Citation Nr: 21003272 Decision Date: 01/21/21 Archive Date: 01/21/21 DOCKET NO. 15-21 872 DATE: January 21, 2021 ORDER Entitlement to service connection for gastroesophageal reflux disease (GERD), Barrett’s esophagitis, and esophageal ulcers, including as due to an undiagnosed illness and/or medically unexplained chronic multisymptom illness (MUCMI) incurred during service in Southwest Asia during the Gulf War, is denied. FINDINGS OF FACT 1. GERD, Barrett’s esophagitis, and esophageal ulcers were not shown in service or within a year of service discharge; and the weight of the evidence fails to establish that the Veteran’s currently diagnosed GERD, Barrett’s esophagitis, and esophageal ulcers are etiologically related to his active service. 2. The probative medical evidence does not show that the Veteran has any objective symptoms of an undiagnosed illness or MUCMI. CONCLUSION OF LAW The criteria to establish service connection for GERD, Barrett’s esophagitis, and esophageal ulcers have not been met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.317. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from March 1986 to March 1989 and from October 1989 to December 1991. In June 2016, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge. A transcript of the proceeding has been associated with the claims file The Board remanded the matter in August 2018 for additional development. That development having been completed; the matter has been returned to the Board. Service Connection The Veteran contends that his GERD, Barrett’s esophagitis, and esophageal ulcers began in service. The Veteran had active service in the Southwest Asia Theater of Operations from August 1990 to March 1991. Therefore, he is considered a Persian Gulf veteran. 38 C.F.R. § 3.317(e). Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (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). Service connection may be granted for chronic disabilities, if shown to have been manifested to a compensable degree within one year after the Veteran was separated from service. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. Service connection may be granted for a Persian Gulf veteran with objective indications of a qualifying chronic disability that manifested either during active service in the Southwest Asia theater of operations or to a degree of 10 percent or more not later than December 31, 2021. 38 U.S.C. § 1117(a)(1); 38 C.F.R. § 3.317(a)(1). A qualifying chronic disability is a chronic disability that may result from an undiagnosed illness or a medically unexplained chronic multisymptom illness (MUCMI). 38 C.F.R. § 3.317(a)(2)(i). The term chronic means that the disability has existed for 6 months or more, to include intermittent episodes of improvement or worsening over that period. 38 C.F.R. § 3.317(a)(4). The term “Persian Gulf Veteran” means a veteran who served on active military, naval, or air service in the Southwest Asia Theater of operations during the Persian Gulf War. 38 C.F.R. § 3.317(e)(1). The “Southwest Asia Theater of operations” refers to Iraq, Kuwait, Saudi Arabia, Bahrain, Qatar, the United Arab Emirates, Oman, the Gulf of Aden, the Gulf of Oman, the Persian Gulf, the Arabian Sea, the Red Sea, and the airspace above these locations. 38 C.F.R. § 3.317(e)(2). The Persian Gulf War means the period beginning on August 2, 1990, and ending on the date thereafter prescribed by Presidential proclamation or by law. 38 U.S.C. § 101 (33); 38 C.F.R. § 3.3(i). The term ‘qualifying chronic disability’ means a chronic disability resulting from any of the following (or any combination of the following): (A) an undiagnosed illness; or (B) a medically unexplained chronic multisymptom illness that is defined by a cluster of signs or symptoms, such as: (1) chronic fatigue syndrome; (2) fibromyalgia; (3) functional gastrointestinal disorders (excluding structural gastrointestinal disorders). 38 C.F.R. § 3.317 (a)(2)(i). For purposes of this presumption, the term “medically unexplained chronic multisymptom illness” means a diagnosed illness without conclusive pathophysiology or etiology, that is characterized by overlapping symptoms and signs and has features such as fatigue, pain, disability out of proportion to physical findings, and inconsistent demonstration of laboratory abnormalities. Chronic multisymptom illnesses of partially understood etiology and pathophysiology, such as diabetes and multiple sclerosis, will not be considered “medically unexplained.” 38 C.F.R. § 3.317 (a)(2)(ii). Section 3.317 explicitly acknowledges that a claimant’s “signs or symptoms” need not be shown by medical evidence; however, the regulation does specifically require some “objective indications” of disability. 38 C.F.R. § 3.317(a). “‘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)(2); see Nuemann v. West, 14 Vet. App. 12, 22 (2000), vacated on other grounds, 14 Vet. App. 304 (2001) (per curiam order). Thus, although medical evidence of signs or symptoms is clearly not required to grant a claim, the regulation does require that there be some objective, independently verifiable evidence of the symptoms. Id. Compensation shall not be paid under 38 C.F.R. § 3.317 for a chronic disability: (1) if there is affirmative evidence that the disability was not incurred during active military, naval, or air service in the Southwest Asia theater of operations; or (2) if there is affirmative evidence that the disability was caused by a supervening condition or event that occurred between the Veteran’s most recent departure from active duty in the Southwest Asia theater of operations and the onset of the disability; or (3) if there is affirmative evidence that the disability is the result of the Veteran’s own willful misconduct or the abuse of alcohol or drugs. 38 C.F.R. § 3.317 (a)(7). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and recurrent symptoms. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the 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. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107 (2012); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. GERD, Barrett’s esophagitis, and esophageal ulcers The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that, while the Veteran has current diagnoses of GERD, Barrett’s esophagitis, and esophageal ulcers, and evidence shows that he had two episodes of vomiting and diarrhea documented in his service treatment records, the preponderance of the evidence weighs against finding that the Veteran’s GERD, Barrett’s esophagitis, and esophageal ulcers began during service or within the presumptive period, or are otherwise related to an in-service injury, event, or disease. Service treatment records show that the Veteran sought treatment for vomiting and diarrhea in January 1990, which was diagnosed as probable food poisoning. In August 1990, while deployed, the Veteran testified to experiencing a severe illness of vomiting, diarrhea, and dehydration, which left him weak. Treatment of this incident was not documented. The Veteran had a follow up visit in August 1991 for diarrhea, with the examination noting some improvement, but that he was still experiencing symptoms. In February 1994, he was diagnosed with GERD and Barrett’s esophagitis. The report of an examination conducted for VA purposes in March 1994, which focused on other matters, includes mention of a complaint by the Veteran of radiating heart burn of one year’s duration. Subsequent VA records indicated ongoing treatment for GERD, Barrett’s esophagitis, and esophageal ulcers. Thus, the Veteran has a current disability. In an August 2010 VA examination, the examiner noted there was no current medical evidence that supported a causal or direct relationship between the Veteran’s currently diagnosed conditions of GERD and Barrett’s esophagitis and the Veteran’s environmental exposure in Southwest Asia. A January 2011 addendum to the opinion noted that the Veteran’s GERD, esophageal ulcers, and Barrett esophagitis have a clear and specific etiology and diagnosis. A disease that has a specific etiology and diagnosis, as the Veteran’s conditions noted here, is not eligible for service connection as a MUCMI. 38 C.F.R. § 3.317. This opinion and related addendum are probative, as the examiner based this opinion on a review of the Veteran’s records and an examination of the Veteran, as well as relevant medical information. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). However, the opinion did not discuss the theory of direct service connection, but rather only addressed whether the Veteran was eligible for presumptive service connection based on a qualifying chronic disability resulting from an undiagnosed illness due to his service as a Persian Gulf Veteran. Thus, a VA opinion was obtained to determine if the Veteran’s conditions were at least as likely as not related an in-service injury or disease. In an October 2019 opinion, the October 2019 VA examiner opined that the Veteran’s diagnosed conditions of GERD, Barrett’s esophagitis, and esophageal ulcers are not at least as likely as not related to an in-service injury, event, or disease. The examiner noted that “although the lay statement conveys information of the reported symptoms, there are no documented symptoms or complaints consistent with a diagnosis of GERD, Barrett’s esophagus or peptic ulcer disease found in the service medical records.” The examiner also did not find any documented symptoms or complaints consistent with a diagnosis of esophageal ulcers in the Veteran’s service treatment records. Further, the Veteran’s upper gastrointestinal study in April 1994 was within normal limits. While the examiner stated that the medical literature supports that Barrett’s esophagus can occur as a consequence of longstanding GERD, the Veteran’s records were silent for a GERD condition during service. As the service treatment records did not show a GERD condition during service, the examiner found that a nexus between service and the claimed conditions could not be established. The examiner’s opinion is probative, because it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Id. Taken together, the August 2010 and October 2019 VA opinions establish that the Veteran’s GERD, Barrett’s esophagitis, and esophageal ulcers are not at least as likely as not related to an in-service injury, event, or disease, including due to heartburn experienced in service or environmental exposure in the Persian Gulf. The examiners’ opinions are probative, because they are based on an accurate medical history and provide an explanation that contains clear conclusions and supporting data. Id. The Veteran testified at a hearing before the Board to the symptoms he experienced during and after service. While the Veteran is competent to report having experienced symptoms of vomiting and heartburn consistently since service, he is not competent to provide a diagnosis in this case or determine that these symptoms were manifestations of GERD, Barrett’s esophagitis, and esophageal ulcers. The issues are medically complex, as they require knowledge of the interaction between multiple organ systems in the body and interpretation of complicated diagnostic medical testing. See Jandreau, 492 F.3d at 1377. The Veteran’s wife testified in a hearing before the Board, and the Veteran also provided a lay statement from a servicemember who was present when the Veteran became ill during his deployment. The Veteran’s wife testified to his symptoms over the years since his return from deployment and separation from active duty. While the Veteran’s wife is competent to describe the Veteran’s symptoms, it is outside of her competence to provide a nexus opinion regarding the Veteran’s disability. The statement from the servicemember present during the Veteran’s deployment and subsequent illness described the Veteran’s illness, as well as the Veteran using over the counter heartburn medications; however, the record does not show that he has the medical training or credentials to make a determination concerning the Veteran’s medical diagnosis. See Jandreau, 492 F.3d at 1377; see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). (Continued on the next page)   While the Veteran believes his GERD, Barrett’s esophagitis, and esophageal ulcers are related to his military service, the greater weight of the evidence is against the claim. Accordingly, service connection is denied. MICHAEL E. KILCOYNE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board V. Geer, 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.