Citation Nr: 1754027 Decision Date: 11/27/17 Archive Date: 12/07/17 DOCKET NO. 12-11 233 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for gastroesophageal reflux disease. 2. Entitlement to service connection for hiatal hernia. 3. Entitlement to service connection for diverticulitis of the colon. REPRESENTATION Appellant represented by: Florida Department of Veterans Affairs WITNESSES AT HEARING ON APPEAL Appellant and spouse ATTORNEY FOR THE BOARD C. Lawson, Counsel INTRODUCTION The Veteran served on active duty from May 1990 to August 1992. This matter comes to the Board of Veterans' Appeals (Board) on appeal following August 2010 and February 2011 rating decisions by a Regional Office (RO) of the Department of Veterans Affairs (VA). The Veteran and his spouse presented testimony at a Board hearing in March 2015, and a transcript of the hearing is associated with his claims folder. The Board decided other claims in January 2017 and remanded those listed on the cover page for additional development. FINDINGS OF FACT 1. The Veteran is a Persian Gulf Veteran. 2. The Veteran's gastroesophageal reflux disease, hiatal hernia, and diverticulitis of the colon are all known clinical diagnoses which were not manifest in service; are unrelated to service; and were not caused or aggravated by the Veteran's service-connected posttraumatic stress disorder (PTSD). CONCLUSIONS OF LAW The criteria for service connection for gastroesophageal reflux disease, hiatal hernia, and diverticulitis of the colon are not met. 38 U.S.C.A. §§ 1110, 1117, 1118, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.303, 3.317 (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS 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). Because the Veteran served in the Southwest Asia Theater of operations during the Persian Gulf War, service connection may also be established under 38 C.F.R. § 3.317. Under that section, service connection may be warranted for a Persian Gulf Veteran who exhibits objective indications of a qualifying chronic disability that became manifest during active military, naval or air service in the Southwest Asia theater of operations during the Persian Gulf War, or to a degree of 10 percent or more not later than not later than December 31, 2021. For purposes of 38 C.F.R. § 3.317, there are three types of qualifying chronic disabilities: (1) an undiagnosed illness; (2) a medically unexplained chronic multisymptom illness; and (3) a diagnosed illness that the Secretary determines in regulations prescribed under 38 U.S.C.A 1117 (d) warrants a presumption of service-connection. gastroesophageal reflux disease, hiatal hernia, and diverticulitis of the colon are not listed as qualifying diagnosed illnesses. An undiagnosed illness is defined as a condition that by history, physical examination and laboratory tests cannot be attributed to a known clinical diagnosis. In the case of claims based on undiagnosed illness under 38 U.S.C.A. § 1117 / 38 C.F.R. § 3.117, unlike those for "direct service connection," there is no requirement that there be competent evidence of a nexus between the claimed illness and service. Gutierrez v. Principi, 19 Vet. App. 1, 8-9 (2004). Further, lay persons are competent to report objective signs of illness. Id. A medically unexplained chronic multisymptom illness is one defined by a cluster of signs or symptoms, and specifically includes chronic fatigue syndrome, fibromyalgia, and irritable bowel syndrome, as well as any other illness that the Secretary determines meets the criteria in paragraph (a)(2)(ii) of this section for a medically unexplained chronic multisymptom illness. A "medically unexplained chronic multisymptom illness" means a diagnosed illness without conclusive pathophysiology or etiology, that is characterized by overlapping symptoms and signs and has features such as fatigue, pain, disability out of proportion to physical findings, and inconsistent demonstration of laboratory abnormalities. Chronic multisymptom illnesses of partially understood etiology and pathophysiology will not be considered medically unexplained. 38 C.F.R. § 3.317(a)(2)(ii). "Objective indications of chronic disability" include both "signs," in the medical sense of objective evidence perceptible to an examining physician, and other, non-medical indicators that are capable of independent verification. 38 C.F.R. § 3.317 (a)(3). 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. Similarly, any increase in severity of a non-service connected disease or injury that is proximately due to or the result of a service connected disease or injury, and not due to the natural progress of the nonservice connected disease, will be service connected. Allen v. Brown, 7 Vet. App. 439 (1995). In the latter instance, the non-service connected disease or injury is said to have been aggravated by the service-connected disease or injury. 38 C.F.R. § 3.310. The claims at issue are being addressed on direct, presumptive pursuant to 38 C.F.R. § 3.317, and secondary service connection bases under the criteria mentioned above. The Veteran's service treatment records are silent for reference to complaints, treatment, or diagnoses of a gastroesophageal reflux disease, hiatal hernia, or diverticulitis of the colon in service, except for a notation in July 1991 that the Veteran's stomach hurt. At that time, his throat was red and filled with pus, and rhinitis and possible sinusitis were assessed. On service separation examination in July 1992, the Veteran denied having or having had gastrointestinal symptomatology, and indicated that he felt pretty good at the present time and was not taking any medication. His abdomen and viscera were clinically normal at the time. October 1990 and September 1991 periodic service examinations had likewise been clinically normal. Based on the evidence, the Board concludes that service connection is not warranted for gastroesophageal reflux disease, hiatal hernia, or diverticulitis of the colon. The preponderance of the evidence indicates that none of these were manifest in service or are related to service. No competent evidence shows that they were manifest in service or are related to service. To the contrary, the Veteran did not have any complaints specific only to them reported in service. Instead, the records reflect he had abdominal pain in conjunction with an infection for which he was given antibiotics. Furthermore, he was normal on service examinations in October 1990, September 1991, and July 1992, signifying that they were not present in service. The disabilities at issue were not diagnosed in service or until years post-service. He reported no relevant problems at the time of a May 2005 private medical examination, and had a negative abdominal-gastrointestinal review and examination at that time. The Veteran even testified in March 2015 that he had no diagnosis of diverticulitis and no hiatal hernia in service to his knowledge, and mentioned having his first case of diverticulitis sending him to the hospital in 2010 or 2011 (VA medical records from early 2012 indicate that diverticulitis was confirmed by CT and colonoscopy in November/December 2011), and having acid reflux no earlier than 1999 at the time. Likewise, at the time of his October 2010 VA examination, he reported that he started having stomach pains and gastrointestinal issues in the 1990's (he is now service-connected for irritable bowel syndrome, and testified in March 2015 that it was causing him problems in the 1990s), and that over time, he had been diagnosed with gastroesophageal reflux disease and diverticulitis. Diarrhea was the only abdominal symptom reported at the time of a private workup in September 2001 for diarrhea, and an abdominal sonogram at that time was negative for pathology relevant for our purposes. Gastroesophageal reflux disease and hiatal hernia appear to be first mentioned in a January 2010 VA medical record. Furthermore, gastroesophageal reflux disease, hiatal hernia, and diverticulitis of the colon are known clinical diagnoses, and there is nothing in the record to suggest, nor does the Veteran contend, that any of them are medically unexplained chronic multisymptom illnesses, so service connection cannot be granted for them on the basis of the Veteran's service in the Persian Gulf pursuant to 38 C.F.R. § 3.317. Likewise, secondary service connection is not warranted for gastroesophageal reflux disease, hiatal hernia, or diverticulitis of the colon as secondary to the Veteran's service-connected PTSD. After the Board noted, in January 2017, that a March 2010 VA medical record states (without explanation) that the Veteran's hiatal hernia with gastroesophageal reflux disease is aggravated by stress, and that the Veteran testified in March 2015 that his hiatal hernia and diverticulitis are caused by his gastroesophageal reflux disease, the Board remanded for VA medical opinions on the matters of secondary service connection for gastroesophageal reflux disease, hiatal hernia, and diverticulitis of the colon as secondary to the Veteran's service-connected PTSD, and those VA medical opinions, provided in April 2017, were negative. The VA examiner at the time reviewed the Veteran's claims folder and provided medical information to support his opinions that the Veteran's gastroesophageal reflux disease, hiatal hernia, and diverticulitis are not caused or aggravated by his service-connected PTSD. The examiner pointed out that mental problems would not cause or aggravate the Veteran's gastroesophageal reflux disease, hiatal hernia, or diverticulitis, which are physical problems, and that the Veteran's last primary care note from January 2017 showed that he was asymptomatic of all of his gastrointestinal conditions (while the Veteran is currently rated as 70 percent disabled by PTSD). The VA examiner also stated that there was no literature to support the claim that PTSD causes or aggravates gastroesophageal reflux disease, hiatal hernia, or diverticulitis. The examiner noted diverticulitis was an infection. These opinions thus outweigh any evidence to the contrary, including that contained in the March 2010 VA medical record mentioned above. See Prejean v. West, 13 Vet. App. 444 (2000) (factors for determining probative value of medical opinions include their thoroughness and detail, whether they discussed why contrary opinions were not persuasive, and the opinion-writer's access to relevant records). While the Veteran may feel that the disabilities at issue are connected to service, his opinions on these complex medical matters of diagnosis and relationship to service are not competent, as he is a layperson and medical training is required. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The preponderance of the evidence is against the claims and there is no doubt to be resolved. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1991). The Board regrets that the outcome of the Veteran's appeals cannot be favorable, thanks him for his Persian Gulf War service, and wishes him well in his endeavors. ORDER Service connection for gastroesophageal reflux disease, hiatal hernia, and diverticulitis of the colon is denied. ______________________________________________ M. C. GRAHAM Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs