Citation Nr: 18146745 Decision Date: 11/01/18 Archive Date: 11/01/18 DOCKET NO. 14-44 097A DATE: November 1, 2018 ORDER Service connection for gastroesophageal reflux disease (GERD), claimed as a gastrointestinal disorder, is granted. Service connection for headaches is granted. REMANDED Service connection for bladder cancer is remanded. Service connection for prostate cancer is remanded. FINDINGS OF FACT 1. The Veteran’s GERD began during active duty service. 2. A chronic headaches disorder began during active duty service. CONCLUSIONS OF LAW 1. The criteria for service connection for GERD (claimed as a gastrointestinal disorder) have been met. 38 U.S.C. §§ 1110, 1134, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for a chronic headaches disorder have been met. 38 U.S.C. §§ 1110, 1134, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1977 to May 1997. The Veteran died on December [redacted], 2014. The appellant is the Veteran’s surviving spouse. The case is on appeal from an August 2013 rating decision. In an internal record dated in June 2016, the RO declared “the surviving spouse is the substitute claimant.” The Board notes that the issue of service connection for prostate cancer was initially denied in August 2006. However, in his September 2013 notice of disagreement the Veteran requested consideration of his claims based on his service in the Persian Gulf; which had not previously been done. The issue of service connection for prostate cancer was then readjudicated, de novo, by the RO. See December 2014 statement of the case. As the Veteran was in fact entitled to review of his claims under the presumptive provisions of 38 C.F.R. § 3.317, the new and material evidence provisions of 38 C.F.R. § 3.156 do not apply and the issue is one for service connection on the merits; as certified by the RO. The Board further notes that pursuant to the Veteran’s December 2014 substantive appeal (Form 9), a Board Hearing was scheduled for August 29, 2017; and notifications of the scheduled hearing were dispatched to the appellant/substitute claimant’s current address of record. However, the appellant/substitute claimant did not show or otherwise contact VA regarding the hearing. The request for a Board Hearing is thus considered withdrawn. The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. “To establish a right to compensation for a present 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”—the so-called “nexus” requirement.” Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the Veteran. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 1. Service connection for GERD As stated before, in December 2014 the Veteran died. Prior to his death he had perfected an appeal for service connection for a gastrointestinal disorder. For the following reasons the Board is satisfied that the claim is substantiated. There is no record of any gastrointestinal complaints or treatment until service, when service treatment records (STRs) chronicle years of treatment for gastrointestinal complaints, including nausea, vomiting, diarrhea, acid indigestion, stomach cramps, and abdominal pain. Moreover, VA medical records show a diagnosis of GERD that, according to a VA examiner, was diagnosed in 1997. See December 2014 VA examination report, p. 7. See also August 2013 VA examination report, in which this same examiner stated that the Veteran’s GERD was diagnosed “in-service.” Although the examiner then stated “It is Less likely as not (50/50) that the veteran’s Acid reflux was caused by his Military Service,” this obviously conflicts with his earlier contention that GERD was diagnosed during service. Therefore, and according the Veteran all reasonable doubt, the Board finds that service connection for GERD is warranted. 2. Service connection for headaches The Veteran had also requested service connection for headaches. There is no record of headaches prior to service. Service treatment records (STRs) confirm that the Veteran complained of headaches during service. See, e.g., STRs dated in February 1986. VA medical records also advise of frequent headaches. See, e.g., VA medical records dated in July 2004. See also December 2014 VA headaches examination report (p. 2), in which the examiner averred that the date of diagnosis was 1997. Based on evidence of headaches during service, in the year after service, and thereafter, the Board finds that service connection for headaches is warranted. This is particularly so when reasonable doubt is resolved in the Veteran’s favor. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. REASONS FOR REMAND 1. Service connection for bladder cancer is remanded. 2. Service connection for prostate cancer is remanded. The Veteran had also perfected claims for prostate cancer and bladder cancer prior to his death. STRs chronicle years of abdominal cramping and pain (including brought on with eating), described by one provider as of questionable etiology. See STR dated March 14, 1988. There is also a diagnosis of mesenteric adenitis and dehydration, and it seems that the provider also pondered the possibility of cancer. Id. Medical records dated after service note that the Veteran had a history of escalating PSA (see, e.g., VA medical records dated in 2004); and needle biopsy in December 2004 confirmed a diagnosis of “extensive Gleason 7 adenocarcinoma of the prostate” at the Veteran’s age of 49. See, e.g., VA medical records dated in July 2005. Additionally, treatment records dated in August 2013 indicate that the Veteran’s prostate cancer had “spread through most of his body.” In view of the service and post-service evidence and the medical complexity of these issues, remand of these claims for an opinion by an appropriate physician is needed. 38 C.F.R. § 3.159(c)(4). See also Colvin v. Derwinski, 1 Vet. App. 171 (1991) (holding that the Board must consider only independent medical evidence to support its findings rather than provide its own medical judgment). The matters are REMANDED for the following action: Refer this matter to an appropriate physician (preferably an Oncologist or a Urologist, if possible but not required) for an opinion regarding service connection for prostate cancer and service connection for bladder cancer. The entire claims file must be reviewed. The examiner is then requested to opine as to 1. whether it is at least as likely as not that the Veteran’s prostate cancer a) began during active duty service; or, b) is related to any incident of the Veteran’s active duty service (including the Veteran’s service in the Southwest Asia Theater of Operations). 2. whether it is at least as likely as not that the Veteran’s bladder cancer a) began during active duty service; or, b) is related to any incident of the Veteran’s active duty service (including the Veteran’s service in the Southwest Asia Theater of Operations); or, c) is causally related to the Veteran’s prostate cancer. (Continued on the next page)   A discussion of the facts and the medical principles involved will be of considerable assistance to the Board. John Crowley Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD P. Childers, Counsel