Citation Nr: 18144565 Decision Date: 10/25/18 Archive Date: 10/24/18 DOCKET NO. 16-19 963 DATE: October 25, 2018 ORDER 1. As new and material evidence has been received, the application to reopen the claim for service connection for gastroesophageal reflux disease (GERD) is granted and to that extent only, the appeal is allowed. 2. Entitlement to service connection for GERD is denied. FINDING OF FACT 1. The evidence received since a March 2002 rating decision is neither cumulative nor redundant, relates to unestablished facts necessary to substantiate the claim, and raises a reasonable possibility of substantiating the claim of entitlement to service connection GERD. 2. The preponderance of the evidence weighs against associating currently diagnosed GERD with any incident of service or to a service-connected disability. CONCLUSION OF LAW 1. New and material evidence has been received to reopen a claim of entitlement to service connection for GERD. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 2. The criteria for entitlement to service connection for gastroesophageal reflux disease have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1979 to January 2001. This matter comes before the Board of Veterans Appeals (Board) on appeal from a rating decision of the Department of Veterans Affairs (VA) Pittsburgh Regional Office (RO). The Board has thoroughly reviewed all the evidence in the Veteran’s claims file. The Board has an obligation to provide reasons and bases supporting a decision. However, there is no need to discuss, in detail, the evidence submitted by the Veteran or on his behalf. The Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378 (Fed. Cir. 2000). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The Veteran should not assume that the Board has overlooked pieces of evidence that are not explicitly discussed. Timberlake v. Gober, 14 Vet. App. 122 (2000) (Board must address its reasons for rejecting evidence favorable to the Veteran). 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 contained in the record. Every item of evidence does not have the same probative value. When all the evidence is assembled, the Board is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). New and Material Evidence Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. VA rating decisions that are not timely appealed are final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. A finally disallowed claim may be reopened when new and material evidence is presented or secured with respect to that claim. 38 U.S.C. § 5108. New evidence is defined as evidence not previously submitted to agency decision-makers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156a. An adjudicator must follow a two-step process in evaluating a previously denied claim. First, the adjudicator must determine whether the evidence added to the record since the last final decision is new and material. If new and material evidence is presented or secured with respect to a claim that has been finally denied, the claim will be reopened and decided upon the merits. Once it has been determined that a claimant has produced new and material evidence, the adjudicator must evaluate the merits of the claim in light of all the evidence, both new and old, after ensuring that the VA’s statutory duty to assist the appellant in the development of his claim has been fulfilled. 38 U.S.C. § 5108. The claim to reopen does not require the submission of new and material evidence as to each previously unproven element of a claim for that claim to be reopened. Shade v. Shinseki, 24 Vet. App 110 (2010). A March 2002 rating decision denied service connection for GERD because there was no evidence or diagnosis of a chronic disability. The evidence of record at the time of that rating decision included service medical records through January 2001 and a private gastrointestinal examination from July 2000. The March 2002 rating decision became final when the Veteran did not perfect an appeal in a timely manner, even after being granted an extension. The Veteran was notified of the finality of that rating decision in a May 2004 letter. In February 2011, the Veteran submitted the results of three medical tests from 2005, a barium swallow, esophagogastroduodenoscopy, and a 24 hour manometry. Specifically, the newly submitted November 2005 esophagogastroduodenoscopy, despite all findings being normal, diagnosed esophageal reflux. The credibility of the newly submitted evidence is presumed in determining whether the new evidence is material. Justus v. Principi, 3 Vet. App. 510 (1992). As the medical statement is presumed to be credible for the limited purpose of attempting to reopen a previously denied claim, that evidence raises a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156a. Accordingly, the additional evidence is also material. As new and material evidence has been received, the claim for service connection for GERD is reopened. Service Connection Service connection may be established for disability or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may also be established for disability shown after service, when the evidence, including that pertinent to service, shows that it was incurred or aggravated in service. 38 C.F.R. § 3.303(d). To establish a service connection for a disability, a Veteran must show: (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. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). A disability may be service connected if the evidence of record shows that the Veteran currently has a disability that was chronic in service or that was chronic as defined by regulation with continuity of symptomatology demonstrated after service. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). A disability that is proximately due to or the result of a service connected disease or injury shall be service connected. When service connection is established for a secondary condition, the secondary condition shall be considered a part of the original condition. 38 C.F.R. § 3.31a. Secondary service connection may also be established for a non-service connected disability which is aggravated by a service-connected disability. In that instance, the Veteran will be compensated for the degree of disability over and above the degree of disability existing prior to the aggravation. Allen v. Brown, 7 Vet. App. 439 (1995). A Veteran need only demonstrate that there is an approximate balance of positive and negative evidence to prevail. To deny a claim on its merits, the preponderance of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Entitlement to service connection for gastroesophageal reflux disease The service medical records from July 2000 show that the Veteran did not have symptoms of GERD but had a nocturnal cough and was mainly complaining of chronic nasal congestion and postnasal drainage. During that medical examination, the physician attempted to rule out GERD by prescribing a three-month trial of GERD medication and reassessing its effectiveness in three months. The Veteran contends that drug trial constitutes an active duty diagnosis. The Board finds that does not constitute a GERD diagnosis during service. That testing constitutes a means to determine if GERD was present. Four months later, in November 2000, during the Veteran’s retirement physical, the Veteran was found to be in fair health. That examination notes no frequent indigestion, no abdominal abnormality, and the Veteran makes no mention of any GERD related concerns. On the accompanying report of medical history, the Veteran denied having frequent indigestion. The Veteran noted stomach, liver, or intestinal problems. However, the examining physician clarified that was related to a liver issue. A November 2011 VA gastrointestinal examination, showed complaint of acid taste in the mouth and a feeling that “something is coming up.” The Veteran reported taking Prilosec and that the symptoms were “a lot better.” An upper gastrointestinal examination showed free passage of barium through the esophagus and the assessment explicitly stated that the Veteran had no evidence of gastric reflux or gastroesophageal reflux disease. After performance of a barium swallow, an August 2005 private medical treatment record noted “unremarkable esophagus passage without evidence of circumscribed esophagus stenosis, diverticula formation, gastroesophageal reflux or hiatus hernia.” In November 2005, over four and a half years after separation from service, the Veteran was diagnosed with esophageal reflux by a physician. On VA examination in July 2012, the examiner indicated that the Veteran had a diagnosis of GERD. After review of the Veteran’s claims file, the examiner opined that the GERD was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in- service injury, event or illness. “It is the opinion of this examiner that GERD was not found while active duty. GERD was not incurred in or caused by Asthma/night time coughing that occurred around 1997. GERD is not likely, less than 50/50 probability, incurred in or caused by record of complaints of night cough and preliminary ‘rule out’ GERD that occurred between 1997 and 2001.” The evidence of record shows that the Veteran has a current diagnosis of GERD. The Board has considered whether service connection for GERD could be warranted on a direct basis. Significantly, none of the Veteran's medical treatment providers have given any indication in the record that the Veteran's GERD could be related to active duty service or to any service-connected disability. The only evidence which provides any connection between the Veteran's GERD and service comes from the Veteran. The Veteran has not submitted any competent medical opinion relating any current GERD to service or any symptoms or treatment during service. The Board is not free to substitute its own judgment for that of a medical expert. Colvin v. Derwinski, 1 Vet. App. 171 (1991). However, the Board is required to assess the credibility and weight to be given to evidence. Madden v. Gober, 125 F.3d 1477 (Fed. Cir. 1997). The Board has considered the Veteran's lay statements. Laypersons are competent to provide opinions on some medical issues. Kahana v. Shinseki, 24 Vet. App. 428 (2011). However, as to the specific issue in this case, whether GERD was caused by active service, those issues fall outside the realm of common knowledge of a layperson. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). As a layperson, it is not shown that the Veteran possesses the medical expertise to provide etiology or diagnostic opinions, and no competent nexus opinions are of record. The July 2012 VA examiner opined that it was less likely than not that the Veteran's GERD was related to active service. The Board finds the July 2012 VA examiners' opinion to be more probative than the lay statements of record. The opinion of the July 2012 VA examiner is highly probative because it is supported by detailed rationale and provided by trained medical professionals. The VA examiner specifically identified and discussed the Veteran's contentions and theory concerning service and the claimed disability. Accordingly, the July 2012 VA opinion is found to carry significant weight. Among the factors for assessing the probative value of a medical opinion are the physician's access to the claims file and the thoroughness and detail of the opinion. Hayes v. Brown, 5 Vet. App. 60 (1993) (it is the responsibility of the Board to assess the credibility and weight to be given the evidence); Wood v. Derwinski, 1 Vet. App. 190 (1992). The probative value of medical evidence is based on the physician's knowledge and skill in analyzing the data, and the medical conclusion she reaches; as is true of any evidence, the credibility and weight to be attached to medical opinions are within the province of the Board. Guerrieri v. Brown, 4 Vet. App. 467 (1993). Accordingly, after a careful review of the evidence of record, the Board finds that the preponderance of the evidence is against the claim. No causal connection between the Veteran's service and GERD is demonstrated by the evidence of record. The Board is sympathetic to the Veteran in that it is clear that the Veteran sincerely believes the Veterans’ GERD originated during service. However, the most persuasive evidence of record does not support that contention. The weight of the competent and credible evidence establishes that the Veteran's current GERD first manifested approximately 4.5 years after service separation. The Board finds it significant that the Veteran herself indicated on a November 2000 Report of Medical History at separation from active duty that she did not experience frequent indigestion and made no mention of any gastrointestinal concerns, despite being examined for and mentioning numerous other issues. The fact that her VA examination in 2000 makes no mention of gastrointestinal problems, despite identifying various other disabilities that she believed to be related to service, is persuasive evidence against a finding that she was experiencing continuous symptomatology between service and the eventual diagnosis of GERD in 2005. While not a dispositive factor, the significant lapse in time between service and post-service medical treatment may be considered as part of the analysis of a service connection claim. Maxson v. West, 12 Vet. App. 453 (1999); Curry v. Brown, 7 Vet. App. 59 (1994) (contemporaneous evidence has greater probative weight than a history reported by the Veteran). The Board is appreciative of the Veteran's faithful and honorable service to our country. However, because the preponderance of the evidence is against the claim, the claim must be denied. As the preponderance of the evidence is against the claim of entitlement to service connection for GERD, the claim must be denied. 38 U.S.C. § 5107b; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Harvey P. Roberts Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD E. Mondesir, Law Clerk