Citation Nr: 1816640 Decision Date: 03/19/18 Archive Date: 03/30/18 DOCKET NO. 13-04 755 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUE Entitlement to service connection for gastroesophageal reflux disease (GERD), now diagnosed as hiatal hernia, due to nonsteroidal anti-inflammatory drugs (NSAID) medication for degenerative joint disease. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD M. Prem, Counsel INTRODUCTION The Veteran served on active duty from November 1984 to November 1988. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an August 2011 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA). A notice of disagreement was received in August 2011; a statement of the case was issued in February 2013; and a substantive appeal was received in February 2013. In July 2017, the Board remanded the issues of entitlement to service connection for a right knee disability, a left knee disability, and a back disability. The directives of the remand have not yet been completed; and the claims have not been re-certified to the Board. Consequently, the issues are not before the Board at this time. In the Veteran's February 2013 substantive appeal (VA Form 9), he requested to testify before the Board at a videoconference hearing. He withdrew that request by way of a December 2017 correspondence. FINDINGS OF FACT 1. The probative and competent evidence does not show that the Veteran currently have a diagnosis of GERD. 2. A hiatal hernia was not manifested during the Veteran's active duty service or for many years after service, nor is it otherwise related to service, to include as due to NSAID medications. CONCLUSION OF LAW The criteria for an award of service connection for GERD/hiatal hernia, to include as secondary to NSAID medications taken as treatment for a service connected disability, have not been met. 38 U.S.C.A. §§ 1131, 5107 (West 2014); 38 C.F.R. §§ 3.6, 3.159, 3.303, 3.310 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION The AOJ provided the Veteran with notification letters in January 2011, August 2011, and September 2012 letters. The "duty to assist" contemplates that VA will help a claimant obtain records relevant to the claim, whether or not the records are in Federal custody, and that VA will provide a medical examination when necessary to make a decision on the claim. 38 C.F.R. § 3.159 (2017). Relevant service treatment and other medical records have been associated with the claims file. The Veteran was given a VA examination in March 2017. As such, the Board will proceed to the merits. Service Connection Applicable law provides that service connection will be granted if it is shown that the Veteran suffers from disability resulting from an injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303. That an injury occurred in service alone is not enough; there must be chronic disability resulting from that injury. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Additionally, disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. 38 C.F.R. § 3.310. The Board also notes that secondary service connection on the basis of aggravation is permitted under 38 C.F.R. § 3.310, and compensation is payable for that degree of aggravation of a non-service-connected disability caused by a service-connected disability. Allen v. Brown, 7 Vet. App. 439 (1995);38 C.F.R. § 3.310(b). In order to establish service connection for the claimed disorder, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) a causal connection between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999); see also Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). The Veteran has established the first of these elements. A May 2017 endoscopy reflects that the Veteran has a 2 cm. sliding hiatal hernia. The same endoscopy report reflects that the Veteran had normal esophageal mucosa and distensibility with no esophagitis or Barrett's noted (CAPRI, 11/6/17). The Board also finds that the Veteran has satisfied the second element of service connection. The service treatment records reflect diagnoses of gastroenteritis and gastritis. In this regard, service treatment records reflect that in July 1985, the Veteran reported nausea and vomiting. He denied fever, chills, abdominal pain, and diarrhea. He was diagnosed with gastroenteritis. In November 1985, he reported similar symptoms and was diagnosed with viral gastroenteritis. In February 1988, the Veteran sought treatment for stomach cramps, headaches, and diarrhea. He was diagnosed with gastritis. The Veteran completed a Report of Medical history in October 1988 (in conjunction with his separation from service). He denied frequent indigestion; and stomach, liver, or intestinal trouble. He stated that he was in good health. The Veteran's October 1988 separation examination yielded normal findings (STR - Medical - Photocopy, 11/10/10, pgs. 73, 75, 87, 4, 23). It is the third element of service connection in which the Veteran's claim falls short. The Board notes that in addition to the claim for direct service connection, the Veteran has raised the issue of whether or not his hiatal hernia is secondary to a service-connected disability. The Veteran is service connected for status post fracture left fifth finger with degenerative changes. He takes NSAID for pain associated with this disability, as well as for nonservice connected knee and back disabilities. The service treatment records reflect three instances in which the Veteran was diagnosed with either gastroenteritis or gastritis. The Board does not find that these complaints are sufficient to establish chronicity during service; particularly given that the Veteran's separation examination yielded normal findings, and the Veteran completed a Report of Medical History in which he specifically denied frequent indigestion; and stomach, liver, or intestinal trouble. Moreover, the Veteran has not contended that his current symptoms have been continuous since service. For these reasons, the Board finds that the probative competent evidence weighs against a finding of chronicity in service or continuity of symptoms after service. 38 C.F.R. § 3.303(b). As noted above, service connection is not warranted in this case on the basis of continuity of symptomatology. However, if the competent medical evidence indicates that the current hiatal hernia low is related to the Veteran's active service, then an award of service connection would be appropriate. In this vein, the Veteran underwent a VA examination in March 2017. The examiner reviewed the claims file in conjunction with the examination, to include noting the Veteran's service treatment records and review of current symptoms. He noted that the Veteran has not had an endoscopy or barium study that would confirm a diagnosis of GERD. He noted that the Veteran's symptoms include bad heartburn, acid in throat, nausea, and vomiting. The Veteran was taking over-the- counter omeprazole; but it was not stopping these symptoms. The examiner stated that in view of the fact that the Veteran has never had an upper endoscopy or radiographic study showing GERD and/or a hiatal hernia, he does not have a current diagnosis for his complaints. Notwithstanding, he opined that gastritis does not cause GERD; but is an artifact of GERD. He once again noted that since the Veteran has not undergone the proper diagnostic evaluation, namely upper endoscopy and/or a barium enema swallow with follow thru, he does not have a diagnosis of GERD. With regards to NSAID, the examiner opined that they do not cause GERD, they merely make it worse. The examiner submitted a July 2017 addendum in which he clarified that GERD is not caused by gastritis. He explained that GERD is due to the loss of a physiologic sphincter at the gastroesophageal junction. Due to this loss, stomach acid goes up the esophagus, causing symptoms. He noted that GERD cannot be diagnosed by symptoms as the false positive and false negative rates are high when using only clinical symptoms. Instead, to diagnose GERD, a visualization of the gastro esophagus junction must be done via scope or radiology. He stated that if GERD is diagnosed in the future, it was not caused by February 1988 episode of gastritis. The examiner submitted another addendum opinion in November 2017. This time the examiner was able to review the May 2017 endoscopy report. He noted that the report was positive for a 2 cm. sliding hiatal hernia. He also noted that there was a normal esophageal mucosa, and normal esophageal distensibility. There was no esophagitis or Barrett's. He further noted that there was bile in the stomach with normal gastric mucosa, and a normal duodenal bulb and duodenum. The examiner noted that gastritis does not cause a hiatal hernia. He explained that the hiatus is an opening in the diaphragm -- the muscular wall separating the chest cavity from the abdomen. Normally, the esophagus (food pipe) goes through the hiatus and attaches to the stomach. In a hiatal hernia (also called hiatus hernia) the stomach bulges up into the chest through that opening. A hiatal hernia is not caused by gastritis. Therefore, it is not at least as likely as not that the Veteran's hiatal hernia was incurred in or caused by gastritis during service. The examiner further stated that a hiatal hernia often is caused by weak muscles and tissue within and around the hiatus. In a sliding hiatal hernia, a small part of the stomach pushes through the diaphragm and into the chest. A valve between the esophagus and the stomach also moves up and away from the diaphragm. He stated that gastritis does not cause a hiatal hernia. Therefore, it is not at least as likely as not that the Veteran's hiatal hernia is at least as likely as not due to or the result of NSAID use for his service connected left fifth finger DJD. For the same reason, he opined that it is not at least as likely as not that the Veteran's hiatal hernia was aggravated beyond its natural progression by NSAID use for his service connected left fifth finger DJD. The Board finds the opinion of the VA physician to be persuasive evidence and entitled to much weight. Indeed, it was based on a review of the record and was offered following a physical evaluation of the Veteran, to include recommend diagnostic testing in May 2017. Moreover, it was accompanied by a clear rationale and no other competent evidence of record refutes that opinion. The Veteran himself believes that his current hiatal hernia is related to service. The Board notes that the Veteran is only considered competent to report the observable manifestations of his claimed disability. See Charles v. Principi, 16 Vet. App. 370, 374 (2002) ("ringing in the ears is capable of lay observation"); Layno v. Brown, 6 Vet. App. 465, 469-70 (1994) (lay testimony iterating knowledge and personal observations of witness are competent to prove that claimant exhibited certain symptoms at particular time following service). Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issue in this case, the nature and etiology of the Veteran's hiatal hernia fall outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (stating that lay persons not competent to diagnose cancer). In sum, his statements as to etiology in this case are not competent and therefore lack probative value and weight. As the preponderance of the evidence is against this claim, the benefit-of-the-doubt doctrine does not apply, and the claim for entitlement to service connection for gastroesophageal reflux disease (GERD), now diagnosed as hiatal hernia, to include as due to NSAID medication for degenerative joint disease must be denied. See Gilbert v. Derwinski, 1 Vet. App 49 (1990). ORDER Service connection for gastroesophageal reflux disease (GERD), now diagnosed as hiatal hernia, is denied. ______________________________________________ Paul Sorisio Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs