Citation Nr: 1756691	
Decision Date: 12/07/17    Archive Date: 12/15/17

DOCKET NO.  09-28 004	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas


THE ISSUES

1.  Entitlement to service connection for gastroesophageal reflux disease (GERD).

2.  Entitlement to an initial rating in excess of 40 percent for degenerative disc disease of the lumbar spine.

3.  Entitlement to an initial compensable rating for allergic rhinitis prior to February 17, 2010, and in excess of 10 percent thereafter.

4.  Entitlement to an initial compensable rating for a skin disability.

5.  Entitlement to an initial compensable rating for headaches. 


REPRESENTATION

Veteran represented by:	Texas Veterans Commission


ATTORNEY FOR THE BOARD

D. Jimerfield, Associate Counsel


INTRODUCTION

The Veteran served on active duty from December 2003 to January 2008.

This matter is before the Board of Veterans' Appeals (Board) on appeal from an August 2008 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO).

The Veteran had a hearing before a Decision Review Officer (DRO) at the RO in January 2010.

On a June 2011 VA Form 9, the Veteran requested a hearing before a Veterans Law Judge.  In November 2015, the Board remanded the claims on appeal to afford the Veteran a hearing.  A Board hearing was scheduled for September 2016 and the Veteran was mailed notice of the hearing date and time in August 2016 and again prior to the hearing date in September 2016.  However, despite receipt of such notices, the Veteran did not appear at the hearing.  Not having received a request for postponement, and pursuant to 38 C.F.R. § 20.704(d), the Board considers such hearing request to be withdrawn.

The Veteran submitted a statement in September 2016 in which he requested withdrawal of his low back and headache claims.  An appeal may be withdrawn by a veteran as to any or all issues involved in the appeal at any time before the Board promulgates a decision, but the withdrawal must be explicit and unambiguous.  38 C.F.R. § 20.204; DeLisio v. Shinseki, 25 Vet. App. 45, 57 (2011).  Here, however, the Veteran did not respond to an August 2017 VA correspondence requesting he clarify if he wished to withdrawal some or all of the claims on appeal.  Therefore, the Board finds that it is ambiguous as to whether the Veteran wishes to withdrawal his low back and headache claims, and, as such, these issues remain on appeal.

The decision below addresses the issue of entitlement to service connection for GERD.  The remaining issues are addressed in the remand section following the decision.


FINDING OF FACT

The Veteran's GERD had its onset in service.


CONCLUSION OF LAW

The criteria for service connection for GERD have been met.  38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2017).


REASONS AND BASES FOR FINDING AND CONCLUSION

Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service.  See 38 U.S.C. § 1110, 38 C.F.R. § 3.303.  "To establish a right to compensation for a present disability, a veteran 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."  Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). 

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 claimant.  38 U.S.C. § 5107, 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).

In a March 2008 claim form, the Veteran reported that he has GERD which began during service in November 2006.  Thereafter, during an April 2008 VA examination, he reported experiencing heartburn and being given medication to treat this condition in 2006.  He also reported that he continues to take over the counter medication to treat such condition.  Then, during the January 2010 DRO hearing, he stated that he continued seeking treatment for this disorder shortly after his discharge from service.

Service treatment records (STRs) show that he was not noted as having any relevant medical problems during an August 2003 enlistment examination.  Such STRs also contain a post-deployment assessment from February 2005 in which the Veteran reported experiencing frequent indigestion and vomiting.  In addition, an STR from January 2007 shows that he reported experiencing gastrointestinal (GI) pain and that he was given medication listed as a "GI cocktail" for treatment.

While the Veteran's post-service treatment records on file do not show he was treated for GERD shortly after his discharge from service, he was diagnosed with GERD during an April 2008 VA examination.  However, the examiner did not offer a finding as to whether this condition had its onset during service.  Thereafter, the Veteran was again noted to have GERD during an April 2012 VA examination, but again the examiner did not offer an opinion as to the etiology or the onset date of such disorder.

The Veteran was not noted to have a relevant disorder at his entrance into service and, as such, the presumption of soundness applies.  Thereafter, the Veteran competently and credibly reported experiencing GERD symptoms during service.  In addition, the STRs confirm that he reported, and was treated for, GI symptoms during service.  Further, he was diagnosed with GERD by a VA examiner less than three months after his discharge from service.  Thus, the lay and medical evidence shows that the Veteran's GERD had its onset in service.  Accordingly, service connection is warranted.



ORDER

Service connection for GERD is granted.


REMAND

The record contains a letter added to the file in December 2011 which indicates that the Veteran receives Social Security Administration (SSA) benefits.  However, the record does not contain any SSA records for the Veteran beyond this letter.  Thus, because the Veteran's SSA records could potentially be relevant to his claims on appeal, such records should be associated with the claims file on remand.  See 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c).

In addition, in regard to the claim for a higher initial rating for degenerative disc disease of the lumbar spine, the Veteran submitted a correspondence in December 2011 indicating that there are outstanding relevant treatment records from a Dr. S. from May 2008 to December 2010 and providing authorization to obtain such records.  However, the file does not reflect that the RO attempted to obtain such records.  Therefore, the RO should take appropriate action to obtain such private treatment records.

Accordingly, the case is REMANDED for the following action:

1.  Obtain complete VA treatment records from June 2014.

2.  Afford the Veteran an additional opportunity to submit any other information that is not evidenced by the current record, to include records of any pertinent private treatment.  Associate any available records with the claims file.  Make at least two (2) attempts to obtain records from any private sources identified, to include but not limited to, Dr. S.  If any records are unavailable, document the unavailability within the claims file and advise the Veteran so he can submit any copies in his possession. 

3.  Request all documents pertaining to the application of disability benefits from SSA, including the records relied upon in determining whether benefits were warranted.

4.  Then readjudicate the appeal.  If the benefits sought are not granted in full, furnish the Veteran and his representative with a supplemental statement of the case and allow them a reasonable opportunity to respond.  Then, return the case 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 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. §§ 5109B, 7112.




______________________________________________
STEVEN D. REISS 
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs