Citation Nr: 21062182 Decision Date: 10/06/21 Archive Date: 10/06/21 DOCKET NO. 10-44 380A DATE: October 6, 2021 ORDER Entitlement to service connection for gastroesophageal reflux disease (GERD) is granted. FINDING OF FACT The Veteran's GERD is at least likely as not related to his active duty service. CONCLUSION OF LAW The criteria for entitlement to service connection for GERD have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 1966 to October 1969. This matter originally came before the Board of Veterans' Appeals (Board) on appeal from an August 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In November 2019, the Board issued a decision denying service connection for GERD. The Veteran appealed the matter to the U.S. Court of Appeals for Veterans Claims (Court), which vacated the November 2019 Board decision, pursuant to a December 2020 Joint Motion for Remand (JMR). The Court remanded the matter for action consistent with the terms of the JMR. In May 2021, the Board remanded the matter to obtain an addendum opinion as to the Veteran's GERD, in compliance with the terms of the JMR. 1. Entitlement to service connection for GERD Service connection may be granted for a 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 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). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. When the preponderance of the evidence is against the claim, the claim must be denied. Id. Regarding a current disability, the Board notes that the June 2021 VA examiner diagnosed the Veteran with GERD. Therefore, the first element of service connection is met. See Shedden, supra. Regarding in-service incurrence, the Veteran contends that his GERD is related to his active service in Vietnam. In March 2010, the Veteran submitted a statement in which he contended that while he was stationed in Vietnam, he was exposed to food that made him severely sick. He stated that he went to an airbase hospital facility but a physician did not examine him because he stated that the Veteran "didn't look sick." A nurse at the facility noted that the Veteran had a high fever and that he should be hospitalized. The nurse placed the Veteran on bedrest and he spent two weeks in the barracks where he experienced vomiting and dry heaves. Since this incident, the Veteran stated that he has experienced acid reflux, which requires much over-the-counter medication. A private physician provided the Veteran with medication for his stomach condition. The Veteran further stated that before this incident in Vietnam, he did not have any problems with his stomach or have acid reflux. The Board notes that the Veteran is competent to describe events and symptoms observable to his senses. See Jandreau v. Nicholson, 493 F.3d 1372, 1377 (Fed. Cir. 2007). The Board has no reason to discredit the Veteran's statements regarding his in-service exposure to food that caused severe gastrointestinal illness. Therefore, the Board finds that it is at least likely as not that the Veteran experienced an in-service regarding his current diagnosis of GERD and the second element of service connection is satisfied. See Shedden, supra. Regarding the third element of service connection, nexus, the evidence conflicts. In July 2017, the Veteran underwent a VA esophageal conditions examination in which he was diagnosed with GERD. However, the examiner opined that food poisoning is a temporary condition and is inconsistent with a diagnosis of GERD. However, in an April 2018 remand, the Board remanded the matter for a new examination due to inadequate information regarding the onset of the Veteran's GERD. In August 2019, the Veteran underwent another VA esophageal conditions examination. The examiner diagnosed the Veteran with GERD but opined that it was less likely than not that the condition was related to service. The examiner relied almost entirely on a lack of in-service medical records reflecting symptoms or diagnosis of GERD. The examiner further stated that no in-service illness would have caused GERD. The Board notes that the parties agreed in the December 2020 JMR that a clarifying addendum opinion was necessary, as neither the July 2017 nor the August 2019 examinations addressed an August 2013 Agent Orange Registry Examination note in which the Veteran answered "yes" to whether he ate food or drink that could have been contaminated with Agent Orange. See Sept. 2013 CAPRI, p. 1. In June 2021, the Veteran underwent another VA esophageal conditions examination with a GERD diagnosis. The examiner initially provided a report indicating a positive nexus opinion, but the accompanying rationale supported a negative nexus opinion. The examiner also relied on the fact that GERD is not a disability eligible for presumptive service connection due to herbicide exposure, which conflicted with the April 2021 Board remand directives. In July 2021, the examiner provided an addendum opinion after a request for clarification. The examiner rendered a negative opinion, noting that there were no in-service treatment records reflecting GERD while in service and that the Veteran's claim of food poisoning is "unrelated" to GERD. However, the examiner made a positive nexus as to causation of GERD by herbicide exposure from contaminated food or water. The examiner acknowledged the Veteran's personal statement, outlined above, and that GERD can be caused by association with chemicals causing inflammation in the stomach and/or the esophagus. The examiner further stated that drinking water contaminated with agent orange can lead to damage of the esophagus. The Board finds that, when resolving all reasonable doubt in favor of the Veteran, the evidence in support of nexus is at least in equipoise. The Board affords little probative value to both the July 2017 and August 2019 VA examinations, as the parties noted in the JMR that neither examiner considered the Veteran's August 2013 Agent Orange Registry Note. The Board also affords little probative value to the June 2021 VA examination due to its contradictory nature and its failure to comply with Board remand directives. Additionally, the Board assigns significant probative value to the July 2021 opinion regarding the Veteran's GERD as it relates to his in-service consumption of contaminated food and water. The examiner provided a complete rationale and of discussion how such consumption could cause GERD and opined that it was at least likely as not related to the condition. Therefore, the Board finds that the evidence as to nexus is at least in equipoise and that the third element of service connection is met. See Shedden, supra. Accordingly, as all three elements are met, service connection for GERD is warranted. A. S. CARACCIOLO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. Watkins, 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.