Citation Nr: 1628135 Decision Date: 07/14/16 Archive Date: 07/28/16 DOCKET NO. 04-41 483A ) DATE ) ) On appeal from the Department of Veterans Affairs Medical and Regional Office Center in Wichita, Kansas THE ISSUES 1. Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD). 2. Entitlement to service connection for a low back disability. 3. Entitlement to service connection for gastroesophageal reflux disease (GERD), to include acid reflux and a hiatal hernia. 4. Entitlement to a nonservice-connected pension. 5. Entitlement to service connection for fibromyalgia, to include as secondary to a service-connected disease or injury. REPRESENTATION Veteran represented by: John S. Berry, Attorney at Law ATTORNEY FOR THE BOARD R. R. Watkins, Associate Counsel INTRODUCTION The Veteran served in the Kansas Army National Guard from August 1991 to August 1994, and she had active service from September 1994 to June 1996. These matters come before the Board of Veterans' Appeal (BVA or Board) on appeal from April 2004, October 2005, May 2006, and May 2014 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Wichita, Kansas. In a July 2007 decision, the Board denied, in pertinent part, the Veteran's claims for service-connected for PTSD and a low back disorder. The Veteran then appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court) and in a memorandum decision dated in March 2009, the Court vacated the Board's July 2007 decision with respect to those issues and remanded the case to the Board. In April 2010, the Board remanded those issues to the Agency of Original Jurisdiction (AOJ) for further development. Also in the April 2010 decision, the Board denied the claim of entitlement to service connection for GERD. The Veteran appealed this decision to the Court, and in March 2011, the parties (the Secretary of VA and the Veteran) filed a Joint Motion for Remand, which was granted in March 2011. In January 2012, the issues of entitlement to service connection for an acquired psychiatric disorder, a low back disorder, GERD, and entitlement to nonservice-connected were remanded to the AOJ for additional evidentiary development. This appeal was processed using the Veterans Benefits Management System (VBMS) paperless claims processing system. There is also a paperless, electronic record in the Virtual VA system. The issues of entitlement to service connection for an acquired psychiatric disorder, to include PTSD; entitlement to service connection for fibromyalgia, to include as secondary to a service-connected disease or injury; and, entitlement to a nonservice-connected pension, are addressed in the REMAND portion of the decision below and are REMANDED to the AOJ. FINDINGS OF FACT 1. The Veteran has not been shown to currently have a low back disorder that is causally or etiologically related to her active service. 2. The Veteran has been shown to currently have GERD that had an in-service onset. CONCLUSIONS OF LAW 1. A low back disorder was not incurred in active service. 38 U.S.C.A. § 1110 (West 2014); 38 C.F.R. §§ 3.102, 3.303 (2015). 2. GERD was incurred in active service. 38 U.S.C.A. § 1110 (West 2014); 38°C.F.R. §§ 3.102, 3.159, 3.303 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 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) (2015). The VCAA applies to the claim of entitlement to service connection for a low back disability. The GERD claim is being granted in full and thus a discussion of the VCAA for this issue is not necessary. Proper notice from VA must inform the claimant of any information and medical or lay 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 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183 (2002). VCAA notice should be provided prior to an initial unfavorable RO decision on a claim. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In addition, the notice requirements of the VCAA apply to all elements of a service-connection claim, including: (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. This notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 486 (2006). The Veteran was provided all required VCAA notice in February 2006 and March 2006 letters, prior to the initial adjudication of the claim. The VCAA also requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate his claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c), (d). This "duty to assist" contemplates that VA will help a claimant obtain records relevant to his claim, whether or not the records are in Federal custody, and that VA will provide a medical examination or obtain an opinion when necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4). In this case, VA obtained the Veteran's service treatment records (STRs) and post-service treatment records. In addition, the Veteran was provided with VA examinations. As the examinations included reviews of the pertinent medical history, clinical findings, and diagnoses, and were supported by medical rationale, the Board finds that the evidence is adequate to make a determination on the claim. See Barr v. Nicholson, 21 Vet. App. 303 (2007). In April 2010 and January 2012, the Board remanded the Veteran's claim to provide the Veteran with a VA examination to determine the nature and etiology of her claimed low back disability and to obtain the most recent treatment records. As the requested development has been completed, no further action to ensure compliance with the remand directive is required. Stegall v. West, 11 Vet. App. 268 (1998). For the reasons set forth above, the Board finds that VA has complied with the VCAA's notification and assistance requirements. The claim for service connection for a low back disability is thus ready to be considered on the merits. II. Service Connection Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C.A. § 1110. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Service connection may also be granted for any injury or disease diagnosed after discharge, 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). A. Low Back In considering the evidence of record under the laws and regulations as set forth above, the Board concludes that the Veteran is not entitled to service connection for a low back disorder. The Veteran's STRs show that the Veteran complained of low back pain in June 1995 following a bike accident. However, the remainder of her STRs are negative for any complaints, treatment, or a diagnosis of a back disorder. In fact, her May 1996 separation examination found her spine to be normal, and she denied having a medical history of recurrent back pain. In June 2011, the Veteran was afforded a VA examination to determine the nature and etiology of her claimed low back disability. She stated that she had low back pain since military police school, but was unable to recall a specific in-service injury. Around 2008, the Veteran was seen by a chiropractor and prescribed pain medication for her back. The Veteran wore small pads for urinary incontinence. The VA examiner observed that the Veteran was morbidly obese. In 2004, the Veteran weighed 247 pounds. Her weight reached 463 pounds and at the time of the examination she weighed 330 pounds. The VA examiner diagnosed low back pain with morbid obesity. She opined that the Veteran's low back pain was less likely than not caused by or a result of her active service. The VA examiner elaborated that the STRs noted acute back pain after a fall from a bike. There were no other reports of back injuries during service. The May 1996 separation examination found her spine to be normal, and she denied having a medical history of recurrent back pain. The Veteran's treatment records showed that she first started complaining of back pain since December 2005. The gap of 10 years from the Veteran's in-service back complaint and her current low back pain complaint failed to show a nexus between the Veteran's chronic spine condition and active service. With regard to the years-long evidentiary gap in this case between active service and the earliest manifestations of a low back disability, the Board notes that a prolonged period without medical complaint can be considered, along with other factors concerning a claimant's health and medical treatment during and after military service, as evidence of whether an injury or a disease was incurred in service which resulted in any chronic or persistent disability. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). The Board must consider all the evidence including the availability of medical records, the nature and course of the disease or disability, the amount of time that elapsed since military service, and any other relevant facts in considering a claim for service connection. Id.; cf. Dambach v. Gober, 223 F.3d 1376, 1380-81 (Fed. Cir. 2000) (holding that the absence of medical records during combat conditions does not establish absence of disability and thus suggesting that the absence of medical evidence may establish the absence of disability in other circumstances). Thus, when appropriate, the Board may consider the absence of evidence when engaging in a fact finding role. See Jordan v. Principi, 17 Vet. App. 261 (2003) (Steinberg, J., writing separately) (noting that the absence of evidence may be considered as one factor in rebutting the aggravation part of the section 1111 presumption of soundness). A veteran is competent to give evidence about what she has experienced or observed. Layno v. Brown, 6 Vet. App. 465 (1994). Under certain circumstances, a layperson is also competent to identify a simple medical condition, a contemporaneous medical diagnosis, or symptoms that later support a diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The Veteran is competent to report experiencing back pain. The VA examiner took into account the Veteran's lay statements but still found against a connection between her low back disability and service. The examiner relied on clinical findings during service, the Veteran's specific denial of recurrent back pain at the time of separation and current clinical findings in light of her medical expertise in reaching her conclusion. The examiner's findings are more probative than the Veteran's lay statements regarding the etiology of her low back disability as the examiner has greater expertise and training than the Veteran concerning matters of medical diagnosis and etiology. Notably, the Veteran has not been diagnosed with a "chronic" disease listed at 38 C.F.R. § 3.309(a) and, as such, her allegations of chronic symptoms since service are insufficient to establish service connection on the basis of continuity of symptoms alone. Walker v. Shinseki, 708 F.3d 1331, 1333 (Fed. Cir. 2013); 38 C.F.R. §§ 3.303(b), 3.309(a). Thus, the Board finds that the evidence is against a finding that the Veteran had a chronic low back disability in service, in the year following service, or that her current low back disability was incurred in or aggravated by service. The Board notes that under the provisions of 38 U.S.C.A. § 5107(b), the benefit of the doubt is to be resolved in the claimant's favor in cases where there is an approximate balance of positive and negative evidence in regard to a material issue. The preponderance of the evidence, however, is against the Veteran's claim, and thus that doctrine is not applicable. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Veteran's claim of entitlement to service connection for a low back disability must be denied. B. GERD In considering the evidence of record under the laws and regulations as set forth above, the Board concludes that the Veteran is entitled to service connection for GERD. Initially, the Board notes that the Veteran does not have current diagnoses of acid reflux and a hiatal hernia, which have been included in the GERD claim. She has a current diagnosis of GERD only. The Veteran's STRs show that she was treated for chronic abdominal pain as well as nausea and vomiting. In particular, the Veteran complained of an upset stomach in October 1994, and she was admitted to the hospital with abdominal pain resulting from an unknown cause in April 1995. However, an abdominal CT scan was negative at that time. The Veteran later reported having nausea and vomiting as well as right upper quadrant abdominal pain in June 1995, but a radiologic examination revealed a nonspecific bowel gas pattern without any evidence of obstruction, and stool was seen throughout the colon. There were no radio-opaque calculi, masses, or free air, and both psoas shadows were well-defined. The bony structures were also intact. The impression was no acute intra-abdominal disease. In July 1995, the Veteran reported having abdominal pain in the right lower quadrant since April of that year. Following a review of her medical history and a physical examination, she was assessed as having chronic abdominal pain. The Veteran was later seen in August 1995 for right lower quadrant abdominal pain that was non-radiating. Following a physical examination, the diagnosis was listed as right upper and lower quadrant abdominal pain of an unknown etiology. She was seen again in September 1995 with complaints of right-sided abdominal pain having a duration of six months that had worsened during the prior two months. In November 1995, the Veteran sought treatment for a two-week history of an upset stomach. She was noted to have an intolerance to food during breakfast and dinner, and the treating physician's impression was possible post-viral gastroparesis. The Veteran once again complained of vomiting and abdominal pain as well as dizziness in June 1996, but she was assessed as having a viral syndrome, constipation, and musculoskeletal pain. She also complained of having abdominal pain for two days in June 1996, which she believed had increased after being prescribed Motrin. It was noted that she had been seen for viral syndrome-type symptoms on the prior day and prescribed Motrin after which she reported vomiting. The remainder of the Veteran's STRs were negative for any additional complaints, treatment, or diagnosis pertinent to GERD, acid reflux, or a hiatal hernia. In fact, despite her reported medical history of stomach, liver, or intestinal trouble, a clinical evaluation in May 1996 found her abdomen and viscera to be normal, and she denied having frequent indigestion. The Veteran was afforded a VA examination in March 2008. The examiner reviewed the claims file and observed that the Veteran had reported experiencing nausea, vomiting, and heartburn during her military service. The examiner indicated that the diagnoses included viruses and gastrointestinal problems. She also observed that the Veteran was not evaluated for such problems following her period of service until 2004 at which time she was told she had GERD and was prescribed medication. The Veteran told the examiner that she had one flare-up of heartburn at night once per month. She also reported having nausea several times per week, which was precipitated by certain food and reclining as well as regurgitation. However, a physical examination was performed, and an esophagus study did not reveal a hiatal hernia or any significant gastroesophageal reflux. The impression was a normal esophagus study. The examiner specifically commented that there was no evidence of a hiatal hernia or "significant" esophageal reflux and stated that there was no condition to correlate with the symptomatology that may have existed during the Veteran's military service. However, the Veteran's clinic records reflected a prescription of omeprazole due to symptoms of heartburn, nausea and vomiting. In April 2016, the Board requested a medical expert opinion to clarify whether the Veteran currently had a gastrointestinal disorder, to include GERD. The examiner was also directed to provide an opinion as to whether it is at least as likely as not that disorder had its onset in service or was otherwise related to events in service. In May 2016, a VA doctor, specializing in gastroenterology, provided a medical opinion. After reviewing the record and summarizing the pertinent STRs and 2008 VA examination report, she found that the record supported a diagnosis of GERD after the service based upon the Veteran's symptoms related to heartburn, nausea, and vomiting. These symptoms improved with omeprazole (a medication commonly used to treat GERD). She continued that the normal X-ray of the esophagus did not rule out GERD, but also did not document a hiatal hernia, which could aggravate GERD symptoms. With regard to in-service manifestations of GERD, the VA medical expert stated that GERD is a common disorder and could have occurred during service, but there was no documentation or complaints of heartburn. She concluded that the Veteran's GERD was less likely than not incurred in or caused by service. The Board observes that it is VA's defined and consistently applied policy to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. 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, such doubt will be resolved in favor of the claimant. By reasonable doubt it is meant that an approximate balance of positive and negative evidence exists which does not satisfactorily prove or disprove the claim. It is a substantial doubt and one within the range of probability as distinguished from pure speculation or remote possibility. See 38 C.F.R. § 3.102; see also 38 U.S.C.A. § 5107(b). The Board finds that the evidence is at least in equipoise as to whether the Veteran's GERD first manifested in service. The May 2016 VA medical expert opinion indicates that the Veteran currently has GERD. Furthermore, the VA medical expert stated the Veteran could have had GERD in service. Notably, the VA medical expert examiner explained that the GERD diagnosis was often "based on self-reported chronic heartburn." However, the negative medical nexus opinion improperly relied upon the absence of documented diagnosis of GERD in service, or documented complaints such as heartburn, indigestion or regurgitation. The VA medical expert failed to address the Veteran's competent and credible lay statements regarding her GERD symptoms in service which do not have to be documented - just true. The Veteran is competent to regarding factual matters which she has first-hand knowledge. Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). In light of the foregoing, the Board is satisfied that the criteria for entitlement to service connection for GERD have been met. The evidence, at a minimum, gives rise to a reasonable doubt on the matter. 38 U.S.C.A. 5107(b); 38 C.F.R. § 3.102. ORDER Service connection for a low back disability is denied. Service connection for GERD is granted. REMAND In August 2015, the Veteran's attorney asserted that VA had failed its duty to assist the Veteran by not verifying her alleged in-service stressors. The letter included a statement from the Veteran that outlined assaults that occurred in 1992 and 1993. The Veteran identified the year, location, name, and rank of the people that assaulted her. The Veteran's attorney also submitted a medical treatise that discussed the overlapping relationship between borderline personality disorder and PTSD. Therefore, a remand is necessary to verify the Veteran's alleged in-service stressors and to obtain an addendum opinion to consider the medical treatise submitted by the Veteran. The Board notes that to establish basic eligibility for nonservice-connected VA pension benefits, a veteran must have served in the active military, naval, or air service: for a period of 90 days or more during a period of war; during a period of war and be discharged or released from such service for a service-connected disability; for a period of 90 days or more and such period either began or ended during a period of war; or, for an aggregate of 90 days or more in two or more separate periods of service during more than one period of war period. See 38°U.S.C.A. § 1521(j) (West 2014); 38 C.F.R. § 3.3(a) (2015). In this case, the Veteran served in the Kansas Army National Guard from August 1991 to August 1994. She had active duty for training from August 1991 to April 1992 and also served on active duty from September 1994 to June 1996. As such, the Veteran served on active duty for a period of 90 days or more during a period of war. However, the Board notes that the October 2005 decision currently on appeal denied the Veteran's claim for nonservice-connected pension benefits on the basis that she did not serve the shorter of either twenty-four months of continuous active duty or completion of the full period for which she was called or ordered to active duty. The December 2006 SOC specifically cited 38 C.F.R. § 3.12a. In order to be eligible for certain VA benefits, a service member who initially enters service after September 7, 1980, must perform a "minimum active-duty requirement" - either 24 months of continuous active duty or the full period for which the service member was called or ordered to active duty. An exception may be granted if: the service member was discharged or released because of an early out or hardship (10 U.S.C.A. §§ 1171 or 1173); was discharged or released for a service-connected disability directly due to service; or, has a compensable service-connected disability. 38 U.S.C.A. § 5303A; 38 C.F.R. § 3.12a. In this case, the Veteran did not have 24 months of continuous active duty service, and she did not complete the full period of active duty for which she enlisted. In this regard, the Board notes that the Veteran enlisted in the Regular Army in September 1994 for a period of five years. Her DD 214 indicates that she was separated from service due to a personality disorder in June 1996 and that she did not complete her first full term of service. In addition, the Veteran does not currently have a service-connected disability rated as compensable. Nevertheless, the Board notes that the issue of entitlement to service connection for a psychiatric disorder is being remanded, and the Board has awarded entitlement to service connection for GERD. Thus, additional AOJ adjudicative actions could change the outcome of the Veteran's claim for nonservice-connected pension benefits because a compensable service-connected disability would exclude her from the minimum active duty requirements under 38 C.F.R. § 3.12a. Additionally, the Veteran is claiming service connection for fibromyalgia on a secondary basis. She asserts that her claimed fibromyalgia was caused or aggravated by her claimed acquired psychiatric disorder. As such, the service connection claim for an acquired psychiatric disorder is inextricably intertwined with the nonservice-connected pension benefits claim and claim of entitlement to service connection for fibromyalgia currently on appeal. For this reason, the issue of entitlement to service connection for an acquired psychiatric disorder must be resolved prior to resolution of the issues of nonservice-connected pension benefits and entitlement to service connection for fibromyalgia. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (the prohibition against the adjudication of claims that are inextricably intertwined is based upon the recognition that claims related to each other should not be subject to piecemeal decision-making or appellate litigation). Accordingly, the case is REMANDED for the following actions: 1. The AOJ must take the necessary steps to verify the stressor enumerated by the Veteran in her August 2015 statement. 2. After the above, request an opinion from the January 2015 VA psychiatric examiner with regard to the etiology of the Veteran's PTSD and Major Depressive Disorder. The VA examiner should be granted access to the Veteran's VBMS record. The examiner is asked to consider the following: a) Determine whether the Veteran meets the criteria for a diagnosis of PTSD. If she does, the examiner should describe all stressful events the Veteran's PTSD is based on. b) Offer an opinion, consistent with sound medical principles and in consideration of the Veteran's specific contentions, as to whether it is at least as likely as not (i.e., there is a 50 percent or greater probability) that Major Depressive Disorder, is related to service. An opinion should be rendered for each psychiatric disorder with which the Veteran is diagnosed. The examiner is asked to provide a rationale for the opinions rendered. If the examiner is unable to provide a rationale, he or she should explain why. In rendering the opinions, the VA examiner must specifically consider the article "Borderline Personality Disorder and Posttraumatic Stress Disorder: Time for Integration?" which was received at the Board in February 2015. 3. After completing the above development, the AOJ should readjudicate the Veteran's claim in light of all the evidence of record. If any benefit sought on appeal remains denied, the Veteran and her representative should be furnished a fully responsive Supplemental Statement of the Case and afforded a reasonable opportunity for response. 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 or by the Court for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). ______________________________________________ T. Mainelli Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs