Citation Nr: 18142426 Decision Date: 10/15/18 Archive Date: 10/15/18 DOCKET NO. 14-42 598 DATE: October 15, 2018 ORDER Entitlement to service connection for a liver condition, to include as due to an undiagnosed illness and/or medications taken for service-connected posttraumatic stress disorder (PTSD) and a back condition is denied. REMANDED Entitlement to service connection for gastroesophageal reflux disease (GERD), to include as due to an undiagnosed illness and/or medications taken for service-connected PTSD and a back condition is remanded. FINDINGS OF FACT 1. The Veteran served in the Southwest Asia Theater of Operations during the Persian Gulf War. 2. The Veteran’s liver condition is attributed to the known clinical diagnosis of fatty liver; it was not manifested in service, and it is not shown to be related to his service nor to have been caused or aggravated by his medications taken for service-connected PTSD and a back condition. CONCLUSION OF LAW The criteria for service connection for a liver condition, to include a secondary basis as proximately due to, the result of, or aggravated by service-connected disabilities or medications for those disabilities have not been met. 38 U.S.C. §§ 1110, 5107 (b); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.310, 3.317. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from November 1990 to February 1993. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a June 2013 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. The Board notes that there were two additional issues, entitlement to service connection for irritable bowel syndrome and entitlement to service connection for erectile dysfunction, that the Veteran had appealed. However, in October 2014 and April 2016 rating decisions, the RO granted service connection for these claims. Therefore, these claims were granted in full and are no longer before the Board. Entitlement to service connection for a liver condition, to include as due to an undiagnosed illness and/or medications taken for service-connected PTSD and a back condition Service connection may be granted for disability due to disease or injury incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Service connection also may be granted for any disease initially diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that it was incurred in service. 38 C.F.R. § 3.303 (d). To establish service connection for a claimed disability, there must be evidence of: (1) a current disability; (2) of incurrence or aggravation of a disease or injury in service; and (3) a causal connection between the disease or injury in service and the current disability. See Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and an evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303 (a). Service connection may be granted on a secondary basis for a disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310. Under 38 C.F.R. § 3.310, secondary service connection is permitted based on aggravation; compensation is payable for the degree of aggravation of a non-service-connected disability caused by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). In order to prevail on the issue of entitlement to secondary service connection, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical nexus evidence establishing a connection between a service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). Service connection may be established for a chronic disability resulting from an undiagnosed illness that became manifested either during active service in the Southwest Asia Theater of operations during the Persian Gulf War or to a degree of 10 percent or more not later than December 31, 2021. 38 U.S.C. § 1117; 38 C.F.R. § 3.317 (a)(1)(i). Service connection may also be established for a Persian Gulf Veteran who exhibits objective indications of “qualifying chronic disability,” a chronic disability resulting from an undiagnosed illness, a medically unexplained chronic multisymptom illness (such as chronic fatigue syndrome, fibromyalgia, and irritable bowel syndrome) that is defined by a cluster of signs or symptoms, or any diagnosed illness that the Secretary determines warrants a presumption of service connection. 38 U.S.C. § 1117. An “undiagnosed illness” is one that by history, physical examination, and laboratory tests cannot be attributed to any known clinical diagnosis. 38 C.F.R. § 3.317 (a)(1)(ii). A qualifying chronic disability means a chronic disability resulting from any of the following (or any combination of the following): (A) an undiagnosed illness; (B) the following medically unexplained chronic multisymptom illnesses that are defined by a cluster of signs or symptoms: (1) chronic fatigue syndrome; (2) fibromyalgia; (3) irritable bowel syndrome; or (4) any other illness that the Secretary determines meets the criteria in paragraph (a)(2)(ii) of this section for a medically unexplained chronic multisymptom illness; or (C) any diagnosed illness that the Secretary determines in regulations prescribed under 38 U.S.C. § 1117 (d) warrants a presumption of service-connection. 38 C.F.R. § 3.317 (a)(2)(i). For purposes of this section, the term medically unexplained chronic multisymptom illness means a diagnosed illness without conclusive pathophysiology or etiology, that is characterized by overlapping symptoms and signs and has features such as fatigue, pain, disability out of proportion to physical findings, and inconsistent demonstration of laboratory abnormalities. Chronic multisymptom illnesses of partially understood etiology and pathophysiology will not be considered medically unexplained. 38 C.F.R. § 3.317 (a)(2)(ii). For purposes of this section, “objective indications of chronic disability” include both “signs,” in the medical sense of objective evidence perceptible to an examining physician, and other, non-medical indicators that are capable of independent verification. 38 C.F.R. § 3.317 (a)(3). Lay evidence may be competent evidence to establish incurrence. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a layperson. 38 C.F.R. § 3.159 (a)(2). Lay evidence can also be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (e.g., a broken leg), (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. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). However, competent medical evidence is necessary where the determinative question is one requiring medical knowledge. Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also mean statements conveying sound medical principles found in medical treatises or statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159 (a)(1). It is the policy of VA to administer the law under a broad interpretation, consistent with the facts in each case, with all reasonable doubt to be resolved in favor of the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. When all of 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 fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). The Veteran asserts that his liver condition is due to an undiagnosed illness associated with his Gulf War service. He also asserts that this condition may also be secondary to his medications taken for his service-connected PTSD and back condition. The Board first notes that the Veteran has been diagnosed with fatty liver during the course of the appeal, as shown in his medical treatment records. As the current diagnosis of the claimed condition is established, the Board moves to consideration of whether the Veteran’s liver condition is etiologically linked to his active duty military service. The Veteran’s service treatment records are silent for complaints, diagnosis, or treatment of a liver condition. In a September 2014 VA examination, the examiner noted a diagnosis of fatty liver in April 2012. The examiner opined that it was less likely than not that fatty liver was related to a specific exposure event experienced by the Veteran during service in Southwest Asia. The examiner reasoned that fatty liver was a distinct condition with clear and specific etiologies and diagnosis. This condition had not been associated with the illnesses or exposures described in Veteran’s returning home from the Gulf War in medical research published in peer-reviewed medical journals. In a March 2016 VA opinion, the examiner opined that the Veteran’s liver condition was less likely than not proximately due to, the result of or worsened by the Veteran’s service-connected conditions including the medications taken for those conditions. The examiner stated that VA treatment records indicated that there was no liver function testing that had been abnormal in the past year. Additionally, there was no diagnosis of a liver condition included in the active problem list from the VA treatment records currently, though the Veteran was mentioned to have fatty liver in a prior VA examination. The examiner said that the Veteran was prescribed medication to treat the fats in the blood that caused fatty liver. The treatment records did not indicate that there was any medication for PTSD or the back condition that had etiologically related to any liver condition. The examiner said that the fatty liver mentioned in the prior VA examination was more likely than not related to increased fats (triglycerides) in the Veteran’s blood that were not caused by any medication for his back or PTSD. Additional post-service treatment records do not show any nexus on a direct or aggravation basis between the Veteran’s liver condition and service, an undiagnosed illness and/or medications taken for the Veteran’s service-connected PTSD and back condition. The Board finds that the September 2014 and March 2016 VA opinions are adequate and probative evidence addressing the medical questions central to the service connection claim for a liver condition. The opinions are presented by a medical doctor competent to provide the analysis, and is informed by examination and interview of the Veteran together with review of the claims-file. The opinions are presented with a persuasive analytical rationale citing medical principles and the specific factual history of this case. Further, the Veteran’s fatty liver was not shown to be diagnosed until 2012, almost 20 years after separation from service. With regard to the Veteran’s theory that his liver condition has been caused or aggravated by his medications taken for his service-connected PTSD and back condition, the March 2016 VA medical opinion makes clear that these medications do not cause or aggravate a liver condition. As there are no contrary medical opinions of record, the Board finds the pertinent medical opinions presented in the September 2014 and March 2016 VA examination and opinions to be persuasive. The Board notes that the Veteran is competent to report symptoms; however, he is not competent to provide a diagnosis and nexus between service and his condition. This requires medical expertise. Thus, the preponderance of the evidence is therefore against finding that the Veteran’s liver condition is etiologically linked to service, and the preponderance of the evidence is against finding that the Veteran’s liver condition is etiologically linked (through causation or aggravation) to the medications taken for his service-connected PTSD and back condition. Accordingly, the claim for service connection for a liver condition cannot be granted on these direct or secondary bases. The September 2014 VA medical opinion is also uncontradicted in its conclusions explaining that the Veteran’s liver condition symptomatology is neither a manifestation of an undiagnosed illness nor a diagnosed medically unexplained chronic multisymptom illness. Furthermore, the “Gulf War General” section (as discussed above) makes clear that the Veteran’s disability manifestations include no additional signs and/or symptoms that may otherwise represent an “undiagnosed illness” or “diagnosed medically unexplained chronic multisymptom illness.” Accordingly, service connection for this disability cannot be granted through application of the special provisions of 38 C.F.R. § 3.317. The preponderance of the evidence is against the claim, and the benefit-of-the-doubt standard of proof does not allow for a grant of the appeal in this matter. 38 U.S.C. § 5107 (b). REASONS FOR REMAND Entitlement to service connection for gastroesophageal reflux disease (GERD), to include as due to an undiagnosed illness and/or medications taken for service-connected PTSD and a back condition is remanded. A recent case from the United States Court of Appeals for Veterans Claims (CAVC) concludes that GERD is not eligible for presumptive service connection as a medically unexplained chronic multi symptom illness under 38 C.F.R. § 3.317. Atencio v. O’Rourke, No. 16-1561 (Vet. App. July 6, 2018). Therefore, GERD does not fall within one of the presumptive diseases under 38 C.F.R. § 3.317. However, this does not preclude the Veteran from seeking direct service connection. A March 1992 service treatment record shows that the Veteran complained of chronic stomach pain. A January 1993 service treatment record assessed the Veteran with possible gastritis. At the September 2014 VA examination, the examiner opined that it was less likely than not that GERD was related to a specific exposure event experienced by the Veteran during service in Southwest Asia. The examiner reasoned that GERD was a distinct disease with clear and specific etiologies and diagnosis. This condition had not been associated with the illnesses or exposures described in Veteran’s returning from the Gulf War in medical research published in peer-reviewed medical journals. Further, in the March 2016 VA opinion, the examiner opined that it was less likely than not that the Veteran’s GERD was caused by and/or worsened by treatment for service-connected PTSD and back condition. The examiner said that GERD was caused by the lowering of pressure in the lower esophageal sphincter due to obesity, lying in supine position, and laxity of the sphincter. The meloxicam had a potential of irritating the stomach lining, but not of causing GERD. There was less than likely any medication listed in the Veteran’s active medication profile that indicated GERD was caused by or actually worsened by taking the medicine as prescribed for a service-connected disability. The United States Court of Appeals for the Federal Circuit has held that when a claimed disorder is not included as a presumptive disorder, direct service connection may nevertheless be established by demonstrating that the disease was in fact “incurred” during service by proof of direct causation. See Combee v. Brown, 34 F.3d 1039, 1042 (Fed Cir. 1994). The Board notes that the September 2014 and March 2016 opinions are adequate in that they addressed the issue of service connection due to an undiagnosed illness and/or on a secondary basis due to medications taken for the Veteran’s service-connected PTSD and back condition, respectively. However, the Board finds that these VA opinions failed to address the evidence of stomach pains and the possible diagnosis of gastritis during service in making a determination as to whether his current GERD is related to his service. Therefore, remand is required to address the Veteran’s GERD on a direct basis. The matter is REMANDED for the following actions: 1. Obtain any outstanding VA or private treatment records. Request that the Veteran assist with locating these records, if possible. Associate these records with the claims file. 2. Then, forward the claims file and a copy of this remand to the March 2016 VA examiner, if available, or an appropriate substitute, for an addendum opinion regarding the etiology of the Veteran’s GERD. After a review of the evidence, the examiner is asked to opine whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s GERD was caused by service. A clear rationale must be provided for all opinions expressed. The examiner must consider the March 1992 and January 1993 service treatment records that show complaints of stomach pain and the possible diagnosis of gastritis. If the examiner is unable to provide an opinion without resorting to mere speculation then the examiner must state this and provide any information needed to provide an opinion, if possible. 3. Thereafter, readjudicate the claim on appeal. If the benefit sought remains denied, issue the Veteran and his representative a supplemental statement of the case and provide a reasonable opportunity to respond before returning this matter to the Board for further appellate review. J. CONNOLLY Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Saudiee Brown, Associate Counsel