Citation Nr: 1339199 Decision Date: 11/27/13 Archive Date: 12/13/13 DOCKET NO. 07-01 203 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUE Entitlement to service connection for hiatal hernia and gastroesophageal reflux disease, to include as due to exposure to herbicides, and as secondary to posttraumatic stress disorder. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD T. Stephen Eckerman, Counsel INTRODUCTION The Veteran served on active duty from November 1967 to November 1969. These matters come before the Board of Veterans' Appeals (Board) on appeal from a November 2005 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in New Orleans, Louisiana, which denied service connection for disorders that included a hiatal hernia, and gastroesophageal reflux disease (GERD), to include as due to exposure to herbicides, and as secondary to service-connected posttraumatic stress disorder (PTSD). In December 2010, and March 2013, the Board remanded the claim for additional development. FINDINGS OF FACT 1. The preponderance of the medical evidence establishes that the Veteran does not have a hiatal hernia. 2. The preponderance of the probative evidence establishes that the Veteran's current GERD was not incurred during or as a result of his service or any incident of service, and that GERD was not caused or aggravated by service-connected PTSD. CONCLUSION OF LAW The criteria for service connection for a hiatal hernia or GERD are not met. 38 U.S.C.A. §§ 1110, 1116, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.310 (2013); 38 C.F.R. § 3.310 (as in effect prior to October 10, 2006); Allen v. Brown, 7 Vet. App. 439 (1995). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Service Connection The Veteran asserts that he is entitled to service connection for a hiatal hernia, and GERD, to include as due to exposure to Agent Orange during service in Vietnam, or, in the alternative, because the claimed disorders were caused or aggravated by his service-connected PTSD. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Regulations also provide that service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury which was incurred in or aggravated by service. 38 C.F.R. § 3.303(d). With chronic disease shown as such in service so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). For the showing of 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. Id. When the disease identity is established (leprosy, tuberculosis, multiple sclerosis, etc.), there is no requirement of evidentiary showing of continuity. Id. For this purpose, a chronic disease is one listed at 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331, 1338-39 (Fed. Cir. Feb. 21, 2013) (holding that the term "chronic disease in 38 C.F.R. § 3.303(b) is limited to a chronic disease listed at 38 C.F.R. § 3.309(a)). A grant of service connection under 38 C.F.R. § 3.303(b) does not require proof of the nexus element; it is presumed. Id. A disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. 38 C.F.R. § 3.310. Additionally, when aggravation of a Veteran's nonservice-connected condition is proximately due to or the result of a service-connected condition, the Veteran shall be compensated for the degree of disability over and above the degree of disability existing prior to the aggravation. Allen v. Brown, 7 Vet. App. 439 (1995). VA amended its regulation pertaining to secondary service connection, effective from October 10, 2006. See 71 Fed. Reg. 52,744 (2006) (codified at 38 C.F.R. § 3.310). The new regulation appears to place additional evidentiary burdens on claimants seeking service connection based on aggravation; specifically, in terms of establishing a baseline level of disability for the non-service-connected condition prior to the aggravation. Because the new law appears more restrictive than the old, and because the appellant's claim was pending when the new provisions were promulgated, the Board will consider this appeal under the law in effect prior to October 10, 2006. See, e.g., Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003) (new regulations cannot be applied to pending claims if they have impermissibly retroactive effects). It is undisputed that the Veteran served in Vietnam, and that he is presumed to have been exposed to an herbicide (claimed as Agent Orange) during that service. 38 U.S.C.A. § 1116(f). If a veteran who was exposed to or presumed to have been exposed to an herbicide agent during active military, naval, or air service develops certain diseases, the disease is presumed to have been incurred in service. Diseases which may be presumed service-connected if the requirements of 38 C.F.R. § 3.307(a)(6)(iii) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 C.F.R. § 3.307(d) are also satisfied include chloracne or other acneform disease consistent with chloracne; Hodgkin's disease; type 2 diabetes, non-Hodgkin's lymphoma; acute and subacute peripheral neuropathy; porphyria cutanea tarda; prostate cancer; multiple myeloma, respiratory cancers (cancers of the lung, bronchus, larynx, or trachea), and soft-tissue sarcoma. 38 C.F.R. § 3.309(e). However, hiatal hernia or GERD is not among the listed disorders which may be presumed related to exposure to an herbicide agent. Notwithstanding the foregoing, the United States Court of Appeals for the Federal Circuit has determined that the Veterans' Dioxin and Radiation Exposure Compensation Standards (Radiation Compensation) Act, Pub. L. No. 98-542, § 5, 98 Stat. 2725, 2727- 29 (1984), does not preclude establishment of service connection with proof of actual direct causation. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). The law provides that, in the case of any veteran who engaged in combat with the enemy in active service, satisfactory lay or other evidence of an injury incurred in service shall be accepted as sufficient proof of service incurrence of the injury if the evidence is consistent with circumstances of service and notwithstanding that there is no official record of service incurrence of the injury. 38 U.S.C.A. § 1154(b) (West 2002); see also VAOPGCPREC 12-99, 65 Fed. Reg. 6256-6258 (2000). In this case, the Veteran, who served in Vietnam, does not assert that he has a hiatal hernia, or GERD, due to participation in combat, nor does the medical evidence so indicate. No further discussion of provisions relating to combat Veterans is indicated. The Veteran's service treatment reports do not show treatment for, complaints of, or a diagnosis involving a hiatal hernia or GERD. The Veteran's separation examination report, dated in August 1969, shows that his abdomen and viscera were clinically evaluated as normal. In an associated "report of medical history," the Veteran denied having a history of frequent indigestion, or "stomach, liver, or intestinal trouble." As for the post-service medical evidence, it consists of VA and non-VA reports, dated between 1974 and 2013. This evidence includes a VA progress note, dated in January 1988, which notes that the Veteran complained of symptoms that included throat spasms, and that he reported that an ENT (ear, nose, and throat specialist) had told him that his spasms were due to nerves. The report notes that he had not been given an upper GI (gastrointestinal) to rule out hiatal hernia. The report indicates that the Veteran had been given Xanax to control his anxiety and mild depression with muscle spasm. A May 1988 VA report notes that the Veteran was being treated for psychiatric symptoms, and that he had been told by VA health care providers that his pharyngeal muscle spasms were not due to organic causes, but were due to nervousness and tension. He was recommended for biofeedback/relaxation training to control his "anxiety related pharyngeal spasms." The report notes that a May 1988 workup had been "entirely normal and his complaints are considered applicable to his Post Traumatic Stress Disorder." A May 1988 VA examination report shows that the Veteran complained of symptoms that included throat spasms. There was no relevant diagnosis. VA and private treatment reports, dated between 1991 and 2013, contain a number of notations indicating the presence of a hiatal hernia, and GERD. A private EGD (esophagogastroduodenoscopy), dated in January 2006, contains impressions that included hiatal hernia. A private UGI (upper gastrointestinal) examination report, dated in December 2008, contains impressions of normal stomach, and normal examined duodenum. A VA examination report, dated in March 2011, shows that a VA physician indicated that the Veteran's claims file had been reviewed. The report shows that the Veteran reported a history of a hiatal hernia and GERD dating to 1990. A UGI report notes the following: the thoracic esophagus was normal in caliber, and the region of the EG junction appeared normal, without reflux. The fundus, body, and the pyloric regions of the stomach appeared normal at fluoroscopy. The duodenal bulb and sweep appear to be normal. The physician concluded: The Veteran definitely has a diagnosis of GERD. However, there is no evidence for any hiatal hernia. As he has no hiatal hernia, the rest of this opinion will focus on his GERD. His GERD did not develop during service (11/67-11/69). He was diagnosed with GERD and started on meds in about 1990, many years after leaving the service. It is less likely as not that the GERD is due to service-connected service. The vet has chronic GERD but there is no evidence in the medical literature/body of knowledge for any specific exposure/herbicides to cause GERD. It is less likely than not that the GERD is due to or a result of PTSD. GERD can be caused by many factors including certain food intake, eating large meals, recumbency, but there is no good evidence to support PTSD as a cause of GERD. It is less likely at not that the PTSD accelerated his GERD. The vet's GERD is well controlled. He does medication to control it but this is not unusual for this condition and many patients require lifelong medication. There is no good evidence in the medical literature that PTSD aggravates GERD beyond its natural progression. In March 2013, the Board remanded the claim. The Board stated that the March 2011 VA examiner did not provide an opinion as to a hiatal hernia, after noting that the Veteran did not currently have the disorder. However, the Board noted that a hiatal hernia was found during an EGD (esophagogastroduodenoscopy) in January 2006, during the pendency of the Veteran's claim. The Board therefore requested that the Veteran's claims file be reviewed by the examiner who completed the March 2011 VA esophagus and hiatal hernia examination (or a suitable substitute if that examiner is unavailable) to obtain a supplemental opinion. In April 2013, the VA examiner who had examined the Veteran in March 2011 indicated that the Veteran's records had been reviewed. The physician concluded: The c-file was reviewed. The vet's last UGI tests from 2/2011 showed no evidence of any hiatal hernia. A hiatal hernia is an anatomic abnormality, a hole in the diaphragm. As it was not seen on the UGI series, there is no evidence to suggest that the vet ever had a hiatal hernia and certainly does not have one at present. Thus, as he has no hiatal hernia, the hiatal hernia did not begin during service, is not related to service, is not the result of herbicides, is not due to PTSD, and is not aggravated/accelerated by PTSD. The Board finds that the claim must be denied. With regard to a hiatal hernia, a hiatal hernia is not shown during service, and the VA examiner has determined that the Veteran does not currently have, and has never had, a hiatal hernia. See Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998) (under 38 U.S.C.A. § 1110, an appellant must submit proof of a presently existing disability resulting from service in order to merit an award of compensation). In reaching this decision, the Board has considered the notations of a hiatal hernia in the record, to include a January 2006 EGD report. However, with regard to the notations, they are afforded no probative value, as it appears that these are "by history" only, as none of these notations are shown to have been based on a review of the Veteran's claims file, or any other detailed and reliable medical history, nor do they cite to clinical findings. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000). With regard to the January 2006 EGD report, this report was reviewed by the VA examiner, who found it unpersuasive. The examiner's opinion appears to show that he found the UGI reports far more probative of this issue, and the UGI reports in both 2008 and 2011 both failed to show the existence of a hiatal hernia. The examiner concluded that "there is no evidence to suggest that the vet ever had a hiatal hernia." The Board further notes that there is no competent opinion in support of the claim. A valid claim of service connection does not exist absent evidence of a current disability. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) (holding that Congress has specifically limited entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability). Accordingly, as a hiatal hernia is not shown, VA is not authorized to grant service connection for a hiatal hernia, and the claim must be denied. With regard to GERD, the Board finds that the claim must also be denied. The Veteran was not shown to have GERD during service. Rather, the Veteran has stated that his GERD began in 1990. The earliest post-service medical evidence of GERD is dated in 1991. This is about 21 years after separation from active duty service. There is no competent opinion in support of the claim, and the VA examiner's opinion of March 2011 weighs against the claim. As a final matter, service connection under the theory of continuity of symptomatology simply is not applicable because the Veteran has stated that his GERD began in 1990, and as § 3.303(b) does not apply to any condition that has not been recognized as chronic under 38 C.F.R. § 3.309(a). In this case, GERD is not one of the disorders listed at 38 C.F.R. § 3.309(a) (2013), and the U.S. Court of Appeals for the Federal Circuit has recently held that the theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic at 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Therefore, service connection based on the theories of direct onset (38 C.F.R. § 3.303(a)), a continuity of symptomatology (38 C.F.R. § 3.303(b)), or as secondary to service-connected disability (38 C.F.R. § 3.310) is not established. With regard to the possibility of service connection based on exposure to Agent Orange, although the Veteran is shown to have served in Vietnam, and is therefore presumed to have been exposed to Agent Orange, as noted above, the applicable law does not include either a hiatal hernia, or GERD as a condition for which presumptive service connection may be granted. See 38 U.S.C.A. § 1116; 38 C.F.R. §§ 3.307(a)(6), 3.309(e). GERD may not be presumed related to the Veteran's service. There is no competent evidence of record which associates current GERD, with exposure to Agent Orange or any other incident of the Veteran's service. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). Accordingly, service connection for a hiatal hernia, or GERD, as due to exposure to Agent Orange is not warranted. As noted above, the Veteran contends that a hiatal hernia and GERD have been caused by exposure to Agent Orange, or that they were caused or aggravated by a service-connected disability, PTSD. Service connection is currently in effect for PTSD; in addition, the Veteran has been granted service connection for seborrheic dermatitis and for erectile dysfunction. The Veteran does not contend, nor does the record indicate, that either of those disorders are or may be related to GERD. The examiner who conducted the VA examination specifically considered the Veteran's contention that Agent Orange or symptoms of PTSD, such as anxiety, caused or aggravated GERD. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issue in this case, whether or not the Veteran has a hiatal hernia, or GERD, that are related to exposure to Agent Orange, or to a service-connected disability, this falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). In this case, the Veteran's service treatment reports and post-service medical records have been discussed. A VA examiner has concluded that the Veteran does not have a current hiatal hernia or a history of a hiatal hernia during the pendency of this claim. A VA examiner has concluded that the Veteran's GERD is not related to his service, or to his service-connected PTSD, and is not accelerated or aggravated by his service-connected PTSD. As set forth above, the Board has determined that a hiatal hernia is not shown. The Board finds that the service treatment reports, and the post-service medical evidence, outweigh the Veteran's contentions to the effect that a hiatal hernia or GERD were caused by service, or were caused or aggravated by service-connected PTSD. Accordingly, the Board finds that the preponderance of the evidence is against the claim, and that the claim must be denied. The Board has considered the applicability of "benefit of the doubt" doctrine, however, the record does not demonstrate an approximate balance of positive and negative evidence as to warrant the resolution of these matters on that basis. 38 U.S.C.A. § 5107(b). II. The Veterans Claims Assistance Act of 2000 The Board is required to ensure that the VA's "duty to notify" and "duty to assist" obligations have been satisfied. See 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2013). The notification obligation in this case was accomplished by way of letters from the RO to the Veteran, dated in May 2005, and February 2011. Quartuccio v. Principi, 16 Vet. App. 183 (2002); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F. 3d 1328 (Fed. Cir. 2006). The RO also provided assistance to the appellant as required under 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159(c), as indicated under the facts and circumstances in this case. It appears that all known and available service treatment reports, and post-service records relevant to the issue on appeal have been obtained and are associated with the Veteran's claims file. The RO has obtained the Veteran's VA and non-VA medical records. The Veteran has been afforded a VA examination, and etiological opinions have been obtained. In March 2013, the Board remanded this claim. The Board directed that an attempt be made to obtain all outstanding records of treatment from the New Orleans VA Outpatient Clinic since May 2012. This has been done. The Board also directed that the Veteran's claims file be reviewed by the examiner who completed the March 2011 VA esophagus and hiatal hernia examination (or a suitable substitute if that examiner is unavailable) to obtain supplemental opinions which addressed the following: Is it at least as likely as not (50 percent or more probability) that any previously existing hiatal hernia began during the Veteran's service? Is it at least as likely as not (50 percent or more probability) that any previously existing hiatal hernia was related to the Veteran's service? Is it at least as likely as not (50 percent or more probability) that any previously existing hiatal hernia was the result of any incident of the Veteran's service, to include exposure to herbicides? Is it at least as likely as not (50 percent or more probability) that any previously existing hiatal hernia was proximately due to, or the result of, service-connected PTSD? Is it at least as likely as not (50 percent or more probability) that service-connected PTSD aggravated or accelerated the previously existing hiatal hernia beyond its natural progression? In April 2013, the requested opinions were obtained. Given the foregoing, the Board finds that there has been substantial compliance with its March 2013 remand. See Dyment v. West, 13 Vet. App. 141, 146-147 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998) where Board's remand instructions were substantially complied with); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to a veteran are to be avoided). Simply stated, the Board finds that the service and post-service medical record provides evidence against this claim. The Board concludes, therefore, that a decision on the merits at this time does not violate the VCAA, nor prejudice the appellant under Bernard v. Brown, 4 Vet. App. 384 (1993). Based on the foregoing, the Board finds that the Veteran has not been prejudiced by a failure of VA in its duty to assist, and that any violation of the duty to assist could be no more than harmless error. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). ORDER The appeal is denied. ____________________________________________ Tresa M. Schlecht Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs