Citation Nr: 1756519 Decision Date: 12/07/17 Archive Date: 12/15/17 DOCKET NO. 14-06 310 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for gastritis with gastroesophageal reflux disease (GERD). REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD M. Watson, Associate Counsel INTRODUCTION The Veteran served on active duty from December 1978 to March 1989. This matter comes before the Board of Veterans' Appeals (Board) on appeal of an June 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. In May 2016, the Board remanded the claim to develop it further by a June 2016 VA examination and to associate other records that may exist. The June 2016 VA examiner and Agency of Original Jurisdiction (AOJ) have substantially fulfilled the remand by requesting and associating known records, offering a sufficient medical opinion and issuing a June 2016 Supplemental Statement of the Case (SSOC). Stegall v. West, 11 Vet. App. 268 (1998). In September 2015, the Veteran testified before the undersigned Veterans Law Judge. A transcript is of record. 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 Gastritis with gastroesophageal reflux disease (GERD) is not etiologically related to active military service. CONCLUSION OF LAW The criteria for service connection for gastritis with gastroesophageal reflux disease (GERD) have not been met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.303, 3.304 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION I. Veterans Claims Assistance Act of 2000 (VCAA) The VCAA and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5102, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). The Veteran in this case has not referred to any deficiencies in either the duties to notify or assist; therefore, the Board may proceed to the merits of the claim. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed.Cir. 2015, cert denied, U.S.C. Oct.3, 2016) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board....to search the record and address procedural arguments when the [appellant] fails to raise them before the Board"); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to an appellant's failure to raise a duty to assist argument before the Board). Under the May 2016 remand, the Martinez VA Outpatient Clinic submitted letters in May 2016 and June 2016 indicating it does not possess records responsive to the remand. The Northern Arizona VA health system did not file a similar response or any additional records. Finally, in June 2016, the Veteran's accredited representative filed a Waiver to request expedited processing of the claim. The Board has reviewed all of the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-130 (2000). II. Analysis The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence that it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case, the claim is denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303(a) (2017). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). To establish service connection, the evidence generally 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" - the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Some chronic diseases may be presumed to have been incurred in service, if they become manifest to a degree of ten percent or more within the applicable presumptive period. 38 U.S.C. §§ 1101(3), 1112(a); 38 C.F.R. §§ 3.307(a), 3.309(a). For those listed chronic conditions, a showing of continuity of symptoms affords an alternative route to service connection. 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F. 3d 1331 (Fed. Cir. 2013). Neither Gastritis nor GERD is listed as a chronic disease under 38 C.F.R. § 3.309(a). Under 38 C.F.R. § 3.303(b), service connection will be presumed where there are either chronic symptoms shown in service or continuity of symptomatology since service for diseases identified as "chronic" in 38 C.F.R. § 3.309(a). Walker, 708 F.3d at 1338-40 (holding that continuity of symptomatology is an evidentiary tool to aid in the evaluation of whether a chronic disease existed in service or an applicable presumptive period). With a chronic disease shown as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. If a condition noted during service is not shown to be chronic, then generally, a showing of continuity of symptoms after service is required for service connection. 38 C.F.R. § 3.303(b). The Board is required to assess the credibility and probative weight of all relevant evidence, and may consider factors such as facial plausibility, bias, self-interest, and consistency with other evidence of record. McClain v. Nicholson, 21 Vet. App. 319, 325 (2007) (Greene, J., concurring in part and dissenting in part) (noting that the Board has the duty to assess credibility and probative weight of evidence); see Jandreau v. Nicholson, 492 F.3d 1372, 1376 (Fed. Cir. 2007) (affirming that the Board retains discretion to make credibility determinations and otherwise weigh the evidence submitted, including lay evidence); Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (holding that the Board, as fact finder, is obligated to, and fully justified in, determining whether lay evidence is credible in and of itself, i.e., because of possible bias, conflicting statements, etc.). The Veteran is competent to provide testimony concerning factual matters of which he has firsthand knowledge, such as experiencing a physical symptom such as pain. Barr v. Nicholson, 21 Vet. App. 303 (2007); Washington v. Nicholson, 19 Vet. App. 362 (2005) (holding that the Veteran was competent to report hip disorder, pain, rotated foot; limited duty, physical therapy, and treatment in service). Further, under certain circumstances, lay statements may support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability, or symptoms of disability, susceptible of lay observation. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau, 492 F.3d 1372 (holding that a layperson is competent to identify a simple condition such as a broken leg). Competency of evidence, however, differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) (noting that "although interest may affect the credibility of testimony, it does not affect competency to testify"). The Board has the authority to "discount the weight and probity of evidence in the light of its own inherent characteristics and its relationship to other items of evidence." See Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997 ), cert. denied, 523 U.S. 1046 (1998) (affirming Board decision affording higher probative value to a contemporaneous written statement by the Veteran during service than a subsequent assertion years later). Gastritis with gastroesophageal reflux disease (GERD) First, the threshold requirement for service connection is competent medical evidence of the current existence of a claimed disorder. See Degmetich v. Brown, 104 F.3d 1328 (1997); Brammer v. Derwinski, 3 Vet. App. 223 (1992). The Board's May 2016 remand noted that a January 1989 service treatment record (STR) diagnosed acute gastroenteritis; and a January 2013 VA examination noted GERD diagnosed post-service. Furthermore, the May 2016 remand directed the June 2016 VA examiner to clarify whether the Veteran has a current gastritis condition. To respond, the examiner opined that it is less likely than not that the Veteran's claimed gastritis associated with GERD is currently symptomatic..." Thus, the first element is met. Second, the Veteran testified at the September 2015 Board hearing that jet fuel from a pump line splashed on his face and that he ingested some of it. His March 1984 STRs show this happened, though they describe the fuel as gasoline rather than jet fuel. Thus, the second element is met. Third, competent and credible evidence must show a nexus links the Veteran's claimed condition to his in-service ingesting of fuel or to any other event, disease or injury of service origin. VA provided the Veteran a VA examination in January 2013 to fulfill its duty to assist him in substantiating his claim. The January 2013 VA examiner described his history of in-service gastritis due to ingesting gasoline in March 1984, and his post-service diagnosed GERD. However, the January 2013 VA examiner stated he could no more than speculate etiology, saying nothing more. The Board remanded for another VA examination since it was insufficient to offer no rationale. In July 2016, a new VA medical examiner concluded that the Veteran's claim is less likely than not related to his active service after reviewing his STRs and associated records. The July 2016 examiner cited medical literature to explain her rationale, including an article on injesting petroleum products entitled "Health Implications of Petrolueum Distillate Ingestion", and another describing pulmonary complications that notes the gastrointestinal track does not so readily absorb it entitled "Medical Management Guidelines for Gasoline." Moreover, she noted the Veteran's STRs show no further mention of gastritis or GERD during examinations for other purposes in April 1986, February 1988, August 1988, January 1989 and September 2015. The examiner explained the 1988 and 1989 examinations addressed symptoms of diarrhea and headaches, but correlated nothing to the March 1984 fuel spill. Also, she compared radiographs taken immediately after the March 1984 spill to others of August 1983 to conclude the spill showed no change in the Veteran's images. Finally, the Veteran's March 1989 separation examination showed he had not further complained of gastritis or GERD symptoms his last several years in-service; and his September 2015 VA examination for hernia shows no mention of gastritis or GERD. After describing the spill at his hearing, the Veteran stated as follows: "And it got all over me, and as time went I-right now I have-my stomach that's been giving me problems for no reason. I never had it before that." The Veteran did not identify how much fuel he swallowed, but the June 2016 VA examiner concluded it is at least as likely as not that the Veteran swallowed a small amount. The Board finds the Veteran competent to testify to how the spill happened and his symptoms during and after service; and finds his lay accounts credible. See, Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997) (holding that the Board has the duty to assess the credibility and weight given the evidence). However, the Veteran is not competent to offer an opinion about what caused his gastritis or GERD, nor are his statements probative of such, because that requires medical expertise. Jandreau, 492 F.3d at 1377. To explain etiology, the Board finds the January 2013 and July 2016 VA examiners competent to evaluate the Veterans symptoms due to their experience and credible in writing their opinions as qualified medical professionals, including the July 2016 VA examiner's well-reasoned rationale sufficient to evaluate etiology. As such, the Board lends their opinions significantly greater weight as to etiology of the Veteran's gastritis and GERD than the lay statements. As noted above, neither Gastritis nor GERD is listed as a chronic disease under 38 C.F.R. § 3.309(a) for the purpose of a 38 C.F.R. §§ 3.303(b) analysis regarding continuity of symptomatology, Regardless, for purposes of completeness the Board has analyzed the claim as if it were and finds that the preponderance of the evidence is against a finding that the disability manifested either in-service or within the first post-service year. Id; 38 C.F.R. §§ 3.303(b), 3.307; Walker, 708 F.3d 1331. Again, the Board notes that the Veteran's service treatment records and separation examination are silent for any complaints or diagnoses of a gastritis or GERD disability after the March 1984 fuel spill. Post-service treatment records are silent for any indication of gastritis or GERD or the presence of a similar disability within the first post-service year. For the showing of chronic disease in service, a combination of manifestations must sufficiently identify the disease entity, and sufficient observation must establish chronicity at the time, as distinguished from merely isolated findings. See 38 C.F.R. § 3.303(b) (2017). Therefore, although the Veteran testified as to pain, the Board cannot find that the Veteran's gastritis or GERD was chronic in service. Moreover, when the fact of chronicity in service is not adequately supported, service connection may be established by a showing of continuity of symptomatology after discharge. See 38 C.F.R. § 3.303(b) (2017). The Veteran has not reported continuity since service. To the extent that the Veteran contends he has experienced gastritis or GERD symptoms since service, the Board initially notes again he is competent to report such symptoms. See Jandreau, 492 F.3d at 1377. However, after a review of the record in its entirety, the Board does not find the Veteran's assertions as to his continued symptomatology credible. Again, as noted by the VA medical opinions, the Veteran's discharge examination does not indicate a history of or a currently symptomatic gastritis or GERD problem. Therefore, the Board finds that the statements regarding continuity of symptoms since service are not credible and are outweighed in probative value by the separation examination and the objective medical evidence of record, including the June 2016 VA examiner's etiological opinion. Accordingly, continuity of symptomatology is not shown. See Mense v. Derwinski, 1 Vet. App. 354, 356 (1991) (holding that VA did not err in denying service connection when the veteran failed to provide evidence which demonstrated continuity of symptomatology, and failed to account for the lengthy time period for which there is no clinical documentation of disorder). The benefit of the doubt rule does not apply because the evidence preponderates against the claim. See 38 U.S.C. § 5107 (b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990); 38 C.F.R. § 3.102. The Board denies the claim for these reasons. ORDER Entitlement to service connection for gastritis with gastroesophageal reflux disease (GERD) is denied. ____________________________________________ MICHAEL A. PAPPAS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs