Citation Nr: 1802570 Decision Date: 01/11/18 Archive Date: 01/23/18 DOCKET NO. 10-12 209 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to service connection for a gastrointestinal disorder. REPRESENTATION Veteran represented by: Georgia Department of Veterans Services WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD R. Dodd, Counsel INTRODUCTION The Veteran served on active duty from August 1985 to April 1995 and has additional unspecified periods of Reserve service. This case comes before the Board of Veterans' Appeals (Board) on appeal from a May 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. In March 2013, the Veteran appeared at a videoconference hearing before a Veterans Law Judge. As that Veterans Law Judge is no longer employed by the Board, the Veteran was afforded an opportunity in November 2017 to have a hearing before a new Veteran's Law Judge. In a November 2017 signed correspondence, the Veteran elected to forego a new hearing and opted to have her claim adjudicated. As such, the Board finds that the Veteran has been provided appropriate notice and has knowingly waived her right to a new hearing. Adjudication of the Veteran's claim shall proceed accordingly. In January 2014, December 2014, December 2015, and April 2017 the Board remanded the issue on appeal for additional development. As that development has been completed, this claim is once again before the Board. FINDING OF FACT The Veteran has continually complained of symptoms of epigastric pain and distress as well as morning gas and bloating since October 1989 when she first reported such symptoms in military service and such symptoms have continued until she was finally diagnosed with gastroesophageal reflux disease (GERD) based upon such symptoms by gastrointestinal testing in May 2015. CONCLUSION OF LAW The criteria for service connection for a gastrointestinal disorder (diagnosed as GERD) are met. 38 U.S.C. §§ 1110, 1131, 1116, 5103, 5103(a), 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Legal Criteria Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated by service. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303(a) (2017). Service connection may be established for any disease diagnosed after discharge from service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Generally, service connection requires evidence of (1) a current disability, (2) in-service incurrence or aggravation of a disease or injury, and (3) a nexus, or link, between the current disability and the in-service disease or injury. 38 C.F.R. § 3.303(a); Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). In each case where a Veteran is seeking service connection for any disability, due consideration shall be given to the places, types, and circumstances of such Veteran's service as shown by her service record, the official history of each organization in which she served, her treatment records, and all pertinent medical and lay evidence. See 38 U.S.C.A. § 1154(a). In making all determinations, the Board must consider fully the lay assertions of record. A layperson is competent to report on the onset and recurrent symptoms. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). Lay evidence also can be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau, 492 F.3d at 1377 (holding that "[w]hether lay evidence is competent and sufficient in a particular case is a factual issue to be addressed by the Board"). The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence, which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the appellant. Equal weight is not necessarily accorded to each piece of evidence contained in the record; not every item of evidence necessarily has 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 appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Analysis The Veteran claims that she suffers from a gastrointestinal disorder that is the result of military service. In this regard the Veteran has testified that she currently suffers from symptoms, including epigastric pain and distress as well as morning gas and bloating. The Veteran has indicated that these symptoms began during military service shortly after her first treatment for gastroenteritis. She has related her current symptoms to residuals of that illness. Additionally, the Veteran has alternatively related the symptoms to possible exposure to environmental factors such as oil fires during service in the Gulf War. The Veteran's personnel records confirm Southwest Asia service during the applicable time period. She also contends that her symptoms may be the result of an undiagnosed illness. A review of the Veteran's service treatment records reveals a solitary medical encounter for treatment for diarrhea in September 1989, diagnosed as viral gastroenteritis. In October 1989 the Veteran was seen for epigastric pain and symptoms of gas early in the morning, but had resolved by the time she was seen later that day. The working diagnosis was possible peptic ulcer disease or GERD. An upper gastrointestinal (GI) study was considered but one was never done. In October 1991, the Veteran was seen for complaints of mild reflux, but no diagnosis was provided. On a Report of Medical History January 1993, the Veteran annotated frequent indigestion. The Veteran was discharged on April 1995 with a Report of Medical Examination on February 1995 which was silent for any gastrointestinal condition. The Veteran's post-service outpatient treatment records show that she has continually received treatment for gastrointestinal issues since leaving military service. In December 1996, the Veteran presented for treatment for an acute incident of viral gastroenteritis. The condition resolved without residuals. In December 1997, the Veteran completed a Gulf War Registry examination. It was noted that the Veteran had a current diagnosis of gastritis that was otherwise unattributable to military service. The Veteran was treated for gastrointestinal complaints diagnosed as gastritis in April 1999. In October 1999, the Veteran was diagnosed with gastritis and GERD based upon complaints of epigastric pain and distress as well as morning gas and bloating. The Veteran was provided with a VA examination in March 2014. Upon a review of the claims file, subjective interview, and objective testing, it was noted that the Veteran had been diagnosed with acute viral gastroenteritis during military service, but currently had no residuals. The examiner noted that a review of the Veteran's service treatment records showed a solitary medical encounter for diarrhea in September 1989, diagnosed as a viral syndrome. In October 1989 the Veteran was seen for epigastric pain and symptoms of gas early in the morning, but had resolved by the time that she was seen later that day. The working diagnosis was possible peptic ulcer disease or GERD. An upper GI study was considered, but one was never done. The Veteran indicated that she recalled being prescribed Protonix and was told at that time that she had gastritis. It was recommended that she withhold from eating spicy foods and took medications only for a couple of months. The Veteran noticed intermittent heart burn symptoms for a couple of month's afterword and took tums for aid. After separation from the military in 1995, the Veteran stated that she would get intermittent chest pain and had to go to the emergency room a few times and be treated for "gas." In 2012 she had similar chest pain with palpitations triggering a cardiology work up (negative), but no GI studies. The examiner added that she was under no current supervised medical care for gastrointestinal problems. The examiner concluded that no gastrointestinal disorder had been diagnosed. The Veteran had reported some intermittent symptoms of heartburn, however, no specific disorder was diagnosed and the record reflected that the symptoms were associated with the consumption of certain foods that seem to disagree with her. The examiner opined that this is not regarded as a specific gastrointestinal disorder and as such, it is less likely than not that it had its onset in service or is otherwise etiologically related to her military service, to include any injuries or reported symptoms documented in the service treatment records. The Veteran was provided with an additional VA examination in May 2015. Upon a review of the claims file, subjective interview, and objective testing, to include a full GI series, the Veteran was diagnosed with GERD. The examiner opined that the Veteran's gastroenteritis that she suffered in military service was merely acute, with no sequelae and that the Veteran has GERD that is not related to military service. No rationale was provided. An addendum opinion to the May 2015 VA examination was provided in February 2016. The VA examiner opined that the Veteran's condition was less likely incurred in or caused by the claimed in-service injury, event or illness. In its rationale, it was noted that the Veteran was diagnosed with viral gastroenteritis in 1989. The examiner explained that viral gastroenteritis was declared as an acute condition that is also known as stomach flu. It is characterized by inflammation of the stomach and intestines caused by a virus. It is highly contagious and symptoms usually consist of watery diarrhea, nausea and vomiting, headaches, muscle and joint aches, fever, shills, sweating, clammy skin abdominal cramps loss of appetite and weight loss. Usually spontaneous resolution is seen within 2 to 3 days. The examiner declared the previously diagnosed viral gastroenteritis has resolved. Lab findings were noted as normal. The Veteran's weight was considered stable. The Veteran's current diagnosis of GERD was opined as less likely related to an illness, injury, or event during military service. In support, it was explained that the Veteran had an upper GI series performed in May 2015 that indicated mild spontaneous GERD. The examiner opined that the Veteran's GERD was less likely related to an exposure event during your service in Southwest Asia. Current literature does not support a correlation exist between GERD and service in Southwest Asia. GERD was declared as being caused by abnormal muscle function in the stomach which can disrupt flow. Abnormal structural problem such as a weakened lower esophageal/sphincter muscles can lead to a reflux disorder. Neither was shown in service. An additional addendum opinion to the May 2015 VA examination was provided in July 2017. The VA examiner opined that the condition claimed was less likely than not (less than 50% probability) incurred in or caused by the claimed in-service injury, event, or illness. The examiner's rationale stated that, in review of service treatment records, the Veteran was treated for viral gastroenteritis 1989 and 1996. Viral gastroenteritis is self-limiting and usually is treated and resolves with no sequelae. Viral Gastroenteritis is an acute condition also known as the stomach flu is characterized by inflammation of the stomach and intestines caused by a virus. It is highly contagious and symptoms usually consist of watery diarrhea, nausea and vomiting, headaches, muscle and joint aches, fever, shills, sweating, clammy skin abdominal cramps loss of appetite and weight loss. Usually spontaneous resolution is seen within two to three days. The Veteran's previously diagnosed viral gastroenteritis has resolved. The Veteran did complain of symptoms related to GERD in 1989, however, no additional work up was provided. A Report of Medical History in January 1993 showed frequent indigestion. The Veteran was discharged April 1995 with a Report of Medical Examination on February 1995 that was silent for any gastrointestinal condition. Ten years post Veteran's discharge she had an inpatient admission for cardiac complaints where the Veteran was specific and stated that her appetite was good. Her weight was stable, perhaps up a little. She denied any history of heartburn, indigestion, gallbladder, liver or pancreas problems. The Veteran had an upper GI series on May 2015 that indicated mild spontaneous GERD. That confirmed her clinical diagnosis of GERD. The Veteran's previously diagnosed gastroenteritis had resolved and is a separate and distinct condition. The Veteran's GERD is less likely as not related to or incurred during veteran's active duty military service as the condition did not manifest as a chronic disability pattern in service or shortly thereafter, as there was only a single isolated occurrence of heartburn or indigestion. The Board finds, upon resolving all reasonable doubt in the Veteran's favor, service connection for GERD is warranted. The Veteran is shown to have a current diagnosis of GERD as per her outpatient treatment records and VA examination, with confirming upper GI series. Additionally, it is substantiated that the Veteran has experienced symptoms of epigastric pain and distress as well as gas and bloating since first being assessed with possible GERD in service in October 1989. As such, the inquiry turns upon a finding of nexus between the Veteran's currently diagnosed GERD and her in-service gastrointestinal complaints. See 38 C.F.R. § 3.303(a); Shedden, 381 F.3d at 1166-67. Here, the record evidence has shown that the Veteran has continually complained of symptoms of epigastric pain and distress as well as gas and bloating since first being assessed with possible GERD in service in October 1989. Although she was never provided confirmatory testing at that time, as well as no apparent testing when she was again diagnosed with GERD in October 1999, it appears that her symptoms were finally properly diagnosed in the May 2015 VA examination when she was actually provided with an upper GI series. As such, it is reasonable to presume that the seemingly provisional diagnoses of GERD in October 1989 and October 1999 would have been confirmed as GERD had such testing also been performed at that time. Because her symptom description from that time to present has remained consistently similar, and such symptoms are currently present in her confirmed diagnosis of GERD, the Board finds that, granting the benefit of the doubt, the Veteran's GERD has continually existed since military service. At the very least, in consideration of the negative nexus opinions of record from the VA examiners, in which it is noted that the examiners may not have fully considered all of the Veteran's treatment records, to specifically include the 2017 VA examiner's failure to discuss the Veteran's October 1999 diagnosis of GERD in his analysis. The Board finds that such evidence, when weighed against the medical record showing the Veteran's continual similar complaints and assessments of GERD with a final confirmed diagnosis in May 2015, is in equipoise. Given the Veteran's current diagnosis of GERD, continual similar symptom complaints and assessments of GERD from military service to present, and a final confirmed diagnosis in May 2015, reasonable doubt is resolved in favor of the Veteran and service connection for GERD is granted. 38 U.S.C. § 5107(b). ORDER Entitlement to service connection for a gastrointestinal disorder (diagnosed as GERD) is granted, subject to the laws that govern the payment of monetary benefits. ____________________________________________ H.M. WALKER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs