Citation Nr: 20022433 Decision Date: 03/31/20 Archive Date: 03/31/20 DOCKET NO. 14-30 266 DATE: March 31, 2020 ORDER Entitlement to service connection for a gastrointestinal disability, claimed as a stomach acid disability, is denied. FINDING OF FACT The most probative evidence does not establish that the Veteran has a gastrointestinal disability, claimed as a stomach acid disability, that is at least as likely as not related to an in-service injury, event, or disease, to include as due to herbicide exposure. CONCLUSION OF LAW The criteria for entitlement to service connection for a gastrointestinal disability, claimed as a stomach acid disability, have not been met. 38 U.S.C. §§ 1110, 1116, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1968 to May 1972 and from June 1976 to June 1980. This matter comes before the Board of Veterans’ Appeals (Board) on appeal of a February 2013 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). The Board last remanded the issue on appeal in August 2019 pursuant to a December 2018 Order by the United States Court of Appeals for Veterans Claims (CAVC). The December 2018 CAVC Order granted a Joint Motion for Remand, noting that a new VA examination was necessary and inadequate reasons and bases were provided in the Board’s prior March 2018 decision denying service connection. A review of the record shows substantial compliance with the Board’s August 2019 remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The Veteran testified at a May 2016 Travel Board hearing before the undersigned Veterans Law Judge. A transcript of that hearing has been associated with the claims file. Entitlement to service connection for a gastrointestinal disability, claimed as a stomach acid disability. The Veteran contends that his current diagnoses of gastrointestinal reflux disease (GERD) and hiatal hernia are the result of in-service stomach problems and exposure to Agent Orange while serving in Vietnam. See August 2014 Statement in Support of Claim. The Veteran also stated that he got malaria in service and lost weight. Id. In May 2016, the Veteran testified that his symptoms were worse when he was in service, including vomiting, losing weight, and diagnosed with anorexia and malaria. See May 2016 Hearing Transcript. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge when the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). To establish service connection for a disability, there must be (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). In addition, the regulations create a presumption of service connection for certain diseases found to be associated with exposure to an herbicide agent such as Agent Orange. See 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307(a)(6); 3.309(e). Absent affirmative evidence to the contrary, such diseases will be service connected even if there is no evidence of the disease during service, provided that the herbicide exposure is established. Id. The medical evidence of record reflects the Veteran has current diagnoses of GERD and hiatal hernia. See September 2019 VA Examinations. Neither GERD nor hiatal hernia are included in the list of enumerated diseases subject to presumptive service connection. See 3.309(e). As such, the presumption for herbicide exposure is inapplicable in this case. The regulations also provide for presumptive service connection for certain chronic disease listed in 38 C.F.R. § 3.309(a) that may be presumed to have been incurred or aggravated during service if they become disabling to a compensable degree within one year of separation from active duty. See 38 C.F.R. § 3.303(b). In addition, the second and third elements of service connection may be established by showing continuity of symptomatology for chronic diseases specifically listed at 38 C.F.R. § 3.309(a). See 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). Here, the Veteran was not diagnosed with a chronic gastrointestinal disease during service or within one year of separation from active duty, and GERD and hiatal hernia are not enumerated as qualifying chronic disease under 38 C.F.R. § 3.309(a). Therefore, the Veteran is not entitled to presumptive service connection under 38 U.S.C. § 3.303(b). However, the presumptive regulations, do not preclude a claimant from establishing service connection with proof of direct causation. See Combee v. Brown, 35 F. 3d 1039, 1043 (Fed. Cir. 1994). Regarding direct service connection, as to the second Shedden element of service connection, a review of the Veteran’s service treatment records (STRs) reflects treatment and complaints for stomach problems, including nausea, and vomiting. See January and July 1969 STRs. The Veteran’s STRs also reflect diagnoses for viral gastroenteritis and anorexia. See November 1970 and August 1971 STRs. As such, the Board finds that the Veteran has established an in-service event, injury, or disease for service connection purposes. The remaining question for the Board is whether the Veteran’s current gastrointestinal disabilities are etiologically related to his service. In that regard, the Board finds that the most probative evidence of record does not establish a nexus between the Veteran’s current gastrointestinal disorders and his active service. In May 2014, the Veteran was provided a VA examination. The Veteran reported that he had gastrointestinal problems in service in 1969, lost weight and was told he might have anorexia, and that he had heartburn in 1980. See May 2014 VA examination. The Veteran reported that he did not seek treatment until 1998, 18 years after service, when he was first diagnosed with GERD and hiatal hernia. Id. The VA examiner opined that the Veteran’s claimed condition was less likely than not incurred in or caused by his service. See May 2014 VA examination. As rationale, the VA examiner stated that there is no definitive, clear evidence from review of the literature to suggest that anorexia or viral gastroenteritis causes GERD or hiatal hernia. Id. As previously noted, the CAVC and Board remanded for a new VA examination to clarify the May 2014 VA examiner’s medical opinion as it was unclear how he was told he might have anorexia in 1969 when he was not diagnosed with anorexia until November 1970. In September 2019, a clarifying VA medical opinion and new VA examination was obtained. The September 2019 VA examiner opined that the Veteran’s gastrointestinal disabilities are less likely as not incurred in or caused by his military service. See September 2019 VA examination. As rationale, the VA examiner noted that a diagnosis of hiatal hernia has not been shown to be causally related to malaria or to Agent Orange exposure. Id. The VA examiner noted that the Veteran’s hiatal hernia most likely occurred due to his age since hiatal hernias occur more often in those older than 50 and the Veteran was diagnosed at 49 years of age. Id. The VA examiner also noted the temporal gap of approximately 27 years between the Veteran’s gastrointestinal problems in service and the first documented diagnosis of hiatal hernia. Id. In regard to the Veteran’s statement that he experienced heartburn in 1980 and since service, the Board notes that the Veteran is competent and credible to report certain symptoms, such as heartburn, since service. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). However, the Veteran has not been shown to possess the necessary medical expertise to opine as to the etiology of his gastrointestinal disabilities, including providing a diagnosis based on experiencing heartburn. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Additionally, The September 2019 VA examiner stated that GERD is due to an overproduction of stomach acid that may reflux upward into the more acid sensitive esophagus which causes heartburn. Id. The VA examiner noted that GERD has not been shown to be causally related to malaria or to Agent Orange exposure. Id. Finally, the September 2019 VA examiner stated that patients with malaria may present with gastrointestinal symptoms such as diarrhea, anorexia, and vomiting with weight loss. Id. The VA examiner noted that GERD and a diagnosis of hiatal hernia are not among those symptoms. Id. The VA examiner opined that the most likely cause of the Veteran’s gastrointestinal symptoms in service were diagnosed was diagnosed and treated malaria. Id. The VA examiner also noted that though a hiatal hernia and GERD may be causally related to vomiting, the temporal gap of approximately 27 years between the Veteran’s gastrointestinal problems in service and his first documented diagnosis of hiatal hernia and GERD does not support a nexus. Id. The Veteran was also provided another VA examination later in September 2019, signed in October 2019. The VA examiner opined that the Veteran’s claimed conditions were less likely than not incurred in or caused by his service. See October 2019 VA examination. As rationale, the VA examiner stated that there is no nexus of the Veteran’s current GERD and hiatal hernia conditions diagnosed and his acute viral gastroenteritis and strep throat with nausea that occurred in service. Id. The VA examiner also noted the Veteran reported use of alcohol and a diagnosis of GERD and hiatal hernia in 1998, with treatment ongoing since, and is not related to onset in military service. Id. Both the September and October 2019 VA examiners reviewed the Veteran’s claims file and medical record, in addition to conducting in-person examinations. There is no competent evidence of record relating the Veteran’s current gastrointestinal disabilities to his active duty service. As such, the Board finds the September and October 2019 VA examinations and medical opinions to be adequate for decision making purposes. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302 (2008). Consequently, the Board gives more probative weight to the competent medical evidence which includes the September and October 2019 VA examinations that are against the Veteran’s claim for service connection than the Veteran’s lay statements. Id. at 304. In view of the foregoing discussion, the Board concludes that the weight of the objective medical evidence is against the Veteran’s claim for entitlement to service connection for a gastrointestinal disability. Because the evidence in this case is not approximately balanced with respect to the merits of the claim, the benefit-of-the-doubt doctrine does not apply. 38 C.F.R. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Accordingly, service connection for a gastrointestinal disability, claimed as a stomach acid disability, is not warranted. Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Yancy v. McDonald, 27 Vet. App. 484, 495 (2016); Doucette v. Shulkin, 38 Vet. App. 366, 369-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). U. R. POWELL Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. P. Moore, 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.