Citation Nr: 18161131 Decision Date: 12/28/18 Archive Date: 12/28/18 DOCKET NO. 12-35 212 DATE: December 28, 2018 ORDER Entitlement to service connection for a low back disability is granted. Entitlement to service connection for a gastrointestinal disability, to include gastroesophageal reflux disease (GERD), is granted. FINDINGS OF FACT 1. The Veteran’s low back disability is presumed to have been incurred in service. 2. The Veteran’s gastrointestinal disability is etiologically related to his active service. CONCLUSIONS OF LAW 1. The criteria for service connection for a low back disability have been met. 38 U.S.C. §§ 1110, 1154; 38 C.F.R. §§ 3.102, 3.303 (2018). 2. The criteria for service connection for a gastrointestinal disability have been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2018) REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service in the United States Marine Corps (USMC) from September 1968 to November 1970, to include service in the Republic of Vietnam. The Veteran’s decorations for his active service include a Combat Action Ribbon and Republic of Vietnam Cross of Gallantry. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from an August 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. In April 2017, the Veteran testified before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the record. This case was previously before the Board in August 2017, at which time the Board remanded the issues currently on appeal for additional development. The case has now been returned to the Board for further appellate action. Service Connection 1. Low Back Disability The Veteran asserts that he is entitled to service connection for his low back disability, to include as due to combat during his active service. Specifically, the Veteran reports that he injured his back in the course of being subject to gun fire during his service in the Republic of Vietnam. Specifically, the Veteran reported that during an exchange of fire with enemy forces, he fell down a steep slope onto his back during evacuation. The Veteran’s DD Form 214 shows service in the Republic of Vietnam. The Veteran’s military occupational specialty (MOS) during his active service was as a Rifleman. As noted above, the Veteran was awarded a Combat Action Ribbon, which is accepted as conclusive evidence of participation in combat operations. The Board notes that in the case of a Veteran who engaged in combat with the enemy in a period of war, lay evidence of in-service incurrence or aggravation of a disease or injury shall be accepted if consistent with the circumstances, conditions, or hardships of such service, notwithstanding the lack of official record of such incurrence or aggravation. 38 U.S.C. § 1154 (b) (2012); Libertine v. Brown, 9 Vet. App. 521 (1996); Collette v. Brown, 82 F. 3d. 389 (Fed. Cir. 1996). The Board finds that the Veteran’s reports of injuring his back during combat operations are consistent with the facts and circumstances of his service and concedes that the in-service injury occurred as described. Service treatment records (STRs) indicate the Veteran was seen for a back injury in April 1969, when he was admitted to the hospital for 3 days after falling on his back. Of record is a November 2014 VA treatment record indicating the Veteran complained of and was treated for “chronic lower back pain [that] started during active duty after an episode of back contusion.” The Veteran was afforded VA examinations for his claimed low back disability in October 2012 and October 2017. At those times, he reported the in-service injury as noted above. The examiners diagnosed degenerative disc disease of the lumbar spine. The examiners opined that the Veteran’s low back disability was less likely than not caused by his active service. In that regard, the October 2012 VA examiner noted that the Veteran’s 1969 contusion resolved without residuals, and there was no evidence of complaint or treatment for a back condition until 38 years after separation from active service. Moreover, the Veteran served in the military for an additional year and a half without further in-service complaints, and his separation examination did not show a back disability. Moreover, the October 2017 examiner also noted no documented complaint of a back disability for over 30 years. The Board finds the VA medical opinions of record inadequate for adjudication purposes. In this regard, the VA examiners failed to adequately consider the Veteran’s combat experiences during active service. Additionally, the examiners failed to adequately consider the Veteran’s lay statements regarding the onset and continuity of his symptoms. As the medical opinions are inadequate, they cannot serve as the basis for a denial of entitlement to service connection. The Board notes that for certain chronic diseases, set forth in 38 C.F.R. § 3.309(a), such as arthritis, continuity of symptoms is required when the condition noted in service is not shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. 38 C.F.R. §§ 3.303 (b), 3.309(a) (2017); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Furthermore, lay evidence can be sufficient and competent 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 the symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). Here, as noted above, the Veteran is competent to identify the circumstances of his combat experiences in-service, when he first experienced symptoms of low back pain, and that those symptoms have continued since service; and his statements have been found credible. The Board acknowledges that degenerative disc disease specifically is not listed under 38 C.F.R. § 3.309(a) as a chronic disability. However, arthritis is in fact listed and degenerative disc disease is also a degenerative process similar in nature and can be considered a chronic disability for purposes of presumptive service connection. In this case, the Veteran is competent to identify back pain and report that his symptoms began in service and have continued since that time. The Board finds that the Veteran’s testimony with respect to his injuries and symptoms while in service and since to be consistent and credible. While he is not competent to establish a diagnosis of a back disability, as that requires medical imaging and medical expertise, his statements of continuity of symptoms are sufficient to establish a link between his current diagnosis of lumbar degenerative disc disease and his in-service injury. Furthermore, the Board has found the medical opinions of record to be inadequate. Accordingly, the Board finds that the evidence for and against the claim of entitlement to service connection for a low back disability is at least in equipoise. Therefore, reasonable doubt must be resolved in favor of the Veteran and entitlement to service connection for a low back disability is warranted. 38 U.S.C. § 5107 (b) (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 2. Gastrointestinal Disability The Veteran asserts that he is entitled to service connection for his gastrointestinal disability, to include GERD. Specifically, the Veteran asserts that due to the low quality of available drinking water in the Republic of Vietnam, his gastrointestinal disability manifested in diarrhea and vomiting during active service. Moreover, the Veteran has claimed that symptomatology of a gastrointestinal disability has continued since separation from active service. Service treatment records (STRs) are silent for complaints of, treatment for, or a diagnosis of a gastrointestinal disability while the Veteran was in active service. However, the Veteran has reported that he first experienced diarrhea and vomiting while in active service and that his symptoms have continued since that time. The Veteran is competent to report when he first experienced symptoms of a gastrointestinal disability and that his symptoms have continued since service. Heuer v. Brown, 7 Vet. App. 379 (1995); Falzone v. Brown, 8 Vet. App. 398 (1995); Caldwell v. Derwinski, 1 Vet. App. 466 (1991). Moreover, the Board finds the Veteran to be credible in that respect. A review of the post-service evidence of record shows that the Veteran has complained of continuing gastrointestinal symptomatology, leading to a diagnosis of GERD and hiatal hernia in 2004 and has received continuing treatment since that time. Of record is a November 2014 VA treatment record indicating that the Veteran complained of “chronic recurrent episodes of vomiting and diarrhea” since the 1970s. Of record is a March 2017 VA treatment record indicating that the Veteran has had trouble with nausea, vomiting, diarrhea, and GERD since his service in Vietnam. The Veteran’s diarrhea was noted to have unclear etiology. Of record is an August 2017 VA treatment record indicating that the Veteran’s diarrhea was likely secondary to lactose intolerance. The Veteran was afforded a VA examination for his claimed gastrointestinal disability in October 2017. At that time, the examiner opined that the Veteran’s gastrointestinal disability was less likely than not incurred in or caused by his active service, to include exposure to herbicides. In that regard, the examiner noted there was not new and material evidence, but rather documentation of continuing care for GERD and gastroparesis. The examiner determined that the condition was likely due to diabetes mellitus. Moreover, the examiner noted that the conditions claimed were not considered presumptive as due to herbicide agent exposure. The Board finds the VA medical opinion of record to be inadequate for adjudication purposes. In this regard, the examiner did not give appropriate consideration to the Veteran’s lay statements regarding the onset and continuity of his symptoms. As the opinion is not adequate, it cannot serve as the basis of a denial of entitlement to service connection. 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). Here, as noted above, the Veteran is competent to identify his gastrointestinal symptoms, and his statements have been found credible. In sum, the Veteran, has competently and credibly reported that he had symptoms consistent with a gastrointestinal disability while he was in active service. The Veteran has a current diagnosis of GERD. There is no competent VA medical opinion against the claim of record. Accordingly, the Board finds that the evidence for and against the claim of entitlement to service connection for a gastrointestinal disability is at least in equipoise and as such, reasonable doubt must be resolved in favor of the Veteran. Accordingly, entitlement to service connection for a gastrointestinal disability is warranted. 38 U.S.C. § 5107(b) (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Kristin Haddock Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Mariah N. Sim, Associate Counsel