Citation Nr: 1416396 Decision Date: 04/14/14 Archive Date: 04/24/14 DOCKET NO. 13-01 135 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUES 1. Entitlement to service connection for a gastrointestinal disability, variously claimed as hiatal hernia and gastroesphageal reflux disease (GERD). 2. Entitlement to an initial rating in excess of 10 percent for kidney stones. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Veteran and Spouse ATTORNEY FOR THE BOARD J. Dworkin, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1967 to December 1970. This matter comes before the Board of Veterans' Appeals (Board) from a February 2010 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington. The Veteran testified before the undersigned Veterans Law Judge in September 2013. A transcript of the hearing is of record. FINDING OF FACT Resolving all reasonable doubt in the Veteran's favor, the competent evidence of record is at least in equipoise as to whether GERD is related to active service. CONCLUSION OF LAW The criteria for entitlement to service connection for a gastrointestinal disability have been met. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303(a) (2013). To establish service connection for a disability, a Veteran must show: the existence of a present disability; in-service incurrence or aggravation of a disease or injury; and a causal relationship between the disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). In some cases, service incurrence and a relationship to service may be established through a demonstration of continuity of symptomatology for certain specific chronic disorders. 38 C.F.R. § 3.303(b) (2013); Barr v. Nicholson, 21 Vet. App. 303 (2007). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was noted during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Savage v. Gober, 10 Vet. App. 488 (1997). Service connection may be established under 38 C.F.R. § 3.303(b) only for disorders considered chronic. 38 C.F.R. § 3.309(a) (2013). Hiatal hernia and GERD are not considered chronic conditions and may not be service connected under 38 C.F.R. § 3.303(b). 38 C.F.R. 3.309(a) (2013); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Nevertheless, evidence of continuous symptoms since active duty is still a factor for consideration as to whether a causal relationship exists between an in-service injury or incident and the current disorder as is contemplated under 38 C.F.R. § 3.303(a) (2013). Generally, to prevail on the issue of service connection on the merits, there must be medical evidence of (1) 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). 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). When a condition may be diagnosed by its unique and readily identifiable features, the presence of the disability 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. The Veteran asserts that his current gastrointestinal (GI) disability is due to time spent in service when he was lifting heavy objects such as missiles, bombs, and ammunition. As a result of that physical activity, he reported that he started having GI issues such as burping and discomfort while in service and used Tums to relieve his symptoms. The service medical records show no complaints or treatments for any GI disability. On numerous occasions in service, the Veteran reported he had no stomach issues or frequent indigestion. An October 1982 private treatment record from Dr. R. Alston, shows that the Veteran had viral gastroenteritis that was resolving. A December 1982 treatment record from Dr. Alston reported that the Veteran had problems with his stomach that had been off and on for a long time. Also reported was a diagnosis that the Veteran had heartburn secondary to reflux esophagitis secondary to a lax lower esophageal sphincter. A November 1988 private treatment record from Dr. R. Whitney, shows that an esophagram showed the Veteran without any sizable associated hiatal hernia and no more than minimal reflux. Dr. Whitney reported that peptic ulcer disease could be present. An October1990 private treatment record from Dr. Alston shows that the Veteran was scheduled for a fundoplication procedure for November 1990. An April 2002 private treatment record from Dr. K. Roscoe, shows that the Veteran had esophageal strictures with multiple dilations in the past including a fundoplication in 1990. Also reported by Dr. Roscoe were the Veteran's symptoms that included bloating and gas pains during the examination. A February 2010, private treatment note from Dr. Alston shows a medical opinion regarding the Veteran's GI disability. Dr. Alston opined that after a review of the Veteran's medical history, treatment records, and the Veteran's limited military medical records, that it was as likely as not that the Veteran's kidney stones and hiatal hernia (GERD) were connected to service. A December 2012 private treatment record from Dr. Alston, shows that the Veteran still was using omeprazole and diet modification to treat his GI condition. A December 2012 statement submitted by a best friend of the Veteran, reported that the friend knew him before he entered the service. The friend reported that the Veteran never had any indigestion issues before service but that after service, he observed the Veteran taking Tums and complaining about indigestion symptoms. At the September 2013 Board hearing before the undersigned Veteran's Law Judge, the Veteran testified that he started using Tums or Rolaids during service due to his GI difficulties. Also testifying at the hearing was the Veteran's spouse, who reported that she met the Veteran in 1970 when he had just separated from service and that she observed him taking Tums and complaining about stomach issues. Based upon a review of all the evidence of record, the Board finds that service connection for a GI disability is warranted. The Veteran is currently diagnosed with GERD and taking medication for treatment as shown in the December 2012 Dr. Alston treatment note. Accordingly, the first requirement for service connection is met as the Veteran has been diagnosed with a current disability. While the Veteran's service medical records do not show complaints of or treatment for a GI condition during service, the Board observes that there is sufficient evidence in the claims file to show that during service he incurred a gastrointestinal condition. The Veteran's written submissions and oral testimony during the pendency of this appeal and at the September 2013 hearing constitute competent lay evidence to show possible in-service occurrence of a disease or injury since the experience of stomach discomfort is something capable of lay observation. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Barr v. Nicholson, 21 Vet. App. 303 (2007). That lay evidence is corroborated by written statements from the Veteran's spouse and friend who saw the Veteran shortly after his discharge from service and from his primary care physician, Dr. Alston, who opined that the Veteran's GI disability was as likely as not related to service. Although the Veteran is not competent to assess and diagnose a gastrointestinal disability, he is competent to report that he had stomach pain while he was in-service. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Upon review of the medical evidence and medical opinion of record, the Board finds that the preponderance of the evidence is, at the very least, in equipoise as to whether the Veteran's current gastrointestinal disability is related service. The Board notes that the only medical opinion of record is the February 2010 opinion from Dr. Alston that opines that it was as likely as not that the Veteran's hiatal hernia and GERD were connected to his service. Dr. Alston provided a credible and competent medical opinion based on facts found from examining, treating, and interviewing the Veteran over a number of years. Dr. Alston also reported that he reviewed the Veteran's medical records. The Board notes that the opinion was rendered by a physician. The favorable medical opinion discussed above is sufficient to place the evidence for and against this claim into relative equipoise, so as to warrant resolving any reasonable doubt in the Veteran's favor regarding whether a GI disability is related to service. 38 C.F.R. § 3.102 (2013); Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ashley v. Brown, 6 Vet. App. 52 (1993); 38 U.S.C.A. § 5107(b) (West 2002). When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, that reasonable doubt will be resolved in favor of the claimant. By reasonable doubt is meant one that exists because of an approximate balance of positive and negative evidence which satisfactorily proves or disproves the claim. It is a substantial doubt and one within the range of probability as distinguished from pure speculation or remote possibility. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Therefore, resolving reasonable doubt in favor of the Veteran, the Board finds that the opinion received in February 2010 from Dr. Alston and the medical evidence of record that shows consistent treatment for a gastrointestinal disability, are sufficient to provide proof of a relationship between the Veteran's current gastrointestinal disability and his period of active service. Therefore, the Veteran has a medical opinion linking a diagnosed disability to service. Resolving all reasonable doubt in the Veteran's favor, the Board further finds that the Veteran's current GI disability is related to his service. Therefore, service connection for a GI disability is warranted. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to service connection for a gastrointestinal disability, variously claimed as hiatal hernia and gastroesphageal reflux disease (GERD), is granted. REMAND Service connection was granted for kidney stones in a December 2012 rating decision that assigned a 10 percent rating. The Veteran submitted statements, to include in January 2013, disagreeing with the rating assigned for kidney stones. A review of the record shows that the Veteran has not been issued a statement of the case in response to the notice of disagreement. That issue must be remanded for the originating agency to issue a statement of the case. Manlincon v. West, 12 Vet. App. 238 (1999). Accordingly, the case is REMANDED for the following actions: Issue a statement of the case on the issue of entitlement an increased rating for kidney stones. Inform the Veteran of the requirements to perfect an appeal. If the Veteran perfects an appeal, return the case to the Board. The appellant has the right to submit additional evidence and argument on the matter or 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 or the United States Court of Appeals for Veterans Claims for development or other appropriate action must be handled in an expeditious manner. 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ____________________________________________ Harvey P. Roberts Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs