, as noted in a September 2009 letter. In that letter, Dr. S.R. noted that the Veteran "has stated her gastroesophageal reflux symptoms began in her 20's. She began medication treatment in 2000." Other private medical records from Dr. S.R.'s office (The Medical Group) generally document complaints of, or treatment for, various disorders, including GERD. In a January 2006 statement, the Veteran reported that she has a chronic reflux problem, which existed in service and has worsened over the years. VA medical records also generally document complaints of, or treatment for, GERD and other disorders. For example, in a May 2006 record, the VA medical provider noted a history of GERD and that she received treatment from her private care providers. The Veteran indicated that she was only going through VA to obtain medications. In April 2013, the Veteran underwent a VA examination and the VA examiner diagnosed her with GERD. The Veteran reported that, while in the military, certain foods would cause her to have heartburn and she would go to sick call for an upset stomach, with vomiting and diarrhea. She reported that at that time she received treatment with a short-term medication. She also reported that she currently monitors her diet and is not on any medication for GERD, but had symptoms of pyrosis (heartburn). The April 2013 VA examiner indicated that the Veteran was diagnosed with GERD in 1994 and had tested positive for H. pylori during that time period. The examiner noted that the Veteran had no record of being treated for or diagnosed with GERD during service or in the time period following service, noting that the time of the onset/diagnosis of GERD post dates her service significantly. The April 2013 VA examiner further noted consideration of the esophageal symptoms that the Veteran described having during service. However, the examiner found that "it is extremely unlikely that she would have GERD and not be diagnosed until almost 40 years later." Furthermore, the examiner found that the diagnosis with H. pylori in 1994 is presumably the etiology of her symptoms at that time, causing gastritis. The examiner found that it was extremely unlikely that the Veteran had the H. pylori infection dating back to the time of her service. In the present case, the evidence of record does not support finding that the Veteran's GERD began in service. Although the Veteran does have a current diagnosis of GERD, there is no competent, credible and persuasive evidence that supports a finding a medical nexus between her current GERD and service. The Veteran currently claims that she developed GERD in service and that she has continued to have symptoms of GERD. The Board recognizes that the Veteran is competent, as a layperson, to report that about which she has personal knowledge, to include her own symptoms. See, e.g., Layno v. Brown, 6 Vet. App. 465, 470 (1994); Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). However, such report must be weighed against the medical and other evidence. Cf. Buchanan v. Nicholson, 451 F. 3d 1331 (Fed. Cir. 2006). Even if, for the sake of argument, and in the absence of her service treatment records, the Board accepted the Veteran's assertion of experiencing gastrointestinal symptoms during service, the record does not support finding that there exists a medical nexus between those symptoms (and any additional symptoms experienced in the intervening years) and the GERD diagnosed many years following her discharge from service. The Board notes that the Veteran was discharged from service in June 1958. She, herself, has not claimed to have been diagnosed with GERD in service. Rather, she claims that she had heartburn after eating certain foods and had one sick call visit for an upset stomach, which the medical provider treated with a short-term medication. While in connection with the current claim for VA benefits, she has essentially asserted continuous gastrointestinal symptoms during and since service in an attempt to establish that her GERD is a chronic disability dating from service, such assertions are not supported objectively. As indicated, there is no evidence that she sought treatment for gastrointestinal complaints during the remainder of her service or for many years thereafter. She was not diagnosed with GERD until 1994, decades later. This gap in time from service separation and the first clinical indications of GERD is not consistent with a finding of chronic disability incurred during active service. See Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000) (a prolonged period without treatment is a proper factor to consider when evaluating continuity of symptomatology). The April 2013 VA examiner similarly found that such a gap in time between service and diagnosis was medically unlikely if the Veteran indeed had GERD in service. Furthermore the VA examiner indicated that the cause of the current GERD likely developed decades following service due to a post-service H. pylori infection. Significantly, this opinion constitutes the only medical opinion on the question of etiology of current GERD of record, and neither the Veteran nor her representative has presented or identified any actual medical opinion that, in fact, supports the claim. The Board notes that in a September 2009 letter, Dr. S.R. indicated that the Veteran reported that her GERD symptoms began in her 20's. However, Dr. S.R. did not provide a medical opinion as to when GERD or its symptoms began. Rather, Dr. S.R. indicated that the Veteran had been her patient since 1999 and had received medication treatment starting in 2000. See LeShore v. Brown, 8 Vet. App. 406, 409 (1995) (holding that information simply recorded by a medical examiner and unenhanced by any additional medical comment, and thus not adding any medico-evidentiary value to the lay history through medical expertise, does not constitute competent medical evidence). In other words, the fact that the Veteran's own reported history appears in medical records does not constitute competent, probative evidence of the required nexus. The only competent etiology opinion of record is that of the April 2013 VA examiner. That VA examiner found that GERD did not develop in service and likely was caused by an H. pylori infection decades after service. That opinion constitutes persuasive evidence on the medical etiology question. The examiner based her opinion on review of the claims file, examination of the Veteran and her medical knowledge and experience, and clearly explained the basis for her opinion. Thus, the only competent, probative opinion to address the medical nexus, if any, between current GERD and service weighs against the claim. See, e.g., Hayes v. Brown, 5 Vet. App. 60, 69-70 (1993) (citing Wood v. Derwinski, 1 Vet. App. 190, 192-93 (1992); Guerrieri v. Brown, 4 Vet. App. 467, 470-471 (1993) (the probative value of medical evidence is based on the physician's knowledge and skill in analyzing the data, and the medical conclusion the physician reaches; as is true of any evidence, the credibility and weight to be attached to medical opinions are within the province of the Board). The Board notes that, in the May 2013 appellant's post-remand brief, the Veteran's representative argued that the April 2013 VA examiner essentially discounted and dismissed the Veteran's report of onset and continuity of symptomatology. To the extent that the representative suggests that the opinion is inadequate, the Board finds, however, that the VA examiner adequately explained how she reached her determination. Not only did the VA examiner describe the Veteran's medical history, including a discussion of the Veteran's report of symptoms experienced in and since service, but applied her medical expertise in determining how and when such a disability generally is diagnosed and treated. Furthermore, the VA examiner explained that the likely etiology of the GERD, namely the H. pylori infection, was unlikely to have started in service. This opinion is thus adequate for adjudication purposes. Finally, as for the Veteran's own opinion that her current GERD had its onset in service, the Board points out that the complex disability here at issue is not one capable of lay observation, and that the question of medical etiology of such disability is a matter within the province of trained medical professionals. See Jones v. Brown, 7 Vet. App. 134, 137-38 (1994). As the Veteran is not shown to be other than a layperson without appropriate medical training and expertise, she is not competent to render a persuasive opinion on the medical matter upon which this claim turns. See, e.g., Bostain v. West, 11 Vet. App. 124, 127 (1998). See also Routen v. Brown, 10 Vet. App. 183, 186 (1997) ('a layperson is generally not capable of opining on matters requiring medical knowledge'). See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer)." Hence, on the question of etiology of the disability under consideration, the lay assertions in this regard have no probative value. Accordingly, in this case, the Veteran cannot support her claim, controvert the opinion of the VA examiner, or place the evidence pertaining to medical etiology in relative equipoise, on the basis of her own lay assertions, alone. For all the foregoing reasons, the Board finds that the claim for service connection for GERD must be denied. In reaching the conclusion to deny the claim, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App 49, 53-56 (1990). ORDER Service connection for GERD is denied. ____________________________________________ JACQUELINE E. MONROE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs