Citation Nr: 21066196 Decision Date: 10/28/21 Archive Date: 10/28/21 DOCKET NO. 11-06 669 DATE: October 28, 2021 ORDER Entitlement to service connection for gastroesophageal reflux disease (GERD) is granted. REMANDED Entitlement to service connection for a right knee disability, to include as secondary to a service-connected disability, is remanded. FINDING OF FACT Resolving reasonable doubt in his favor, the Board finds that the Veteran's GERD had its onset during his service. CONCLUSION OF LAW The criteria for entitlement to service connection for GERD have been met. 38 U.S.C. §§ 5103, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from August 1979 to October 1997. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado. In April 2015, the Veteran testified before the undersigned at a hearing. A transcript of his testimony has been associated with the claims file. By way of procedural background, the Board remanded the matter to the RO for further evidentiary development in July 2015. Subsequently, the Board denied the appeals in a November 2016 decision. The Veteran appealed this decision to the Court of Appeals for Veterans Claims (Court), which issued a March 2018 memorandum decision that vacated the decision and remanded the appeals to the Board for further development. Thereafter, the Board remanded the claims to the RO for further development, consistent with the Court's March 2018 memorandum decision, in February 2019, February 2021, and July 2021 decisions. The matter now returns to the Board once more. Service Connection The Veteran contends that he is entitled to service connection for GERD because the condition had its onset during service and his symptoms have continued since that time. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity for certain diseases. 38 C.F.R. §§ 3.303(a), (b), 3.309(a); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). 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). To establish service connection, the evidence must show (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) medical, or in certain circumstances, lay evidence of a nexus between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Hickson v. West, 12 Vet. App. 247, 253 (1999); Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). Here, the evidence clearly establishes that the Veteran has a current diagnosis of GERD, which was formally diagnosed in 2004. As such, the first element of the service connection has been satisfied. Turning to the second element, in-service occurrence, the Veteran testified at his April 2015 hearing that his symptoms of GERD began during service. For instance, he testified that the food he ate while he was deployed in Southwest Asia caused digestive issues. Additionally, he indicated in a statement received in November 2015 that he began having gastrointestinal problems during his time in the military, which would flare up intermittently, but that he did not consistently seek treatment for these issues because he was trying to be a "bigger man" for the soldiers under his command. Additionally, service treatment records reflect that he reported and received treatments for gastrointestinal symptoms such as stomach pain and diarrhea while on active duty in 1989 and 1995. Here, the Veteran's service treatment records indicate that he experienced in-service gastrointestinal symptoms intermittently throughout service. Although service treatment records do not reflect treatment for any such symptoms during his 1991 deployment in Southwest Asia, this is not fatal to his claim for service connection. To that end, for combat veterans, as defined under 38 U.S.C. § 1154(b), lay evidence alone can establish the in-service element of service connection, if consistent with the circumstances, conditions, or hardships of such service, even if there is no official record. 38 C.F.R. § 3.304(d). This is commonly referred to as the "combat presumption." 38 U.S.C. § 1154(b) does not establish service connection for a combat veteran, but rather aids him in relaxing the adjudicative evidentiary requirements for determining what happened in service. Clyburn v. West, 12 Vet. App. 296, 303 (1999). When a veteran has not received a medal indicative of combat, the Board must determine on a case-by-case basis whether he participated in combat with the enemy. VAOPGCPREC 12-99 (Oct. 18, 1999) (combat determination should be made on a case-by-case basis where there is no medal specifically indicating combat service). Evidence submitted to support a claim that a veteran engaged in combat may include the veteran's own statements and an "almost unlimited" variety of other types of evidence. Gaines v. West, 11 Vet. App. 353, 359 (1998). Receiving enemy fire or firing on an enemy can constitute participation in combat. Sizemore v. Principi, 18 Vet. App. 264 (2004). In this case, the Veteran's service personnel records do not indicate that he received any medals indicative of combat service. However, the record also indicates that he served in an imminent danger pay area in Southwest Asia from January to April 1991. Other parts of the record indicate that he was exposed to explosions and the noise from missile launchers, M16s, tankers, and mortars. The above reflects that the Veteran engaged in combat during service. This finding that the Veteran engaged in combat is significant because it allows him to use "satisfactory lay or other evidence" to establish that he was injured or incurred or aggravated a disability while on active duty, even in cases where there is no official record that such injury or disability occurred. Reeves v. Shinseki, 682 F.3d 988, 998 (Fed. Cir. 2012) (citing 38 U.S.C. § 1154(b)). As such, to the extent that he reported experiencing symptoms of GERD that occurred while deployed to Southwest Asia but was not treated for such at that time, the Board finds that his lay statements are consistent with the circumstances, conditions, and hardships of combat service. As a final matter, the Board must consider whether there is evidence establishing that his GERD is related to his service or has continued since that point. The RO has obtained various VA examinations and medical opinions regarding the etiology of his GERD. However, these are inadequate for various reasons. First, as set forth in the Board's prior decisions, VA obtained an opinion on whether GERD was associated with exposure to environmental toxins in Southwest Asia. Nonetheless, the March 2014 medical opinion did not actually discuss whether GERD was directly related to service. An October 2015 VA examiner rendered a negative opinion regarding the etiology of GERD. As the Court noted in its March 2018 memorandum decision, however, the October 2015 VA examiner did not address the Veteran's lay statements that he made at his April 2015 hearing regarding the onset of his GERD symptoms. An opinion is inadequate if it does not consider all relevant evidence of record, including lay evidence. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Moreover, the October 2015 VA examiner's opinion focused on whether GERD constituted a qualifying chronic disability under 38 C.F.R. § 3.317, with respect to Gulf War service, but not on the issue of direct service connection. An opinion that does not address all raised theories of entitlement is inadequate. Stefl v. Nicholson, 23 Vet. App. 320 (2007). Another VA examiner rendered a negative opinion in a March 2021 medical opinion. Although this VA examiner addressed whether service connection was warranted on a direct basis, the VA examiner did not provide a clear, unambiguous response to the Board's previous remand directives or consider the Veteran's lay statements. Moreover, the VA examiner failed to adequately explain why in-service complaints of stomach pain and diarrhea in 1989 and 1995 were unrelated to GERD. In light of the opinion's shortcomings, the Board directed the RO to obtain an addendum medical opinion from a different VA examiner. In August 2021, the RO obtained a supplemental medical opinion from a different clinician. However, this examiner rendered another negative nexus opinion. More specifically, the examiner stated that although the Veteran stated that he has had continuous symptoms of GERD since service, there were no medical records available from between his discharge in 1997 and his diagnosis of GERD in 2004 that supported those statements. Additionally, the examiner stated that his in-service complaints of stomach problems were related to acute viral illness and that there was no evidence of a relationship between viral gastroenteritis and GERD. Like the other medical opinions obtained to date, the Board finds that the August 2021 examiner's opinion is entitled to little probative weight. Although the examiner addressed the Veteran's statements regarding the onset and continuity of his symptoms, she discounted them merely because there were no medical records from between 1997 and 2004 concerning GERD. A lack of contemporaneous medical records alone is not a permissible reason to deny entitlement to service connection. See Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006). Furthermore, the VA examiner appeared to assume that it would not have been possible for the Veteran to experience viral gastroenteritis at the same time as having GERD or that he could have had GERD even if he did not receive treatment for it during service. In this regard, the Veteran is competent to report symptoms capable of lay observations, such as heartburn or difficulty swallowing, and a lack of service treatment records documenting such symptoms is not an absolute bar to service connection. As the Veteran indicated in his prior correspondence, he was reluctant to seek medical care during service because he thought he had to be a "bigger man." Moreover, as set forth above, he is entitled to the combat presumption, which the examiner did not account for in her opinion. As such, the Board finds that the August 2021 medical opinion is unpersuasive. Overall, despite the lack of probative medical opinions addressing the etiology of his GERD, the Board finds that his lay statements regarding the onset of his GERD symptoms and their continuity since service are sufficient to establish entitlement to service connection in this instance. The Board acknowledges that his service treatment records do not document treatment for GERD itself, but also that the Veteran has consistently reported that he has experienced GERD symptoms since he was in the military. Additionally, the Board recognizes that he is competent to report the onset of such symptoms. Moreover, medical evidence is not categorically required to satisfy the nexus element of the service connection framework. See Davidson, 581 F.3d at 1316. The Board also notes that it is prohibited from developing additional evidence for the purpose of obtaining evidence against a claimant's case. See Mariano v. Principi, 17 Vet. App. 305 (2003). In light of the foregoing, and after resolving all reasonable doubt in the Veteran's favor, the Board finds that GERD had its onset during service. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. REASONS FOR REMAND The Veteran also asserts that he is entitled to service connection for a right knee disability, to include as secondary to a service-connected left knee disability. Regarding the left knee disability, he argues that his left knee disability has caused him to walk with an abnormal gait. He has testified that he compensates for his left knee pain by putting more weight on his right knee when he walks, which has contributed to the pain and limited range of motion in his right knee. He also testified at his April 2015 hearing that one of his doctors had told him that his right knee problems were secondary to overcompensating for the pain in his left knee. The Board notes that the RO obtained a VA medical opinion regarding the etiology of the right knee disability in March 2021. In that opinion, the VA examiner opined that the degenerative changes in the Veteran's right knee were more likely than not naturally occurring and related to age, because a condition of one joint would not cause or aggravate a condition in a contralateral joint. The examiner also stated that there was no evidence that the Veteran's right knee condition had been aggravated beyond its natural progression due to any cause, including the left knee condition. He concluded by stating that this rationale "also applies to gait accomodation due the left knee condition." When this matter was last before the Board in July 2021, the Board directed the RO to obtain a supplemental VA medical opinion from the same examiner who rendered the March 2021 medical opinion, because the examiner had not adequately addressed the Veteran's April 2015 lay statements. In August 2021, the RO obtained a supplemental opinion from the same examiner. In that opinion, however, the examiner merely copied the text of his March 2021 verbatim and added, "NEW RESPONSE: Compensation for the left knee conditions was already addressed above and does not play a role in the development of the veteran's conditions." He added that the Veteran was a valid source of information but not qualified to determine the etiology of his knee disability. Although the Board sincerely regrets the additional delay, the Board cannot reach the merits of his claim at this juncture. This is because another remand is warranted to obtain another VA medical opinion. To that end, although the March/August 2021 examiner's opinion discusses the Veteran's lay statements regarding his left knee, this discussion is conclusory. Indeed, the examiner immediately dismissed the Veteran's contentions without citing any medical literature or other evidence from the record to support his conclusion. Furthermore, the examiner failed to address various other relevant evidence in the record regarding the Veteran's antalgic gait, such as September 2019 VA treatment records reflecting that he had to undergo gait training with a cane to normalize his gait. Those records indicate that he had an antalgic gait due to his "bothersome" left side. See also April 2014 VA Treatment Records (noting that he walked with an altered gait and leaned on a cane heavily); April 2012 VA Treatment Record (noting that he walked with a mild antalgic knee gait). Moreover, the record raises additional theories of entitlement to service connection that the March/August 2021 examiner did not consider. For instance, in January 2014 he reported to a VA treatment provider that he had an exacerbation of low back pain that radiated down to his right knee. Likewise, at an October 2011 physical therapy evaluation, he reported that his back and knee symptoms appeared to be getting worse and that his gait was antalgic. Significantly, he was diagnosed with lumbar spasms that were severe enough to result in an abnormal spinal contour and abnormal gait at a January 2011 VA examination. This evidence in the record suggests that his right knee disability could be secondary to his service-connected low back disability. As such, this theory of entitlement has been reasonably raised by the record. When VA undertakes to provide an examination or obtain a medical opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). If an examination report is inadequate or does not contain sufficient detail, the Board is required to return the report in a remand. See Bowling v. Principi, 15 Vet. App. 1, 12 (2001). Moreover, the Board cannot make its own independent medical judgments. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). Because the March/August 2021 VA examiner offered a conclusory opinion that did not adequately address all relevant evidence of address all raised theories of entitlement, it is incumbent on the Board to obtain a new VA medical opinion. Accordingly, the matter is REMANDED for the following action: Obtain an addendum medical opinion from an appropriate VA examiner other than the examiner who rendered the March 2021 or August 2021 medical opinions regarding the nature and etiology of the Veteran's right knee disability. The VA examiner must review the claims file in its entirety, including this remand, and acknowledge such review in the report. After reviewing the claims file in its entirety, the examiner is asked to opine as to whether it is at least as likely as not (approximately 50 percent or greater probability) that the Veteran's right knee disability is (1) caused, or (2) aggravated by his service-connected left knee or low back disabilities. In this context, "aggravation" means an increase in severity of the disorder beyond its natural progression. The examiner is reminded that aggravation and causation are distinct legal concepts that must be separately addressed. In rendering the opinion, the examiner must consider all relevant evidence of record, including the Veteran's lay statements regarding the symptoms and manifestations of his right knee disability. To that end, the examiner must specifically address the following: (a.) The Veteran's assertion that his right knee disability is caused or aggravated by overcompensating for his service-connected left knee disability. (b.) VA treatment records indicating that the Veteran has an antalgic gait due to pain on his left side. (c.) The January 2011 VA examination report indicating that he has back spasms that cause muscle spasms severe enough to result in an antalgic gait. (d.) VA treatment records discussing his right knee pain in the context of his low back pain, such as the October 2011 VA physical therapy evaluation and January 2014 VA treatment record describing radiating right low back pain. A detailed rationale is requested for all opinions provided. If an opinion cannot be provided without resorting to mere speculation, provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be rendered. M. Tenner Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Rademacher, 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.