Citation Nr: 18161047 Decision Date: 12/28/18 Archive Date: 12/28/18 DOCKET NO. 13-33 854A DATE: December 28, 2018 ORDER Entitlement to service connection for gastroesophageal reflux disease (GERD) is denied. Entitlement to service connection for Barrett’s Esophagus, including as secondary to GERD, is denied. FINDINGS OF FACT 1. The preponderance of the evidence is against a finding that the Veteran’s GERD had its onset during or is otherwise related to his military service. 2. The preponderance of the evidence is against a finding that the Veteran has Barrett’s Esophagus.   CONCLUSIONS OF LAW 1. The criteria for service connection for GERD have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for Barrett’s Esophagus, including as secondary to GERD, have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Navy from May 1965 to May 1967. These matters are before the Board of Veterans’ Appeals (Board) on appeal from a September 2012 decision of a Department of Veterans Affairs (VA) Regional Office (RO). Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active military service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). Disorders diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d); see also Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). In order to establish service connection on a direct basis, the record must contain: (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). Secondary service connection may be granted for a disability that is proximately due to, the result of, or aggravated by a service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence of (1) a current disability for which service connection is sought; (2) an already service-connected disability; and (3) that the disability for which service connection is sought was either (a) caused or (b) aggravated by the already service-connected disability. See Allen v. Brown, 7 Vet. App. 439 (1995). With disability compensation claims, VA adjudicators are directed to assess both medical and lay evidence. In addressing lay evidence and determining its probative value, if any, attention is directed to both competency (“a legal concept determining whether testimony may be heard and considered”) and credibility (“a factual determination going to the probative value of the evidence to be made after the evidence has been admitted”). See Layno v. Brown, 6 Vet. App. 465, 469 (1994). In terms of competency, lay evidence has been found to be competent with regard to a disease with “unique and readily identifiable features” that is “capable of lay observation.” See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). In weighing credibility, VA may consider interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self-interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of the witness. See generally Caluza v. Brown, 7 Vet. App. 498 (1995), aff’d per curiam, 78 F.3d 604 (Fed. Cir. 1996). Turning to the evidence, in the Veteran’s February 1965 medical history he reported frequent indigestion and he said that he used over the counter antacids as a result. The Veteran checked the box indicating he did not have frequent indigestion in the medical history prepared when he separated from service and in the other medical histories prepared during his service. In December 1967 the Veteran filed a claim for compensation for service connection for a fractured right wrist, hepatitis, and nervous condition. The Veteran indicated that he was treated by civilian doctors for vomiting in November 1966 and for a nervous stomach in October 1967. In December 1967, the Veteran’s private physician found that the Veteran suffered from excess gas, vomiting, and that he reported heartburn 60 percent of the time. The physician indicated that the Veteran had “some trouble” before service. An x-ray examination indicated that the Veteran did not have an ulcer. The physician said that the Veteran’s only trouble during service was hepatitis, and he prescribed a bland diet, Maalox, and Librax. In February 1968, the Veteran underwent a VA examination for his wrist, hepatitis, and nervous condition. At that time, he reported that he had abdominal pains and frequent vomiting during meals. He said that his family physician had told him that this was due to a nervous stomach and high acid content. The examiner did not issue a diagnosis for the digestive problem as it was unrelated to the disabilities being examined. In November 1968, the Veteran was treated by a private physician. The Veteran had been vomiting for two days, his throat was discolored, he had no appetite, and he had lost ten pounds over the last month. In July 1988, the Veteran filed a new claim for VA benefits for unrelated disabilities. In the questionnaire he indicated that he had been treated for a stomach illness from October 1967 to March 1973. Private treatment records indicate that the Veteran underwent an upper endoscopy in October 1996. In November 2002, while being treated for a neurological issue, the Veteran said that he had been treated for peptic ulcers. In September 2005, the Veteran was treated at a VA treatment center for antral gastritis with erosion and esophagitis. In February 2011, a private pathologist diagnosed the Veteran with Barrett’s Esophagus. In April 2011, in a note to his private doctor, the Veteran said that his vocal cords were being damaged by Barrett’s disease. In May 2011, the private doctor referred him to a GI specialist, and in December 2011 the Veteran underwent an upper endoscopy finding no evidence of Barrett’s Esophagus. The Veteran underwent a VA examination for GERD and Barrett’s Esophagus in February 2012. The examiner diagnosed the Veteran with both GERD and Barrett’s Esophagus (based on the February 2011 diagnosis) and found that his GERD was less likely than not related to his military service. The examiner based this opinion on the fact that GERD is not mentioned in the Veteran’s service treatment records and that right upper quadrant pain with dark colored urine noted in November 1966 was determined to be hepatitis at a later date. Relying on the February 2011 diagnosis of Barrett’s Esophagus, the examiner opined that this condition was likely secondary to the GERD because he said that GERD is an independent risk factor for Barrett’s, conferring a fivefold increased risk. In August 2012, the Veteran was treated for GERD by a private physician. In September 2013 he underwent an upper endoscopy at a VA treatment center. The endoscopy removed a gastric polyp and showed no Barrett’s Esophagus. He was being treated for GERD at that time, with lansoprazole in 2012 and with pantoprazole in 2013 to 2014. In April 2017, the physician who performed the 2012 VA examination prepared an addendum to his 2012 report. He said that GERD was not likely caused by the Veteran’s service because it was not diagnosed until 29 years after the Veteran’s separation from service, because the Veteran’s 1996 treatment record states the physician’s opinion that there was “no appreciable gastroesophageal reflux,” and because there was no medical evidence that GERD or Barrett’s Esophagus were caused by the pyorrhea and indigestion that occurred during the Veteran’s service. This opinion holds little weight of probative value because it did not take into consideration the evidence indicating some continuity of symptoms since service. In February 2018, the Board requested a medical advisory opinion based on the foregoing evidence. In March 2018, a VA specialist considered the record and opined that it is less likely than not that the Veteran’s GERD is related to his service. The specialist indicated that it was unclear whether digestive symptoms began before, during, or after his active duty service and that the record suggested that his “digestive issues (probably GERD) existed before enlistment. He also explained that “the severity and frequency of his symptoms over the last 20 years have no parallel in his service record,” and because the specialist could find no evidence that the Veteran’s GERD was caused by an incident during his military service. The specialist also opined that the Veteran does not have Barrett’s Esophagus because the diagnosis of Barrett’s Esophagus was based on insufficient evidence, because subsequent upper endoscopies have not shown the disease, and because the images from the original endoscopy that led to the diagnosis did not in fact show Barrett’s Esophagus. 1. Entitlement to service connection for GERD The Veteran is seeking service connection for GERD. The Veteran has been diagnosed with GERD during the period on appeal and therefore the first requirement of service connection is satisfied. Shedden, 381 F.3d 1163, 1167. There is also evidence indicating the Veteran had digestive trouble during his military service. Specifically, in December 1967, the Veteran indicated that he was treated by civilian doctors for vomiting during service in November 1966. As such, there is evidence he experienced digestive symptoms during his active service. However, a preponderance of the evidence is against a finding that there is a medical relationship, or nexus, between the Veteran’s GERD and his military service. The Board acknowledges that lay persons may be competent to provide opinions on some medical issues and that the Veteran believes that his GERD is related to his service. Kahana v. Shinseki, 24 Vet. App. 428 (2011). However, as to the etiology of GERD, the issue of causation of such a medical condition is a complex medical determination outside the realm of common knowledge of a lay person. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The competent and probative medical evidence of record indicates that the Veteran’s GERD is unrelated to his military service. The Board finds the 2018 VA specialist’s medical opinion that it is less likely than not that GERD is related to the Veteran’s service to hold substantial probative value. This opinion reflects a thorough recitation of the Veteran’s history, reflecting a full review of the claims file, careful consideration of the medical and lay evidence of record, including the Veteran’s statements regarding his symptoms in and since service, and a clear explanation for the conclusions reached. The record does not contain a competent opinion indicating that the Veteran’s GERD is related to his service. As such, the preponderance of the evidence is against a finding that there is a relationship between the Veteran’s in-service symptoms and his current diagnosis of GERD, and direct service connection cannot be established. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Accordingly, the benefit-of-the-doubt doctrine does not apply, and the claim must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 2. Entitlement to service connection for Barrett’s Esophagus, to include as secondary to GERD The Veteran also contends that he has Barrett’s Esophagus and that this condition warrants service connection, including as secondary to the Veteran’s GERD. The medical evidence is divided as to a diagnosis of Barrett’s Esophagus. As noted above, the Veteran was diagnosed with Barrett’s Esophagus by a private pathologist in February 2011. The Veteran’s primary care provider noted this in May 2011 and referred the Veteran to a GI specialist who performed an upper endoscopy in December 2011, finding no evidence of Barrett’s Esophagus. In February 2012 a VA examiner noted the February 2011 diagnosis of Barrett’s Esophagus. The Veteran underwent an upper endoscopy in September 2013 which again found no evidence of Barrett’s Esophagus. The March 2018 VA specialist’s medical opinion found that the Veteran did not have Barrett’s Esophagus and offered a detailed rationale for this conclusion, explaining the errors in the original February 2011 diagnosis. After weighing the evidence, the Board finds that the December 2011 upper endoscopy, the September 2013 upper endoscopy, and the March 2018 specialist opinion which reflect that the Veteran does not have Barrett’s Esophagus are mutually consistent and hold more probative value than the contradictory February 2011 endoscopy. The preponderance of the evidence is against a finding that the Veteran has a current diagnosis of Barrett’s Esophagus. While some medical disorders are capable of lay observation, Barrett’s Esophagus is not capable of lay observation and is not a simple medical condition. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Thus, while the Veteran is competent to report on symptoms capable of lay observation, the Board finds that the Veteran is not competent to diagnose Barrett’s Esophagus, and therefore the Veteran’s allegations cannot fulfill the requirement of a current diagnosis. In the absence of proof of a current disability, there can be no valid claim. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Congress has specifically limited entitlement to service connection to cases where such incidents have resulted in a disability. Brammer, 3 Vet. App. at 225. In the absence of any competent evidence of Barrett’s Esophagus, the Board must conclude the Veteran does not currently suffer from such disability. Without competent evidence of a diagnosis of Barrett’s Esophagus, the Board must deny the Veteran’s claim. See Degmetich v. Brown, 104 F.3d 1328, 1333 (1997) (holding that the existence of a current disability is the cornerstone of a claim for VA disability compensation). Absent a showing of a current diagnosis of Barrett’s Esophagus, service connection for this disability under any theory of entitlement cannot be granted. Further, regarding the Veteran’s claim that Barrett’s Esophagus is secondary to GERD, the above decision denies the Veteran’s claim for service connection for GERD; as such, the claim for service connection for Barrett’s Esophagus as secondary to GERD must be denied as without legal merit. See 38 C.F.R. § 3.310.   Thus, the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine does not apply, and the claim of service connection for Barrett’s Esophagus must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; see Gilbert v. Derwinski, 1 Vet. App 49 (1990) M. SORISIO Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD R. Dean, Associate Counsel