Citation Nr: 1513116 Decision Date: 03/26/15 Archive Date: 04/03/15 DOCKET NO. 10-39 040 ) 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). REPRESENTATION Veteran represented by: Carol Avard, Attorney ATTORNEY FOR THE BOARD Alexander Panio, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1999 to June 2003. In May 2011 and again in February 2014 the Board remanded this case for further development. The case has returned to the Board for appellate review. FINDINGS OF FACT The Veteran's GERD did not manifest during service and is not otherwise etiologically related to service. CONCLUSION OF LAW The criteria for service connection for GERD have not been met. 38 U.S.C.A. §§ 1110, 1154, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303 (2014). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. VA's Duties to Notify and Assist VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. See 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a). Proper notice should be provided prior to the initial unfavorable agency of original jurisdiction decision and must inform the claimant of any information and evidence, not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In cases where a Veteran is seeking service connection, VA must provide notice of all five elements necessary to substantiate a service connection claim: 1) veteran status; 2) existence of a disability; 3) a connection between the Veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 484-86 (2006), aff'd, 483 F.3d 1311 (Fed. Cir. 2007). An April 2008 letter, sent prior to the initial unfavorable rating decision, advised the Veteran of the evidence and information necessary to substantiate his claim and to establish a disability rating and an effective date. The same letter advised the Veteran of his and VA's respective responsibilities in obtaining evidence and information. VA has satisfied its duty to notify the Veteran. VA also has a duty to assist the Veteran in the development of a claim. This duty includes assisting the Veteran in the procurement of service treatment records and other pertinent medical records, and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Veteran's VA treatment records have been obtained and considered. The Veteran's available service treatment records have also been obtained and considered. The Board notes however that the Veteran's service treatment records appear to be incomplete. In cases where a veteran's service medical records are unavailable through no fault of the claimant, there is a heightened obligation to assist the claimant in the development of his case. O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991); 38 U.S.C.A. § 5107(a) (West 1991); 38 C.F.R. § 3.303(a) (1999). The case law does not, however, lower the legal standard for proving a claim for service connection but rather increases VA's obligation to evaluate and discuss in its decision all the evidence that may be favorable to the Veteran. Russo v. Brown, 9 Vet. App. 46 (1996). The Veteran underwent a VA gastrointestinal examination in July 2013 which involved a review of the claims file, an in-person interview, a physical assessment, and an opinion concerning the Veteran's condition. However, in February 2014, the Board found that the explanation contained in the examination was inadequate and remanded the claim for additional development, including a new VA examination. There has been substantial compliance with the Board's remand directives, insofar as VA: solicited information from the Veteran regarding any treatment he may have had for his GERD that is not already of record; obtained VA treatment records created since August 2013; and scheduled the Veteran for a new gastrointestinal examination. D'Aries v. Peake, 22 Vet. App. 97 (2008); Stegall v. West, 11 Vet. App. 268 (1998). It appears from the record that examinations were scheduled for October 2014 and December 2014 but that the Veteran failed to report for either. Although it appears the Veteran cancelled and rescheduled the first examination, no explanation is contained in the record for the Veteran's failure to appear at the second. Generally speaking, once VA undertakes the effort to provide an examination, it must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). The Board acknowledges the insufficiency of the July 2013 VA examination and recognizes the general duty to provide the Veteran with the opportunity to be afforded an adequate examination. 38 C.F.R. § 3.159(c)(4). However, that opportunity has been presented on more than one occasion and the Veteran has not availed himself. Claimants also have a duty to comply with VA evidentiary development requirements, including a responsibility to report for VA examinations. When a claimant fails to report for an examination scheduled in conjunction with an original compensation claim, the claim shall be decided based on the evidence of record. 38 C.F.R. § 3.655. As such, the Board finds that its duty to assist the Veteran in substantiating his claim has been fulfilled. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991) (finding that the duty to assist is not a one-way street). II. Law Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated during active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (table). Determinations as to service connection will be based on review of the entire evidence of record, to include all pertinent medical and lay evidence, with due consideration to VA's policy to administer the law under a broad and liberal interpretation consistent with the facts in each individual case. 38 U.S.C.A. § 1154(a); 38 C.F.R. § 3.303(a). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and recurrence of symptoms. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the 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. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d at 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"). The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C.A. § 7104(a) (West 2002). Moreover, the United States Court of Appeals for Veterans Claims (Court) has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996). In determining the probative value to be assigned to a medical opinion, the Board must consider three factors. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The initial inquiry in determining probative value is to assess whether a medical expert was fully informed of the pertinent factual premises (i.e., medical history) of the case. See id. at 303-04. The second inquiry involves consideration of whether the medical expert provided a fully articulated opinion. See id. A medical opinion that is equivocal in nature or expressed in speculative language does not provide the degree of certainty required for medical nexus evidence. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The third and final factor in determining the probative value of an opinion involves consideration of whether the opinion is supported by a reasoned analysis. The most probative value of a medical opinion comes from its reasoning. Therefore, a medical opinion containing only data and conclusions is not entitled to any weight. In fact, a review of the claims file does not substitute for a lack of a reasoned analysis. See Nieves-Rodriguez, 22 Vet. App. at 304; see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A] medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions."). III. Analysis The Veteran contends that his acid reflux condition should be service connected. In his notice of disagreement the Veteran suggests that if his full service treatment records were of record, they would show treatment for acid reflux and that it "seems reasonable that he would suffer from a stress-related digestive disease impairment resulting in severe weight loss of 150 pounds from the same experience that left him with severe PTSD." Available service treatment records do not show any complaints, treatment or diagnosis of GERD or any other stomach-related condition. However, as noted above, the Veteran's service treatment records are admittedly incomplete. VA treatment records show that the Veteran's January 2004 reported medical history included heartburn. However, there is no indication in the record as to when the heartburn began and no evidence that it was associated with any diagnosed or treated gastrointestinal or esophageal condition. April 2008 VA treatment records show the Veteran reported having stomach bleeding a few years prior. The Veteran also reported ongoing heartburn and increased GERD symptoms, which had increased since discontinuing Aciphex treatment in November 2007. The Veteran was assessed with GERD at that time. Treatment records show that the Veteran was most recently treated for GERD in March 2009. The Veteran's July 2013 VA examination diagnosed GERD by history but noted that the Veteran stated that he was currently asymptomatic. The examiner opined that the Veteran's GERD was not likely related to service. However, as noted above, the examiner provided an inadequate rationale for his conclusion, and the Veteran did not appear for the subsequently scheduled examinations. Based on a review of the evidence of record, the Board does not find that the Veteran's GERD warrants service connection. While the Board acknowledges that the Veteran has been diagnosed and treated for GERD during the appeal period, the record does not show sufficient evidence that the Veteran's condition manifested during service or that there is a nexus between the Veteran's GERD and service. The Veteran as a lay person is competent to testify as to the observable phenomenon that he has experienced including chest pain or heartburn. However, the Veteran has not provided statements concerning when the condition initially manifested, the progression of its symptomatology, or its course of treatment. The record notes a single mention of heartburn by history in 2004 but does not show the Veteran being diagnosed with GERD for nearly 5 years following service separation. The record also does not mention treatment for heartburn or GERD occurring prior to 2007. The Veteran's claim does not identify an onset date for acid reflux or any treatment following service. The Veteran's only direct statements on the matter are those in his notice of disagreement, which equate the onset of his GERD to PTSD stressor events without providing any description of the Veteran's symptoms or treatment during service. The accuracy of such statements is dubious as the same statement suggests the Veteran lost 150 pounds during service despite weighing only 161 pounds at entrance. Even if the Board were to accept that the Veteran was treated for acid reflux at some point during service, there is no medical evidence establishing a nexus between the in-service occurrence and his GERD. While the Veteran, as a lay person, is competent to report observable symptomatology, he lacks the medical training and expertise necessary to provide a probative opinion on the medically complex issue such as the etiology of GERD. See Layno v. Brown, 6 Vet. App. 465 (1994), Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). Therefore, while the Veteran associates his GERD to service, he is not considered medically qualified to address such a complex question. The Veteran has been afforded the opportunity to have a medical examiner opine on the subject, but has not done so. The record does not contain sufficient lay evidence of an in-service onset of GERD or statements detailing a continuity of symptomatology. Furthermore, there is no medical evidence of either an in-service occurrence of GERD or a nexus between the condition and the Veteran's service. As such, the preponderance of the evidence is against a finding that the Veteran's GERD is related to service. Accordingly, service connection is denied. In reaching this conclusion the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C.A. § 5107(b); Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). ORDER Service connection for gastroesophageal reflux disease is denied. ____________________________________________ MICHAEL E. KILCOYNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs