Citation Nr: 1335544 Decision Date: 11/04/13 Archive Date: 11/13/13 DOCKET NO. 07-31 221 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUES 1. Entitlement to service connection for depression and anxiety, to include as due to exposure to asbestos, jet fuel and/or lead paint. 2. Entitlement to service connection for gastroesophageal reflux disease (GERD) with epigastric distress, regurgitation, and dysphagia, to include as due to exposure to asbestos, jet fuel and/or lead paint. 3. Entitlement to service connection for an epididymal cyst, to include as due to exposure to asbestos, jet fuel and/or lead paint. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD David S. Nelson, Counsel INTRODUCTION The Veteran had active service from June 1963 to May 1967. These matters come before the Board of Veterans' Appeals (BVA or Board) from a an August 2006 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. This case was most recently before the Board in May 2012. In December 2009 the Veteran testified at a Board video conference hearing before the undersigned Veterans Law Judge sitting in Washington, DC. A transcript of the hearing has been associated with the Veteran's claims folder. Pertinent evidence has been added to the claims file subsequent to the November 2012 supplemental statement of the case. The Veteran, through his representative, has waived initial RO consideration of this evidence. The issues of entitlement to service connection for depression and anxiety and entitlement to service connection for an epididymal cyst are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC) in Washington, DC. VA will notify the appellant if additional action is required on his part. FINDING OF FACT A VA examiner has linked the Veteran's onset of GERD to his military service. CONCLUSION OF LAW The criteria for service connection for GERD have been met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. § 3.303 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION In light of the favorable decision to grant the Veteran's claim of service connection for GERD, any deficiency as to VA's duties to notify and assist pursuant to the provisions of the Veterans Claims Assistance Act of 2000 is rendered moot. Laws and regulations The Veteran asserts that he had problems with indigestion during service as a result of working onboard a ship while being exposed to various chemicals in poorly ventilated areas. Service connection may be established for a disability resulting from personal injury suffered or disease contracted in the line of duty or for aggravation of preexisting injury suffered or disease contracted in the line of duty. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Where there is a 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 attributable to intercurrent causes. 38 C.F.R. § 3.303(b). This rule does not mean that any manifestations in service will permit service connection. To show chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time as distinguished from merely isolated findings or a diagnosis including the word "chronic." When the disease entity is established, there is no requirement of evidentiary showing of continuity. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b). However, the theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic in 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). VA is required to evaluate the supporting evidence in light of the places, types, and circumstances of service, as evidenced by service records, the official history of each organization in which the veteran served, the veteran's military records, and all pertinent medical and lay evidence. 38 U.S.C.A. § 1154(a) (West 2002). Analysis The Veteran's service treatment records noted no complaints or diagnoses relating to gastrointestinal disability. An April 1990 private record noted that the Veteran complained of radiating heartburn. A July 2006 VA record noted that the Veteran had a 15 year history of GERD. In a statement received in July 2009 a service comrade, RO, indicated that he had served aboard ship with the Veteran during service. RO stated that during service the Veteran had made constant complaints of heartburn and would frequently purchase a "bundle" of antacid medications when on leave. RO stated that when the Veteran would return from leave his complaints of heartburn would again begin shortly thereafter. At his December 2009 Board hearing the Veteran indicated that he worked as a Machinist's Mate on a fleet tanker during service. He stated that he often worked in the pump station and was exposed to fuel fumes. The Veteran started having problems with his GERD during service, sometime in 1964 or 1965. He stated that he never went on sick call but would take baking soda and Tums and just treated himself. He complained about his problems to his service comrades. He did not seek treatment for his GERD until the 1980s and was currently taking medication for his GERD. At a March 2010 VA examination, the Veteran stated that he experienced indigestion during service and self-treated with Rolaids until about 1988 when he consulted a private physician. The diagnosis was GERD with a sliding hiatal hernia. Following a review of the Veteran's records and after performing a contemporaneous examination, the examiner indicated that it was not likely that the Veteran's GERD was related to his military service. As instructed in the Board's May 2012 remand, in June 2012 the March 2010 VA examiner provided an addendum opinion that was to address the Veteran's assertions, as corroborated by a service comrade statement, that the Veteran's reports of heartburn and antacid use during service were the initial onset of his GERD. In a June 2012 addendum opinion, the March 2010 VA examiner stated as follows: The Veteran described in-service GERD that required antacids for treatment. This was, at least as likely as not the initial GERD expression. A VA physician has indicated that the Veteran's GERD likely had its onset during his active service. Thus, while it is true that the Veteran was not treated by medical personnel for a gastrointestinal disability during service, he did self-treat for such disability, and the June 2012 addendum opinion provides a link between the Veteran's GERD and his military service. As for its probative value, the June 2012 VA addendum opinion was based on an examination of the Veteran, a review of the medical records, and was also based on a review of the pertinent medical literature, as discussed in the initial March 2010 VA examination. The VA examiner's opinion is supported, at least in part, by May 2006 and October 2006 statements from the Veteran's private physician (who had treated the Veteran since 1990 for disability that included GERD), who in no way dissociated the Veteran's GERD from his military service, to include exposure to oil fumes. Significantly, the Board notes that the opinion linking the Veteran's GERD to service was rendered by the same examiner who had earlier, based on an incomplete record, provided an opinion that was not favorable to the Veteran's GERD claim. The Veteran had provided a competent and highly credible account of symptomatology related to his stomach problems, including in-service and post-service. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (holding that "[w]hether lay evidence is competent and sufficient in a particular case is a factual issue to be addressed by the Board"). He has also been consistent in his discussion of his service and post-service symptomatology, and a lay statement received from the Veteran's service comrade tends to corroborate the Veteran's assertions concerning his GERD. The Board finds that when taken together, these factors make the Veteran's account as to the aforementioned matters competent, credible and highly probative. See Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006). Therefore, based on all of the above, the Board finds that service connection for GERD is warranted. ORDER Service connection for GERD is granted. REMAND The November 2012 supplemental statement of the case indicates that in June 2012 a VA opinion addressing the Veteran's claim of entitlement to service connection for depression and anxiety was obtained. As noted by the Veteran's representative's October 2013 written argument, the June 2012 VA opinion is not associated with Veteran's claims file (including the Veteran's Virtual VA folder). The June 2012 VA mental disorders opinion must be associated with the claims file prior to adjudication by the Board. As it appears that not all VA records are associated with the claims file, the Board will defer adjudication of the issue of entitlement to service connection for an epididymal cyst until the record is complete. Accordingly, the case is REMANDED for the following action: 1. The RO/AMC should obtain and associate with the claims file the Veteran's complete VA treatment records since April 10, 2010 that are not already of record. In particular, the June 2012 VA opinion addressing the Veteran's service connection claim for depression referenced in the November 2012 supplemental statement should be added to the Veteran's claims file. 2. The RO/AMC should then, based on all the evidence of record, readjudicate the issues on appeal. If any of the benefits sought are not granted, a supplemental statement of the case should be issued, and the Veteran and his representative should be afforded the appropriate period to respond. Thereafter, the case should be returned to the Board, as appropriate. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. 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). ______________________________________________ BARBARA B. COPELAND Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs