Citation Nr: 21063530 Decision Date: 10/14/21 Archive Date: 10/14/21 DOCKET NO. 04-01 014 DATE: October 14, 2021 ORDER Entitlement to service connection for gastrointestinal disorders, to include gastroesophageal reflux disorder (GERD), gastritis, hiatal hernia, Schatzki's Ring, status-post helicobacter pylori infection, esophageal mass, and Barrett's esophagitis, granted. FINDINGS OF FACT 1. A defect, infirmity, or disorder of the Veteran's gastrointestinal system was not noted on his enlistment report of medical examination. 2. There is clear and unmistakable evidence that the Veteran's gastrointestinal symptoms, to include those now manifesting as GERD and gastritis, pre-existed his entry onto active-duty service. 3. The evidence does not clearly and unmistakably demonstrate that the Veteran's gastrointestinal disorders were not aggravated by his active-duty service. 4. The Veteran's current gastrointestinal disorders had their onset in service. CONCLUSION OF LAW The presumption of soundness is not rebutted; the criteria to establish service connection for gastrointestinal disorders, to include GERD, gastritis, hiatal hernia, Schatzki's Ring, status-post helicobacter pylori infection, esophageal mass, and Barrett's esophagitis, are met. 38 U.S.C. §§ 1111, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Navy from June 1959 to May 1963. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2003 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran asserts that his current gastrointestinal disorders, to include GERD and gastritis status-post helicobacter pylori infection, clearly and unmistakably preexisted his active-duty service and were aggravated by his active duty service. Initially, the Board notes that the Veteran's representative requested the credentials of the May 2021 VA examiner pursuant to Francway v. Wilkie, 930 F.3d 1377 (Fed. Cir. 2019). As this decision reflects a full grant of the relief sought on appeal, the Board finds there is no prejudice to the Veteran to proceed without remanding for this information. By way of procedural history, the Veteran submitted a claim for ulcers and GERD in May 2003. See May 2003 VA Form 21-526. In a September 2003 rating decision, the RO denied entitlement service connection for ulcers and GERD based on their finding that there were no complaints, treatment, or symptoms of the same during the Veteran's active duty service. The Veteran filed a timely September 2003 Notice of Disagreement and the RO issued a Statement of the Case (SOC) in December 2003. In April 2005, the Veteran testified before a Judge of the Board and in a July 2005 Board decision, the Veteran's claims for service connection were remanded for development, to include obtaining additional private treatment records and an examination of the Veteran to be conducted by a physician. In March 2008 and again in March 2009, the Board remanded these matters again based on the fact that the Veteran was examined by a physician's assistant and a nurse as opposed to a physician as directed by the July 2005 Board remand. In July 2010, the Board requested an expert medical opinion pursuant to 38 C.F.R. § 20.901 (2009) that was received in August 2010. Based on the results of this examination, the Veteran expanded his claim to include gastrointestinal disorders status-post helicobacter pylori infection. See September 2010 VA Form 21-4138. The Board subsequently denied the Veteran's claims for service connection for GERD and ulcers and remanded the Veteran's claim for any other gastrointestinal disorders, including gastritis associated with helicobacter pylori infection for development in a December 2010 Board decision. The Veteran thereafter appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court), but only as to the denial of entitlement to service connection for GERD, specifically allowing the denial of entitlement to service connection for ulcers to become final and the remand for development regarding any other gastrointestinal disorders to proceed. In an Order dated August 2011, the December 2010 Board decision was vacated as to the denial of GERD pursuant to a Joint Motion for Remand (JMR) wherein the parties (the Veteran and the Secretary) agreed that the August 2010 expert medical opinion was inadequate, as it failed to address relevant lay evidence regarding the Veteran's in-service symptoms and treatment for a gastrointestinal disorder. In November 2011, the Veteran was informed that the Veterans Law Judge who took his testimony in April 2005 retired, and the Veteran subsequently elected to have another hearing. See December 2011 Hearing Request, May 2012 Board Remand. In August 2015, the Veteran testified before another Veterans Law Judge who then remanded these matters for additional development. See August 2016 Board Remand. Once again in August 2017, the Veteran was informed that the second Veterans Law Judge he testified before in August 2015 had also now retired, and the Veteran subsequently indicated he did not want an additional hearing. See August 2017 Hearing Waiver. In December 2017, the Board requested another expert medical opinion that was received in February 2018 and subsequently used to deny the Veteran's claims once more in a January 2019 Board Decision. The Veteran appealed this denial to the Court, and in a September 2019 JMR the parties agreed that the February 2018 expert medical opinion was logically inconsistent and conclusory in its rationale. Thus, the January 2019 Board Decision was vacated. In February 2020 and again in June 2020, the Board remanded these matters for additional development. Service Connection Service connection will be granted if the evidence demonstrates that current disability resulted from an injury or disease incurred in active military service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) current disability; (2) in-service incurrence of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). Consistent with this framework, service connection is warranted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Every veteran is presumed to have been in sound condition when examined, accepted, and enrolled into service except as to defects, infirmities, or disorders noted at the time of such entry, or where clear and unmistakable evidence demonstrates that the injury or disease existed before entry and was not aggravated by such service. 38 U.S.C. § 1132; 38 C.F.R. § 3.304(b). The term "noted" refers to "[o]nly such conditions as are recorded in examination reports." 38 C.F.R. § 3.304(b). When a condition is not noted on entry into service, the burden falls on the government to rebut the presumption of soundness by clear and unmistakable evidence that the veteran's disability was both preexisting and not aggravated by service. Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). Throughout the appeal period, the Veteran has repeatedly asserted that his gastrointestinal disorders both pre-existed his active-duty service and were aggravated during his active duty service. See April 2005 Board Hearing Transcript at 10, October 2006 J.L.W. lay statement, October 2006 S.W. lay statement, April 2008 Veteran lay statement, May 2008 lay statement from M.D., January 2009 Veteran lay statement, February 2012 Informal Hearing Presentation, September 2017 Appellate Brief. The Veteran has a current diagnosis of GERD, gastritis, hiatal hernia, Schatzki's Ring, status-post helicobacter pylori infection, esophageal mass, and Barrett's esophagitis. See October 2003 and October 2009 private treatment records; September 2006, September 2013, May 2017, May 2021 VA examination reports. Thus, the first element of service connection is met. Turning to the evidence of record, the Veteran's enlistment report of medical examination and its attendant report of medical history (both dated June 12, 1959), note no complaints, symptoms, or diagnosis of any gastrointestinal disorders, to include GERD or gastritis. Thus, regarding the Veteran's assertion that his disorders preexisted active duty, there must be clear and unmistakable evidence demonstrating that the injury or disease existed before entry. Clear and unmistakable evidence is defined as obvious or manifest. 38 C.F.R. § 3.306(b). Clear and unmistakable evidence means that the evidence cannot be misinterpreted and misunderstood, i.e., it is undebatable. Quirin v Shinski, 22 Vet. App. 390, 396 (2009). In this regard, the Veteran, three days after his enlistment examination, reported to Naval medical treatment providers that he was treated for ulcers when he was 17 years old. See Service Treatment Records (STRs). The Naval medical officer ordered a gastrointestinal series that the medical personnel recorded as "normal," and further noted that the Veteran's gastrointestinal symptoms were not considered disabling (NCD). The Board notes at this time that previous VA decisions inferred that this finding meant that the Veteran did not have gastrointestinal symptoms at entry; however, the Board emphasizes that this was not the conclusion of the Naval medical doctor but rather that the symptoms reported were not of a severity that would require his discharge. Accordingly, the Veteran was permitted to continue with his enlistment. Id. Regarding any motive the Veteran may have had in not disclosing his gastrointestinal disorders three days prior at the enlistment examination, the Veteran reported that he enlisted in the Navy to avoid being drafted into the Army during the Vietnam conflict. See January 2009 Veteran lay statement. The Board finds the Veteran's statements, regardless of his intent, provide credibility as to why the Veteran would not have initially disclosed his preexisting gastrointestinal disorder until after he was sworn in onto active duty. In October 2006, the Veteran's brother provided a statement noting the Veteran first began having severe stomach cramps as a young child that persisted into adulthood. See October 2006 lay statement from J.L.W. Another relative of the Veteran who had extended and close contact with him when he was younger noted that the Veteran's stomach pain began when he was 5 or 6 years old that persisted into his active-duty service period and thereafter. See October 2006 S.W. lay statement. In an April 2008 lay statement, the Veteran expressed feeling confused in boot camp when Naval medical personnel informed him that he did not have ulcers despite his reported pre-service treatment for the same. See April 2008 Veteran lay statement. One of the Veteran's childhood friends who enlisted in the Navy with him reported in a statement that he recalled the group of recruits of which he and the Veteran were a part of being asked if anyone had gastrointestinal issues and the Veteran raising his hand. See May 2008 M.D. lay statement. The Veteran also provided sworn testimony that he had symptoms of GERD prior to his enlistment that worsened in service and continued to the present. See April 2005 Board Hearing Transcript at 4-6, August 2015 Board Hearing Transcript at 3-4. In addition to the Veteran's report of preexisting gastrointestinal symptoms just 3 days after his enlistment onto active duty and the copious amount of lay and testimonial evidence, there are a significant number of medical opinions addressing whether the Veteran's gastrointestinal symptoms pre-existed his active-duty service. In this regard, the Veteran submitted to VA examinations in September 2006 (with December 2006 addendum), September 2013, May 2017, and May 2021. In addition, VA medical opinions were rendered in December 2006, November 2008, May 2009, August 2010, and February 2018. The September 2006 VA examiner diagnosed the Veteran with GERD and amended the diagnosis in December 2006 after completing imaging to hiatal hernia with Barrett's Esophagus. The December 2006 VA examiner opined that it was evidence that the Veteran had prolonged GERD but could not determine whether the symptoms in service represented the same current GERD symptoms. The November 2008 and the May 2009 VA examiners opined it was less likely than not that the Veteran's gastrointestinal disorders had their onset during or were aggravated by active-duty service as there was no evidence of a gastric disorder noted in service. The November 2008 VA examiner offered no medical rationale, other than a conclusory statement that the Veteran's GERD was not noted during active duty. See Miller v. West, 11 Vet. App. 345, 348 (1998) (a bare conclusion, even one reached by a health care professional, is not probative without a factual predicate in the record). The May 2009 VA examiner concluded that he could not definitively state whether the Veteran had ulcers prior to or during active-duty service. The Board notes that the May 2009 VA examiner failed to discuss the Veteran's lay evidence regarding his in-service symptoms and failed to discuss the Veteran's in-service treatment in March and December of 1960 for gastrointestinal issues. Thus, the May 2009 VA examination report is of no probative value. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993). In July 2010, a VA medical expert opined that "it appears" the Veteran had an undefined gastrointestinal ailment prior to his enlistment onto active duty and that his best "guess" was that it was due to helicobacter pylori associated gastritis. The July 2010 VA medical expert then also opined that while he could not definitively state the duration of the Veteran's GERD, there was no available evidence demonstrating that the GERD was aggravated during active-duty service. In the August 2011 JMR, both parties agreed that the July 2010 VA expert medical opinion was inadequate because the examiner did not address the Veteran's lay assertions regarding his in-service hospitalization for GERD. See August 2011 JMR. The Board notes that the August 2011 JMR did not address any inadequacy regarding the July 2010 medical expert's conclusion that the Veteran's gastrointestinal disorder preexisted service. Id. Furthermore, consistent with the lay statements discussed above and notably submitted prior to the July 2010 VA opinion, the July 2010 VA medical expert cited to a medical treatise entitled "Sleisenger and Fordtran's Gastrointestinal and Liver Disease, 9th Ed." regarding epidemiological data that demonstrates that Helicobacter pylori is usually acquired before the age of 5. Id. In September 2013, a VA examiner diagnosed GERD and opined that it was at least as likely as not that the Veteran's helicobacter pylori infection, presenting as GERD with hiatal hernia had preexisted the Veteran's enlistment and worsened beyond its normal progression during the Veteran's active-duty service. The Board notes that while some of the language used by the September 2013 VA examiner was speculative, that it was not discussed in any previous Board decision, and the Board now finds that the opinion was well-reasoned and based on all of the available evidence of record. Thus, the Board finds the September 2013 VA examination report and opinion to be of great probative value. In May 2017, a VA examiner diagnosed GERD, hiatal hernia, status-post helicobacter pylori, and Schatzki's Ring. The May 2017 VA examiner opined that the Veteran likely acquired helicobacter pylori as a child prior to active duty based on the Veteran's statements and the STR note generated 3 days after the Veteran enlisted documenting he had gastrointestinal symptoms prior to enlistment; however, het concluded there was no medical evidence of aggravation. The examiner failed to discuss the Veteran's lay statements regarding the onset prior to active duty and the worsening of the same during active duty and thereafter. The May 2017 VA examiner opined that it would "not be expected" that active duty would aggravate helicobacter pylori. See Warren v. Brown, 6 Vet. App. 4, 6 (1993) (a doctor's statement framed in terms such as "could have been" is not probative). Thus, the May 2017 VA opinion is of limited probative value. In February 2018, a second VA expert medical examiner opined that while it is apparent the Veteran had a helicobacter pylori infection that was likely acquired in childhood, that there is no clear evidence that a gastrointestinal disorder existed prior to his active-duty service. See February 2018 VA expert opinion. In a September 2019 JMR, the Veteran and the Secretary agreed that the February 2018 VA medical opinion was inadequate in that the opinion regarding aggravation was logically inconsistent and additionally that it failed to address GERD. See September 2019 JMR. Thus, the February 2018 VA medical opinion is of no probative value. Finally, in May 2021, a VA examiner diagnosed the Veteran with GERD, hiatal hernia, Barrett's esophagitis, an esophageal mass, and erythematous gastritis. The May 2021 VA examiner opined that it was more likely than not that the Veteran's GERD pre-existed active, noted that the Veteran's in-service complaints represented acute flare-ups, and further opined that after a full review of the Veteran's STRs, lay statements and testimony regarding the onset and continuity of symptoms, and the private April 2010 private nexus statement, that the evidence demonstrated an aggravation of GERD and gastritis occurred during the Veteran's active-duty service. In support of her opinion, the May 2021 VA examiner cited to medical literature and reviewed the progression of gastritis and compared it to the Veteran's medical and lay evidence. In addition to the VA examinations, in April 2010, the Veteran submitted a private medical nexus statement that concluded the Veteran's gastrointestinal symptoms, to include GERD with dyspepsia and gastritis, at least as likely as not had their onset prior to his active-duty service and continued to the present. The April 2010 private examiner reviewed the Veteran's complete medical history and the lay statements of record in April 2010. The Board notes that throughout the appeal period, there has not been a single VA or private medical opinion that is wholly adequate, whether it be due to a failure to consider all of the evidence of record or finding that the Veteran's gastrointestinal disorders "at least as likely as not" pre-existed his active-duty service instead of correctly considering the "clear and unmistakable" evidence standard. See Wagner, supra. The Board now finds that remanding these matters for yet another VA medical opinion when the previous 9 VA opinions failed to adequately address the questions posed by the previous 9 Board remands, could be construed as obtaining additional evidence for the sole purpose of denying a claim, which is impermissible. 38 C.F.R. § 3.304(c) ("The development of evidence in connection with claims for service connection will be accomplished when deemed necessary but it should not be undertaken when evidence present is sufficient for this determination"); Andrews v. McDonough, 34 Vet. App. 151 (2021) ("Remand is inappropriate where the predominant purpose is not to allow the Board to make a fully informed decision unencumbered by error but to allow VA to obtain more evidence so that it can properly deny the claim"). Accordingly, the Board finds when considering the Veteran's report of a preexisting gastrointestinal disorder on the third of his enlistment, the considerable lay evidence of record supporting that the Veteran's gastrointestinal disorder pre-existed his active duty service that is consistent with subsequent medical opinions regarding the onset of helicobacter pylori, and the 5 medical opinions all agreeing that the Veteran's gastrointestinal symptoms existed prior to his enlistment, that there is clear and unmistakable evidence the Veteran's gastrointestinal disorders pre-existed his active duty service and the first element of rebutting the presumption of soundness is met. Regarding the second element for rebutting the presumption of soundness, the Board finds there is no clear and unmistakable evidence of a lack of aggravation to satisfy this element. Wagner, 370 F.3d at 1096. Here, the Veteran was treated in service in March 1960 and again in December 1960 for gastrointestinal disorders and was diagnosed with gastritis. The September 2013 and May 2021 VA examiners further opined that these treatments were at least as likely as not representative of an in-service aggravation of the preexisting Veteran's gastrointestinal disorders. Accordingly, as the high evidentiary standard required to rebut the presumption of soundness has not been met in this case, this case becomes one for direct service connection. Additionally, the September 2013 and May 2021 VA examiners' opinions that the Veteran's current gastrointestinal problems manifested prior to service but worsened therein, necessarily links his current gastrointestinal disorders to service. When squaring the rationale of the examiner's opinions with the legal concept regarding the presumption of soundness, these opinions support an in-service onset of the Veteran's gastrointestinal disability. Thus, as all the elements of direct service connection for a gastrointestinal disability are met, the appeal as to this issue is granted. S. BUSH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board G. Rouse, 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.