Citation Nr: 1805809 Decision Date: 01/30/18 Archive Date: 02/07/18 DOCKET NO. 14-09 954 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUE Entitlement to service connection for a gastrointestinal disability, to include directly from drinking herbicide contaminated water in the Republic of Vietnam or as secondary to posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Wisconsin Department of Veterans Affairs WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD RLBJ, Associate Counsel INTRODUCTION The Veteran served honorably in the United States Marine Corps from January 1966 to January 1968. This matter arrives before the Board of Veterans' Appeals (Board) on appeal from a May 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office in Milwaukee, Wisconsin. In January 2017, the Veteran testified before the undersigned Veterans Law Judge, using videoconference technology. A transcript of the Veteran's testimony is found in the Veterans Benefit Management System (VBMS). The Veteran's entire claims file is found in the VBMS and/or Legacy Content Manager (LCM) databases. FINDING OF FACT The Veteran's gastrointestinal disability is aggravated by his service-connected PTSD. CONCLUSION OF LAW Resolving all reasonable doubt in favor of the Veteran, the criteria for service connection for a gastrointestinal disability, secondary to PTSD, have been met. 38 U.S.C.A. §§ 1101, 1110, 5103A, 5107(b) (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Board has thoroughly reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all of the evidence submitted by the Veteran or on his behalf. See Gonzalez v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claims. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran). I. VCAA VA has satisfied its duties under the Veteran's Claims Assistance Act of 2000 (VCAA) to notify and assist. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.326(a). Regarding the claim of service connection for a gastrointestinal disability, this claim has been considered with respect to VA's duties to notify and assist. Given the favorable outcome in this decision represents a full grant of this issue, further explanation of how VA has fulfilled the duties to notify and assist with respect to this issue unnecessary. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). II. Service Connection in General Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303 (a). Service connection may also 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). Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for a disability that is proximately due to, or the result of, a service-connected disability. See 38 C.F.R. § 3.310 (a). To prevail on the issue of secondary service connection, the record must show (1) evidence of a current disability, (2) evidence of a service-connected disability, and (3) medical nexus evidence establishing a connection between the current disability and the service-connected disability. Wallin v. West, 11 Vet. App. 509, 512 (1998); Reiber v. Brown, 7 Vet. App. 513, 516-17 (1995). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility 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). When considering whether lay evidence is competent, the Board must determine, on a case-by-case basis, whether a 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 v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). A veteran is competent to report symptoms because this requires only personal knowledge, not medical expertise, as it comes to him through his senses. See Layno, 6 Vet. App. at 469. Lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation. Barr, 21 Vet. App. at 303. Lay evidence may establish a diagnosis of a simple medical condition, a contemporaneous medical diagnosis, or symptoms that later support a diagnosis by a medical professional. Jandreau, 492 F.3d at 1377. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C.A. § 5107 (b); 38 C.F.R. § 3.102. III. Analysis The Veteran raised this gastrointestinal disability claim on July 7, 2010; at that time, he simply described a symptom, "burning in my throat." During testimony before the undersigned VLJ, the Veteran contended that his gastrointestinal disability is the direct result of drinking contaminated water in the Republic of Vietnam. See January 2017 Hearing Transcript. In the alternative, the Veteran averred that his gastrointestinal disability was aggravated by his service-connected PTSD, which is currently evaluated at 70 percent. Id. After thorough review of the claims file, the Board concludes that the weight of the evidence supports a conclusion that the Veteran's gastrointestinal disability is aggravated by his PTSD. As a result of this conclusion, the Board need not address or analyze whether the Veteran's presumed exposure to an herbicide agent in the Republic of Vietnam led directly to his gastrointestinal disability. In March 2012, the Veteran underwent a VA examination to determine the nature and etiology of his gastrointestinal disability. The VA provider indicated that the Veteran was initially given diagnoses of GERD and Hiatal hernia in 1997. The VA provider noted that, "diagnosis of gastroesophageal reflux disease (GERD) can be made clinically by evidence of relief of typical symptoms of reflux . . .." The VA provider stated that, "this Veteran does have a sliding hiatal hernia and GERD but I opine this is not secondary or caused by PTSD." Importantly, this VA provider remarked that, "PTSD can temporarily aggravate GERD only (not hiatal hernia) in that the PTSD (if actively bothering the Veteran) can temporarily activate the vagus nerve going to the stomach, increasing acid production, and thus causing more irritation with the resultant GERD. The date of aggravation cannot be stated from the history in the records nor from the Veteran." In January 2014, the Veteran underwent another VA examination. At that time, this VA provider noted that the Veteran had maintained diagnoses for GERD and Hiatal hernia since 1997. During the examination, the Veteran reported that, "he first had problems w/ sxs of GERD in the early 1970's w/ burning in his throat." The VA provider revealed that diagnostic test results from July 2013 indicated moderate esophagitis. The VA provider opined that, "it is less likely than not that Vet's hiatal hernia and GERD were caused or permanently aggravated by his PTSD b/c hiatal hernias and GERD are not caused nor permanently aggravated by mental health conditions . . .." In January 2017, VA received the two-paragraph medical report of Dr. M. Therein, Dr. M. comments that, "(the Veteran) has chronic PTSD that is in the moderate to severe based on PCL scores in the 60-70 range and clinical history of significant functional impairment related to PTSD symptoms." Dr. M. concluded with, "(h)e has high anxiety daily related to his PTSD and it is my opinion that his GERD is likely significantly exacerbated by his anxiety." In January 2017, VA received the reports from two providers that work at Crossroads. The Veteran's psychotherapist from 1994 through 2006, opined that, "(the Veteran's) PTSD and anxiety over the years have exacerbated his symptoms with his GERD." A different psychotherapist that treated the Veteran from 2011 to 2017, opined that, "(d)ue to his high anxiety that is related to his PTSD he has developed GERD as a result." The Board is keenly aware that the conclusions provided by the VA providers are opposite of those supplied by the Veteran's non-VA providers. Where medical opinions conflict, the Board "may favor one medical opinion over another" if it offers an adequate statement of reasons or bases. D'Aries v. Peake, 22 Vet. App. 97, 107 (2008). A mere conclusion without an underlying rationale is of little or no probative value. Miller v. West, 11 Vet. App. 345 (1998). Moreover, the Board may give greater probative weight to one examiner's opinion over another's based on its reasoning and whether the examiner reviewed prior clinical records and other pertinent evidence. Gabrielson v. Brown, 7 Vet. App. (1994). VA is permitted to accept a report provided by a private physician as sufficient to grant a claim, without confirmation by a VA examination, if the report is sufficiently complete to be adequate for the purpose of adjudicating the claim. 38 U.S.C.A. § 5125. Typically, the Board would afford little probative weight to Dr. M.'s January 2017 medical conclusion because she offered no rationale. See Miller, 11 Vet. App. 345. The Board would also typically deem all three non-VA opinions inadequate because they were not sufficiently complete to be adequate for the purpose of adjudicating the claim. 38 U.S.C.A. § 5125. However, the conclusion for all three of these non-VA providers is bolstered and substantiated by the opposite conclusion reached by the VA provider in March 2012. As identified earlier, the March 2012 VA provider opined that the Veteran's GERD was not secondary to, or caused by, his service-connected PTSD. The Board cannot afford this VA provider's ultimate conclusion probative weight, because he also stated that PTSD aggravates GERD. The temporary activation of the vagus nerve going to the stomach, which cases more irritation with the resultant GERD, identified by the VA provider is clearly a definitive nexus between the current disability and the service-connected disability. Wallin, 11 Vet. App. at 512; Reiber, 7 Vet. App. at 516-17. When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each issue shall be given to the Veteran. See 38 U.S.C.A. § 5107; 38 C.F.R. §§ 3.102, 4.3. The Veteran need only demonstrate an approximate balance of positive and negative evidence in order to prevail. See Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). After reviewing and analyzing the evidence found in the Veteran's claims file, the Board concludes that the benefit of the doubt resides with the Veteran. Therefore, the Board finds that the Veteran is entitled to service connection for a gastrointestinal disability, secondary to PTSD. ORDER Service connection for a gastrointestinal disability, secondary to PTSD, is granted. ____________________________________________ DAVID L. WIGHT Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs