Citation Nr: 21062859 Decision Date: 10/12/21 Archive Date: 10/12/21 DOCKET NO. 19-38 712 DATE: October 12, 2021 ORDER Service connection for gastroesophageal reflux disease (GERD) is granted. An effective date of September 19, 2008, and no earlier, is granted for the award of service connection for urethral stricture. The appeal with respect to whether there was clear and unmistakable error (CUE) in rating decisions entered in January 2009, March 2009, and January 2011 that denied entitlement to service connection for urethral stricture is dismissed. FINDINGS OF FACT 1. It is at least as likely as not that the Veteran's diagnosed GERD had its onset in service. 2. The Veteran's original claim for service connection for urethral stricture was received by VA on September 19, 2008; no formal or informal claim for service connection for urethral stricture was received prior to that date. 3. Although service connection for urethral stricture was denied in January 2009 and March 2009 rating decisions, the original claim remained pending and unadjudicated until it was denied in a January 2011 rating decision. 4. After the January 2011 rating decision, new and material service department records were received by VA, which included a December 1998 service treatment record that was, at least in part, relied upon to award service connection for urethral stricture. CONCLUSIONS OF LAW 1. Resolving reasonable doubt in the Veteran's favor, the criteria for an award of service connection for GERD have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for an effective date of September 19, 2008, for the award of service connection for urethral stricture have been met. 38 U.S.C. § 5110; 38 C.F.R. §§ 3.1(r), 3.400, 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Air Force from December 1994 to May 1997 and from March 1998 to December 1998. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a May 2018 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In July 2021, the Veteran testified at a virtual Board hearing before the undersigned Veterans Law Judge. A transcript of that hearing has been associated with the record. The Board notes that the Veteran's claim for service connection for GERD was previously denied by the RO in an October 2002 rating decision. Generally, once a claim is finally denied, it may be reopened only upon the submission of new and material evidence. Here, however, after the October 2002 rating decision was entered, official service department records were received that had existed at the time of the October 2002 decision but had not been associated with the claims file. The newly received records consisted of service treatment records documenting the Veteran's treatment following an October 1998 motor vehicle accident, which are relevant because they document epigastric pain during service and treatment with Zantac. Accordingly, the claim for service connection for GERD must be reconsidered on the merits, without regard to the prior adjudication. See 38 C.F.R. § 3.156(c)(i). 1. Service connection for GERD is granted. The Veteran maintains that he developed GERD in service, following an October 1998 motor vehicle accident in which he sustained broken ribs and internal injuries. Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). A layperson is generally incapable of opining on matters requiring medical knowledge. Routen v. Brown, 10 Vet. App. 183, 186 (1997), aff'd sub nom., Routen v. West, 142 F.3d 1434 (Fed. Cir. 1998). However, lay evidence can be competent and sufficient to establish a diagnosis of a condition when: (1) a layperson is competent to identify the medical condition, (e.g., a broken leg, separated shoulder, pes planus (flat feet), varicose veins, tinnitus (ringing in the ears), etc.), (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. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). In essence, lay testimony is competent when it pertains to the readily observable features or symptoms of injury or illness and may provide sufficient support for a claim of service connection. Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also 38 C.F.R. § 3.159(a)(2). A determination as to whether medical evidence is needed to demonstrate that a Veteran presently has the same condition he or she had in service or during a presumptive period, or whether lay evidence will suffice, depends on the nature of the Veteran's present condition (e.g., whether the Veteran's present condition is of a type that requires medical expertise to identify it as the same condition as that in service or during a presumption period, or whether it can be so identified by lay observation). See Barr v. Nicholson, 21 Vet. App. 303, 310 (2007). Thus, medical evidence is not always or categorically required when the determinative issue involves either medical diagnosis or etiology, but rather such issue may, depending on the facts of the particular case, be established by competent and credible lay evidence under 38 U.S.C. § 1154(a). See Davidson, supra. 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; 38 C.F.R. § 3.102. See also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). After a careful review of the claims file and resolving doubt in the Veteran's favor, the Board concludes that the Veteran has a current disability of GERD that began during active service. 38 U.S.C. §§ 1110, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). In coming to the conclusion that service connection is warranted, the Board first acknowledges that service treatment records document that the Veteran was injured in an October 1998 motor vehicle accident prior to separation. In October 1998, more than one week after the accident, it was documented that "yesterday [he experienced] stomach pains, continuing today." Significantly, the Veteran reported that "2 days [after the accident] started [with] burning & sharp [pain] epigastric area," and the provider assessed "musculoskeletal pain [left lower quadrant of abdomen] with epigastric pain/burning [secondary] to] NSAIA [nonsteroidal anti-inflammatory agent]." At that time, the Veteran was prescribed Zantac for his symptoms and was advised to only use Tylenol. See October 1998 service treatment record. Thus, the first criteria needed for service connection, that of an in-service injury or event, has been satisfied. Additionally, the Veteran has been diagnosed with GERD, satisfying the second criteria for service-connection of having a current disability. See, e.g., May 2018 VA examination report. Thus, the question becomes whether the current disability is related to service. With regard to nexus, in a May 2018 opinion, a VA examiner determined that it was less likely than not that the Veteran's GERD was caused by or a result of service, including the October 1998 motor vehicle accident. However, the examiner failed to acknowledge or discuss the documented complaints of epigastric pain in service, or the prescribed treatment of Zantac for the control of his symptoms. The Board therefore finds the nexus opinion to lack probative value. In considering whether a remand for a new medical opinion is necessary, the Board has looked to the existing evidence of record and finds that it is sufficient in this case to satisfy the final element of a nexus, or causal connection. In this regard, the Veteran has credibly testified to an onset of recurrent GERD symptoms in the military. See, e.g., July 2021 hearing transcript at p. 4 (noting symptoms of heartburn, substernal pain, and burning since the accident); July 2018 notice of disagreement (stating that he has "been treated continuously for my GERD through VA since [1999]."). This lay evidence is also supported by medical records, to include VA treatment reports from September and December 1999, both of which expressly noted that the Veteran was on Zantac for dyspepsia. Notably, in a February 2002 VA treatment record, a VA treatment provider expressly included an assessment of GERD and noted that the Veteran "said he has had the problem for about 4 years and he has been put on Zantac in the past which has helped. But he has run out of the [prescription] and has been using [over the counter] Zantac which did not help and also he has been using other antacids. He said he gets the heart burn almost every day." Thus, the lay evidence describing symptoms since service is adequately supported by this later diagnosis by a medical professional pursuant to Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) and is sufficient to establish the onset of GERD in service. As a result, the Board determines that the Veteran has provided competent and credible lay nexus evidence in support of his appeal, which is sufficient to establish equipoise in this case where there is no probative, convincing medical evidence to the contrary. The evidence sufficiently demonstrates both a current disability and a nexus to service. Given the diagnosis rendered during the appeal period and the favorable and competent nexus evidence of record, the Board resolves doubt in the Veteran's favor and finds that the evidence supports the establishment of service connection for GERD. As such, this claim is granted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 2. An effective date of September 19, 2008, and no earlier, for the award of service connection for urethral stricture is granted. The Veteran contends that he is entitled to an effective date earlier than February 3, 2017 for the award of service connection for urethral stricture. He claims that he initially filed a claim seeking service connection for this disability in 2008, and that there was error in rating decisions entered in January 2009, March 2009, and January 2011 that denied his claim. See also April 2019 notice of disagreement ("The first time I applied for disability for urethral stricture it was denied, due to lack of evidence. The evidence was later found in a missing portion of my service medical records that I supplied in this new claim. There was a clear and unmistakable error in denying me an award in my first claim."). As a result, the Veteran seeks "an effective date back to when I was first being treated by the VA. My treat[]ment is recorded as ongoing prior to 2017 and prior to my initial claim." Id. As a threshold matter, the Board notes that in May 2018 the RO awarded service connection for urethral stricture, "effective February 3, 2017. The effective date is the date we received your intent to file." Because the Veteran filed a timely notice of disagreement with the May 2018 rating decision that established the effective date for the award of service connection, and thereafter perfected his appeal, the Board properly has jurisdiction over this effective date issue. Cf. Rudd v. Nicholson, 20 Vet. App. 296, 299 (2006) (there is no such thing as a freestanding claim for an earlier effective date). The determination with respect to the effective date to be assigned for an award of compensation is generally governed by 38 U.S.C. § 5110(a), which states that "[u]nless specifically provided otherwise . . ., the effective date of an award based on an original claim [or] a claim reopened after final adjudication . . . shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor. If an application is received within one year from a veteran's date of discharge or release, [t]he effective date of an award of disability compensation to a veteran shall be the day following the date of the veteran's discharge or release." 38 U.S.C. § 5110(b). In this case, the Veteran first filed a claim for service connection for urethral stricture in September 2008. In a January 2009 rating decision, the claim was denied. Following additional development, a March 2009 rating decision readjudicated and continued the denial. The Veteran did not file a notice of disagreement, but VA treatment records VA treatment records were created and in VA's constructive possession within one year of the rating decisions. Notably, these new VA records included a December 2009 VA treatment report that documented that the Veteran "reports that he has been having diff[iculty] with urination as he has a chr[onic] stricture in the urethra since 1999 [sic] at time of car accident." Notably, as the March 2009 rating decision based the denial on a finding that "[r]ecords do not provide evidence of a diagnosis of a chronic genitourinary disability, to include urethral stricture," the December 2009 VA treatment record constitutes new and material evidence. Because this new and material evidence was constructively received within the one-year time period, it renders the January 2009 and March 2009 rating decisions non-final with respect to the denials of service connection for urethral stricture under 38 C.F.R. § 3.156(b). Thereafter, in August 2010, the Veteran again filed a claim for service connection for urethral stricture. In a January 2011 rating decision, the RO reopened the claim but denied it because "the evidence continues to show this condition was not incurred in or aggravated by military service." The RO explained, "While current medical evidence reflects a diagnosis of urethral stricture, medical evidence reviewed in conjunction with your reopened claim provides no causal link between an injury or disability having onset during your active service, and current disability." The Veteran did not initiate an appeal of that decision by filing a notice of disagreement. In addition, although VA treatment records were created and in VA's constructive possession within one year of the January 2011 rating decision, those records were not "material" to the claim and therefore did not render the January 2011 rating decision non-final under 38 C.F.R. § 3.156(b) (2010). Rather, of those VA treatment records, a September 2011 VA treatment report reflected ongoing treatment for urethral stricture but not provide any evidence regarding the etiology of the disorder or a relationship to service. Thus, the report was not "material" under 38 C.F.R. § 3.156(b). His next claim to reopen the claim for service connection for urethral stricture was not received until February 3, 2017, which is date that the RO selected as the effective date of his award. Notwithstanding the January 2011 rating decision, the Veteran asserted in his April 2019 notice of disagreement that service treatment records were added to his file since his claims were previously denied. Accordingly, the Board will consider 38 C.F.R. § 3.156(c)(3) and whether this may be a basis for assigning an earlier effective date than the February 2017 claim to reopen. The provisions of 38 C.F.R. § 3.156(c)(3) state, in pertinent part, "An award made based all or in part on the records identified by paragraph (c)(1) . . . is effective on the date entitlement arose or the date VA received the previously decided claim, whichever is later." In this case, the Veteran alleges that some of his service treatment records were not available or were misplaced at the time of his prior rating decisions. Significantly, it appears that the RO made several requests for a complete copy of the Veterans service records over the years, including in 1999, in 2006, and most recently in June 2015. Indeed, in reviewing service treatment records that were date stamped as having been received in December 2006, those copies do not contain the Veteran's treatment records pertaining to his October 1998 motor vehicle injury. However, accident-related service treatment records were later associated with the Veteran's electronic claims file and are now found in a set of service treatment records that are marked with an electronic "receipt date" of January 2014. In ascertaining whether the service treatment records were included with the claims file at the time of the prior January 2011 rating decision, the Board acknowledges that there is a date stamp on some of the recordsincluding one of significance dated from December 1998pertaining to the motor vehicle accident suggesting that they were received at the Portland, Oregon, Regional Office in November 2008 and at the Los Angeles, California, Regional Office's mail room in November 2010. Normally, this would constitute sufficient evidence that these records were associated with the claims file at the time of the January 2011 rating decision. However, there is evidence to rebut that presumption in this case: the January 2011 rating decision itself expressly states that it only considered service treatment records dated through November 25, 1998. Moreover, the urinary complaints noted in those particular service treatment records were likewise not acknowledged in the rating decision. Rather, the January 2011 rating decision merely stated, "Health records revealed no trauma or other injury of the bladder, nor diagnosis of a urethral stricture at separation," suggesting that the accident-related service treatment records were not reviewed. The December 1998 service treatment record in question reflected that the Veteran was continuing to follow up for microscopic hematuria since his motor vehicle accident in October 1998. This record from Wilford Hall Medical Center also noted that the renal function was essentially normal and recommended a repeat urine analysis and to consider a genitourinary evaluation pending results. See December 1998 service treatment record. Significantly, this December 1998 service treatment report was specifically referenced in the VA examiner's rationale as for why his current urethral stricture was found to be related to service. See May 2018 VA medical opinion. In providing a positive nexus opinion, the May 2018 VA examiner explained: The Veteran records revealed he had urinary problems while he was in service after being involved in an MVA. He was seen by a Nephrologist Thomas C. Peter, Maj. USAF, MC on 03 Dec 1998 for "f/u microscopic Hematuria without dysuria. " His diagnosis Microscopic Hematuria: Persistent post MVA. He was also seen for urinary problems at Roseburg VAMC by Dr William Mitchell on September 8th 2006 for C&P Exam Genitourinary Examination and his assessment Possible Renal Contusion on the Left With Possible Segmental Infarct. The Veteran['s] urinary problems has worsen over the years and he has been through multiple procedures resulting in Urethral stricture. Note also Thomas C. Peter, Maj. USAF, MC assessment was "Microscopic Hematuria: Persistent post MVA". But the source of the hematuria was not determined. Therefore, Veteran's current Urethral Stricture is at least as likely as not incurred in or caused by the claimed in-service injury, event, or illness." Thus, the December 1998 service treatment record was integral to the favorable May 2018 VA opinion that was used to justify the January 2011 decision to award service connection. Given the fact that the January 2011 rating decision expressly stated that it only considered service treatment records through November 1998 and did not mention the December 1998 service treatment record, the Board resolves doubt in the Veteran's favor and finds that the evidence sufficiently demonstrates that these service treatment records were added to the record sometime after the January 2011 rating decision. Moreover, as the award was based, at least in part, on the December 1998 service treatment report, the criteria of 38 C.F.R. § 3.156(c)(3) have been met. Accordingly, the effective date is "the date entitlement arose or the date VA received the previously decided claim, whichever is later." As mentioned above, the January 2009 and March 2009 rating decisions were rendered non-final under § 3.156(b), so the date VA received the previously decided claim is the Veteran's initial September 19, 2008 claim for service connection for urethral stricture. Looking at the communications submitted by the Veteran prior to September 19, 2008, the Board can discern no formal or informal claim for service connection for urethral stricture prior to the September 19, 2008, submission. The Board recognizes the Veteran's assertion that he should be awarded an effective date back to "when I was first being treated by the VA." April 2019 notice of disagreement. This essentially appears to be raising an argument couched in equity, in that it is unfair to deny an earlier effective date when his symptoms manifested prior to the date of receipt of his earliest claim for service connection. However, the Board is bound by the law and is without authority to grant benefits on an equitable basis. See 38 U.S.C. §§ 503, 7104 (West 2002); see also Harvey v. Brown, 6 Vet. App. 416, 425 (1994). The Board emphasizes that the actual date that entitlement arose is of no issue in the present case. Even assuming that entitlement arose at an earlier time, the law mandates that the effective date shall be "the date entitlement arose or the date VA received the previously decided claim, whichever is later." 38 C.F.R. § 3.156(c)(3) (emphasis added). Thus, because the Veteran's initial claim was received on September 19, 2008, the effective date of the award of service connection for urethral stricture cannot precede that date as a matter of law. Moreover, in light of the above application of § 3.156(b) and the regulations authorizing an effective date back to the original claim under § 3.156(c), the Veteran's arguments that there was CUE in the January 2009, March 2009, and January 2011 rating decisions that denied service connection for urethral stricture are moot and will not be further addressed. In conclusion, the Board finds that the Veteran is entitled to an effective date of September 19, 2008, but no earlier, for the award of service connection for urethral stricture. To that extent, the appeal of this issue is granted. DAVID A. BRENNINGMEYER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Gielow, 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.