Citation Nr: 1802147 Decision Date: 01/11/18 Archive Date: 01/23/18 DOCKET NO. 14-12 273 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUE Whether new and material evidence has been received sufficient to reopen a claim of entitlement to service connection for gastroesophageal reflux disease (GERD), claimed as a stomach condition, to include as secondary to service-connected disability, and if so, whether service-connection is warranted. REPRESENTATION Veteran represented by: Wisconsin Department of Veterans Affairs WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD D. Havelka, Counsel INTRODUCTION The Veteran served on active duty from February 1977 to February 1980 and from September 1981 to January 1986. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin, which in part denied that new and material evidence to reopen a claim for service connection for a stomach condition had been submitted. In May 2017, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of this testimony is associated with the claims file. FINDINGS OF FACT 1. The Veteran did not timely appeal the September 2008 rating decision that denied service connection for a stomach condition, and did not submit new and material evidence within one year after the rating decision was issued. 2. Some of the new evidence received since the September 2008 rating decision relates to an unestablished fact necessary to substantiate the claim for entitlement to service connection for a stomach condition and raises a reasonable possibility of substantiating that claim. 3. The Veteran has diagnoses of GERD and gastritis, which were not diagnosed until many years after service and are not etiologically related to service. 4. The Veteran's service-connected disabilities, including medication prescribed to treat his knee pain, have not caused or aggravated the claimed GERD and gastritis. CONCLUSIONS OF LAW 1. The September 2008 rating decision is final. 38 U.S.C. § 7105 (2002); 38 C.F.R. §§ 20.201, 20.302, 20.1103 (2008). 2. New and material evidence has been received to reopen the claim of entitlement to service connection for a stomach condition. 38 U.S.C. §§ 5107, 5108, 7105 (2012); 38 C.F.R. § 3.156 (2017). 3. The criteria for establishing service connection for GERD have not been met. 38 U.S.C.A. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran's claim for service connection for a stomach condition had previously been denied. Reopening a claim for service connection which has been previously and finally disallowed requires that new and material evidence be presented or secured since the last final disallowance of that claim. 38 U.S.C. § 5108; Evans v. Brown, 9 Vet. App. 273, 285 (1996); see Graves v. Brown, 8 Vet. App. 522, 524 (1996). The February 2012 rating decision on appeal, in part, denied that new and material evidence to reopen a claim for service connection for a stomach condition had been submitted. Subsequently, the RO reopened the claim, ordered a Compensation and Pension examination and considered the claim on the merits in the March 2014 statement of the case. The fact that the RO may have determined that new and material evidence was presented, and reopened the claim on that basis, is not binding on the Board's determination of the question of whether new and material evidence has been submitted. The Board must address the issue initially itself. Barnett v. Brown, 83 F.3d 1380, 1384 (Fed. Cir. 1996). The RO denied service connection for a stomach condition in a September 2008 rating decision. The Veteran was provided notice of this decision and his appellate rights but did not appeal the decision or submit new and material evidence within one year of the decision. Therefore, the decision is final. See 38 U.S.C. § 7105 (2002); 38 C.F.R. §§ 3.156, 20.302, 20.1103 (2008). There is evidence received since the July 2011 rating decision which is both new and material to the claim including: a January 2014 letter from a private nurse practitioner, a February 2014 VA Compensation and Pension examination report, and a June 2017 private examination report. See 38 C.F.R. § 3.156 (2017). This new evidence raises a reasonable possibility of substantiating the claim. The credibility of this evidence is presumed for purposes of reopening the claim. See Justus v. Principi, 3 Vet. App. 510, 513 (1992). Accordingly, the claim for service connection for the Veteran's GERD, claimed as a stomach condition, is reopened. Generally, to establish service connection, a claimant must show: (1) a present disability; (2) an 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). A disability may be service connected on a secondary basis if it is proximately due to or the result of a service-connected disease or injury; or, if it is aggravated beyond its natural progress by a service-connected disease or injury. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.310. The Veteran's primary claim is that medication used to treat knee pain from his service-connected bilateral knee disability, has caused, or aggravated his GERD; this is a claim for service connection on a secondary basis. At his May 2017 hearing he also made vague assertions that he warranted service connection on a direct basis. The Board will address both theories of entitlement below. The Veteran's basic assertion is that he took large amounts of nonsteroidal anti-inflammatory drugs (NSAIDs) which has caused or aggravated his current gastrointestinal disorder. The Veteran's service treatment records for his second period of service show treatment for bilateral knee pain. Review of the service treatment records does not show that he had any complaints, symptoms, or diagnosis, of a gastrointestinal disorder. On the report of medical history he specifically denied having frequent indigestion, or stomach trouble. Private medical records show that the Veteran reported complaints of epigastric discomfort beginning in 1998, which is 12 years after he separated from service. Actual diagnoses of GERD and gastritis appear in private medical records dating from approximately 2006. A November 1987 private medical record shows that the Veteran was prescribed Ibuprofen, an NSAID, for treatment of nonservice-connected back pain, not for his service-connected knee disability. An April 2008 VA examination report indicated a diagnosis of a "self report of GERD." The examiner noted that the "veteran admitted to heavy alcohol intake until 10 years ago which is when he began PPI [proton pump inhibitor]. Heavy alcohol use can also cause gastritis/GERD in addition to long term NSAID use." A March 2011 letter from a private physician stated that the Veteran "had an upper endoscopy on March 3, 2006 with diagnosis of esophagitis and gastritis. It is known that nonsteroidal anti-inflammatory drugs such as ibuprofen can contribute to this diagnoses." A July 2013 letter from a private nurse practitioner states that the Veteran "is currently under treatment for symptoms resulting most likely from gastritis. He continues to be monitored and followed with the possibility of further testing if needed. He does have a past history of NSAID use that may have contributed to his condition. We also continue to discuss and modify other aspects contributing to his condition, such as stress and diet." In February 2014 a VA Compensation and Pension examination of the Veteran was conducted. The examining physician confirmed the current diagnosis of GERD. After a review of the evidence of record, including the July 2013 letter referenced above, the examining physician stated that the Veteran was diagnosed with esophagitis in 2006 which is the same time as the diagnosis of GERD and gastritis The physician state that these "conditions are less likely as not related to service, as there is insufficient objective evidence of these conditions in the STR. It is less likely as not that these conditions are related to, or were permanently aggravated by, medications that were prescribed for his service connected knee conditions, as these medications were removed from his treatment almost 3 decades ago. His records show that he drank heavily in the 1980s and '90s and that he has a 40 pack-year history of smoking. He is still smoking. These exposures would be much more significant in contributing to the esophagitis and gastritis conditions, as they are prolonged, and in the case of the tobacco, still in use." In June 2017 the same private nurse practitioner who submitted the July 2013 letter submitted an examination report on a VA disability benefits questionnaire (DBQ) form. On this form she indicated that the Veteran had a diagnosis of gastritis dating from March 2014 and had a long history of NSAID use for knee and joint pain when he presented to the clinic in 2014. She further indicated that the gastritis was likely secondary to NSAID use, but then also indicated that such use was for both knee and nonservice-connected back pain. The private medical opinions of record are less probative than the VA medical opinion; they do not address the Veteran's history of alcohol usage and smoking, nor do they consider his entire medical history. There is no credible evidence linking the Veteran's claimed GERD to service on a direct basis. The probative medical opinion of record indicates that the Veteran's GERD and gastritis is not caused or aggravated by his knee disability or his use of NSAIDs to treat his pain. The Veteran as a lay person is not competent to diagnose GERD or offer an opinion as to its etiology as that is a complex medical matter. To the extent that the Veteran is also now service-connected for a psychiatric disorder, he has not asserted that this disorder or any medication prescribed to treat it is the cause of his GERD. Also, his psychiatric symptoms are relatively recent and any medication prescribed to treat them post-dates the reported onset of GERD. In sum, the preponderance of the evidence is against a finding that the Veteran's current GERD and gastritis was diagnosed during service or for many years thereafter. The preponderance of the evidence is also against a finding that there is a link between the current GERD and gastritis disability and active service or the Veteran's service-connected disabilities. Accordingly, the preponderance of the evidence is against the claim, the benefit-of-the-doubt rule does not apply. Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER New and material evidence having been received, the claim for entitlement to service connection for GERD (claimed as stomach condition) is reopened. Service connection for GERD is denied. ____________________________________________ Nathan Kroes Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs