Citation Nr: 1324222 Decision Date: 07/30/13 Archive Date: 08/07/13 DOCKET NO. 07-04 306 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUE Entitlement to service connection for a gastrointestinal disorder, to include gastroesophageal reflux disorder (GERD) and/or bleeding ulcers, including as secondary to service-connected major depressive disorder. REPRESENTATION Veteran represented by: Oregon Department of Veterans' Affairs WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD E. Pomeranz, Counsel INTRODUCTION The Veteran had active service from May 1969 to March 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal of an October 2005 rating action by the Department of Veterans Affairs (VA) Regional Office (RO) located in Portland, Oregon. The Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge in February 2010. A copy of the transcript of that hearing is of record. This case was remanded by the Board in July 2010 and July 2012. In March 2013, the Board sought an opinion from the Veterans Health Administration (VHA). See 38 C.F.R. § 20.901. Pursuant to this request, the Board received a VHA opinion in May 2013, and it is associated with the claims file. The case is now ripe for appellate consideration. FINDING OF FACT The evidence is at least evenly balanced as to whether the Veteran has a gastrointestinal disorder, currently diagnosed as GERD/ulcers, that was caused and/or aggravated by his service-connected major depressive disorder. CONCLUSION OF LAW The criteria for the establishment of service connection for GERD/ulcers, as secondary to the service-connected major depressive disorder, are met. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.310 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION In this decision, the Board will discuss the relevant law it is required to apply. This includes statutes enacted by Congress and published in Title 38, United States Code ("38 U.S.C.A."); regulations promulgated by VA under the law and published in the Title 38 of the Code of Federal Regulations ("38 C.F.R."); and the precedential rulings of the Court of Appeals for the Federal Circuit (as noted by citations to "Fed. Cir.") and the Court of Appeals for Veterans Claims (Court) (as noted by citations to "Vet. App."). The Board is bound by statute to set forth specifically the issue under appellate consideration and its decision must also include separately stated findings of fact and conclusions of law on all material issues of fact and law presented on the record, and the reasons or bases for those findings and conclusions. 38 U.S.C.A. § 7104(d); see also 38 C.F.R. § 19.7 (implementing the cited statute); Vargas-Gonzalez v. West, 12 Vet. App. 321, 328 (1999); Gilbert v. Derwinski, 1 Vet. App. 49, 56-57 (1990) (the Board's statement of reasons and bases for its findings and conclusions on all material facts and law presented on the record must be sufficient to enable the claimant to understand the precise basis for the Board's decision, as well as to facilitate review of the decision by courts of competent appellate jurisdiction). The Board must also consider and discuss all applicable statutory and regulatory law, as well as the controlling decisions of the appellate courts. Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). The Court, in Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), has held that the VCAA notice requirements apply to all elements of a claim. Given the favorable disposition of the claim on appeal, the Board finds that all notification and development actions needed to fairly adjudicate this claim have been accomplished. The Merits of the Claim Service connection may be granted for any current disability that is the result of a disease contracted or an injury sustained while on active duty service. 38 U.S.C.A. §§ 1110, 1131 (West 2002 & Supp. 2012); 38 C.F.R. § 3.303(a) (2012). Service connection may also be granted for a disease diagnosed after discharge, where all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2012). The elements of a valid claim for direct service connection are as follows: (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence 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. Hickson v. West, 12 Vet. App. 247, 253 (1999). Where a chronic disease is shown during service, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributable to intercurrent causes. Continuity of symptomatology is required where the condition noted during service is not shown to be chronic, or where the diagnosis of chronicity may be legitimately questioned. Under the latter, a showing of continuity of symptomatology at the time of service discharge and continuing thereafter 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) has since clarified in Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) that the availability of continuity of symptomatology as a principle to substantiate service connection is limited to where involving those specific diseases denoted as "chronic" (and for which presumptive service connection is otherwise available) under 38 C.F.R. § 3.309(a). Service connection may also be granted for a disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). In addition, a claimant is entitled to service connection on a secondary basis when it is shown that a service-connected disability has chronically aggravated a nonservice-connected disability. 38 C.F.R. § 3.310(b); Allen v. Brown, 7 Vet. App. 439 (1995). Under the current version of 38 C.F.R. § 3.310(b), the regulation provides that any increase in severity of a nonservice-connected disease or injury proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the disease, will be service connected. In reaching this determination as to aggravation of a nonservice-connected disability, consideration is required as to the baseline level of severity of the nonservice-connected disease or injury (prior to the onset of aggravation by service-connected condition), in comparison to the current level of severity of the nonservice-connected disease or injury. These evaluations of baseline and current levels of severity are to be based upon application of the corresponding criteria under the VA rating schedule for evaluating that particular nonservice-connected disorder. See Notice, 71 Fed. Reg. 52,744-47 (Sept. 7, 2006), later codified at 38 C.F.R. § 3.310(b). The determination as to whether the requirements for service connection are met is based on an analysis of all the relevant evidence of record, medical and lay, and the evaluation of its competency and credibility to determine its ultimate probative value in relation to other evidence. See Baldwin v. West, 13 Vet. App. 1, 8 (1999). Lay evidence may be competent to establishing underlying components of a claim for service connection. In Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007), the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) ruled that competence to establish a diagnosis can exist when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. A layperson is generally incapable of opining on matters requiring medical knowledge. However, lay testimony is competent if it relates to matters within direct observation and firsthand knowledge of the observer. Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is considered competent to report on that of which he or she has personal knowledge). The Federal Circuit further held in Colantonio v. Shinseki, 606 F.3d 1378 (Fed. Cir. 2010) and in Waters v. Shinseki, 601 F.3d 1274, 1278 (2010), that it is error to suggest that lay evidence can never be sufficient to satisfy the requirement of 38 U.S.C.A. § 5103A(d)(2)(B) that there be a nexus between military service and a claimed condition. However, as also observed by the Federal Circuit, lay evidence must "demonstrate some competence." See King v. Shinseki, (Fed. Cir. 2012) (citing 38 U.S.C.A. § 5107(b) and 38 C.F.R. § 3.307(b)) (internal quotation marks omitted). The standard of proof to be applied in decisions on claims for veterans' benefits is set forth in 38 U.S.C.A. § 5107. A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. See 38 C.F.R. § 3.102. When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). In this case, the Veteran is seeking service connection for a gastrointestinal disorder, to include GERD and/or bleeding ulcers. He contends that he developed a gastrointestinal disorder in service. In the alternative, he maintains that he currently has GERD and/or bleeding ulcers that were caused or aggravated by his service-connected major depressive disorder. He states that as a result of stress that he experienced during service, he developed GERD and/or bleeding ulcers. The Veteran's service treatment records are negative for a diagnosis of a gastrointestinal disorder, to include GERD or bleeding ulcers. In January 1971, he underwent a separation examination. At that time, in response to the question of whether he then had, or ever had frequent indigestion, he responded "yes." The examiner noted that the Veteran's frequent indigestion was treated with Tums and that there were no complications or sequela. The Veteran's abdomen and viscera were clinically evaluated as "normal." In a March 2002 private psychiatric evaluation report, it was noted that the Veteran had an ongoing history of peptic ulcer disease since 1970. Other post-service treatment records reflect, after 2003, ongoing treatment for heartburn/GERD, as well as past treatment for ulcers. In December 2004, the Veteran filed a claim of entitlement to service connection for GERD and bleeding ulcers. A VA examination was conducted in March 2005. The Veteran stated that he had a bleeding ulcer during service. He noted that he vomited up about a pint of blood in 1970 but never went to sick call. According to the Veteran, he was diagnosed with ulcer disease in 1972. He then reported continuation of some heartburn while taking proton pump inhibitors. Following the physical examination, he was diagnosed with GERD. In a November 2005 statement, the Veteran alleged that he developed bleeding ulcers as the result of "taking a great deal of Excedrin" while in service in order to treat headaches. The Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge in February 2010. He contended that his GERD was secondary to the anxiety treatment that he received during service. A VA examination was conducted in July 2010. In October 2010, the examiner who conducted that examination provided an addendum and opined that there was no evidence in the Veteran's claims file to suggest that there were symptoms of GERD while on active duty and therefore, the Veteran's current GERD did not originate in service. In a July 2012 decision, the Board granted service connection for major depressive disorder. The primary basis of this decision was that the Veteran was diagnosed with depression during service and had experienced a continuity of symptomatology since that time. The Board also remanded the claim for service connection for GERD and bleeding ulcers because the opinion from the VA examiner needed to be clarified. In the October 2010 addendum, the VA examiner stated that there were no symptoms of GERD during service. However, the Veteran's separation examination report showed that he had frequent indigestion that was treated with Tums. In addition, the examiner did not address the question of whether the Veteran's GERD was caused or aggravated by his service-connected depression. Thus, clarification was needed In August 2012, the examiner from the Veteran's July 2010 VA examination provided a second addendum to the July 2010 VA examination report. The examiner opined that it was less likely than not that the Veteran's GERD or bleeding ulcers were secondary to his service-connected depression or the treatment for depression. He referred to a medial article wherein it was reported that the cause of bleeding ulcers was almost totally associated with infection with the H. Pylori bacterium, and that emotional stress and diet had not been a true factor in that disease. The examiner also indicated that there was no evidence that emotional stress was related to GERD. GERD was caused by reduction of effectiveness of the lower esophageal sphincter and that phenomenon was very common in persons who had no emotional distress, as well as those who did have high levels of emotional stress. In March 2013, the Board sought a VHA opinion. See 38 C.F.R. § 20.901. The Board noted that a review of the August 2012 addendum showed that although the examiner addressed the pertinent question of whether the Veteran's GERD or bleeding ulcers were caused by his service-connected depression, he did not address the other pertinent question of whether the Veteran's GERD or bleeding ulcers were aggravated (i.e., worsened) by his service-connected depression. In addition, in regard to the Veteran's claim on a direct basis, he did not address the pertinent question of whether the Veteran's currently diagnosed GERD or bleeding ulcers were related to his period of service, to specifically include the indigestion that was noted upon his January 1971 separation examination report. Thus, a VHA opinion was needed to address these questions. Pursuant to this request, the Board received a VHA opinion from M.T., M.D., a VA gastroenterologist, dated in May 2013. In the opinion, Dr. T. addressed the questions posed by the Board. In regard to the first question of whether the Veteran's currently diagnosed GERD and/or bleeding ulcers were related to his period of military service, to include symptoms and complaints then noted, and/or any medications then taken, and/or the indigestion that was noted upon the Veteran's January 1971 separation report, Dr. T. stated that while the Veteran was in the military, he encountered disciplinary problems and appeared to have been unable to adjust to military life. Upon medical evaluation, the Veteran was found to have severe personality problems that eventually led to his discharge. The Veteran's service treatment records included a report that was written by Major J.R., dated in November 1970. In the report, Major R. stated that according to the Veteran, his discharge under AFM 39-12 was "not to be expedited." Major R. reported that he was told by the Veteran's Squadron that the Veteran "might get discharged but not until it was made difficult for him and punitive action was taken." Major R. recounted that he was not able to impress upon the commander the severe nature of the Veteran's psychiatric underlying illness. Therefore, Dr. T. noted that it was reasonable to believe that it was likely as not that in the Veteran's quest to obtain a discharge, he might have hesitated to report physical maladies that would have resulted in further said "punitive" responses. According to Dr. T., it was also reasonable to assume that in the Veteran's January 1971 separation examination report, the Veteran may have been more forthcoming in reporting his symptoms. Thus, Dr. T. stated that much weight would be ascribed to the notation in the Veteran's January 1971 separation examination report that the Veteran had "frequent indigestion; treated with Tums." With respect to the Veteran's dyspepsia/indigestion, that was a common term for a variety of complaints which may include symptoms of reflux that may be quite protean. It was difficulty to ascertain the level of severity of such symptomatology but Dr. T. indicated that in a January 1971 dental examination report, there was no mention of acid-damaged teeth, a relatively non-specific and often missed sign of severe and frequent reflux. Therefore, that did not exclude milder forms or even a severe degree of reflux. There was also some evidence for individuals with ABO blood group A to be at greater risk for familial dyspepsia in the first four decades of life and the Veteran was noted to have Group A blood type. For some, dyspepsia could be a lifelong ailment and reflux had also been positively related with stress; Dr. T. noted that the Veteran had actually been hospitalized for stress during service. For those reasons, Dr. T. opined that it was more likely than not that some of the Veteran's symptoms may have been initiated but most conceivably could have been aggravated by the stress resulting from his military service. Another consideration was the medication that the Veteran received or took during his period of military service. Form DD 602, dated on November 24, 1970, indicated that the Veteran was prescribed Amytal and Valium, both of which were known to exacerbate dyspepsia. He also took Tums which was well-known to cause paradoxical acid secretion through the mechanism of increased gastrin simulation and may have further exacerbated his symptoms. In the November 2005 statement wherein the Veteran stated that he had developed a bleeding ulcer as a result of "taking a great deal of Excedrin while in service," Dr. T. stated that there was no objective evidence of the diagnosis of the bleeding ulcer. However, Dr. T. noted that Excedrin was a combination of three active agents, two of which could exacerbate or cause dyspepsia or aggravate existing ulcers (Aspirin and caffeine). Thus, Dr. T. opined that it was more likely than not that the medications that the Veteran took during service contributed to his documented frequent indigestion and chronic worsening of that condition. With respect to the second question posed by the Board of whether any currently diagnosed gastrointestinal disorders, to include GERD and/or bleeding ulcers, were caused or aggravated by the Veteran's service-connected major depressive disorder, to include in-service treatment for such depression, Dr. T. stated that it was important to consider the effect of depression on dyspepsia and the effect of dyspepsia on depression. There was generally a strong correlation of dyspepsia, often concurrent with episodes of generalized anxiety disorder and depressive episodes, both of which seemed to coexist in the Veteran. In general, patients with dyspepsia (a heterogeneous group of disorders that often included reflux symptoms) had more symptoms of anxiety and depression than community controls. Thus, there seemed to be an interplay between those two conditions. Therefore, Dr. T. opined that it was more likely than not that that was the case in the scenario presented by the Veteran when considering non-ulcer dyspepsia as had been shown above, to possibly relate to the Veteran's medications. In the case of ulcer-related disease, the situation depended on the location of the peptic ulcer. Chronic life stressors were highly correlated with duodenal ulceration but not gastric ulceration. Dr. T. stated that since there was no evidence to pinpoint the existence or the location of the Veteran's ulcers, any conclusion based on ulcer location would be speculative. Next, Dr. T. addressed the third question posed by the Board which was if the Veteran's GERD and/or bleeding ulcers were aggravated by his service-connected depression, to the extent that was possible, what was the approximate baseline level of severity of the nonservice-connected GERD and/or bleeding ulcers (e.g., slight, moderate) before the onset of aggravation. Dr. T. stated that there did not appear to be any evidence at baseline for the existence of GERD/bleeding ulcers based on a review of the evidence of record. The Board has reviewed the VHA opinion from Dr. T. Unlike the October 2010 and August 2012 opinions from VA examiners, which opposed the Veteran's claim, the opinion from Dr. T. supports the Veteran's claim on a secondary basis. Dr. T. opines that while the Veteran was in the military, he developed gastrointestinal symptoms, including indigestion, that were caused and/or aggravated by his stress and depressive disorder. In addition, he also opined that the medication that the Veteran took for his depressive disorder also caused and/or aggravated his gastrointestinal problems. Thus, in essence, Dr. T. has linked the Veteran's gastrointestinal disorder, currently diagnosed as GERD/ulcers, to his in-service gastrointestinal problems, and has concluded that the Veteran's gastrointestinal disorder was caused and/or aggravated by his service-connected major depressive disorder. In view of the above, the Board finds that the evidence is at least evenly balanced regarding the question of whether the Veteran's gastrointestinal disorder, currently diagnosed as GERD/ulcers, was caused and/or aggravated by his service-connected major depressive disorder. In cases where the evidence is evenly balanced, the claimant prevails. See Gilbert, 1 Vet. App. at 53-54. Thus, resolving reasonable doubt in the Veteran's favor, the Board finds that service connection for GERD/ulcers as secondary to service-connected major depressive disorder is warranted. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. In reaching this decision, the Board emphasizes that it does not express an opinion as to the severity of the Veteran's GERD/ulcers. The question of service connection involves a determination of the etiology of a disorder, but not its severity. The question of its severity is one of rating, not of service connection. Ferenc v. Nicholson, 20 Vet. app. 58 (2006) (Discussing the distinction in the terms "compensation," "rating," and "service connection" as although related, each having a distinct meaning as specified by Congress). ORDER Service connection for GERD/ulcers as secondary to service-connected major depressive disorder is granted, subject to the laws and regulations governing the award of monetary benefits. ____________________________________________ Vito A. Clementi Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs