Citation Nr: 1335259 Decision Date: 11/01/13 Archive Date: 11/13/13 DOCKET NO. 06-05 018 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUES 1. Entitlement to service connection for dyspepsia. 2. Entitlement to service connection for a gastrointestinal disorder other than dyspepsia, to include gastroesophageal reflux disease (GERD). REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD Arif Syed, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1979 to November 1987. He also had service with the Air Force Reserves. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2004 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi. The Veteran testified at a hearing before a Decision Review Officer (DRO) in February 2006. The Veteran requested a hearing before the Board when he filed his substantive appeal in February 2006. The Veteran was scheduled for a hearing before the Board in March 2008; however, in February 2008, he requested that the hearing be rescheduled. In an August 2008 letter, the Veteran was advised that his hearing before the Board was rescheduled for September 2008. The Veteran failed to report for the hearing in September 2008. His request for a hearing is therefore treated as withdrawn. 38 C.F.R. § 20.704(d). In March 2010, September 2011, September 2012, and July 2013 the Veteran's claims were remanded by the Board for additional development. The Board notes that the Veteran has primarily pursued a claim of service connection for a gastrointestinal disorder, to include GERD. The record also reflects diagnosis of GERD. In Clemons v. Shinseki, 23 Vet. App. 1 (2009), the United States Court of Appeals for Veterans Claims (Court) held that the scope of a claim must be understood from the viewpoint of a lay claimant who may not be required to understand sophisticated legal or medical distinctions, and that "the claimant's intent in filing a claim is paramount to construing its breadth." The Court, citing the holding in Ingram v. Nicholson, 21 Vet. App. 232, 254 (2007) which held that VA must apply a "sympathetic reading" to a lay person's pleadings, indicated that VA's attention should be focused upon the symptoms the claimant is attempting to service-connect. The record, as a whole, appears to raise a theory of service connection for a gastrointestinal disorder, to include GERD. As will be discussed in detail below, the competent and probative evidence of record indicates a link between a gastrointestinal disorder, specifically dyspepsia, and the Veteran's military service. However, the record is absent an opinion as to the Veteran's diagnosed GERD and his military service. This will be discussed in the Remand section below. For the sake of clarity and so as to not prejudice the Veteran, the Board rephrases the Veteran's claim initially alleged as entitlement to service connection for a gastrointestinal disorder into two separate claims for adjudication. See generally Boggs v. Peake, 520 F.3d 1330, 1337 (Fed. Cir. 2008) (discussing that separate diagnoses may constitute separate claims for adjudication purposes). The Board has reviewed the Veteran's claims folder and the record maintained in the Virtual VA paperless claims processing system. This appeal was processed using the Veterans Benefits Management System (VBMS) paperless claims processing system. Accordingly, any future consideration of the Veteran's case should take into consideration the existence of this electronic record. The issue of entitlement to service connection for a gastrointestinal disorder other than dyspepsia, to include GERD, is addressed in the REMAND portion of the decision below and is REMANDED to the Department of Veterans Affairs Regional Office. FINDING OF FACT The competent and probative evidence of record serves to link the Veteran's currently diagnosed dyspepsia to his military service. CONCLUSION OF LAW The Veteran's currently diagnosed dyspepsia was incurred in military service. 38 U.S.C.A. §§ 1101, 1131 (West 2002); 38 C.F.R. § 3.303 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran seeks entitlement to service connection for dyspepsia. In the interest of clarity, the Board will discuss certain preliminary matters. The issue 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. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). As discussed in more detail below, sufficient evidence is of record to grant the Veteran's claim of entitlement to service connection for dyspepsia. Thus, any errors in complying with the notice or assistance requirements with respect to that matter are moot. Service connection for dyspepsia 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 (2013). In order to establish service connection for the claimed disorder, there must be (1) 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) 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). The term "active military, naval, or air service" is defined to include active duty, any period of active duty for training (ACDUTRA) during which the individual concerned was disabled or died from a disease or injury incurred or aggravated in line of duty, and any period of inactive duty for training (INACDUTRA) during which the individual concerned was disabled or died from an injury incurred or aggravated in line of duty." 38 U.S.C.A. § 101(24); see also 38 C.F.R. § 3.6(a). ACDUTRA includes, inter alia, full time duty in the Armed Forces performed by Reserves for training purposes. 38 U.S.C.A. § 101(22); see also 38 C.F.R. § 3.6(c)(1). For periods of ACDUTRA, service connection may be granted for disability resulting from injuries or diseases incurred or aggravated during such periods. For periods of INACDUTRA, service connection may be granted for disability resulting only from injuries incurred or aggravated during such periods, not disability resulting from diseases. 38 U.S.C.A. § 101(22), (24); see McManaway v. West, 13 Vet. App. 60, 67 (1999) (quoting Brooks v. Brown, 5 Vet. App. 484, 485 (1993) (discussing 38 U.S.C. §§ 101(24), 1131) (stating that the law "permits service connection for persons on inactive duty (training) only for injuries, not diseases, incurred or aggravated in line of duty"). 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 (2013). 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. The Veteran is claiming entitlement to service connection for dyspepsia, which he contends is due to serving aboard aircraft as a meteorological technician during active service with the Air Force and/or active duty with the Air Force Reserve. He also contends that his dyspepsia manifested during service when he consumed box lunches while participating in aerial flight and the stress associated with his flight-related service duties. As noted above, in order for service connection to be granted, three elements must be present: (1) a current disability; (2) in-service incurrence of disease or injury; and (3) nexus. See Hickson, supra. As to Hickson element (1), it is undisputed that the Veteran is currently diagnosed with dyspepsia. See, e.g., a VA examination report dated November 2012. Hickson element (1) is, therefore, satisfied. With regard to Hickson element (2), evidence of an in-service incurrence of a disease or injury, the Veteran maintains that he developed dyspepsia from consuming box lunches while participating in aerial flight training and the stress associated with his flight-related service duties. The Board notes that the Veteran's service treatment records are absent complaints of or treatment for dyspepsia. However, the Board notes that the Veteran is competent to attest to experiencing such symptoms during service. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 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). Therefore, although the Veteran as a lay person has not been shown to be capable of making medical conclusions, he is competent to report the circumstances of having indigestion from consuming box lunches while participating in aerial flight training as well as the stress associated with his flight-related service duties. There is nothing in the claims folder to suggest that the Veteran did not experience these incidents as described and the Board finds his testimony regarding the incidents to be credible. Accordingly, Hickson element (2) is arguably met. With respect to element (3), nexus, for reasons expressed immediately below the Board finds that the medical evidence in this case shows that there exists a contributory relationship between the Veteran's diagnosed dyspepsia and his military service, and that service connection is therefore warranted. Specifically, the Veteran was afforded a VA gastroesophageal examination in November 2012. The VA examiner noted the Veteran's report of indigestion during service. After examination of the Veteran, the VA examiner diagnosed the Veteran with dyspepsia opined that it is not at least as likely as not related to the Veteran's military service. However, in an addendum dated July 2013, he considered the Veteran's report of experiencing indigestion specifically from consuming box lunches while participating in aerial flight training as well as the stress associated with his flight-related service duties and his report of a continuity of indigestion since service. The Veteran's report of symptoms had not been previously considered by the VA examiner in the November 2012 report. After consideration of the Veteran's report of symptoms, the VA examiner concluded in the July 2013 addendum that the Veteran's diagnosed dyspepsia is at least as likely as not related to his military service. The examiner's rationale for his conclusion was based on examination of the Veteran as well as his clinical experience. He also noted the Veteran's report of a continuity of symptoms which the Board has found credible. The November 2012 VA examination report with July 2013 addendum was based upon a thorough review of the record, thorough examination of the Veteran, and thoughtful analysis of the Veteran's entire history and 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, with the exception of the November 2012 VA examiner's initial opinion that the Veteran's dyspepsia is not related to his military service, the Board notes that there is no other medical evidence which demonstrates that his dyspepsia is not related to his military service. 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 dyspepsia is related to his military service. Hickson element (3), nexus, has accordingly been satisfied. In summary, for reasons and bases expressed above, the Board concludes that service connection for dyspepsia is warranted. The benefit sought on appeal is granted. ORDER Entitlement to service connection for dyspepsia is granted. REMAND As stated in the Introduction, the competent and probative evidence of record documents a diagnosis of GERD. See, e.g., a VA examination report dated November 2011. However, as indicated in previous Board remands, there is no medical opinion of record with rationale which considers whether the Veteran's diagnosed GERD is related to his military service with consideration of his credible statements regarding his symptoms in service and his statements of continuous gastrointestinal symptoms since service. Dalton v. Nicholson, 21 Vet App. 23 (2007). In light of the foregoing, the Board is of the opinion that a VA opinion would be probative in ascertaining whether the Veteran's diagnosed GERD, or any other diagnosed gastrointestinal disorder other than dyspepsia, is etiologically related to his active military service. See Charles v. Principi, 16 Vet. App. 370 (2002); McLendon v. Nicholson, 20 Vet. App. 79 (2006); see also 38 C.F.R. § 3.159(c)(4) (2013) (holding a medical examination or opinion is necessary if the information and evidence of record does not contain sufficient medical evidence to decide the claim). The Board also notes that the VA examiner opined in 2013 that the Veteran's dyspepsia was less likely than not aggravated beyond the natural progress during any period of Reserve duty based on no treatment for GERD or hiatal hernia as well as normal upper gastrointestinal (UGI) examinations dated August 2010, September 2011, and January 2013. However, a UGI examination dated January 2013 is not currently associated with the Veteran's claims folder. Indeed, the most recent VA treatment records associated with the Veteran's claims folder are dated October 2012. The procurement of such pertinent VA medical reports is required. Where VA has constructive and actual knowledge of the availability of pertinent reports in the possession of the VA, an attempt to obtain those reports must be made. See Bell v. Derwinski, 2 Vet. App. 611 (1992) (holding that documents which were not actually before the adjudicators but had been generated by VA employees or submitted to VA by claimant were, "in contemplation of law, before the Secretary and the Board and should be included in the record"). In light of the foregoing, the Board finds that an attempt should be made to identify and associate the January 2013 UGI examination with the Veteran's claims folder. Accordingly, the case is REMANDED for the following action: 1. Obtain a VA upper gastrointestinal examination dated January 2013 as well all outstanding VA treatment records pertaining to the Veteran's gastrointestinal disability from October 2012. All attempts to secure this evidence must be documented in the claims folder by the RO. 2. Obtain a supplemental opinion from a VA gastroenterologist with regard to the Veteran's diagnosed GERD. If the examiner determines that additional examination of the Veteran is necessary to provide a reliable opinion, such examination should be scheduled. However, the Veteran should not be required to report for another examination as a matter of course, if it is not found to be necessary. The claims file must be made available to and reviewed by the examiner. In addition to the service treatment records, the examiner must consider the Veteran's statements regarding his symptoms in service and his statements of continuous gastrointestinal symptoms since service. Dalton v. Nicholson, 21 Vet App. 23 (2007). The examiner should provide an opinion as to whether it is at least as likely as not (50 percent or more probability) that the Veteran's GERD, or any other gastrointestinal disability other than dyspepsia, is related to his active service from August 1979 to November 1987 or subsequent periods of active duty for training with the Reserves, including his report that the condition manifested during the time that he was required to consume box lunches while participating in aerial flight and the stress associated with his flight-related service duties. Please provide a complete explanation for the opinion. The examiner should also address whether the GERD or any other gastrointestinal disability other than dyspepsia was at least as likely as not aggravated (i.e., permanently worsened) beyond the natural progress during a period of active duty for training with the Reserves. Please provide a complete explanation for the opinion. 3. After the above is complete, ensure the examination report is adequate, conduct any additional development deemed warranted and then readjudicate the Veteran's gastrointestinal disability other than dyspepsia claim. If the claim remains denied, issue a supplemental statement of the case (SSOC) to the Veteran and his representative, and they should be given an opportunity to respond, before the case is returned to the Board. 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. 2013). ____________________________________________ S.S. TOTH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs