Citation Nr: 21066355 Decision Date: 10/29/21 Archive Date: 10/29/21 DOCKET NO. 15-08 486 DATE: October 29, 2021 ORDER Entitlement to service connection for gastroesophageal reflux disease (GERD) is granted. REMANDED Entitlement to service connection for a cervical spine disability is remanded. FINDING OF FACT Resolving all reasonable doubt in favor of the Veteran, the evidence is at least in equipoise that GERD is related to service. CONCLUSION OF LAW The criteria for entitlement to service connection for GERD have been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1116, 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from December 1989 to February 1997 and from February 2003 to February 2004. In December 2020, the Board remanded this case for additional development. The Board finds that there has been substantial compliance with the remand requests. Stegall v. West, 11 Vet. App. 268 (1998). Service Connection Service connection may be established for disability caused by disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. In order to establish service connection for a claimed disability, there must be (1) medical 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) evidence, generally medical, of a causal relationship between the claimed in service disease or injury and the current disability. Hickson v. West, 12 Vet. App. 247 (1999). Service connection may also be established for any disease initially diagnosed after service, when the evidence establishes that the disease was incurred in service. 38 U.S.C. § 1113(b); 38 C.F.R. § 3.303(d); Cosman v. Principi, 3 Vet. App. 503 (1992). The disease entity for which service connection is sought must be chronic rather than acute and transitory in nature. For the showing of chronic disease in service, a combination of manifestations must exist sufficient to identify the disease entity and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word chronic. Furthermore, service incurrence will be presumed for certain chronic diseases if manifest to a compensable degree within the year after active service. 38 U.S.C. § 1112; 38 C.F.R. §§ 3.307, 3.309. A disability that is proximately due to or the result of a service-connected disability shall be service-connected. When service connection is established for a secondary disability, the secondary disability shall be considered a part of the original disability. 38 C.F.R. § 3.310(a). Secondary service connection may also be established for a nonservice-connected disability, which is aggravated by a service-connected disability. In that instance, the Veteran is compensated for the degree of disability over and above the degree of disability existing prior to the aggravation. 38 C.F.R. § 3.310(b); Allen v. Brown, 7 Vet. App. 439 (1995). Entitlement to service connection for an upper gastrointestinal disability, to include gastroesophageal reflux disease (GERD) The Veteran asserts that an upper gastrointestinal disability, to include GERD, is the result of service. Alternatively, the Veteran asserts that an upper gastrointestinal disability, to include GERD, is the result of pain medication used to treat a service-connected left shoulder disability. The service medical records show that in September 1995 the Veteran reported chest pain and stated that it felt like something was stuck in his throat with a burning sensation over the epigastric area. The doctor diagnosed gastritis and prescribed Maalox and antacids. A November 2003 record shows that Zantac was prescribed after the Veteran reported one month of heartburn, indigestion, and epigastric tenderness. In June 2004, a doctor noted a chronic medical history of acid reflux. A September 2005 dental record shows that the Veteran reported that he was taking Prevacid. In October 2005, a doctor noted that the Veteran reported taking medication for acid reflux. A February 2021 VA examiner opined that an upper gastrointestinal disability was not the result of service or pain medication used to treat a left shoulder disability. The examiner stated that a previous VA examination showed a diagnosis of GERD in 2011. However the examiner stated that the Veteran had been treating the condition with over-the-counter medication and there was no available medical records showing any treatment or testing for GERD. The examiner noted that the Veteran had a history of NSAID use and that NSAID use could contribute to GERD. However, the examiner stated that GERD was acute, controlled with medication, and that the claims file did not show any chronic gastrointestinal conditions. The Board finds that the service medical records show that the Veteran began experiencing upper gastrointestinal symptoms during active service. The Veteran was prescribed medication for upper gastrointestinal symptoms during active service. The Veteran continued to report upper gastrointestinal symptoms and the use of medication to treat gastrointestinal symptoms, to include several months after active service. The Veteran has competently and consistently reported that gastrointestinal symptoms began during active service and have continued since separation from service. While the Veteran is not competent to opine on the cause of the symptoms, the Board finds his statements regarding the onset and continuity of symptoms highly probative. Kahana v. Shinseki, 24 Vet. App. 428 (2011); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Board finds that the evidence for and against the claim for entitlement to service connection for an upper gastrointestinal disability, to include GERD are in relative equipoise. The examiner conceded that NSAID use can contribute to GERD. While the examiner found that the Veteran's GERD was acute, that is not corroborated by the record which shows consistent symptoms. Therefore, reasonable doubt is resolved in favor of the Veteran and the Board finds that the Veteran's current GERD is related to symptoms experienced during and since service. Accordingly, resolving reasonable doubt in favor of the Veteran, the Board finds that service connection for an upper gastrointestinal disability of GERD is warranted. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C. § 5107; 38 C.F.R. § 3.102. REASONS FOR REMAND Entitlement to service connection for a cervical spine disability is remanded. The Veteran asserts that a cervical spine disability is the result of service. Alternatively, the Veteran asserts that a cervical spine disability is the result of a service-connected left shoulder disability. A March 2021 VA examination diagnosed degenerative disc disease with bulge at C4-C5 and C5-C6. The examiner opined that the cervical spine disability was less likely than not (less than 50 percent probability) etiologically related to active service or any event, disease, or injury during active service, including whether the disability (1) began during active service, (2) manifested as cervical spine arthritis within one year after separation from a period of active service, (3) was noted during service with continuity of the same symptomatology since service. In part, the examiner's rationale was that the claims file was "negative during service." However, the Board notes that a July 2003 medical record shows that the Veteran reported neck pain. While the record shows a single complaint of neck pain, an adequate medical opinion is based upon a thorough examination which includes consideration of the Veteran's prior medical history. Barr v. Nicholson, 21 Vet. App. 303 (2007). Therefore, remand is necessary for an opinion which considers the July 2003 recorded complaint of neck pain in service. The Board notes that an August 2021 VA examiner stated that there was a definite history in the records of the Veteran's neck pain starting while on active duty. On remand, the examiner is asked to address the August 2021 finding. The matter is REMANDED for the following action: 1. After obtaining any necessary releases, obtain all relevant VA and private treatment records not already associated with the claims file. All attempts to locate records must be documented in the claims file. 2. Schedule the Veteran for a VA examination with a medical doctor who has not previously examined the Veteran in conjunction with this claim to determine the nature and etiology of any cervical spine disability. The examiner must review the claims file, and a complete history should be elicited directly from the Veteran. The examiner should note that review in the report. Any tests and studies deemed necessary by the examiner should be conducted. All findings should be reported in detail. The examiner should identify any pertinent pathology found and should diagnose all cervical spine disabilities found. As to any pertinent disability identified on examination, the examiner should: (a.) Confirm that the examiner is a medical doctor who has not previously examined the Veteran in conjunction with this claim. (b.) Opine whether it is at least as likely as not (50 percent probability or greater) that any cervical spine disability had its onset in service, was aggravated by active service, or is otherwise related to any incident of active service. The examiner must consider the Veteran's statements regarding onset in service and the continuity of symptomatology. The examiner should address the (1) July 2003 service medical record showing neck pain and (2) August 2021 VA examiner's finding that there was "a definite history in the records of neck pain starting while on active duty." The examiner is advised that the Veteran served on active duty from December 1989 to February 1997 and from February 2003 to February 2004. (c.) Opine whether it is at least as likely as not (50 percent probability or greater) arthritis of the cervical spine manifested within one year following separation from active service. (d.) Opine whether it is at least as likely as not (50 percent probability or greater) that any cervical spine disability was noted during active service with continuity of the same symptomatology since active service. (e.) Opine whether it is at least as likely as not (50 percent probability or greater) that any cervical spine disability was caused by the service-connected disabilities or treatment for the-connected disabilities. (f.) Opine whether it is at least as likely as not (50 percent probability or greater) that any cervical spine disability has been aggravated (increased in severity beyond the natural progress of the disorder) by the service-connected disabilities or treatment for the service-connected disabilities. (g.) If it is determined that there is another likely etiology for the cervical spine disability, that should be stated. A clearly stated rationale with references to the record, diagnostic tests, general medical knowledge, and medical literature should be provided. Harvey P. Roberts Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E.O., 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.