Citation Nr: A21017441 Decision Date: 10/27/21 Archive Date: 10/27/21 DOCKET NO. 200512-87643 DATE: October 27, 2021 ORDER New and relevant evidence having been received, the claim of entitlement to service connection for gastroesophageal reflux disease (GERD) is reopened. Entitlement to service connection for GERD is denied. FINDINGS OF FACT 1. New and relevant evidence has been received, the claim for service connection of GERD is considered reopened. 2. The preponderance of the evidence demonstrates that the Veteran does not have an undiagnosed illness or a medically unexplained chronic multi-symptom illness manifested by GERD; nor does the evidence demonstrate that GERD is caused or aggravated by active service, to include service in Southwest Asia and/or service-connected obstructive sleep apnea. CONCLUSIONS OF LAW 1. New and relevant evidence having been received, the claim of entitlement to service connection for GERD is reopened. 38 U.S.C. §§ 1131, 5103, 5108; 38 C.F.R. §§ 3.156, 3.303. 2. The criteria for service connection for GERD have not been met. 38 U.S.C. §§ 1110, 1117, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.317. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 2002 to June 2005, to include service in Southwest Asia. The Veteran also served on active duty for training (ACDUTRA) from February 1998 to August 1998. On August 23, 2017, the President signed into law the Veteran's Appeals Improvement and Modernization Act, Pub. L. No. 115-55 (to be codified as amended in scattered sections of 38 U.S.C.), 131 Stat. 1105, also known as the Appeals Modernization Act (AMA). This law creates a new framework for Veterans dissatisfied with the Department of Veterans Affairs (VA) decision on their claim to seek review. The Agency of Original Jurisdiction (AOJ) denied reopening the claim in an August 2019 rating decision because new and relevant evidence was not received. The Veteran submitted VA Form 10182 Notice of Disagreement (NOD) and elected the Hearing docket in May 2020. A Board Hearing was held with the undersigned Veterans Law Judge in June 2021. A transcript of that proceeding has been associated with the claims file. 1. New and relevant evidence having been received, the claim of entitlement to service connection for GERD is reopened. The AMA introduces the new standard of new and relevant evidence. The statute defines relevant evidence as evidence that tends to prove or disprove a matter in issue. 38 C.F.R. §§ 3.2501 (a)(1), 19.2 (eff. Feb. 19, 2019). This is a change from the definition of material evidence, which requires evidence that relates to an unestablished fact necessary to substantiate the clam. 38 C.F.R. § 3.156 (a). It is noted that the statutory definition of relevant does not require that the new evidence relate to an unestablished fact or substantiate the claim. This is a change from the definition of material evidence, which requires evidence that relates to an unestablished fact necessary to substantiate the claim. 38 C.F.R. § 3.156 (a). The statutory definition of relevant does not require that the new evidence relate to an unestablished fact or substantiate the claim. Accordingly, the new and relevant evidence standard is a lower standard than the new and material evidence standard. Under the AMA, the evidentiary record closes upon issuance of a notice of decision on a claim, subject to later reopening. See Pub. L. 115-55, §2(i). If new and relevant evidence is received with an application for a supplemental claim within one year of notice of a rating decision, the effective date will be protected. Pub. L. 115-55, §2(l)(1). The AOJ initially denied the claim on appeal in November 2017. The rationale provided by the AOJ was that the claimed disability was not caused by or incurred during military service, nor was it the result of Gulf War environmental exposures. The Veteran submitted a second claim for service connection for GERD in November 2017. The AOJ denied reopening the Veteran's claim for service connection in February 2018 because the evidence was not new and material. He submitted a third claim for service connection in October 2018. The Veteran was afforded a VA examination which essentially found the Veteran does not have an undiagnosed illness or a medically unexplained chronic multi-symptom illness manifested by GERD, and the Veteran's GERD is not caused or aggravated by active service, to include service in Southwest Asia. The AOJ denied the Veteran's petition to reopen his claim for service connection in December 2018 because new and material evidence was not received. In June 2019, the Veteran submitted a Supplemental Claim for service connection. The AOJ denied the petition to reopen his claim for service connection in an August 2019 rating decision because new and relevant evidence was not received. The Veteran submitted VA Form 10182 Notice of Disagreement (NOD) and elected the Hearing docket in May 2020. Because the Veteran filed a Supplemental Claim and submitted Form 10182, his burden to provide new and material evidence is reduced. Instead, the evidence necessary for VA to readjudicate each of his claims must be merely new and relevant. Furthermore, the Board may only consider the evidence of record at the time of the agency of original jurisdiction (AOJ) decision on appeal, as well as any evidence submitted by the appellant or her representative at the hearing or within 90 days following the hearing. 38 C.F.R. § 20.302(a). Based on the foregoing, for the Board to readjudicate the previously denied claim, the Veteran must provide or identify new evidence that tends to prove or disprove that his current disability began in service, was cause by or aggravated by a service-connected disability, or exhibits objective indications of a qualifying chronic disability that became manifest 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. See 38 U.S.C. §§ 1110, 1117, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310, 3.317 (describing the requirements to establish service connection on a direct, secondary, and presumptive basis). Evidence received since the December 2018 rating decision denying the Veteran's petition to reopen his claim for service connection for GERD until the August 2019 AOJ decision currently on appeal and 90 days after the June 2021 Board Hearing, includes VA treatment records, private medical records, academic records, statements related to his claim for Vocational Rehabilitation and Employment benefits. During the June 2021, the Veteran's agent offered treatise evidence from the National Center for Biotechnology Information and the US National Library of Medicine which found a link between GERD and sleep apnea. Specifically, the medical articles stated, "Data suggests the relationship between the symptomatic obstructive sleep apnea (OSA) and GERD. The prevalence of GERD has been shown that about 52 to 60 percent of patients with OSA have GERD symptoms." See Hearing Transcript at 6. The evidence was not of record at the time of the prior denials and is therefore considered new. It tends to prove a matter at issue because it shows that GERD may be associated with the Veteran's service-connected OSA. Therefore, such evidence is new and relevant and the claim for service connection for GERD is reopened. 2. Entitlement to service connection to GERD is denied. The Veteran contends service connection is warranted for GERD. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease initially diagnosed after service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection for a disability requires evidence of: (1) a current disability; (2) a disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Service connection may be established on a secondary basis for a disability that is proximately due to, or the result of, a service-connected disability. 38 C.F.R. § 3.310(a). Secondary service connection may be established for a disorder that is caused or aggravated by a service-connected disability. Id. § 3.310(b); Allen v. Brown, 7 Vet. App. 439, 44748 (1995). To establish secondary service connection, the record must show: (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) a connection between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 511 (1998). For veterans with service in the Southwest Asia theater of operations during the Persian Gulf War, service connection may also be established under 38 U.S.C. § 1117; 38 C.F.R. § 3.317. Under that statute and regulation, service connection may be warranted for a Persian Gulf veteran who exhibits objective indications of a qualifying chronic disability that became manifest 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. The term Southwest Asia theater of operations refers to Iraq, Kuwait, Saudi Arabia, the neutral zone between Iraq and Saudi Arabia, Bahrain, Qatar, the United Arab Emirates, Oman, the Gulf of Aden, the Gulf of Oman, the Persian Gulf, the Arabian Sea, the Red Sea, and the airspace above these locations. 38 C.F.R. § 3.317 (e)(2). The Veteran's personnel records and DD-214 show he has qualifying active service in Kuwait and Iraq. For purposes of 38 C.F.R. § 3.317, there are three types of qualifying chronic disabilities: (1) an undiagnosed illness; (2) a medically unexplained chronic multi- symptom illness (MUCMI); and (3) a diagnosed illness that the Secretary determines in regulations prescribed under 38 U.S.C. § 1117 (d) warrants a presumption of service-connection. Under 38 C.F.R. § 3.317, a MUCMI means a diagnosed illness without conclusive pathophysiology or etiology, that is characterized by overlapping symptoms and signs and has features such as fatigue, pain, disability out of proportion to physical findings, and inconsistent demonstration of laboratory abnormalities. Chronic multi-symptom illnesses of partially understood etiology and pathophysiology will not be considered medically unexplained. 38 C.F.R. § 3.317 (a)(2)(ii). Along with the three examples of a MUCMI provided by section 1117(a)(2)(B), CFS, fibromyalgia, and irritable bowel syndrome (IBS), there is a list of signs or symptoms that may be a manifestation of an undiagnosed illness or a MUCMI that includes fatigue, gastrointestinal signs or symptoms, signs or symptoms involving the respiratory system, muscle pain, joint pain, and sleep disturbances. 38 U.S.C. § 1117 (g); 38 C.F.R. § 3.317 (b). The term objective indications of a qualifying chronic disability includes both signs, in a medical sense of objective evidence perceptible to an examining physician, and other, non-medical indicators that are capable of independent verification. 38 C.F.R. § 3.317 (a)(3). In the case of claims based on undiagnosed illness under 38 U.S.C. § 1117, unlike those for direct service connection, there is no requirement that there be competent evidence of a nexus between the claimed illness and service. Gutierrez v. Principi, 19 Vet. App. 1, 8-9 (2004). Although the Veteran is not medically trained, he is competent to report the observable manifestations of his claimed disorders. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). Hence, his own assertions may serve as support for the presence of symptoms supportive of the claimed condition as part of a Gulf War Syndrome under 38 C.F.R. § 3.317. For purposes of Gulf War undiagnosed illness claims, disabilities that have existed for six months or more and disabilities that exhibit intermittent episodes of improvement and worsening over a six-month period will be considered chronic. The six-month period of chronicity will be measured from the earliest date on which the pertinent evidence establishes that the signs or symptoms of the disability first became manifest. 38 C.F.R. § 3.317 (a)(2)(5). The Board has the authority to discount the weight and probity of evidence in light of its own inherent characteristics and its relationship to other evidence. Madden v. Gober, 125 F.3d 1477 (Fed. Cir. 1997). VA may favor one medical opinion over another, provided an adequate basis is provided. Owens v. Brown, 7 Vet. App. 429 (1995). It is the policy of VA to administer the law under a broad interpretation, consistent with the facts in each case, with all reasonable doubt to be resolved in favor of the claimant. 38 C.F.R. § 3.102. The Veteran was diagnosed with GERD on May 15, 2006 as noted by an October 2017 VA examiner. Shedden element (1) is met. Turning to Shedden elements (2) and (3), the Veteran stated he experienced symptoms shortly after returning to Germany after service in Southwest Asia. The Veteran's service treatment records indicate he was in very good health prior to deployment in April 2003. A post-deployment examination indicates the Veteran's health was good and remained the same as pre-deployment. He denied indigestion or vomiting. Service records since deployment, including a past medical history, reported medications and personal history show no complaints, diagnosis, or reports of GERD. The Veteran underwent a VA examination in October 2017. The examiner reviewed the Veteran's private and VA treatment records, consulted relevant medical literature, conducted a physical examination, and considered lay statements. The VA medical report indicates the Veteran's disability was not caused by active service. Specifically, the examiner stated that GERD is a diagnosable condition with known etiologies. The examiner found no identifiable association between occupational or environmental exposures during service in Southwest Asia and the claimed disability. Importantly, the October 2017 report identified the Veteran had several risk factors for developing GERD, including hiatal hernia, morbid obesity, history of cigarette smoking, and alcoholic beverage consumption. The examiner supported his report by referring to several medical articles discussing the etiology and epidemiology of GERD, including the impact of hiatal hernias and obesity on the claimed disability. The examiner submitted an addendum report in November 2017 stating the Veteran's disability is a diagnosable whose etiology is related to risk factors i.e. hiatal hernia, obesity, history of smoking, and alcohol consumption. The Board finds the October 2017 and November 2017 VA medical reports to be highly probative, sufficiently rationalized, and are based on a thorough review of the record. Additionally, the Board notes service treatment records show the Veteran reported his health stayed the same after deployment to Iraq and Kuwait. Importantly, he denied indigestion or vomiting. Service medical records show the Veteran reported he smoked one pack of cigarettes per day and drank six or eight alcoholic beverages on the weekends in February 2005. The treatment record did not list any complaints diagnosis, or symptoms of GERD. More importantly, VA medical records show the Veteran's weight was concerning to medical providers and steadily increased since discharge. An August 2005 VA examiner noted the Veteran's weight was 249 lbs. and described him as "other than being somewhat overweight, the [Veteran] was a healthy-appearing man." The Board also notes that the Veteran did not report symptoms of GERD or complaints of vomiting, indigestion or heartburn during the 2005 VA examination. August 2006 VA treatment records show the Veteran reported gaining 25 lbs. in one year. Additionally, the Veteran and VA providers expressed concern regarding his weight gain, often discussing the health risks of being obese and provided information about available weight treatment. Treating physicians prescribed the Veteran to combine weekly aerobic exercise with reduced-carbohydrate diet to treat GERD and obesity in September 2015. The Veteran declined referrals to any weight management program in 2016 and reported dairy, spicy foods, and excessive caffeine aggravate his disability. These records support the October 2017 and November 2017 VA medical reports which unequivocally states the Veteran's GERD was caused by his nonservice-connected risk factors and not service, to include active service in Southwest Asia. There are no competent medical opinions to the contrary. For the foregoing reasons, the preponderance establishes that the Veteran's GERD is not related to service under a direct service connection theory. Turning to service connection on a secondary basis, the record reflects the Veteran has GERD and service-connected OSA, effective October 30, 2018. Wallin elements (1) and (2) are met. Wallin element (3) requires a nexus between the Veteran's disability and the service-connected disability. The preponderance of the evidence shows GERD is not caused or aggravated by OSA. As discussed above, the October 2017 and November 2017 VA medical reports show the Veteran's GERD is a diagnosable illness whose etiology is related to his hiatal hernia, obesity, history of smoking, and alcohol consumption. There is no competent or probative evidence establishing a relationship between the Veteran's GERD and OSA. The Veteran submitted treatise evidence during the June Board Hearing from the National Center for Biotechnology Information and the US National Library of Medicine which found a relationship between the OSA and GERD. In this regard, medical treatise evidence can, in some circumstances, constitute competent medical evidence. See 38 C.F.R. § 3.159 (a)(1). However, treatise evidence must not simply provide speculative generic statements not relevant to the [claimant]'s claim. Wallin v. West, 11 Vet. App. 509, 514 (1998). Instead, the treatise evidence, standing alone, must discuss generic relationships with a degree of certainty such that, under the facts of a specific case, there is at least plausible causality based upon objective facts rather than on an unsubstantiated lay medical opinion. See Wallin. In this case, the medical articles only provide general information as to the possibility of a link between GERD and OSA. This information is not accompanied by any corresponding clinical evidence specific to the Veteran and does not suggest that the Veteran's alleged GERD was caused or aggravated by OSA with a degree of certainty such that, under the facts of this specific case, reflects plausible causality based upon objective facts rather than on an unsubstantiated lay medical opinion. The Court has long held that speculative carry little evidentiary value. As such, the Board finds this information to be overbroad and not relevant as to the matter for consideration and, therefore, is not probative to this case. See also Wallin; Sacks. The Board encouraged the Veteran to submit an opinion from his medical provider with adequate rationale in support of his claim. The Veteran did not submit a competent medical opinion during the open evidentiary period. The Board notes that the Veteran has a duty to assist and cooperate with VA in developing evidence; the duty to assist is not a one-way street. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991); see also Hayes v. Brown, 5 Vet. App. 60, 68 (1993) (VA's duty to assist is not a one-way street; if a veteran wishes help, he cannot passively wait for it in those circumstances where his own actions are essential in obtaining the putative evidence). The Board also finds service connection pursuant to 38 C.F.R. § 3.317 is not warranted. Although the Veteran has qualifying service in Southwest Asia, the October 2017 VA examiner stated that GERD is a diagnoseable illness with known etiology, thereby excluding it as an undiagnosed illness or MUCMI. Furthermore, GERD is not listed as a chronic disability pursuant to § 3.317(c). As such, there is no basis for awarding presumptive service connection in this case The Board has also considered service connection pursuant to 38 C.F.R. § 3.303(d), which allows the award of service connection for any disease diagnosed after discharge if the evidence establishes the disease was incurred in service. While there is evidence the Veteran reported symptoms of GERD and was provided a diagnosis in May 2006, the preponderance of the evidence, including service treatment records and VA examination reports, shows the Veteran's weight gain, alcohol consumption, and smoking caused his disability. There is no competent evidence to the contrary. It is acknowledged that lay persons are competent to provide opinions on some medical issues. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). The specific issue in this case, however, falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). The claimed disability at issue is not a condition that is readily amenable to lay diagnosis or probative comment regarding chronicity or etiology. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Consideration has been given to the Veteran's hearing testimony that he experienced GERD symptoms after returning from Southwest Asia and his representative's argument that service-connected OSA caused or aggravated GERD. There is no indication they are competent to etiologically link any symptoms to a current diagnosis. They are not shown to possess the requisite medical training, expertise, or credentials needed to render a diagnosis or a competent opinion as to medical causation. Nothing in the record demonstrates that they received any special training or acquired any medical expertise as to these disorders. See King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2012). (Continued on the next page) The Veteran requested the Board remand this appeal to the AOJ for additional development. Specifically, the Veteran would like a VA medical examination to determine the relationship, if any, between GERD and his service-connected OSA. The Board must remand AMA appeals to the AOJ to correct pre-decisional duty to assist errors. See VA Claims and Appeals Modernization, 84 Fed. Reg. 138, 189-90 (Jan. 18, 2019) (to be codified at 38 C.F.R. § 20.802 (a)). In this case, there is no predecisional duty to assist error evident. The Veteran raised his new theory of entitlement after the rating decision on appeal. Furthermore, there is no evidence the Veteran or his representative claimed entitlement to service connection under a secondary theory, nor is the theory of secondary service connection reasonably raised by the record at any point prior to the rating decision on appeal. Without a predecisional duty to assist error, the Board may not remand this appeal for further development. Thus, service connection for GERD is not warranted. When all the evidence is assembled, VA is then responsible for determining whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a preponderance of the evidence is against the claim in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). The preponderance of the evidence is against this claim. Jennifer White Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Mohammad Mahmoudi, 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.