Citation Nr: 1805879 Decision Date: 01/30/18 Archive Date: 02/07/18 DOCKET NO. 94-03 646 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to service connection for a gastrointestinal disorder, to include gastroesophageal reflux disease (GERD), Barrett's Esophagus, and chronic gastritis. 2. Entitlement to service connection for a gastrointestinal disorder excluding (GERD), Barrett's Esophagus, and chronic gastritis, and to include diverticulosis, polyp with internal hemorrhoids, and hiatal hernia. REPRESENTATION Veteran represented by: American Legion WITNESS AT HEARING ON APPEAL Veteran, his son, and his spouse ATTORNEY FOR THE BOARD E. Kunju, Associate Counsel INTRODUCTION The Veteran served on active duty from November 1952 to November 1954. This case comes to the Board of Veterans' Appeals (Board) on appeal from a February 1994 rating decision by the Department of Veterans' Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina which denied the Veteran's attempt to reopen his claim of entitlement to service connection for psychophysiological gastrointestinal reaction. In an April 1996 decision, the Board found that new and material evidence had not been presented and denied reopening the claim for service connection for psychophysiological gastrointestinal reaction. The Veteran filed an appeal to the United States Court of Appeals for Veterans Claims (Court). In a May 2000 decision, the Court vacated the Board's April 1996 decision and remanded the issue to the Board for further consideration. In February 2001, the Board remanded the issue to the RO for further development. In a November 2004 Board decision, the Board again denied reopening the claim of entitlement to service connection for psychophysiological gastrointestinal reaction. The Veteran appealed that decision to the Court. In a March 2007 Memorandum Decision, the Court vacated the portion of the November 2004 decision denying that issue, and remanded the matter to the Board. In December 2007, the Board remanded the claim to the RO for further development. In July 2011, the Board reopened the claim of service connection for psychophysiological gastrointestinal reaction and addressed the issue as two separate claims including service connection for a gastrointestinal disorder and service connection for a psychiatric disorder; both issues were remanded to the RO for further development. In September 2012 the Board remanded the issue on appeal and granted service connection for a psychiatric disorder. In June 2014, the Board once again remanded the claim to the RO for still further development. In March 2015, the Veteran testified at a hearing before a Veterans Law Judge (VLJ). A transcript of the hearing has been associated with the claims file. In July 2015, the Board found denied the claim on appeal. In a December 2016 Memorandum Decision, the Court vacated the July 2015 Board decision and remanded the issue for readjudication. Thereafter, the RO notified the Veteran that he was entitled to another hearing as the VLJ who held the 2015 hearing was no longer employed by the Board. In September 2017, the Veteran submitted a request for another Board hearing and was scheduled to attend a hearing in November 2017. However, in a November 2017 correspondence, the Veteran submitted a request to withdraw his hearing request due to the passing of his spouse. The Veteran also indicated his desire for the Board to proceed with adjudicating his claim. The Board finds that the Veteran's hearing request has been withdrawn. This case consists of documents in the Veterans Benefits Management System (VBMS) and in Legacy Content Manager (LCM). LCM contains the September 2013 VA addendum opinion. Otherwise, documents in LCM are duplicative of those in VBMS or are irrelevant to the issues on appeal. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C.A. § 7107(a)(2) (West 2014). The issue of entitlement to service connection for a gastrointestinal disorder excluding (GERD), Barrett's Esophagus, and chronic gastritis, and to include diverticulosis, polyp with internal hemorrhoids, and hiatal hernia is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT GERD, Barrett's Esophagus, and chronic gastritis began during active service. CONCLUSION OF LAW Resolving all reasonable doubt in the Veteran's favor, the criteria for service connection for GERD, Barrett's Esophagus, and chronic gastritis are met. 38 U.S.C. §§ 1110, 5103, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.326(a) (2017). In light of the Board's favorable decision to grant the service connection claim on appeal, however, any deficiencies in VA's duties to notify and assist the Veteran with his claim are moot. Service Connection In this case the Veteran is seeking service connection for a gastrointestinal disorder, which he asserts had its onset during his period of active service. Generally, service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131 (201); 38 C.F.R. § 3.303(a) (2017). To establish service connection, the following must be shown: (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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for any disease initially diagnosed after 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) (2017). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a 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. In fact, competent medical evidence is not necessarily required when the determinative issue involves either medical etiology or a medical diagnosis. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F .3d 1331 (Fed. Cir. 2006). 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 Veteran. Equal weight is not accorded to each piece of evidence of the record. When there is an approximate balance of evidence for and against the issue, reasonable doubt will be resolved in the Veteran's favor. 38 U.S.C. § 5107(b) (2012); 38 C.F.R. § 3.102 (2017); Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Service treatment records (STRs) indicate that the Veteran was seen in September 1953, at which time he reported feeling weakness in his stomach. In June 1954, he reported a one month history of abdominal pain and constipation. In July 1954, he was seen for an upset stomach. In August 1954, he was seen for gastrointestinal complaints. Post service treatment records including both VA and private treatment reports between the 1950s and 1980s show that the Veteran received treatment for complaints of chronic abdominal pain, epigastric pain, stomach pain, and weight loss. These records reflect diagnoses of psychophysiological disorder with gastrointestinal reaction. VA treatment records and private treatment records from the 1990s until present indicate complaints of stomach disorders, including diagnosis and treatment for GERD. In AN August 2005 statement, Dr. MGF stated that the Veteran suffered from diverticulitis, diminutive polyp in the sigmoid colon with internal hemorrhoids, and hiatal hernia in GI junction. Dr. MGF stated that, in reviewing the Veteran's records from an admission in October 1956, he had complaints of stomach pain and soreness in the epigastrium and right upper quadrant. Accordingly, Dr. MGF opined that in view of his past medical history, the majority of the Veteran's present day conditions were present during his enlisted time; that documentation began in October 1956 and is present 50 years later and he continues to suffer with the same condition. The Veteran was afforded a VA examination in January 2012. The Veteran was diagnosed with GERD. The Veteran reported that he began having acid reflux in 1965. The examiner opined that following review of the existing medical information, the Veteran's history, and clinical examination, the diagnosis of GERD was less likely as not originated during service. The examiner indicated that the Veteran started having epigastric pain and acid reflux in 1965 and that he was not diagnosed or treated for acid reflux while in service. The examiner noted that STRs showed no documented diagnosis of GERD. The Veteran was afforded a VA examination in November 2012. The examiner diagnosed GERD. A September 2013 addendum opinion was obtained. The examiner opined that the Veteran's GERD and colon polyps were less than likely incurred in service. The examiner explained that the Veteran's STRs demonstrated nonspecific gastrointestinal complaints associated with abdominal pain and weakness in the stomach and that at that time he was diagnosed with constipation. The examiner also noted that AT his separation examination, the Veteran checked "no" regarding questions of stomach trouble and indigestion and that the gastrointestinal symptoms during service with a diagnosis of constipation are not consistent with a diagnosis of GERD. Another addendum opinion was obtained in July 2014. The examiner opined that the condition claimed was less likely than not incurred in or caused by the in-service event. The examiner noted that the Veteran had a current diagnosis of GERD with chronic gastritis. The examiner explained that in September 1954, the Veteran had vague GI complaints and that in June 1954 he had abdominal pain for a month and he had a diagnosis of constipation. The examiner noted that on September 1953, he felt a little weak in his stomach. Accordingly, the examiner noted that these symptoms were vague and nonspecific and that at the Veteran's separation examination in November 1954, he denied any stomach or liver trouble and any history of frequent indigestion. The examiner observed that, since the Veteran indicated no frequent indigestion (an important hallmark for GERD), evidence to suggest a possibility of GERD during his active military service was weak. He further noted that the Veteran did not have a diagnosis of GERD or chronic gastritis during active military service or within 12 months after separation from service. At his March 2015 Board hearing, the Veteran testified that he experienced digestive symptoms during his period of active duty and that he still experiences those symptoms today. In November 2017, the Veteran's private physician, Dr. NY, provided an opinion. The physician stated that the Veteran was his patient for two months and came with complaints of epigastric abdominal pain which has been occurring for years. The physician noted diagnoses of chronic gastritis, GERD, and Barrett's Esophagus. The physician noted that he had reviewed the Veteran's medical records going back to 1953, and opined that the Veteran was receiving treatment for these chronic and recurrent, ongoing GI symptoms while attending the VA hospital when was on active duty in the army, and after getting discharged from the army, he was getting continued management for the same symptoms at Duke Medical Center. Accordingly, given that the Veteran had these symptoms while in the army, the physician opined that he could not say that these diagnoses did not have their origin while he was in the army. The Board finds that entitlement to service connection for gastrointestinal disorder is warranted. First, the Board notes that the record contains evidence of a gastrointestinal disorder. In the November 2017 statement by Dr. NY, the Veteran had diagnoses of chronic gastritis, GERD, and Barrett's Esophagus. Therefore, the Veteran has current diagnoses and the first element of service connection is met. See 38 C.F.R. § 3.303(a); Shedden, 381 F.3d at 1167. Second, there were in-service symptoms. The Veteran's STRs show that in September 1953 he complained of weakness in his stomach and an August 1964 note indicates chronic gastrointestinal complaints. The Veteran also provided competent and credible testimony at the March 2015 Board hearing that he experienced digestive symptoms during his period of active duty and that he still experiences those symptoms today. A lay witness is competent to report to factual matters of which he or she has first-hand knowledge. Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). The Board finds his lay statements are credible as they have been consistent throughout the claims process. See Caluza v. Brown, 7 Vet. App. 498, 511 (1995) (noting that the credibility of a witness may be impeached by a showing of interest, bias, inconsistent statements, consistency with other evidence), aff'd, 78 F.3d 604 (Fed. Cir. 1996). Thus, the second element of service connection, an in-service event, is met. See 38 C.F.R. § 3.303(a); Shedden, 381 F.3d at 1167. Third, the evidence supports a finding that the Veteran's gastrointestinal disorder is related to service. The Board assigns significant probative value to the 2017 private medical opinion as the examiner reviewed the relevant medical evidence and provided a supporting explanation for the positive nexus opinion. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008) (noting that the central issue in determining the probative value of an opinion is whether the examiner was informed of the relevant facts in rendering a medical opinion); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (holding that a medical opinion must be supported by an analysis that the Board can consider and weigh against contrary opinions). This opinion is supported by Dr. MGF's 2005 opinion that in view of his past medical history, the majority of the Veteran's present day conditions were present during his enlisted time. This opinion was also provided upon a review of the record. See Nieves-Rodriguez, 22 Vet. App. at 302-04; Stefl, 21 Vet. App. at 124. The Board notes the negative opinions contained in the January 2012 examination and the September 2013 and July 2014 addendum opinion reports. Regarding GERD and gastritis, the Board finds that the opinions are also of significant probative value. Each opinion was also provided upon a review of the relevant medical evidence and gave supporting rationale. See Nieves-Rodriguez, 22 Vet. App. at 302-04; Stefl, 21 Vet. App. at 124. Accordingly, regarding the diagnoses of GERD and gastritis, the evidence is in equipoise and service connection is granted. These opinions did not address diverticulosis, polyp with internal hemorrhoids, and hiatal hernia. However, the issue of entitlement to service connection for these diagnoses is being remanded herein; thus, this omission does not diminish the probative value of these examinations. Given the facts noted above, and resolving all reasonable doubt in the Veteran's favor, the Board finds that the criteria for service connection for GERD, Barrett's Esophagus, and gastritis are met. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. ORDER Service connection for GERD, Barrett's Esophagus, and chronic gastritis is granted. REMAND VA has a duty to assist claimants to obtain evidence needed to substantiate a claim. See 38 U.S.C. § 5103A (2012); 38 C.F.R. § 3.159 (2017). VA's duty to assist includes providing a medical examination when is necessary to make a decision on a claim. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4). The RO did not provide the Veteran with an examination and opinion in this case regarding diverticulosis, polyp with internal hemorrhoids, and hiatal hernia. Such development is necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim, but (1) contains competent evidence of diagnosed disability or symptoms of disability, (2) establishes that the veteran suffered an event, injury or disease in service, or has a presumptive disease during the pertinent presumptive period, and (3) indicates that the claimed disability may be associated with the in-service event, injury, or disease, or with another service-connected disability. 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79, 83-86 (2006) (noting that the third element establishes a low threshold and requires only that the evidence "indicates" that there "may" be a nexus between the current disability or symptoms and active service, including equivocal or non-specific medical evidence or credible lay evidence of continuity of symptomatology). Here, there are notations of record regarding each of these diagnoses. Additionally, as noted above, there are in-service gastrointestinal complaints. Finally, the Veteran has reported symptoms since service discharge. Accordingly, remand for a VA examination and opinion is required. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. Provide the Veteran with an appropriate examination to determine the etiology of his gastrointestinal disorders, other than GERD, chronic gastritis, and Barrett's Esophagus. The entire claims file must be made available to and be reviewed by the examiner. Any indicated tests and studies must be accomplished and all clinical findings must be reported in detail and correlated to a specific diagnosis. An explanation for all opinions expressed must be provided. First, the examiner must provide all diagnoses of gastrointestinal disorders present during the appeal period, other than GERD, chronic gastritis, and Barrett's Esophagus. If diverticulosis, polyps, hemorrhoids, and/or hernia are not diagnosed, a thorough explanation must be provided why these disorders previously diagnosed were not actually present at that time. Second, the examiner must provide an opinion regarding whether it is at least as likely as not (50 percent or greater probability) that each diagnosed gastrointestinal disorder other than GERD, gastritis, and Barrett's Esophagus, had onset in, or is otherwise related to, active military service. The examiner must address the following: 1) the Veteran's STRs; 2) the 2005 private medical opinion; 3) the VA examinations dated in 2012, 2013, and 2014; 4) the 2017 private medical opinion; and 5) the 2015 Board hearing testimony. 2. Notify the Veteran that it is his responsibility to report for any scheduled examination and to cooperate in the development of the claim, and that the consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2017). In the event that the Veteran does not report for any scheduled examination, documentation must be obtained which shows that notice scheduling the examination was sent to the last known address. It must also be indicated whether any notice that was sent was returned as undeliverable. 3. Ensure compliance with the directives of this remand. If the report is deficient in any manner, the AOJ must implement corrective procedures. Stegall v. West, 11 Vet. App. 268, 271 (1998). 4. After completing the above action, and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the claim must be readjudicated. If the claim remains denied, a supplemental statement of the case must be provided to the Veteran and his representative. After the Veteran and his representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals 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.A. §§ 5109B, 7112 (West 2014). ______________________________________________ K. MILLIKAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs