Citation Nr: 20021548 Decision Date: 03/26/20 Archive Date: 03/26/20 DOCKET NO. 15-46 887 DATE: March 26, 2020 ORDER Entitlement to service connection for Barrett's esophagus is granted. FINDING OF FACT 1. The Veteran’s acid reflux and/or indigestion problems started while serving in combat in Vietnam and continued after separation. 2. There is at least an approximate balance of positive and negative evidence as to whether the Veteran’s Barrett’s esophagus is related to his active duty service. CONCLUSION OF LAW Resolving all reasonable doubt in favor of the Veteran, the criteria for service connection for Barrett’s esophagus have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1968 to February 1970. This matter comes before the Board of Veterans’ Appeals (Board) after a June 2019 Board decision remanded the claim for Barrett's esophagus for further development including conducting a VA examination. The Department of Veterans Affairs (VA) Regional Office (RO) in New York, New York, complied with the Board’s remand instructions by providing the requested VA examination. As such, the Board may proceed to the merits of the service connection claim. See Stegall v. West, 11 Vet. App. 268, 271 (1998). 1. Service Connection Barrett’s Esophagus Service connection can be granted for any current disability that is the result of a disease or injury incurred in or aggravated by active duty service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may also be granted for a disability diagnosed after discharge, where competent evidence, including that pertinent to service, establishes that the disease was incurred in-service. 38 C.F.R. § 3.303(d). Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Romanowsky v. Shinseki, 26 Vet. App. 289, 293 (2013). The determination as to whether the requirements for service connection are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. 38 U.S.C. § 7104 (a); Baldwin v. West, 13 Vet. App. 1 (1999); see 38 C.F.R. § 3.303(a). Medical evidence, such as VA examinations, must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). Examiners should consider the Veteran’s contention, the claims file, and clinical medical evidence before providing a negative opinion in each instance. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304. The Veteran is competent to report symptoms and experiences observable by his senses. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); 38 C.F.R. § 3.159(a). VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). The Board recognizes that lay statements and/or testimony are competent to establish the presence of observable symptomatology and may provide sufficient support for a claim of service connection. Barr, 21 Vet. App. at 307; see Falzone v. Brown, 8 Vet. App. 398, 403 (1995). Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. 38 C.F.R. § 3.159(a)(2). Lay evidence cannot be found not credible solely due to the lack of contemporaneous medical records. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). In determining whether lay evidence is satisfactory the Board may properly consider internal consistency, facial plausibility, and consistency with other evidence submitted on behalf of the veteran. Caluza v. Brown, 7 Vet. App. 498, 511 (1995). It is the Board’s responsibility to determine whether a preponderance of the evidence supports the claim or whether the evidence is in relative equipoise, with the veteran prevailing in either event, or whether there is a preponderance of evidence against the claim, in which case the claim must be denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. By reasonable doubt is meant one which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. 38 C.F.R. § 3.102. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, each piece of evidence of record. The analysis below focuses on the most salient and relevant evidence and what this evidence shows, or fails to show, regarding the Veteran’s claim on appeal. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000). The Veteran contends that his Barrett’s esophagus condition should be service connected because “during service he began experiencing frequent stomach aches and digestive problems, which eventually escalated to having GERD and Barrett’s Esophagus.” See Form 9, received December 2015. He contends that his “acid reflux started in Vietnam. Prior to going there, [he] never suffered from indigestion but developed [reflux/indigestion] there as a nervous reaction to combat and used antacids to get relief. [He] eventually developed Barrett’s syndrome.” See Medical Treatment Record - Government Facility at p.3-4 noted as “Statement in Support”, received November 2018; see also Hearing Transcript, received November 2018. When asked if he sought any medical assistance for his reflux/indigestion while in service, the Veteran replied, “No, I would’ve been accused of malingering if I did something like that.” He testified that “from Vietnam on, I always had what I thought was just indigestion.” The Veteran asserts that, because his indigestion issues arose while serving in combat and no STRs or other evidence is to the contrary, he is entitled to reasonable doubt in his favor regarding his recount of feeling indigestion. See id. In support of his lay assertion of combat indigestion/digestive problems, the Veteran states that “When STRs are unavailable, the Board’s obligation to explain its findings and conclusions and to consider carefully the benefit of the doubt rule is heightened,” citing O’Hare v. Derwinski, 1 Vet. App. 365 (1991). See id. Additionally, the Veteran testified that he was diagnosed with Barrett’s esophagus “roughly 20 years ago.” See Hearing Transcript. He stated that he did not realize the [indigestion/acid reflux] “condition was getting worse and worse” as he was “getting something called esophageal spasms” as he had “been having them for a while,” testifying that “I just knew that my throat would hurt very, very badly and I couldn’t swallow at all. I would just walk around. I’d go outside and walk around and just kept spitting.” A December 2019 VA examination shows the examiner determined that the Veteran’s Barrett’s esophagus condition is less likely than not incurred or related to his active service. See C&P Exam, received December 2019. The examination report shows that the Veteran was diagnosed with gastroesophageal reflux disease (GERD) and Barrett’s esophagus in July 2009, noting medical records regarding multiple esophagogastroduodenoscopies (EDGs) and other biopsies. The examiner noted that the Veteran “has not had any surgery for Barrette’s. His Barrette’s esophagus is asymptomatic. However, he requires monitoring by EGD and biopsy every 2-3 years. He takes omeprazole daily.” The report notes that the Veteran “has [a] history of GERD since at least 2009. Since starting omeprazole daily, his symptoms are much improved. He has reflux once a week. Once a month he wakes up with symptoms. The examiner’s rationale provides that “Barrett’s esophagus is where metaplasitc columnar epithelium replaces the squamous epithelium that normally lines the distal esophagus. This develops as a consequence of chronic uncontrolled GERD. STR is silent for diagnosis or treatment of GERD. 02/06/1970 Separation examination - no frequent indigestion.” VA regulation provides that “Satisfactory lay or other evidence that an injury or disease was incurred or aggravated in combat will be accepted as sufficient proof of service connection if the evidence is consistent with the circumstances, conditions or hardships of such service even though there is no official record of such incurrence or aggravation.” 38 C.F.R. § 3.304(d). The Board finds the Veteran’s lay statements that his acid reflux and/or indigestion problems “started while serving in combat” in Vietnam and continued after separation to be competent and credible, affording the statements considerable probative value. Absent any evidence to the contrary, such is to be viewed as his initial symptoms of his GERD whereas the examiner noted his history of the condition “since at least 2009.” It is clearly implied that his GERD predated his 2009 diagnosis because the examiner specifically states that “Barrett’s esophagus…develops as a consequence of chronic uncontrolled GERD.” The Veteran has a current disability for VA purposes, as there is a diagnosis of Barrett’s esophagus within the period of appeal. There is also evidence of in-service incurrence as the Veteran has provided credible lay evidence of having acid reflux and/or indigestion that began in relation to his combat in Vietnam. Thereby, the elements of current disability and in-service incurrence are met. Thus, a review of evidence must proceed to determine the “nexus to service” element. The Board recognizes that when VA provides a VA examination or obtains a VA medical opinion, it must ensure that the examination or opinion is adequate, see Barr v. Nicholson, 21 Vet. App. 303, 310-11 (2007), which in this context requires that an examination report sufficiently inform the Board of a medical expert’s judgment on a medical question, rely upon accurate factual premises, including the Veteran’s lay statements regarding symptomatology, and present a fully articulated, sound rationale. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). Moreover, the reliance by a medical opinion upon a significant factual inaccuracy renders it devoid of any probative value, see Reonal v. Brown, 5 Vet. App. 458, 460-61 (1993), and reliance on the absence of evidence in the Veteran’s STRs, contravenes applicable VA regulations and precedential case law allowing the award of direct service connection where supported by sufficient evidence. See Dalton v. Nicholson, 21 Vet. App. 23, 39 (2007); 38 C.F.R. § 3.303(d). Here, the Veteran’s separation examination does not indicate that he had “no frequent indigestion.” The separation exam only indicates (as an implicit reference to his digestive system) that the evaluation of the Veteran’s “abdomen and viscera (include hernia)” was “normal.” There are only sixteen pages of STRs available in the record. The Board finds the December 2019 VA examiner’s opinion to be inadequate, as it relies on the rationale that the Veteran’s separation examination shows he had “no frequent indigestion,” which is factually inaccurate. In fact, the only document that shows he had “no frequent indigestion” is the Veteran’s “Report of Medical History” (RMH) completed for his enlistment. The examiner may have mistaken the RMH as part of the February 1970 separation examination because the RMH (usually completed in conjunction with separation) appears immediately after the separation examination in the STRs of record, and the RMH “date of examination” section is either blank or illegible. However, the RMH clearly indicates that the purpose of the examination was for “ENL-USMC” and shows that the Veteran’s grade/position as “C.V. Pvt.” (E-1 private) whereas his separation examination shows the purpose was “release from active duty” with his grade/position as “L/CPL” (E-3 lance corporal). Furthermore, the examiner failed to take into account or rationalize the Veteran’s lay statement regarding experiencing in-service indigestion that started during his combat time in Vietnam and misplace her reliance on “STR is silent for diagnosis or treatment of GERD.” Accordingly, the examiner’s reliance on the factual inaccuracy alone renders the December 2019 VA opinion devoid of any probative value regarding nexus. See Reonal v. Brown, 5 Vet. App. 458, 460-61 (1993); see also Stefl v. Nicholson, 21 Vet. App. 120, 123-25 (2007). Lay statements of the Veteran as to his symptoms during combat provide some probative evidence that those symptoms began during service and have continued since then. In addition, while the remainder of the VA examination is inadequate for the reasons discussed above, the examiner did state that Barrett’s esophagus is the result of chronic, uncontrolled GERD. While the examiner did not state specifically that the Veteran had GERD prior to his diagnosis, the Board finds enough evidence to provide a link between the Veteran’s credible statements with regard to what began during service and his currently diagnosed Barrett’s esophagus. Resolving all reasonable doubt in favor of the Veteran, the criteria for service connection for Barrett’s esophagus have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304. R. FEINBERG Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B.C. Davenport 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.