Citation Nr: 1624555 Decision Date: 06/20/16 Archive Date: 06/29/16 DOCKET NO. 10-24 949 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to service connection for a gastrointestinal (GI) disability, to include gastroesophageal reflux disease (GERD). 2. Entitlement to service connection for hearing loss. 3. Entitlement to service connection for allergic rhinitis. 4. Entitlement to service connection for sinusitis. 5. Entitlement to service connection for a lung disorder, to include right lung with granulomatous disease. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD L. Leifert, Associate Counsel INTRODUCTION The Veteran had active military service in the Navy from September 1963 to April 1983. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2009 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA) in Seattle, Washington, which denied service connection for the Veteran's claims. The case has been transferred to Roanoke, Virginia. In May 2016, the Veteran testified before the undersigned Veterans Law Judge at the Central Office in Washington D.C. A transcript of the proceeding is associated with the claims file. In May 2016, the Veteran submitted a written waiver of the RO's initial consideration of additional evidence. The issues of entitlement to service connection for hearing loss, a lung disorder, sinusitis, and allergic rhinitis are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT The evidence is at least evenly balanced as to whether the Veteran's GI disorder, to include GERD, is related to his active military service. CONCLUSION OF LAW With reasonable doubt resolved in favor of the Veteran, a GI disorder, to include GERD, was incurred in service. 38 U.S.C.A. §§ 1110, 1131, 1154(b), 5107(b) (West 2014); 38 C.F.R. §§ 3.102, 3.303 (2015). REASONS AND BASES FOR FINDING AND CONCLUSION The Board notes that VA has certain duties to notify and assist the Veteran. See 38 U.S.C.A. §§ 5103, 5103A (West 2014); 38 C.F.R. § 3.159 (2015). Given the favorable action taken below, the Board will not discuss further whether those duties have been accomplished. Service connection may be granted for disabilities resulting from disease or injury incurred or aggravated during active service. 38 U.S.C.A. § 1110, 1131; 38 C.F.R. § 3.303. Service connection may also be granted for any injury or disease diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). Generally, service connection requires (1) evidence of a current disability; (2) medical evidence, or in certain circumstances lay testimony, of in-service incurrence or aggravation of an injury or disease; and (3) evidence of a nexus between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). In relevant part, 38 U.S.C.A. 1154(a) (West 2014) requires that VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability or death benefits. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). "[L]ay 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, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) ("[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence"). The Veteran contends that he has a GI disorder, to include GERD, that is a result of or related to his military service. Service treatment records (STRs) are silent for any treatments or diagnoses of a GI disorder. However, an April 2016 statement from J.M.H., a friend from his time in the military who has known the Veteran since 1969, chronicled the Veteran's heartburn history while in service. J.M.H. stated that he had known the Veteran for 46 years and that he had experienced continuous heartburn discomfort. He reported that when they met in 1969, the Veteran had frequent heartburn and was always carrying Rolaids. He explained that after they were transferred to California in 1971, they occasionally met to socialize, and that the Veteran still experienced heartburn and continued to carry Rolaids for temporary relief. During their 1976 tour in Guam, J.M.H. stated that the Veteran was still having frequent heartburns and still carried Rolaids for relief. He reported that the next time he and the Veteran met was in the Philippines, where he noted that the Veteran's GI condition remained the same. From there, J.M.H. reported that they were both transferred to Great Lakes, and that the Veteran continued to complain of heartburn, continued to carry Rolaids, but now occasionally took a dose of Gaviscon. Private treatment records in May 2009 diagnosed the Veteran with GERD, which was being treated with daily Nexium. In July 2009, the Veteran underwent an esophagogastroduodenoscopy (EGD) and was diagnosed with Barrett's Esophagus and hiatal hernia. In July 2013, Dr. M.H.L. reviewed the Veteran's claims file and STRs, and noted that the Veteran development symptoms of GERD prior to his discharge from service due to irregular meals and the stress of "operating on the ship." He also noted that the Veteran was diagnosed with Barrett's Esophagus, which is a precancerous condition related to chronic reflux, and that the Veteran had been placed on a proton pump inhibitor (PPI) regimen since 2000. An August 2015 VA examination report reviewed the Veteran's claims file but did not conduct an in-person examination of the Veteran. The examiner explained that GERD was not caused either by meal irregularity or related to emotional responses such as stress, but by weakness of the lower esophageal sphincter, which allowed food and stomach contents back into the esophagus. As such, the examiner opined that the Veteran's GERD was less likely as not incurred in or caused by his military service. During his May 2016 hearing, the Veteran testified that he started to experience heartburn and GERD symptoms in 1965 or 1966 due to stress and constant nausea from being on vessels. He stated that his symptoms had been continuous since service. For the following reasons, the Board finds that service connection for a GI disorder, to include GERD, is warranted. As an initial matter, the Veteran has met the current disability requirement. He was diagnosed with GERD in May 2009 and with Barrett's Esophagus in July 2009; as such, the Veteran has a current GI disorder. In addition, the Veteran is competent to report certain types of in-service symptoms and injuries, which are capable of lay observation, such as heartburn and having to take Rolaids for heartburn relief. Layno v. Brown, 6 Vet. App. 465, 469 (1994). Here, the Board finds that the Veteran and J.M.H. are competent to report that the Veteran's heartburn began in service, and that it has been consistent from that time to the present. There is no reason to doubt the credibility of the Veteran's and J.M.H.'s reports, particularly given the consistency of the statements. Therefore, the Board finds that the Veteran has had continuous GI symptoms in and since service. Further, the Veteran's private physician provided a positive nexus opinion, stating that based on his review of the Veteran's claims file, the Veteran's history of irregular meals and stress operating on ships, as well as his diagnosis of Barrett's Esophagus, which is a condition related to chronic reflux, it was at least as likely as not that the Veteran's GERD was related to his military service. As the physician explained the reasons for his conclusion based on an accurate characterization of the evidence, his opinion is entitled to significant probative weight. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning; threshold considerations are whether the person opining is suitably qualified and sufficiently informed). The August 2015 VA medical opinion weighs against the claim, but the probative value of this opinion is reduced by the fact that the VA examiner did not fully consider the Veteran's credible statements regarding his GERD symptoms. The evidence is thus at least evenly balanced as to whether the Veteran's GI disability, to include GERD, is related to service. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to service connection for this disability is warranted. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. ORDER Entitlement to service connection for a GI disability, to include GERD, is granted. REMAND After review of the evidence of record, the Board finds that a remand is necessary for further development of the claims. STRs show that the Veteran was diagnosed with sinus congestion in November 1974 and sinusitis in July 1975. In June 1977, he was seen for a sore throat, rhinorrhea, and productive cough; and in October 1980 he was diagnosed with seasonal rhinitis. Private treatment records in October 1995 and October 2000 show a diagnosis of allergic rhinitis and sinusitis, respectively. Further, at his May 2016 hearing, the Veteran stated that his sinus and nose were always bothering him, and that he was always sick with a runny nose, dry eyes, and productive coughs. He stated that he first noticed allergy problems while stationed in Hawaii, which was aggravated when he was transferred to Great Lakes. He contends that he continues to have sinus and allergy problems, and that he noticed it was especially bad shortly after he was discharged from the military. Further, an undated report of medical examination noted punctale calcified densities in the right lower lung field, probably old granulomatous disease. At his May 2016 hearing, the Veteran testified that he got pneumonia while stationed in the tropics, and that he still had coughing and raspy breathing, although it had ameliorated with time. In addition, the Veteran contends that he has hearing loss as a result of his military occupational specialty (MOS) as a communication specialist. During his May 2016 hearing, the Veteran explained that his MOS consisted of supporting communications repair, which often involved being confined in tight quarters with equipment that generated loud noises. He stated that although he sometimes wore ear protections, he would often have to remove them in order to be able to put his head inside the machinery to conduct repairs. Nevertheless, the Veteran also stated that he had some post-service noise exposure, but that this exposure was at most once a month and less intense than during service. A June 2009 private treatment record diagnosed the Veteran with sensorineural hearing loss. Given that the evidence of record reflects that the Veteran has current disabilities that may be associated with service, and the fact that the Veteran has not been provided with a VA examination, the Board finds that VA examinations as to the nature and etiology of his sinusitis, rhinitis, lung disorder, and hearing loss are warranted. See McClendon v. Nicholson, 20 Vet. App. 79 (2006). Accordingly, the case is REMANDED for the following action: 1. Ask the Veteran to identify any VA or private treatment that he may have had for his sinusitis, rhinitis, lung disorder, and hearing loss that are not already of record, to include any and all treatment since discharge from service. After securing the necessary releases, attempt to obtain and associate those identified treatment records with the claims file. If any identified records cannot be obtained and further attempts would be futile, such should be noted in the claims file, and the Veteran should be notified so that he can make an attempt to obtain those records on his own behalf. 2. Schedule the Veteran for an examination to determine the etiology of his sinusitis and rhinitis. The claims folder, to include a copy of this Remand, must be made available to and reviewed by the examiner prior to completion of the examination report, and the examination report must reflect that the claims folder was reviewed. All necessary tests and studies should be conducted, and the examiner should review the results of any testing and include them in the report. The examiner should indicate whether the Veteran has any current sinusitis or allergic rhinitis diagnoses. If so, the examiner should indicate whether it is as likely as not (50 percent probability or greater) that any diagnosed sinusitis and/or allergic rhinitis had its clinical onset in service or was caused by or is otherwise the result of a disease or injury in service. The examiner should specifically discuss the Veteran's contentions that he experienced sinus and allergy problems in and since service, to include phlegm and other nasal discharge, as well as his diagnoses of sinus and allergy problems in 1995 and 2000. The examiner must reconcile any opinion with the evidence in the claims folder. The examiner must provide a comprehensive report, including a complete rationale for all conclusions reached. 3. Schedule the Veteran for an examination to determine the etiology of his hearing loss. The claims folder, to include a copy of this Remand, must be made available to and reviewed by the examiner prior to completion of the examination report, and the examination report must reflect that the claims folder was reviewed. All necessary tests and studies should be conducted, and the examiner should review the results of any testing and include them in the report. The examiner should indicate whether it is as likely as not (50 percent probability or greater) that hearing loss had its clinical onset in service or was caused by or is otherwise the result of a disease or injury in service. The examiner should specifically discuss the Veteran's contentions that his MOS required him to be confined in a small quarters with very noisy machines, as well as his statements that he had to take off his hearing protection to perform repairs. The examiner must reconcile any opinion with the evidence in the claims folder. The examiner must provide a comprehensive report, including a complete rationale for all conclusions reached. 4. Schedule the Veteran for an examination to determine the etiology of his lung disorder. The claims folder, to include a copy of this Remand, must be made available to and reviewed by the examiner prior to completion of the examination report, and the examination report must reflect that the claims folder was reviewed. All necessary tests and studies should be conducted, and the examiner should review the results of any testing and include them in the report. The examiner should indicate whether the Veteran has any current lung disorder diagnoses. If so, the examiner should indicate whether it is as likely as not (50 percent probability or greater) that any diagnosed lung disorder had its clinical onset in service or was caused by or is otherwise the result of a disease or injury in service, specifically the Veteran's contention that he had pneumonia while stationed in the tropics. The examiner should specifically discuss the Veteran's STRs noting punctale calcified densities in the right lower lung field, probably old granulomatous disease, and his contentions that he continues to experience breathing problems and coughing. The examiner must reconcile any opinion with the evidence in the claims folder. The examiner must provide a comprehensive report, including a complete rationale for all conclusions reached. 5. After completing any additional development deemed necessary, readjudicate the claims remaining on appeal. If any benefit requested on appeal is not granted to the Veteran's satisfaction, the Veteran and his representative should be furnished a supplemental statement of the case, which addresses all of the evidence obtained after the issuance of the last supplemental statement of the case, and provided an opportunity to respond. The case should then be returned to the Board for further appellate consideration, if in order. 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). These claims 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). ______________________________________________ Jonathan Hager Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs