Citation Nr: 1327848 Decision Date: 08/30/13 Archive Date: 09/05/13 DOCKET NO. 07-38 454 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUES 1. Entitlement to service connection for gastroesophageal reflux disease (GERD), to include as secondary to service-connected posttraumatic stress disorder (PTSD). 2. Entitlement to service connection for a sinus disease, to include as secondary to GERD. 3. Entitlement to service connection for T-cell large granular lymphocytic leukemia, to include as due to herbicide exposure. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Arif Syed, Associate Counsel INTRODUCTION The Veteran served on active duty from May 1969 to December 1971. Service in the Republic of Vietnam is indicated by the record. This appeal comes before the Department of Veterans Affairs (VA) Board of Veterans Appeals (Board) from rating decisions of VA Regional Office (RO) in Denver, Colorado and Seattle, Washington that denied service connection for T-cell large granular lymphocytic leukemia, a sinus disease, and GERD. Jurisdiction currently resides at the RO in Denver. The Veteran was afforded a videoconference hearing in February 2010 before the undersigned Veterans Law Judge sitting at Washington, DC. The transcript is of record. In January 2011, the Board remanded the Veteran's claims. The Appeals Management Center (AMC) continued the previous denial of the claims in an April 2012 supplemental statement of the case (SSOC). Accordingly, the Veteran's VA claims folder has been returned to the Board for further appellate proceedings. The Board has reviewed the Veteran's claims folder and the record maintained in the Virtual VA paperless claims processing system. The issue of entitlement to service connection for T-Cell large granular lymphocytic leukemia is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the AMC, in Washington, DC. FINDINGS OF FACT 1. The Veteran's currently diagnosed GERD is related to his military service and aggravated by his service-connected PTSD. 2. The Veteran's sinus disease preexisted his military service and was aggravated beyond the normal progression of the disease during military service. CONCLUSIONS OF LAW 1. The Veteran's currently diagnosed GERD was caused by his military service and service-connected PTSD. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2012). 2. The Veteran's pre-existing sinus disease was aggravated by his military service. 38 U.S.C.A. §§ 1101, 1110 (West 2002); 38 C.F.R. §§ 3.303, 3.304, 3.306 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran seeks entitlement to service connection for GERD, to include as secondary to service-connected PTSD as well as for a sinus disease, to include as secondary to GERD. In the interest of clarity, the Board will discuss certain preliminary matters. The issues on appeal will then be analyzed and a decision rendered. The Veterans Claims Assistance Act of 2000 The VCAA describes VA's duties to notify and assist veterans 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). As discussed in more detail below, sufficient evidence is of record to grant the Veteran's claim of entitlement to service connection for GERD and for a sinus disease. Thus, any errors in complying with the notice or assistance requirements with respect to these matters are moot. Service connection for GERD Generally, service connection may be granted for disability or injury incurred in or aggravated by active military service. See 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2012). For certain chronic disorders, including ulcers, service connection may be presumed to have been incurred in service if the disease becomes manifest to a compensable degree within one year following separation from service. See 38 U.S.C.A. §§ 1101, 1110, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.307, 3.309(a) (2012). In order to establish service connection for the claimed disorder, there must be (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. See Hickson v. West, 12 Vet. App. 247, 253 (1999). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. See Baldwin v. West, 13 Vet. App. 1, 8 (1999). Service connection may be granted for a disability that is proximately due to, the result of, or aggravated by a service-connected disability. See 38 C.F.R. § 3.310(a) (2012); see also Harder v. Brown, 5 Vet. App. 183, 187 (1993). Additional disability resulting from the aggravation of a non-service-connected condition by a service-connected condition is also compensable under 38 C.F.R. § 3.310(a). See Allen v. Brown, 7 Vet. App. 439, 448 (1995). In order to establish service connection for a claimed disability on a secondary basis, there must be (1) medical evidence of a current disability; (2) a service-connected disability; and (3) medical evidence of a nexus between the service-connected disease or injury and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). After the evidence is assembled, it is the Board's responsibility to evaluate the entire record. See 38 U.S.C.A. § 7104(a) (West 2002). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each issue shall be given to the claimant. See 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. §§ 3.102, 4.3 (2012). In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the United States Court of Appeals for Veterans Claims (Court) stated that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail." To deny a claim on its merits, the preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. As detailed above, in order to establish direct service connection, there must be (1) evidence of a current disability; (2) evidence of in-service incurrence of a disease or injury or evidence of a service-connected disability; and (3) evidence of a nexus between (1) and (2). See Hickson and Wallin, both supra. With respect to element (1), current disability, the competent medical evidence of record indicates diagnoses of GERD. See, e.g., a private treatment record from R.W., M.D. dated January 2010. Accordingly, element (1), current disability, is satisfied. With respect to Hickson element (2), evidence of an in-service incurrence of a disease or injury, the Veteran's service treatment records are absent complaints of or treatment for GERD. Wallin element (2) has been met; the Veteran is service-connected for PTSD. Turning to element (3), nexus, in resolving the benefit of the doubt in the Veteran's favor, the competent and probative evidence demonstrates that the Veteran's currently diagnosed GERD is related to his military service. Specifically, the Veteran was afforded a VA examination for a sinus disease in December 2011. Pertinently, the VA examiner documented the Veteran's history of GERD, as well as the Veteran's report that he did not receive treatment for acid reflux during service. After examination of the Veteran, the VA examiner diagnosed the Veteran with acid reflux with presence of hiatal hernia. She thereafter opined that the Veteran's acid reflux at least as likely as not manifested atypically with a chronic dry cough during the Veteran's period of military service. Notably, the VA examiner reported that the lack of heartburn or symptoms did not mean the Veteran did not have acid reflux while in service. Rather, the VA examiner indicated that acid reflux was present during the Veteran's service in Vietnam as evidenced by a change in symptomatology of his sinus disease. The Board adds that Dr. R.W. opined in a private treatment record dated January 2010 that the Veteran's GERD has been "undoubtedly related to and worsened by his PTSD." Dr. R.W.'s rationale for his opinion was based on his treatment of the Veteran for GERD for many years. Moreover, he specifically reported that the stress and trauma from the Veteran's PTSD, combined with his depression, has exacerbated the GERD. The report of the December 2011 VA examination and January 2010 opinion from Dr. R.W. appear to have been based upon thorough examination of the Veteran and thoughtful analysis of the Veteran's entire history and current medical condition. See Bloom v. West, 12 Vet. App. 185, 187 (1999) [the probative value of a physician's statement is dependent, in part, upon the extent to which it reflects "clinical data or other rationale to support his opinion"]. Pertinently, the Board notes that there is no medical evidence which demonstrates the Veteran's GERD is not related to either his military service or his PTSD. The United States Court of Appeals for Veterans Claims (Court) has cautioned against seeking an additional medical opinion where favorable evidence in the record is unrefuted. The Court specifically indicated that it would not be permissible to undertake further development if the purpose was to obtain evidence against an appellant's claim. See Mariano v. Principi, 17 Vet. App. 305, 312 (2003). Thus, the competent and probative evidence of record indicates the Veteran's GERD is related to his military service as well as his PTSD. Element (3), nexus, has accordingly been satisfied as to this claim. In summary, for reasons and bases expressed above, the Board concludes that service connection for GERD is warranted. The benefit sought on appeal is granted. Service connection for a sinus disease The law and regulations pertaining generally to service connection have been set forth above and will not be repeated here. A veteran will be considered to have been in sound condition when examined, accepted and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable (obvious or manifest) evidence demonstrates that an injury or disease existed prior thereto. 38 U.S.C.A. § 1111 (West 2002); 38 C.F.R. § 3.304(b) (2012). VA's General Counsel has held that to rebut the presumption of sound condition under 38 U.S.C. § 1111, VA must show by clear and unmistakable evidence both that the disease or injury existed prior to service and that the disease or injury was not aggravated by service. See VAOPGCPREC 3-2003 (July 16, 2003); see also Wagner v. Principi, 370 F. 3d 1089 (Fed. Cir. 2004). The Court has held, however, that this presumption attaches only where there has been an entrance examination in which the later complained-of disability was not detected. See Bagby v. Derwinski, 1 Vet. App. 225, 227 (1991). In VAOPGCPREC 3-2003, VA's General Counsel noted that "[u]nder the language of [38 U.S.C. § 1111], VA's burden of showing that the condition was not aggravated by service is conditioned only upon a predicate showing that the condition in question was not noted at entry into service." Cases in which the condition is noted on entrance are, however, still governed by the presumption of aggravation contained in 38 U.S.C. § 1153 (as opposed to that applicable under 38 U.S.C. § 1111 where the complained of condition was not noted on entrance into service). This statute provides that a pre-existing injury or disease will be considered to have been aggravated by active service where there is an increase in disability during such service, unless clear and unmistakable evidence shows that the increase in disability is due to the natural progress of the disease. 38 U.S.C.A. § 1153 (West 2002); 38 C.F.R. § 3.306 (2012). 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); 38 C.F.R. §§ 3.304, 3.306(b) (2012). A pre-existing disease or injury will be presumed to have been aggravated by service only if the evidence shows that the underlying disability underwent an increase in severity; the occurrence of symptoms, in the absence of an increase in the underlying severity, does not constitute aggravation of the disability. See Davis v. Principi, 276 F.3d 1341, 1345 (Fed. Cir. 2002); 38 C.F.R. § 3.306(a) (2012). Aggravation is characterized by an increase in the severity of a disability during service, and a finding of aggravation is not appropriate in cases where the evidence specifically shows that the increase is due to the natural progress of the disease. Furthermore, temporary or intermittent flare-ups of a pre-existing disease during service are not sufficient to be considered aggravation of the disease unless the underlying condition, as contrasted to symptoms, worsens. See Jensen v. Brown, 4 Vet. App. 304, 306-07 (1993); Hunt v. Derwinski, 1 Vet. App. 292 (1991). The medical evidence of record indicates that the Veteran currently has a sinus disease. The focus of this decision is whether the Veteran's sinus disease pre-existed service and if so whether it was aggravated by or due to service. See 38 U.S.C.A. §§ 1111, 1153; 38 C.F.R. §§ 3.304, 3.306. Presumption of Soundness As was discussed above, the Board's first inquiry is whether the statutory presumption of soundness on enlistment has been rebutted. In this case, review of the Veteran's service treatment records discloses that on the March 1969 pre-induction examination report, he indicated that he had or had had sinusitis, and "sinusitis - not severe" was recorded by the examining official. The records reflect that between July 1970 and October 1971, he was seen on a number of occasions for upper respiratory complaints, including sinus trouble and sinusitis. Furthermore, the Veteran was provided a VA examination for his sinus disease in December 2011. After review of the Veteran's claims folder and consideration of his medical history, the VA examiner concluded that the Veteran's sinus disease preexisted military service. The Veteran's service treatment records and the December 2011 VA examination report thus go beyond a mere "bare conclusion without a factual predicate in the record." See Miller v. West, 11 Vet. App. 345, 348 (1998). The March 1969 pre-induction report and December 2011 VA examination report indicate a long-standing sinus disease on enlistment. As such, the Board concludes that the evidence clearly and unmistakably shows that a sinus disease pre-existed the Veteran's period of active military service. Accordingly, the statutory presumption of soundness is rebutted. See 38 U.S.C.A. § 1111 (West 2002); 38 C.F.R. § 3.304(b) (2012). Aggravation The Board must next determine whether the Veteran's pre-existing sinus disease underwent an increase in severity during his period of active military service, thereby triggering the presumption of aggravation. See Maxson v. West, 12 Vet. App. 453 (1999) [the presumption of aggravation is generally triggered by evidence that a pre-existing disability has undergone an increase in severity in service]; see also Sondel v. West, 13 Vet. App. 213 (1999). As discussed above, the Veteran's service treatment records reflect that between July 1970 and October 1971, he was seen on a number of occasions for upper respiratory complaints, including sinus trouble and sinusitis. After review of the record, the Board finds that the record reflects that the Veteran's preexisting sinus disease underwent an increase in severity during service to warrant a presumption of aggravation. The presumption of aggravation applies only when pre-service disability increases in severity during service. Beverly v. Brown, 9 Vet. App. 402, 405 (1996); Browder v. Derwinski, 1 Vet. App. 204, 206-207 (1991). In this regard, there is only one medical opinion of record which addresses the matter of aggravation. Specifically, the Veteran was afforded a VA examination in December 2011. After examination of the Veteran and consideration of his medical history, the VA examiner diagnosed the Veteran with chronic cough due to multiple etiologies as well as post nasal drainage from allergic rhinosinusitis with recurrent episodes of sinusitis but negative radiographic evidence of chronic sinusitis. She thereafter concluded that the Veteran's allergic rhinosinusitis preexisted his military service and that it was at least as likely as not aggravated while in service. The examiner's rationale for her conclusion was based on her finding that the although there was initial improvement in the Veteran's allergy symptoms after the change in environment when he was deployed to Vietnam, the Veteran thereafter had recurrence of his rhinosinusitis symptoms with an additional symptomatology of persistent dry cough. Therefore, his baseline allergic symptoms did not include a dry cough before service. The examiner reported the presence of a persistent dry cough reflected the permanent aggravation that had occurred from the pre-service baseline symptomatology. She further noted that the presence of acid reflux could have caused a cough and worsening of nasal blockage leading to worsening rhinosinusitis. The December 2011 VA examination report therefore appears to have been based upon thorough review of the record, thorough examination of the Veteran, and thoughtful analysis of the Veteran's entire history. See Bloom, supra. The Board notes that although the VA examiner did not specifically opine as to whether there is clear and unmistakable evidence that the sinus disease was not aggravated by service beyond its natural progression, she nevertheless concluded that it is at least as likely as not that the Veteran's sinus disease was aggravated during military service. As such, the Board finds that the December 2011 VA examination is adequate for evaluation purposes. Pertinently, the Board notes that there is no medical evidence which demonstrates the Veteran's sinus disease was clearly and unmistakably not aggravated during military service beyond its normal progression. The Court has cautioned against seeking an additional medical opinion where favorable evidence in the record is unrefuted. The Court specifically indicated that it would not be permissible to undertake further development if the purpose was to obtain evidence against an appellant's claim. See Mariano, supra. Thus, the competent and probative evidence of record indicates the Veteran's sinus disease preexisted his military service and was aggravated by military service beyond the normal progression of the disease. All elements of service connection have therefore been met with regard to this claim. In summary, for reasons and bases expressed above, the Board concludes that service connection for a sinus disease is warranted. The benefit sought on appeal is granted. ORDER Entitlement to service connection for GERD, to include as secondary to service-connected PTSD is granted. Entitlement to service connection for a sinus disease, to include as secondary to GERD is granted. REMAND Service connection for T-cell large granular lymphocytic leukemia In the aforementioned January 2011 remand, the Board directed the RO/AMC to refer the Veteran's claim to a hematologist for an opinion as to whether the Veteran's blood disorder is a chronic B-cell leukemia, including, but not limited to hairy-cell leukemia, chronic lymphocytic leukemia, multiple myeloma, or non-Hodgkin's lymphoma, as specified in 38 C.F.R. § 3.309(e) (2012). A copy of the regulation was to be provided to the VA examiner. The request for an opinion was based on evidence submitted by the Veteran, in particular a private treatment record dated July 2008 from G.J., M.D. which documented a diagnosis of chronic lymphocytic leukemia and Internet research that appeared to implicate B-cell involvement to some extent. Pursuant to the Board's January 2011 Remand instructions, a supplemental opinion was obtained in January 2012 from a VA hematologist as to whether the Veteran's blood disorder is a chronic B-cell leukemia. The VA examiner noted private treatment records which indicated diagnoses of T-cell large granular lymphocytic leukemia. As such, the VA examiner reported that she was unable to find any supporting evidence for a concurrent monoclonal B-cell disorder. Crucially, however, the VA examiner did not address the private treatment record from Dr. G.J. noting a diagnosis of chronic lymphocytic leukemia, nor did she address the Internet research submitted by the Veteran which as noted above appeared to implicate B-cell involvement. Indeed, it is unclear as to whether the Veteran's complete medical history was reviewed. Furthermore, the VA examiner did not provide a rationale for her conclusion that she was unable to find any supporting evidence for a concurrent monoclonal B-cell disorder. Additionally, it does not appear that a copy of the 38 C.F.R. § 3.309(e) regulation was provided to the VA examiner as directed by the Board in the January 2011 remand. In light of the foregoing, the Board finds that another opinion should be obtained for compliance with its January 2011 remand instructions. See Stegall v. West, 11 Vet. App. 268, 270 (1998) (holding that a remand by the Board imposes upon the Secretary of the VA a concomitant duty to ensure compliance with the terms of the remand). Accordingly, the case is REMANDED for the following action: 1. Refer the case to the VA hematologist who provided the January 2012 opinion as to whether the Veteran's blood disorder is a chronic B-cell leukemia. The claims file and a copy of this remand should be forwarded to the examiner. If the examiner indicates that she cannot respond to the Board's question without examination of the Veteran, such should be afforded to the Veteran. Based on a review of the claims folder, the examiner should provide a specific opinion as to whether the Veteran's blood disorder is a chronic B-cell leukemia, including, but not limited to hairy-cell leukemia, chronic lymphocytic leukemia, multiple myeloma, or non-Hodgkin's lymphoma, as specified in 38 C.F.R. § 3.309(e). A copy of the regulation should be provided to the examiner for her reference. Additionally, the VA examiner should reconcile her opinion with the July 2008 diagnosis of chronic lymphocytic leukemia by Dr. G.J. as well as Internet research submitted by the Veteran which appeared to implicate B-cell involvement. The examiner is requested to provide a thorough rationale for any opinion expressed and note that the claims file has been reviewed in conjunction with the opinion. 2. When the development requested has been completed, the case should be reviewed on the basis of additional evidence. If the benefit sought is not granted, the Veteran and his representative should be furnished a supplemental statement of the case (SSOC) and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded. See Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ MICHAEL A. PAPPAS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs