Citation Nr: 21066216 Decision Date: 10/29/21 Archive Date: 10/29/21 DOCKET NO. 17-66 023 DATE: October 29, 2021 ORDER Entitlement to service connection for GERD is denied REMANDED Entitlement to service connection for a right ankle sprain is remanded. Entitlement to service connection for a neck disability is remanded. FINDING OF FACT The Veteran's GERD is not secondary to his service-connected posttraumatic stress disorder (PTSD), or the medication he takes for his PTSD, and is not otherwise related to an in-service injury or disease. CONCLUSION OF LAW The criteria for service connection for GERD have not met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served in the United States Army from February 2001 to September 2005. In February 2020, the Veteran testified before the undersigned Veterans Law Judge (VLJ) and a transcript is of record. In April 2020, the Board remanded the case to the Agency of Original Jurisdiction (AOJ) to obtain supplemental medical opinions. An addendum opinion was obtained for his GERD in June 2020. In the May 2021 remand, the Board determined that the GERD opinion was adequate regarding the causation prong of a secondary service connection claim, but not for the aggravation prong, and ordered a supplemental opinion. The Veteran received new VA opinions for his disabilities in June 2021. The Board finds that the new nexus opinion provided for the Veteran's GERD disability provided an adequate rationale for the aggravation prong of a secondary service connection claim. The nexus opinions for the Veteran's right ankle and neck disabilities were inadequate because the examiner still failed to consider his lay statements. The Board acknowledges the Veteran made a general argument regarding the VA's duty to assist and duty to notify. However, the Veteran did not advance any specific argument regarding either duty. The Veteran has not raised any other issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. To establish service connection for the claimed disorder, there must be (1) evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in service incurrence or aggravation of a disease or injury; and (3) medical, or in certain circumstances, lay evidence of a nexus between the claimed in-service disease or injury and the current disability. See 38 C.F.R. § 3.303 (2021); see also Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). The Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The evaluation of evidence generally involves a three-step inquiry. First, the Board must determine whether the evidence comes from a "competent" source. Second, the Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). Third, the Board must weigh the probative value of the evidence in light of the entirety of the record. A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. See 38 C.F.R. § 3.102 (2021). When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails. See Gilbert v. Derwinski, 1 Vet. App. 4 (1990). The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). The Veteran received a VA examination in July 2018 that determined his GERD was not related to service in part because he was not treated for this issue in service. The examiner acknowledged that the Veteran reported having symptoms of acid reflux in 2005, and that he believed he was treated for GERD in 2010. However, the examiner reviewed the claims file and stated that his initial primary care appointment from August 2011 does not mention GERD or any indigestion and contained no entry of GERD in his problem list. The examiner additionally stated that a VA progress note from January 2012 stated for the Veteran's past medical history that he had "no heartburn or nausea." Furthermore, he was not diagnosed with GERD until 17 years after service. The examiner's opinion is well reasoned, addressed the Veteran's lay contentions about onset of symptoms, and is probative evidence against direct service connection. In his September 2017 claim and October 2019 VA Form 9, the Veteran stated that his GERD was an undiagnosed illness. The Veteran is a Persian Gulf Veteran based upon his service in Southwest Asia. 38 C.F.R. § 3.317(e)(1). VA is authorized to compensate any Persian Gulf Veteran with a chronic disability resulting from an undiagnosed illness, or combination of undiagnosed illnesses, which became manifest either during active duty in the Southwest Asia theater of operations during the Persian Gulf War, or to a degree of 10 percent or more within a presumptive period following service in the Southwest Asia theater of operations during the Persian Gulf War. 38 U.S.C. § 1117 (2012). To grant service connection for a claimed disability, a Persian Gulf Veteran must exhibit objective indications of a chronic disability resulting from an undiagnosed illness or a medically unexplained chronic multisymptom illness (MUCMI) which became manifest either during active military, naval, or air service in the Southwest Asia Theater of Operations during the Persian Gulf War, or to a degree of 10 percent or more not later than December 31, 2026. The July 2018 VA examiner explained that GERD is a disease with a clear and specific etiology and diagnosis. Therefore it is not an undiagnosed illness. Presumptive service connection is not warranted for GERD because it is not an undiagnosed illness. GERD is not a MUCMI under 38 C.F.R. § 3.317. The plain language of 38 C.F.R. § 3.317 specifically bars GERD from being a MUCMI. GERD is a structural, not functional gastrointestinal disorder. Atencio v. O'Rourke, 30 Vet. App. 74, 85 (2018). Presumptive service connection is not warranted for GERD because it is not a MUCMI. An addendum opinion was obtained in June 2020. The examiner noted the Veteran's GERD onset was recent. The examiner explained that, "GERD results from a structural and functional abnormality of the gastroesophageal sphincter such that it does not close during gastric contractions, resulting in the reflux of stomach contents up into the esophagus. There is no physiological mechanism whereby PTSD could alter the function or anatomy of the GE sphincter[.]" For this reason, the examiner found that it was less likely than not that the GERD was secondary to PTSD. The examiner's well-reasoned explanation is highly probative evidence against a finding that PTSD caused the Veteran's GERD. An addendum opinion was provided in June 2021 to address aggravation. The examiner reviewed the record and stated that the Veteran had good compliance with his PTSD medications. The examiner stated that the following are common side effects of the Veteran's PTSD medications: headache, diarrhea, constipation, nausea, vomiting, dizziness, insomnia, and drowsiness." The examiner explained that they may share "concurrent symptoms with GERD to include nausea and vomiting, however, his medical records did not show adverse effects from these medications." Significantly, the examiner stated that the Veteran's provider increased his medication dosage for symptoms of tic "without mention of heartburn, nausea, dysphagia, etc." The examiner stated that PTSD medications "are not known" to cause lower esophageal pathology, and that the Veteran's PTSD itself was stable. For these reasons, the examiner concluded that it is less likely than not that the Veteran's PTSD or its medications aggravated his GERD beyond its natural progression. The examiner's well-reasoned explanation is highly probative evidence against the aggravation prong of a secondary service connection claim. At his hearing, the Veteran's attorney argued that hs GERD was related to his PTSD medications. The lay assertion is not competent evidence. The record does not show that the Veteran or his attorney have medical training, skills, or experience to determine whether GERD is caused or aggravated by PTSD or the medications the Veteran takes for his PTSD. Making that determination requires medical inquiry into biological processes, pathology, anatomical relationships, the impact of psychiatric disorders on the body, and physiological functioning. The lay assertion that the Veteran's GERD is secondary to his PTSD medications is not competent evidence. Additionally, this assertion has been investigated by a medical professional and found to be not supportable. Therefore, in considering all the evidence of record the preponderance of the evidence is against the Veteran's claim. The most probative evidence of record are the opinions of the VA examiners. The VA examiners provided competent, credible evidence that the Veteran's GERD was not aggravated or caused by his PTSD or its medications, and that it was not directly related to service. Additionally, presumptive service connection is not warranted because GERD is not an undiagnosed illness, nor is it a MUCMI. Consequently, service connection for GERD is denied. REASONS FOR REMAND The Veteran is entitled to substantial compliance with the Board's remand directives. See Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). If the Board proceeds with final disposition of an appeal and the remand orders have not been complied with, the Board itself errs in failing to ensure compliance. Stegall, 11 Vet. App. at 271. In the May 2021 remand, the Board specifically directed the examiner to consider the Veteran's lay statements in forming a nexus opinion for his neck and right ankle disabilities. The June 2021 examiner, however, still based the negative opinion solely on the medical records in evidence. Because there has not been substantial compliance with the May 2021 remand directives, another remand is necessary. The Board stresses the importance of carefully following the directives of this remand to allow for a final resolution of this these issues. The matters are REMANDED for the following action: 1. Return the Veteran's claims file to the examiner who provided the June 2021 VA opinion for the Veteran's right ankle disability so a supplemental opinion may be provided. If the examiner is no longer available provide the Veteran's claims file to a similarly qualified clinician. The entire claims file and a copy of this remand must be made available to the examiner for review. A new examination is only required if deemed necessary by the examiner. The examiner must provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran's right ankle disability began during service or is related to an incident of service. The examiner must consider the Veteran's lay statements that he has had right ankle pain since service, and specifically address his lay contentions. For purposes of this remand only, and for the limited purposes of conducting the examination and providing a medical opinion, the examiner should assume that the Veteran's lay statements concerning his right ankle are true. If there is a medical reason to doubt the veracity, the examiner should explain why the Veteran's recollection is inconsistent with the principles of medical science and/or evidence in this case. The examiner should specifically address the Veteran's lay statements and must provide all findings, along with a complete rationale for his or her opinion(s) in the examination report. If any of the above requested opinions cannot be made without resort to speculation, the examiner must state this and provide a rationale for such conclusion. 2. Return the Veteran's claims file to the examiner who provided the June 2021 VA opinion for the Veteran's neck disability so a supplemental opinion may be provided. If the examiner is no longer available provide the Veteran's claims file to a similarly qualified clinician. The entire claims file and a copy of this remand must be made available to the examiner for review. A new examination is only required if deemed necessary by the examiner. The examiner must provide an opinion as to whether it is at least as likely as not that the Veteran's neck disability began during service or is related to an incident of service, including his in service car accident. The examiner must consider the Veteran's lay statements that after his car accident he felt pins, needles, and numbness, in his arm and, and specifically address his lay contentions. For purposes of this remand only, and for the limited purposes of conducting the examination and providing a medical opinion, the examiner should assume that the Veteran's lay statements concerning his neck pain are true. If there is a medical reason to doubt the veracity, the examiner should explain why the Veteran's recollection is inconsistent with the principles of medical science and/or evidence in this case. The examiner should specifically address the Veteran's lay statements and must provide all findings, along with a complete rationale for his or her opinion(s) in the examination report. If any of the above requested opinions cannot be made without resort to speculation, the examiner must state this and provide a rationale for such conclusion. (Continued on the next page) 3. Ensure that the directives specified in this remand have been implemented. If they have not, appropriate corrective action must be undertaken before readjudication. Stegall v. West, 11 Vet. App. 268 (1998). 4. Then, readjudicate the claims. If any decision is adverse to the Veteran, issue a Supplemental Statement of the Case and allow the applicable time for response. Then return the case to the Board. D. Martz Ames Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. Brunot, 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.