Citation Nr: 20004584 Decision Date: 01/21/20 Archive Date: 01/21/20 DOCKET NO. 12-30 885 DATE: January 21, 2020 ORDER Entitlement to service connection for a right knee disability is granted. Entitlement to service connection for gastroesophageal reflux disease (GERD), to include as due to the Persian Gulf War service is denied. FINDINGS OF FACT 1. The Veteran served in Kuwait and Iraq during Persian Gulf War. 2. Resolving reasonable doubt in the Veteran’s favor, his right knee disability began during active service. 3. The preponderance of the evidence of record is against finding that the Veteran’s current GERD condition is related to his exposure to environmental hazards during service in Southwest Asia. 4. The preponderance of the evidence is against finding that the Veteran’s current GERD disability began during active duty service, or is otherwise related to an in-service injury or disease. CONCLUSIONS OF LAW 1. Resolving reasonable doubt in the Veteran’s favor, the criteria for service connection for a right knee disability have been met. 38 U.S.C. §§ 1110, 1131 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2018). 2. The criteria for service connection for GERD, to include as due to the Persian Gulf War service, are not met. 38 U.S.C. §§ 1110, 1117, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.317 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1980 to October 1980, from April 1986 to December 1992, and from June 2006 to July 2007 with service in the Southwest Asia Theater of Operations. This case is before the Board of Veterans’ Appeals (Board) on appeal from September 2010 and October 2012 rating decisions by a Department of Veterans Affairs (VA) Regional Office. In October 2019, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the electronic claims file. Now the matter is before the Board. The Veteran is seeking service connections for a right knee disability and GERD, to include as due to his Persian Gulf War service. Legal criteria A veteran is entitled to VA disability compensation if there is disability resulting from personal injury suffered or disease contracted in line of duty in active service, or for aggravation of a preexisting injury suffered or disease contracted in line of duty in active service. 38 U.S.C. §§ 1110, 1131 (2012). To establish an entitlement to service connection for a disability, a veteran must show: (1) a present disability; (2) an 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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the United States Court of Appeals for Veterans Claims stated that “a veteran need only demonstrate that there is an ‘approximate balance of positive and negative evidence’ in order to prevail.” When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b) (2012). For VA to deny a claim on its merits, the preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App., at 54. Service connection also may be warranted for a Persian Gulf War veteran who exhibits objective indications of a qualifying chronic disability that became manifest during active military, naval or air service in the Southwest Asia theater of operations during the Persian Gulf War, or to a degree of 10 percent or more not later than not later than December 31, 2021. 38 C.F.R. § 3.317(a)(1)(i) (2018). “Objective indications of chronic disability” include both signs in the medical sense of objective evidence perceptible to an examining physician, and other, non-medical indicators that are capable of independent verification. 38 C.F.R. § 3.317(a)(3) (2018). Disabilities that have existed for six months or more and disabilities that exhibit intermittent episodes of improvement and worsening over a six-month period will be considered chronic. The six-month period of chronicity is measured from the earliest date on which the pertinent evidence establishes the signs or symptoms of the disability first became manifest. 38 C.F.R. § 3.317(a)(4) (2018). For purposes of 38 C.F.R. § 3.317, there are three types of qualifying chronic disabilities: (1) an undiagnosed illness; (2) a medically unexplained chronic multisymptom illness; and (3) a diagnosed illness that the Secretary determines in regulations prescribed under 38 U.S.C. § 1117(d) warrants a presumption of service connection. Notably, if signs or symptoms have been medically attributed to a diagnosed (rather than undiagnosed) illness, the Persian Gulf War presumption of service connection does not apply. VAOPGCPREC 8-98. Factual background and analyses 1. Right knee disability First, the evidence of record shows the Veteran’s current diagnosis of status post right knee meniscectomy residuals (osteoarthritis, mild limitations of flexion range of movement, and infrapatellar calcific tendinosis). See August 2011 C&P Examination Note. Thus, the Board finds that the first Shedden element for service connection is met. As to the in-service incurrence, the Veteran contends that he had injured his right knee after falling from a platform of a military truck. See October 2009 Statement in Support of Claim. The Board notes that the evidence of record shows the Veteran’s claimed in-service incurrence. See May 9, 2007 Statement of Medical Examination and Duty Status. Therefore, the Board finds that the second Shedden element is also met. In May 2011, the Veteran’s private treating physician C.L.P. opined that the Veteran’s fracture of anterior, posterior and lateral meniscus of the right knee is necessarily secondary to a severe trauma from his fall on May 8, 2007. Dr. C.L.P. provided that the knee injury was not identified at the time, because the impact on joints of higher support and elements of higher fragility were not taken into consideration. On August 2011 VA examination, the examiner opined that the Veteran’s current right knee condition is less likely as not due to or the result of his fall from flatbed truck during military service. The examiner provided that complaints or symptoms of the right knee was not documented during a physical evaluation dated May 8, 2007 and a follow-up evaluation on May 10, 2007. The examiner reasoned that right knee meniscal tears would cause edema, swelling, poor standing weight bearing tolerance and the symptoms would not improve in a two-day period. A July 2013 orthopedic surgery note shows that the Veteran reported right knee pain since 2007 after a fall during his active duty service. The treating physician noted the Veteran’s history of medial and lateral meniscectomy. The treating physician also provided that the Veteran’s medical history and physical examination is consistent with right knee degenerative disease, which is probably secondary to the previous fall in service with consequent meniscectomy. In December 2017, the August 2011 VA examiner provided an addendum opinion to address conflicting medical evidence. The examiner pointed out that the May 2011 Dr. C.L.P.’s opinion is speculative in nature, because there is no evidence that the Veteran’s service treatment record and VA hospital notes were taken into consideration. During the October 2019 hearing, the Veteran testified that he fell on his knee from a flatbed truck during his deployment to Iraq. The Veteran provided that he has been suffering with right knee problems ever since his in-service injury and had experienced a lot of pain in his knee after his return from Iraq. The Veteran also contended that the August 2011 VA examination was not adequate as no evaluation through X-ray or MRI was done. Based on above and in light of the Veteran’s competent and credible reports of continuity of symptomatology of his right knee condition since the falling incident in service, the Board finds that there is an approximate balance of positive and negative evidence. Thus, the Board resolves any reasonable doubt in the Veteran’s favor and finds that his entitlement to service connection for a right knee disability is warranted. 38 U.S.C. §§ 1110, 1131 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2018). 2. GERD Initially, the Board notes that the evidence of record shows the Veteran’s current diagnosis of GERD. See June 2012 Esophageal Conditions Disability Benefits Questionnaire. As such, the Veteran’s current condition does not qualify as one of the chronic disabilities under 38 C.F.R. § 3.317. Consequently, presumptive service connection for GERD due to Persian Gulf War service is not applicable here. In this regard, the United States Court of Appeals for Veterans Claims recently clarified that GERD is not a medically explained chronic multisymptom illness under 38 C.F.R. § 3.317. See Atencio v. O’Rourke, 30 Vet. App. 74 (2018). Also, the June 2012 VA examiner opined that the Veteran’s current condition is less likely as not caused by or a result of his exposure to environmental hazards experienced during military service in Southwest Asia. The examiner cited a medical literature and provided that the NAS committee concluded that there is inadequate/insufficient evidence to determine whether an association exists between deployment to the Southwest Asia theater of operations during the Gulf War and the development of structural gastrointestinal diseases, including GERD. Based on above, the Board finds that the preponderance of the evidence of record is against finding that the Veteran’s current GERD is related to his exposure to environmental hazards during service in Southwest Asia. Now the Board will turn to whether the Veteran is entitled to direct service connection for his GERD condition. The first Shedden element for service connection is met as the Veteran’s has a current diagnosis of GERD. In regard to the in-service incurrence of GERD, the Board notes that the Veteran’s service treatment record does not show any complaints, diagnosis, or treatment related to a gastroesophageal condition. However, during the October 2019 hearing, the Veteran testified that the Veteran experienced GERD symptoms in service and went to the VA hospital after his return from Iraq for stomach issues. The Veteran also provided that he experienced reflux every time he ate within the first two weeks to a month after his return. In light of the above and resolving reasonable doubt in the Veteran’s favor, the Board finds that the second Shedden element for service connection is met. On June 2012 VA examination, the Veteran reported that he had pain and burning sensation in epigastric area months after separation. The Veteran also reported that he saw his private physician for severe pain in epigastric area in March 2012 and was diagnosed with GERD. On December 2017 VA examination, the examiner opined that the Veteran’s current GERD condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner reasoned that the Veteran was diagnosed years after service and his service treatment record is silent for complaint, diagnosis, or treatment related to the condition. Also, the examiner provided an addendum opinion in October 2018 and opined that the Veteran’s current GERD condition is less likely than not proximately due to or the result of his service-connected disabilities. The examiner noted that at the time of the Veteran’s GERD diagnosis in 2012, he was not taking any medications for service-connected hearing loss, tinnitus, or sleep apnea syndrome. The Board finds that December 2017 VA examiner’s opinions competent and credible and assigns high probative weight as they were rendered after a review of the Veteran’s claims file in conjunction with an in-person examination. The Board acknowledges that the Veteran testified that his GERD symptoms started in service, and he was seeking for treatments soon after separation. However, after a careful review of the record, the Board notes that the evidence of record does not show any complaints, diagnosis, or treatment related to GERD until 2012. For example, during the VA general medical examination conducted on July 25, 2007, the Veteran did not report any history of abdomen/gastrointestinal symptoms, e.g., indigestion, heartburn, or regurgitation. See also October 2008 Primary Care Note (the Veteran was negative for any gastrointestinal symptoms); February 2009 ER-Physician Note (the Veteran’s current problems do not include issues related to GERD). In light of the above, the Board finds that the preponderance of the evidence is against finding that the Veteran’s current GERD condition began during active duty service, or is otherwise related to an in-service injury or disease. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine does not apply here. Consequently, the Board finds that the Veteran’s entitlement to service connection for GERD, to include as due to the Persian Gulf War service is not warranted. 38 U.S.C. §§ 1110, 1117, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.317 (2018). MICHAEL LANE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. E. Kim, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.