Citation Nr: 1753865 Decision Date: 11/24/17 Archive Date: 12/01/17 DOCKET NO. 14-35 109 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUE Entitlement to service connection for a gastrointestinal condition, to include gastroesophageal reflux disease (GERD) and constipation. REPRESENTATION Veteran represented by: Oregon Department of Veterans' Affairs WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD A. Borman, Associate Counsel INTRODUCTION The Veteran served on active duty from November 1962 to November 1964. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a May 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Portland, Oregon. Jurisdiction over the appeal is now with the RO in Phoenix, Arizona. In February 2012, the Veteran participated in a hearing with a Decision Review Officer at the Portland RO. A summary of the hearing is associated with the claims file. Additionally, the Veteran requested a hearing with the Board, but the request was withdrawn by the Veteran in March 2017. This appeal was remanded by the Board in August 2017 and is now ready for adjudication. The Board has expanded the Veteran's claim on appeal to encompass all similar disorders. See Clemons v. Shinseki, 23 Vet. App. 1 (2009) (the scope of a disability claim includes any disability that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record). This appeal is comprised of paper files, documents contained in the Virtual VA paperless claims processing system, and documents contained in the Veterans Benefits Management System (VBMS). Accordingly, any future documents should be incorporated in the Veteran's VBMS file. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). FINDING OF FACT The Veteran's GERD and constipation are not etiologically related to service or a service-connected disability. CONCLUSION OF LAW The criteria for service connection for a gastrointestinal condition, to include gastroesophageal reflux disease (GERD) and constipation, have not been met. 38 U.S.C. § 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION VA Duty to Notify and Assist VA has a duty to notify and assist claimants in substantiating claims for VA benefits. See, e.g., 38 U.S.C. §§ 5103, 5103A (West 2012) and 38 C.F.R. § 3.159 (2017). In the instant case, VA provided adequate notice in letters sent to the Veteran. VA also has a duty to assist a claimant in the development of a claim. This duty includes assisting the claimant in the procurement of relevant treatment records and providing an examination when necessary. 38 U.S.C. § 5103A (West 2012); 38 C.F.R. § 3.159 (2017). The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). Service treatment records and VA examinations are associated with the claims file. The Board notes that this appeal was remanded in August 2017 in order to obtain addendum medical opinions, which were provided in September 2017. Therefore, the Board is now satisfied that there has been substantial compliance with this Remand. See Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). There is no indication of additional existing evidence that is necessary for a fair adjudication of the claim that is the subject of this appeal. Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist. Service Connection Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131 (2012). Generally, the evidence must show: (1) the existence of a present 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 incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498, 505 (1995). Service connection may be granted, on a secondary basis, for a disability, which is proximately due to, or the result of an established service-connected disorder. 38 C.F.R. § 3.310 (2017). Additionally, when aggravation of a Veteran's nonservice-connected condition is proximately due to or the result of a service-connected condition, the Veteran shall be compensated for the degree of disability over and above the degree of disability existing prior to the aggravation. Id.; Allen v. Brown, 7 Vet. App. 439 (1995). Service connection for a nonservice-connected disease or injury based on aggravation will not be established absent medical evidence of the baseline level of severity of such disease or injury created before the onset of aggravation, or the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity of the nonservice-connected disease or injury. 38 C.F.R. § 3.310(b). VA must give due consideration to all pertinent medical and lay evidence in a case where a veteran is seeking service connection. 38 U.S.C. § 1154(a). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the veteran. 38 U.S.C. § 5107(b). The Veteran seeks entitlement to service connection for a gastrointestinal condition, which has been diagnosed as GERD and constipation. The Veteran asserts that his gastrointestinal condition is related to his service-connected posttraumatic stress disorder (PTSD) with persistent depressive disorder. After a review of the evidence of record, the Board finds that service connection is not warranted. As an initial matter, service treatment records do not reflect complaints of, treatment for, or a diagnosis related to a gastrointestinal condition. Significantly, his separation examination was absent of any complaints of or observed symptoms related to a gastrointestinal condition. In fact, the post-service evidence does not reflect symptoms related to a gastrointestinal condition for many years after the Veteran left active duty service. During a March 2006 dual esophagogastroduodenoscopy and colonoscopy, a physician observed a small hiatal hernia. It was not until his February 2012 VA examination that the Veteran first reported constipation. The Board emphasizes that because the Veteran left active service in 1964, it was not until approximately 42 years later that he was first noted to have symptoms consistent with GERD and 48 years later that he first started having constipation. Therefore, continuity since service is not established based on the clinical evidence of record. As part of this claim, the Board recognizes the Veteran's statements regarding his history of symptoms. In this regard, while the Veteran is not competent to diagnose a gastrointestinal disorder, as it may not be diagnosed by its unique and readily identifiable features, and thus requires a determination that is "medical in nature," he is nonetheless competent to testify about the presence of observable symptomatology, which may provide sufficient support for a claim of service connection, if credible, regardless of the lack of contemporaneous medical evidence. Jandreau v. Nicholson, 492 F.3d 1372, 1376 (Fed. Cir. 2007). See Barr v. Nicholson, 21 Vet. App. 303, 307 (2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). In this instance, the Board determines that the Veteran's reported history of continued symptomatology is insufficient by itself to warrant service connection. The Board notes that the Veteran specifically asserted during his February 2012 VA examination that he has suffered from GERD since 1963, but the October 2008 VA examiner noted the Veteran's reported 10 to 12 year history of GERD. These inconsistencies prevent the Board from relying on the Veteran's reported history pertaining to his GERD. With regards to his constipation, he has made no assertions directly relating his constipation to service; rather, he argues it is secondary to his psychiatric disorder. Therefore, continuity is not established based on the statements submitted by the Veteran. Next, service connection may also be granted when the evidence establishes a medical nexus between his claimed disorder and either his active duty or his service-connected disability. In this case, the Board finds that the weight of the competent evidence does not attribute the Veteran's claimed disorder to active duty or a service-connected disability, despite his contentions to the contrary. With regard to his GERD, the Veteran underwent a VA examination in February 2012. The examiner stated that there are population-based studies demonstrating that anxiety and depression have been shown to increase GERD-related symptoms. As a result, the examiner opined that it is at least as likely as not that the Veteran's GERD was aggravated by his PTSD. However, the Board assigns this opinion little probative value. The examiner admitted that she could not state what the Veteran's baseline manifestation of the GERD would be without resorting to mere speculation. Additionally, she could not determine what increased manifestations are proximately due to his PTSD as well as how his GERD would have progressed/improved over time without the aggravation of his PTSD. In this instance, the examiner seems to be basing their opinion wholly on the population-based study without applying it to the Veteran's individual situation. The question is not whether his GERD could be theoretically worsened by his mental disorder. Rather, the question is whether his GERD actually worsened in severity beyond the baseline of the disorder as a result of his PTSD. The Board finds that the evidence does not demonstrate that any worsening of the GERD took place. Without any evidence of worsening, there can be no aggravation of the GERD beyond its natural course. In making this determination, the Board cites the findings of the October 2008 VA examiner who concluded that even if the Veteran previously had GERD, the condition was no longer evident at the time of the examination. Additionally, the September 2017 VA examiner opined that it is less likely than not that the Veteran's GERD is due to or aggravated beyond its natural progression by PTSD. Importantly, she found that there is no medical evidence of GERD symptoms prior to his PTSD stressor. The examiner cited the fact that the majority of the literature does not support a causal relationship between PTSD and GERD. Instead, the most significant risk factors are obesity, age, genetics, pregnancy, trauma, and neuromuscular dysfunction. With regards to the Veteran's constipation, the Board also finds that service connection is not warranted. During a February 2012 VA examination, the Veteran reported constipation. The examiner concluded that the condition was less likely than not related to service because it started within the last 3 to 4 years. In a September 2017 addendum opinion, another VA examiner came to the same conclusion and cited the fact that the majority of the medical evidence does not support the idea that constipation can be either caused or aggravated by PTSD. The examiner further stated that the only psychological condition that has been associated with constipation is anorexia nervosa. Therefore, the Board finds that the weight of the competent evidence does not attribute the Veteran's gastrointestinal disorder to military service despite his contentions to the contrary. In reaching the above conclusion, the Board also considered the doctrine of reasonable doubt. 38 U.S.C.A. § 5107(b) (West 2014). However, as the most probative evidence is against the claim, the doctrine is not applicable in this case. See also, e.g., Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). In considering this appeal, consideration has been given to the Veteran's statements relating his claimed disability to military service. In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Although the Veteran is competent to testify that he suffers from the symptoms of the claimed disability, he is not competent to provide a medical opinion linking this disability with his military service. Such medical diagnoses and nexuses do not involve a simple identification that a layperson is competent to make. See Jandreau, 492 F.3d at 1377, n.4. ORDER Service connection for a gastrointestinal condition, to include gastroesophageal reflux disease (GERD) and constipation, is denied. ____________________________________________ B.T. KNOPE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs