Citation Nr: 1616885 Decision Date: 04/27/16 Archive Date: 05/04/16 DOCKET NO. 11-17 524 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUES 1. Entitlement to service connection for gastroesophageal reflux disorder (GERD), to include as secondary to nonsteroidal anti-inflammatory drugs (NSAIDs) taken in connection with service-connected lumbosacral strain. 2. Entitlement to service connection for a heart disability (claimed as a heart murmur). 3. Entitlement to service connection for a coccyx disability. REPRESENTATION Veteran represented by: Oregon Department of Veterans' Affairs WITNESSES AT HEARING ON APPEAL The Veteran and C.B. ATTORNEY FOR THE BOARD A. P. Simpson, Counsel INTRODUCTION The Veteran served on active duty in the United States Navy from August 1992 to July 1996. This matter is before the Board of Veterans' Appeals (the Board) on appeal of an August 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Portland, Oregon. The Veteran testified at a Board hearing in April 2014; a transcript is of record. In October 2014, the Board remanded the above claims for additional development and adjudicative actions. Included in that remand were claims for service connection for a lumbar spine disability, a left knee disability, and a bilateral foot disability. In a January 2015 rating decision, the Agency of Original Jurisdiction (AOJ) granted service connection for all three disabilities. Thus, these issues are no longer part of the current appeal. The issue of entitlement to service connection for a coccyx disability is addressed in the REMAND portion of the decision below and is REMANDED to the AOJ. FINDINGS OF FACT 1. The Veteran's GERD is related to NSAIDs the Veteran takes to treat his service-connected lumbosacral strain. 2. The evidence is against a finding that the Veteran has a current heart disability. CONCLUSIONS OF LAW 1. The criteria for service connection for GERD are met. 38 U.S.C.A. §§ 1110, 1154, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.310(a) (2015). 2. The criteria for service connection for a heart disability are not met. 38 U.S.C.A. §§ 1110, 1154, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2014); Honoring America's Veterans and Caring for Camp Lejeune Families Act of 2012, Pub. L. No. 112-154, §§ 504, 505, 126 Stat. 1165, 1191-93; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2014). The record reflects that VA provided the Veteran with the notice required under the VCAA in January, March, and June 2009 letters. Concerning VA's duty to assist, VA has obtained private medical records identified by the Veteran. The Veteran has submitted duplicate copies of his service treatment records and submitted additional private medical records after the April 2014 Board hearing. The Veteran has specifically informed VA that he does not receive treatment from VA. Therefore, there are no outstanding VA treatment records that need to be obtained. VA provided the Veteran with examinations in connection with the two issues being decided. The December 2014 examinations are adequate for adjudicatory purposes. The examiners were aware of the Veteran's pertinent medical history and rendered appropriate findings and medical opinions, which were supported by clinical rationale. These examinations were provided based upon the Board's October 2014 remand instructions, and the Board finds that there has been substantial compliance with the remand instructions. Accordingly, VA's duty to assist has been met. In April 2014, the Veteran was provided an opportunity to set forth his contentions at a hearing before the undersigned Veterans Law Judge. The record reflects that at this hearing, the undersigned set forth the issues to be discussed, focused on the elements necessary to substantiate the Veteran's claims, and sought to identify any further development that was required to help substantiate the claims. These actions satisfied the duties a Veterans Law Judge has to explain fully the issues and to suggest the submission of evidence that may have been overlooked. See Bryant v. Shinseki, 23 Vet. App. 488, 492 (2010) (holding that the requirements of 38 C.F.R. § 3.103(c)(2) apply to a hearing before the Board). The Veteran has not asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), nor has he identified any prejudice in the conduct of the hearing. II. Service Connection The Veteran seeks service connection for GERD and a heart disability, claiming that he developed both disabilities during service. Alternatively, he has stated that he developed GERD as a result of taking NSAIDs for his service-connected lumbosacral strain. In general, service connection may be granted for disability or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131 (West 2014); 38 C.F.R. § 3.303 (2015). To establish a claim for service connection, the evidence must show three elements: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Secondary service connection generally requires (1) a current disability; (2) a service-connected disability; and (3) a nexus between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. 38 C.F.R. § 3.310 (2015). A. GERD In the Veteran's VA Form 21-526, he attached a statement that he had taken "a ton of Ibuprofen from back pain" and that his doctor had said this was the reason he had acid reflux. The Veteran has been diagnosed with GERD. Thus, element (1), a current disability, has been met. Additionally, the Veteran is now service connected for lumbosacral strain, and has stated he has taken NSAIDs for the pain due to this disability. Therefore, element (2), a service-connected disability, has been met. The crux of the secondary service-connection claim rests on whether there is a relationship between GERD and medication the Veteran has taken in connection with his service-connected lumbosacral strain, specifically NSAIDs. This allegation by the Veteran is substantiated by private medical records. The Veteran's private physician specifically opined that NSAIDs have contributed to the Veteran's GERD. Such evidence supports the conclusion that the Veteran's GERD has been caused by medication taken for a service-connected disability. Accordingly, element (3), a nexus between the service-connected disability and the current disability, is met. Service connection is therefore warranted on a secondary basis. 38 C.F.R. § 3.310(a) (2015). Because the Board is granting secondary service connection for GERD, it need not discuss whether service connection is warranted on a direct basis. B. Heart The Veteran seeks entitlement to service connection for a heart disability, which is manifested by a heart murmur that started during service. The Veteran has testified to experiencing racing heartbeats at night and irregular heartbeats that he attributes to being electrocuted during his period of active duty service. The Veteran's service treatment records confirm that in May 1995 he was exposed to 440 volts of electricity that entered through his right hand and exited his left hand. The Board remanded this claim to provide the Veteran with an examination to determine if he had a current heart disability, as the evidence of record at the time of the October 2014 Board remand did not show that the Veteran had a post-service heart disability. The Veteran was provided with a thorough examination in December 2014, which established that the Veteran does not have a current heart disability. Specifically, the VA examiner acknowledged the in-service electrical accident, including the voltage involved (440 volts). She researched such voltage in relevant medical literature, which provided (and she cited the article in the examination report) that such electrical injury was considered to be low voltage. The examiner indicated that about 15 percent of those who experience an electrical injury have an arrhythmia, which is benign and usually occurs within the first few hours after the injury. She added that injury to the heart muscle itself was uncommon based on injury of such voltage. The examiner then stated that she could not confirm a heart murmur in her review of the Veteran's service treatment records or in his private medical records, "despite multiple exams by multiple practitioners over the last decade." She added that there was no murmur found on the March 28, 1996, Report of Medical Examination. The examiner stated that the Veteran's November 2014 exercise stress electrocardiogram showed no abnormality, the November 2014 myocardial perfusion scan showed no defect, and the December 2014 echocardiogram was normal. She concluded that "[a]fter extensive cardiac evaluation, there is no evidence that this [V]eteran has a current heart disability." The Board accords this opinion high probative value. The examiner had reviewed the record, including the in-service incident that the Veteran alleges caused his heart disability, and had researched the effect that an electrical accident can have on a person. Additionally, the Veteran underwent multiple diagnostic tests, all of which were normal. Thus, element (1), a current disability, has not been met. While the Veteran is competent to allege that he has experienced racing heartbeats at night and irregular heartbeats, he is not competent to allege that he has a current heart disability, as he does not have the requisite medical knowledge, training, or experience to be able to render a competent opinion regarding a medically complex disability. As such, the Board finds that the medical opinion discussed above outweighs the Veteran's lay assertions of a current disability. The Court has held that Congress specifically limited entitlement to service connected benefits to cases where there is a current disability. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) ("In the absence of proof of a present disability, there can be no valid claim."). Without competent evidence of a heart disability, service connection cannot be awarded. Id.; see also Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998) (holding that a grant of service connection requires that there be a showing of disability at the time of the claim, as opposed to sometime in the distant past). Accordingly, the claim for service connection for a heart disability is denied. ORDER Service connection for GERD is granted. Service connection for a heart disability is denied. REMAND The Board regretfully has to remand the issue of entitlement to service connection for a coccyx disability again because the requested development in the October 2014 remand instructions was not completed. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Specifically, the Board had requested that the Veteran be examined in connection with this claim and that the examiner clarify the Veteran's current diagnosis or diagnoses, if any, pertaining to the coccyx. While the AOJ provided the Veteran with an examination in connection with his claim for a lumbar spine disability, there was no examination conducted in connection with the claim for a coccyx disability. Accordingly, this issue must be remanded again. The private medical records in the claims file do not show treatment for or a diagnosis of a coccyx disability. If the Veteran has medical evidence pertaining to a coccyx disability, he should either provide VA with permission to obtain the evidence or submit it himself. The Board notes that in an October 2004 private medical record, Dr. Eric Geisler wrote that the Veteran had suffered an injury on a quad runner two years ago and that, "With some chiropractic care[,] he has been able to return to full function." Thus, if this chiropractic care is relevant to his alleged coccyx disability, he should provide the information necessary for VA to obtain these records or submit the records himself. Accordingly, the case is REMANDED for the following action: 1. The Veteran should either provide VA permission to obtain any relevant records pertaining to a coccyx disability, including chiropractic care he received in approximately 2004 (described above) or he may submit it himself. 2. Schedule the Veteran for an appropriate VA examination for the purposes of assessing the nature and etiology of his claimed coccyx disability. The claims file should be made available and be reviewed by the examiner in conjunction with the examination. After conducting an examination of the Veteran and performing any clinically-indicated diagnostic testing, the examiner should clarify the Veteran's current diagnosis or diagnoses, if any. If no coccyx disability exists, this should be made clear. If a coccyx disability is identified, the examiner should offer an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any coccyx disability had its onset in, or is otherwise related to his period of active duty service. For the purposes of this opinion, the examiner should accept as true the Veteran's reported history of pain in the area of the coccyx following a 1993 in-service car accident, and when doing sit-ups during service. A rationale for all opinions expressed should be provided. If any examiner cannot provide the requested opinions without resorting to speculation, he or she should expressly indicate this and provide a supporting rationale as to why an opinion cannot be made without resorting to speculation. 3. Thereafter, and after undertaking any additional development deemed necessary, review the entire record and readjudicate the issue on appeal. If the benefit sought on appeal remains denied, the Veteran and his representative should be provided with a Supplemental Statement of the Case and be afforded reasonable opportunity to respond. The case should then be returned to the Board for further appellate review, if otherwise in order. The Veteran has the right to submit additional evidence and argument on the matter 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 2014). __________________________________________ Donnie R. Hachey Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs