Citation Nr: 1328633 Decision Date: 09/09/13 Archive Date: 09/17/13 DOCKET NO. 10-08 260 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for gastroesophageal reflux disease (GERD), claimed as digestive problems, heartburn, and regurgitation. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Timothy D. Rudy, Counsel INTRODUCTION The Veteran had active service from September 1983 to July 1986. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2008 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The following decision is based on review of the Veteran's claims file and his electronic Virtual VA file. In March 2012, the RO submitted additional VA treatment records into the Veteran's computer eFolder in connection with another claim. This evidence, which includes recent records referencing the Veteran's disorder now on appeal, does not appear in the file with a waiver of initial RO consideration of the submitted evidence and was not considered in the last Supplemental Statement of the Case dated in July 2010. However, in August 2013 the Veteran's service representative provided a signed waiver of initial RO consideration of this new evidence. Therefore, the Board accepts this additional evidence for inclusion in the record. See 38 C.F.R. §§ 20.800; 20.1304(c) (2012). FINDING OF FACT The evidence of record does not show that any currently diagnosed GERD is etiologically related to the Veteran's period of active service or proximately due to, the result of or chronically aggravated by his service-connected irritable bowel syndrome (IBS). CONCLUSION OF LAW The criteria for service connection for GERD, to include as secondary to service-connected IBS, have not been met. 38 U.S.C.A. §§ 1131, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION VCAA The provisions of the Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) and as interpreted by the United States Court of Appeals for Veterans Claims (the Court), have been satisfied by information provided to the Veteran in letters from the RO dated in April 2008, June 2008, and March 2010. These letters notified the Veteran of VA's responsibilities in obtaining information to assist the Veteran in completing his service connection claim, and identified the Veteran's duties in obtaining information and evidence to substantiate his service connection claim. Thereafter, the claim was reviewed and a supplemental statement of the case was issued in July 2010. (See 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Pelegrini v. Principi, 18 Vet. App. 112 (2004). See also Mayfield v. Nicholson, 19 Vet. App. 103, 110 (2005), reversed on other grounds, 444 F.3d 1328 (Fed. Cir. 2006); Dingess/Hartman v. Nicholson, 20 Vet. App. 473 (2006); Mayfield v. Nicholson (Mayfield II), 20 Vet. App. 537 (2006)). The Court in Dingess/Hartman found that the VCAA notice requirements applied to all elements of a claim. An additional notice as to disability ratings and effective dates was provided in the correspondence dated in April 2008, June 2008, and March 2010. In any event, the Veteran has neither alleged nor demonstrated any prejudice with regard to the content or timing of the notice. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination). In view of the above, the Board finds that the notice requirements pertinent to the issue on appeal have been met. The duty to assist also has been fulfilled as private and VA medical records relevant to this matter have been requested or obtained, and the Veteran has been provided with VA examinations and medical opinions. The Board finds that the available medical evidence is sufficient for an adequate determination. There has been substantial compliance with all pertinent VA laws and regulations and to move forward with this claim would not cause any prejudice to the Veteran. Service Connection - Laws and Regulations Service connection may be granted for a disability resulting from injury suffered or disease contracted in the line of duty or for aggravation of preexisting injury suffered or disease contracted. 38 U.S.C.A. § 1131 (West 2002); 38 C.F.R. § 3.303 (2012). Generally, to prevail on the issue of service connection on the merits, 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 present disease or injury. Hickson v. West, 12 Vet. App. 247 (1999). The United States Court of Appeals for the Federal Circuit has held that a veteran seeking disability benefits must establish the existence of a disability and a connection between service and the disability. Boyer v. West, 210 F.3d 1351 (Fed. Cir. 2000). In addition, service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303(d) (2012). Where the evidence shows a chronic disease in service or continuity of symptoms after service, the disease shall be presumed to have been incurred in service. For the showing of chronic disease in service, there are required a combination of manifestations sufficient to identify a disease entity, and sufficient observation to establish chronicity at the time. With chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributable to intercurrent causes. If a condition noted during service is not shown to be chronic, then generally, a showing of continuity of symptoms after service is required for service connection. 38 C.F.R. § 3.303(b) (2012). The Veteran's claimed GERD is not a chronic disease listed under 38 C.F.R. § 3.309(a). Therefore, 38 C.F.R. § 3.303(b) does not apply as to the claim. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Secondary service connection means that the evidence shows that a current non-service-connected disability is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires showing (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439 (1995). When a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination medical in nature and is capable of lay observation. In such cases, the Board is within its province to weigh that testimony and to make a credibility determination as to whether that evidence supports a finding of service incurrence and continuity of symptomatology sufficient to establish service connection. Barr v. Nicholson, 21 Vet. App. 303 (2007). Lay evidence can be competent and sufficient to establish a diagnosis of a condition 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. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Board must assess the credibility and weight of all the 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. Masors v. Derwinski, 2 Vet. App. 181 (1992); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 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. Factual Background and Analysis The Veteran seeks service connection for GERD. He originally sought service connection for digestive problems, including abdominal pain, heartburn, gas, diarrhea, regurgitation, stomach spasms, fecal leakage, and constipation. During the course of this appeal, in a January 2010 rating decision, the Veteran was granted service connection for irritable bowel syndrome (IBS) (claimed as digestive problems, constipation, diarrhea, fecal seepage, rectal spasms, abdominal pain, and stomach spasms). He was also granted service connection for hemorrhoids (also claimed as digestive problems). In written submissions, the Veteran contends that his GERD symptoms are related to service or are secondary to his service-connected IBS. Service treatment records indicate a March 1986 complaint of abdominal pain and mild diarrhea for one day. The Veteran was treated with Mylanta and told to stay on clear liquids for three days. He declined to undergo a discharge examination in June 1986. Post-service, according to a February 1987 VA examination the Veteran complained of persistent off and on discomfort along the descending colon. It was noted that his abdomen was soft, and there was no rebound tenderness and no rigidity. An April 1990 private gallbladder sonogram showed no hiatal hernia or reflux, the gastric mucosa appeared unremarkable, and an evaluation of the esophagus revealed an oblique defect in the posterosuperior portion of the esophagus probably produced by an aberrant right subclavian artery. An April 1990 gastrointestinal history showed nausea and regurgitation, but the Veteran denied belching, heartburn and difficulty swallowing liquids or solids. Abdominal pain was the provisional diagnosis. A September 1990 private medical record noted that the Veteran ran out of Zantac a month and a half before, but still had some abdominal burning. He was prescribed Zantac and Metamucil. A November 1990 VA medical record noted the Veteran was seen for stomach pain, bloating, and constant swelling for one and one-half years. He stated that his private doctor had done tests and prescribed Zantac with only mild relief. He was now having gas, burning in the abdomen, and bloating. Irritable bowel was suggested as a possible diagnosis. Private medical records dated in February 2000 and April 2000 noted a diagnosis of GERD. The Veteran reported improved symptoms, such as a decreased acid taste and substernal burning. He also reported that his mild acid reflux had returned since he ran out of Prilosec. A June 2000 VA treatment record noted that the Veteran had been treated for h. pylori and GERD with Prilosec. An April 2001 VA medical record noted the Veteran reported GERD-like dyspepsia in the epigastric area and Zantac was prescribed. VA records dated in June 2001 and June 2002 noted that his dyspepsia had resolved. A December 2002 VA medical record revealed that the Veteran was seen after complaining that he had heartburn and the severity had increased. He also reported gagging and choking in his sleep. An upper GI series in February 2003 apparently showed minimal mucosal irregularity and distal esophagus possibly representing minimal esophagitis. The reviewing physician detected no sign of GERD or a hiatal hernia. An April 2003 EGD [esophagogastroduodenoscopy] was undertaken because of recurrent and persistent indigestion and heartburn. There was no history of dysphagia. No evidence was seen for any gastritis or ulceration. The esophagus appeared normal, except for a very small hiatus hernia. VA treatment records dated in December 2003 and June 2004 made no mention of GERD specifically, but noted an assessment of dyspepsia, history of h. pylori status post treatment, and a mild hiatus hernia controlled by medication per EGD. VA treatment records dated in June 2005 and June 2006 noted an assessment of dyspepsia controlled on Omeprazole. VA medical records dated in September 2007 and February 2009 noted that the Veteran's GERD was "fine." A July 2008 VA medical record noted that the Veteran had three recent episodes of abdominal bloating with some abdominal protrusion after eating steak, ice cream and coffee. He was then referred for an EGD. An August 2008 VA medical record noted a history of GERD with heartburn and regurgitation which was now well controlled on PPI [proton-pump inhibitor] therapy. The Veteran also admitted to intermittent dysphagia. Worsening constipation was also noted over the past several months. An EGD in September 2008 indicated chronic GERD, dysphagia, and anemia, but normal gastric (stomach) tissue. An October 2008 VA medical record noted the Veteran's abdominal bloating had improved since a change in diet. As to his GERD, the PPI was to be changed to 30 minutes before dinner and lifestyle modifications were to be discussed. The Veteran underwent a VA examination in August 2009. The report set the date of onset for GERD in 1990 when the Veteran was evaluated at a VA facility for stomach pain, bloating, and swelling. The Veteran told the examiner that "food is my worst enemy. Any time I eat my stomach gives [me] fits, fits, fits. [I] always had burning in [my] chest." The Veteran told the examiner that he had a history of daily heartburn and daily regurgitation. On examination, there were no signs of anemia, significant weight loss, or malnutrition. Diagnosis was GERD. The examiner noted that there was no evidence of GERD symptoms until 1990 [four years after the Veteran was discharged from service] and that the Veteran subsequently was diagnosed and treated for h. pylori in 2000. However, she noted that he had recurrent reflux after treatment and has been on PPI since. She opined that while there can be an association between IBS and GERD, each can also occur independent of each other and it would be speculative to state that the Veteran's GERD was caused by his IBS. A second examiner published an addendum to the August 2009 VA examination in July 2010 in order to provide a medical opinion whether the Veteran's service-connected IBS had aggravated his GERD. The VA reviewer discussed much of the evidence of record before opining that the Veteran's GERD was less likely as not aggravated by the IBS. He explained that the baseline manifestations of GERD in the Veteran's case showed well-controlled symptoms until 2008, when he developed constipation and refractory GERD simultaneously. However, the EGD and colonoscopy of 2008 were normal and subsequent medical records indicated improved symptoms with dietary changes. (The physician also declined to provide an estimate of what the current disability level of the GERD would be without aggravation by the IBS; however, such was not necessary in view of his opinion that aggravation was "less likely than not" in this case.) An April 2010 VA medical record noted that the Veteran reported his persistent reflux symptoms were damaging his teeth and he had seen a dentist and been given special toothpaste because of the damage caused by the reflux. A June 2011 VA medical record noted the Veteran had a problem when sleeping when he awoke with a choking sensation. He was to be referred to the ear, nose and throat clinic. GERD was assessed. Based on the evidence of record, the Board finds that the preponderance of the evidence is against the Veteran's claim that any current GERD disorder was incurred as a result of any established event, injury, or disease during active service. The Board notes that there is no medical evidence of diagnosed GERD during service. Medical records associated with the claims file do not show GERD symptoms until approximately 1990, or approximately four years after discharge from service, and no formal diagnosis until many years later. The Board notes that the passage of time between discharge from active service and the medical documentation of a claimed disability is a factor that tends to weigh against a claim for service connection. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). In view of the period of time following service without a showing of a GERD disability, the evidence is against a finding of continuity of symptomatology, and that weighs against the Veteran's claim. As to service incurrence, as noted above service treatment records showed only one abdominal complaint with mild diarrhea with no references to GERD. Moreover, the Veteran has not provided any competent medical evidence to demonstrate that any current GERD disorder was caused by or was a result of his period of service. The August 2009 VA examiner did not suggest such a connection in that examination and a review of the claims file has not disclosed that any private physician has suggested the same. In essence, there is no competent medical opinion of record etiologically relating the Veteran's currently diagnosed GERD to events in his military service. Pond v. West, 12 Vet. App. 341 (1999); Caluza v. Brown, 7 Vet. App. 498 (1995). Without medical evidence of a nexus between a claimed disease or injury incurred in service and the present disease or injury, service connection cannot be granted. Hickson, 12 Vet. App. at 253. The Board also finds that secondary service connection is not warranted for this claim. The VA examiner, in her August 2009 report, opined that she could not resolve with certainty whether the Veteran's GERD disability was caused by his service-connected IBS without speculation. She explained that although there can be an association between IBS and GERD, these disorders can also occur independently of each other. Subsequently, the physician who provided the July 2010 addendum medical opinion opined that the Veteran's GERD was less likely as not aggravated by the service-connected IBS. He explained that the baseline manifestation of GERD showed well-controlled symptoms until 2008, when the Veteran developed constipation and refractory GERD simultaneously. Further, the results of the 2008 EGD and colonoscopy were normal and the evidence indicated improved symptoms with dietary changes. Therefore, the Board finds that there is no competent medical evidence that the Veteran's GERD was either caused by or aggravated by his service-connected IBS. See 38 C.F.R. § 3.310. The VA medical opinions are supported by adequate rationales discussing medical principles related to the digestive system. There is no medical opinion to the contrary. In addition, GERD is not a disease subject to presumptive service connection. While the regulations permit presumptive service connection for gastric ulcers, there is no claim or evidence of any gastric ulcer in the record. 38 C.F.R. §§ 3.307, 3.309 (2012). Therefore, the Veteran's claim for service connection for GERD, to include as secondary to his service-connected IBS, must be denied. Thus, service connection for GERD on a direct, secondary or presumptive basis is not available in this case. The evidence is devoid of a medical opinion that relates the Veteran's current GERD to either his military service or to his service-connected IBS. The only contention that any GERD disorder is related to his period of active service, or is secondary to his service-connected IBS, comes from the assertions of the Veteran and his service representative. While the Board is sympathetic to the Veteran, and believes that he is competent to report his current symptomatology, he and his representative do not have the requisite special medical knowledge necessary to render an opinion as to medical causation. See Bostain v. West, 11 Vet. App. 124 (1998); Routen v. Brown, 10 Vet. App. 183 (1997) (lay person is generally not capable of opining on matters requiring medical knowledge). Consequently, the assertions of the Veteran and his representative in this matter do not constitute persuasive evidence in support of the Veteran's claim. In essence, there is no competent medical opinion of record etiologically relating the Veteran's currently diagnosed GERD to his military service or to his service-connected IBS. See Pond v. West, 12 Vet. App. 341 (1999); Caluza v. Brown, 7 Vet. App. 498 (1995). Given the absence of competent evidence in support of the Veteran's claim, for the Board to conclude that the Veteran's GERD was incurred as a result of his period of active service or that it is secondary to his service-connected IBS would be speculation, and the law provides that service connection may not be based on a resort to speculation or remote possibility. 38 C.F.R. § 3.102; Obert v. Brown, 5 Vet. App. 30, 33 (1993). In reviewing the Veteran's claim the Board has reviewed his written statements and those of his representative. Lay statements are considered to be competent evidence when describing the features or symptoms of an injury or illness. Falzone v. Brown, 8 Vet. App. 398 (1995). The Board recognizes that the Veteran, as a layperson, is competent to report that he experienced gastrointestinal problems in service and post-service symptoms of heartburn and belching, as those symptoms are capable of lay observation. Layno v. Brown, 6 Vet. App. 465 (1994). Moreover, many of these statements can be considered credible in the absence of competent contrary evidence. However, to the extent that the Veteran has related his current GERD symptoms to his period of active service or to his IBS, neither the Veteran nor his representative have been shown to have the expertise to provide a competent opinion regarding the incurrence or aggravation of his current GERD disability. Thus, their lay assertions, standing alone, are insufficient to support a grant of service connection. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Questions of medical diagnosis and causation are within the province of medical professionals. Jones v. Brown, 7 Vet. App. 134 (1994). Accordingly, the Board finds that the preponderance of the evidence is against the claim for service connection for GERD, to include as secondary to his service-connected IBS. Although the Veteran is entitled to the benefit of the doubt where the evidence is in approximate balance, the benefit of the doubt doctrine is inapplicable where, as here, the preponderance of the evidence is against his claim. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for GERD, to include as secondary to service-connected IBS, is denied. ____________________________________________ F. JUDGE FLOWERS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs