Citation Nr: 21067645 Decision Date: 11/04/21 Archive Date: 11/04/21 DOCKET NO. 13-06 638 DATE: November 4, 2021 ORDER Entitlement to service connection for a gastrointestinal disability, to include gastroesophageal reflux disease (GERD), is granted. Entitlement to service connection for a vertigo and balance disability is denied. REMANDED Entitlement to service connection for hypertension, to include as secondary to posttraumatic stress disorder (PTSD), is remanded. FINDINGS OF FACT 1. The Veteran's GERD is as likely as not secondary to his service-connected PTSD. 2. The preponderance of the evidence is against finding that vertigo or a balance disability, began during active service, or is otherwise related to any aspect of the Veteran's service, or a service-connected disability. CONCLUSIONS OF LAW 1. Resolving reasonable doubt in the Veteran's favor, the criteria for service connection for a gastrointestinal disability, to include GERD, have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 2. The criteria for service connection for vertigo and balance disability have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service in the Army from September 1972 to October 1977, with subsequent periods of service in the Army National Guard and the Army Reserve until 2003. This case was previously remanded by Board in March 2015 and August 2019 for additional development. The Board notes that the appeal originally included the issue of service connection for obstructive sleep apnea. However, during the pendency of the appeal, the Agency of Original Jurisdiction (AOJ) granted that claim in a January 2021 rating decision. As the Veteran has not disagreed with the rating or effective date assigned, the issue is no longer on appeal. See Grantham v. Brown, 114 F. 3d 1156, 1158 (Fed. Cir. 1997). Beyond the above, it is valuable to note that the Veteran has been granted a TDIU, and is receiving a 100 percent disability since April 1, 2012. Service Connection Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service, or if preexisting service, was aggravated therein. 38 C.F.R. § 3.303(a). Service connection may 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 for a disability, there must be competent evidence of the following: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship or "nexus" between the present disability and the disease or injury incurred or aggravated during service. Horn v. Shinseki, 25 Vet. App. 231, 236 (2010); Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); Gutierrez v. Principi, 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999)). In many cases, medical evidence is required to meet the requirement that the evidence be "competent." However, when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). Service connection for certain chronic diseases may be presumed to have been incurred in service by showing that the disease manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). Such a chronic disease is presumed under the law to have had its onset in service even though there is no evidence of that disease during the period of service. 38 C.F.R. §§ 3.307(a). When a chronic disease is shown in service, sufficient to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303 (b). To be "shown in service," the disease identity must be established, and the diagnosis must not be subject to legitimate question. Walker v. Shinseki, 708 F.3d 1331, 1335 (Fed. Cir. 2013); see also 38 C.F.R. § 3.303(b). There is no "nexus" requirement for compensation for a chronic disease which was shown in service, so long as there is an absence of intercurrent causes to explain post-service manifestations of the chronic disease. Walker, 708 F.3d at 1336. Service connection may also be granted on a secondary basis for a condition that is not directly caused by the Veteran's service. 38 C.F.R. § 3.310. In order to prevail under a theory of secondary service connection, the evidence must demonstrate an etiological relationship between (1) a service-connected disability or disabilities and (2) the condition said to be proximately due to the service-connected disability or disabilities. Buckley v. West, 12 Vet. App. 76, 84 (1998); see also Wallin v. West, 11 Vet. App. 509, 512 (1998). In addition, secondary service connection may also be found in certain instances when a service-connected disability aggravates another condition. See Allen v. Brown, 7 Vet. App. 439 (1995); 38 C.F.R. § 3.310 (b). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). 1. Entitlement to service connection for a gastrointestinal disability The Veteran contends that he currently experiences a gastrointestinal disability, variously claimed as GERD, gastritis, diverticulosis, H. pylori and/or hiatal hernia, that had its onset service. In the alternative, he asserts that the condition is secondary to the service connected PTSD. Service treatment records reflect previous complaints of chest pain in May 1973 associated with impression chest wall strain. In August 1973 and April 1974 with no abnormalities noted. In August 1974, the Veteran complained of chest pain and sore throat. A smear was positive for GC. The Veteran sought treatment for stomach problems in October 1975 and January 1976. A diagnosis of gastroenteritis was noted in October 1975, and a notation of slight reflux was shown in September 1976. On separation examination in September 1977, the Veteran denied a history of frequent indigestion or stomach trouble, and the Veteran's gastrointestinal system was clinically evaluated as normal. Private treatment notes in May 2007, show the Veteran was treated for diverticula. In February 2008, chronic gastritis and H. pylori were noted. In June 2016 the Veteran reported to a treating provider that he had experienced acid reflux beginning in 1975, manifesting as symptoms of acid reflux, regurgitation, feelings of fullness and heart burn. In support of his claim, in February 2011 the Veteran submitted a statement from Dr. S.M.F. wherein he opined that it was likely as not that the GERD aggravated the Veteran's service-connected PTSD because there was a substantial amount of medical research and literature to support the positive relationship between stress and GERD. The Veteran was afforded a VA examination in November 2012. The Veteran reported that he was initially diagnosed with GERD in 2006, at which time he was seen for acid reflux, belching and burning of stomach. He was under treatment with medication. The examiner opined that it was less likely than not that the Veteran's GERD was related to or caused by his service-connected PTSD. The VA examiner indicated that in most cases, GERD was due to a relaxation of the lower esophageal sphincter (LES) that opened to allow food and liquids to pass into the stomach and closes to prevent food and stomach acid from flowing back into the esophagus. On VA examination in July 2016, a VA examiner opined, following a review of the claims file and an examination of the Veteran, that it was less likely than not that the Veteran's current gastrointestinal disabilities, including gastritis, diverticulosis, H. pylori, hiatal hernia, and GERD, were caused by the service-connected PTSD. The examiner explained that H. pylori was a treatable bacterial infection of the stomach and diverticulosis and hiatal hernia were anatomical defects, entirely unrelated to a mental health disorder. In addition, the Veteran's GERD had been shown to be due to a lax lower esophageal sphincter. There was no evidence to support a finding that gastritis and GERD were due to PTSD. The examiner, however, opined that it was at least as likely as not that the Veteran's current gastritis and GERD was aggravated, worsened beyond the natural progress of the disease, by his service-connected PTSD. The examiner explained that both conditions were associated with increased stomach acid production which could occur in association with anxiety-provoking disorders. In May 2018 the Veteran reported to a VA examiner that he began experiencing gastrointestinal symptoms shortly after arriving at basic training, and that his diet changed significantly upon entering service. The examiner noted that there were studies that showed a strong association between increased symptoms of GERD and episodes of intense stress, however while these studies were not conclusive. Accordingly, it was less likely that Veteran's diagnosis for gastritis, H. pylori, hiatal hernia and GERD were caused or aggravated by his PTSD. The examiner indicated that gastritis, diverticulosis, H. pylori, hiatal hernia and GERD, were caused by abnormal physical conditions not associated with anxiety/stress disorders, but rather a change in normal physical state. In December 2018, the Veteran submitted a statement from Dr. S.M.F. wherein he opined that it was at least as likely as not that the GERD was aggravated by the Veteran's service-connected PTSD based on a review of the medical and behavioral literature which supported a relationship between stress and GERD. Specifically, how stress could physically induce gastric reflux/GERD. On VA examination in January 2021, the VA examiner opined that the Veteran's GERD was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner noted that while the Veteran was seen in service for gastrointestinal pain, including in October of 1975, no subsequent treatment was noted until 2009, more than 30 years later. Hence the records failed to disclose chronicity of care negating a finding that the Veteran's GERD was incurred in or caused by the claimed in-service injury event or illness. Resolving all doubt in favor of the Veteran, the Board finds that the evidence is at least in equipoise and satisfactorily establishes that the claimed stomach disability, including GERD, was aggravated, at least in part, by psychiatric symptoms associated with PTSD. Although the VA examiners in 2012 and 2018 opined that the Veteran's gastrointestinal disorder was not caused or aggravated by PTSD, the VA examiner in 2016, and the Veteran's private treating physician, S.M.F., provided evidence in support of the claim indicating that psychiatric symptoms associated with PTSD could physically induce gastrointestinal symptoms thereby aggravating GERD. Notably, the May 2018 VA examiner acknowledged that studies showed a strong association between increased symptoms of GERD and episodes of intense stress. Therefore, the Board is of the opinion that the point of equipoise has been reached in this appeal. In light of the evidence of record, the Board cannot conclude that the preponderance of the evidence is against granting service connection for a GERD on a secondary basis. The Board therefore resolves all reasonable doubt in favor of the Veteran, and finds that service connection for GERD as secondary to the service connected PTSD is warranted. Thus, secondary service connection is warranted. See 38 C.F.R. § 3.310. As the Board has granted secondary service connection it need not address direct service connection, or any other theories for service connection, in this matter. 2. Entitlement to service connection for vertigo and balance problems The Veteran contends that he suffers from vertigo and balance disability due to service. He has also claimed service connection for vertigo as secondary to the service-connected tinnitus. The evidence shows that the Veteran has been diagnosed with vertigo. Thus, the first criterion for establishing service connection, a current disability, has been met. An April 1973 treatment note in the Veteran's service treatment records reflects a complaint of balance trouble without vertigo. The remainder of the service records contain no complaint, history or findings consistent with a chronic balance disability. Accordingly, the balance complaints in service appear to have been transitory in nature and to have resolved with treatment. Significantly, at the time, it was determined that the complaints were not a symptom of vertigo. The Board finds that the service treatment records lack sufficient observation or even notation to establish any chronic disability onset in service. A March 2010 treating provider note reflects a diagnosis of a mild functional balance problem characterized by a moderate vestibular processing problem and delayed response to surface movements. In connection with treatment, the Veteran reported that the condition had been present for months. The Veteran was afforded a VA examination in May 2010. He reported having experienced loss of balance since 1972. This multi-year gap between treatments is one factor, among others, weighing against a finding of continual symptoms since service. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (lengthy period of absence of medical complaints for condition can be considered as one factor in resolving a claim); Mense v. Derwinski, 1 Vet. App. 354, 356 (1991) (affirming Board's denial of service connection where Veteran failed to account for lengthy time period between service and initial symptoms of disability). The Board acknowledges that symptoms, not treatment, are the essence of any evidence of continuity of symptomatology. However, as noted above, the Veteran has provided inconsistent statements regarding onset and continuity of balance problems. To the extent the Veteran has asserted continuity of symptomatology from service, the Board finds such statements inconsistent with the overall record, to include the service treatment records and post-service treatment records, which fail to document any related complaints until 33 years after discharge from service. The post-service record provides particularly negative evidence against the claim, sometimes from the Veteran himself. The Board finds that the weight of the evidence is against a finding of chronic symptoms in service or continuity of symptomatology after service. Id. The Board further finds that the weight of the evidence demonstrates that the current vertigo is less likely than not due to service or a service connected disability. On VA examination in December 2019, the Veteran reported onset of balance problems with associated light headedness and dizziness in 1973. Following a review of the claims file and an examination of the Veteran, the examiner diagnosed benign paroxysmal positional vertigo (BPPV) and opined that the condition was less likely than not incurred in or caused or aggravated by service. The examiner based the opinion on the finding that there were no medical records showing a diagnosis or treatment for the vertigo condition during active duty. The examiner further opined that it was less likely as not that the Veteran's BPPV was aggravated beyond its natural progression by service connected tinnitus because there was no medical pathophysiologic relationship between tinnitus and BPPV because they were both different anatomical and physiological systems, thus tinnitus could not aggravate BPPV. The examiner's opinion is consistent with an April 2001 opinion from a private clinician who opined that the Veteran's vertigo was unrelated to hearing loss and tinnitus. The Board finds that the December 2019 VA examination report was adequate for evaluation purposes and highly probative. Specifically, the VA examiner reviewed the claims file, interviewed and examined the Veteran. There is no indication that the VA examiner was not fully aware of the Veteran's past medical history or misstated any relevant fact. The VA examination report noted the service treatment records and balance complaints in April 1973. The examiner adequately explained why the Veteran's vertigo was not caused or aggravated by service or the service-connected tinnitus. The opinion is internally consistent and consistent with other evidence of record, including private treatment records. Moreover, the VA examiner had the requisite medical expertise to render a medical opinion regarding the etiology of vertigo and had sufficient facts and data on which to base his conclusions. As such, the Board accords the December 2019 VA examination report great probative weight. The Veteran has contended throughout the course of this appeal that the current vertigo had onset in service or is secondary to the service-connected tinnitus. Under the facts of this case that include no continuous post-service symptoms the Board finds that the Veteran does not have the requisite medical knowledge, training, or experience to be able to render a competent medical opinion regarding the cause of medically complex disorders such as BPPV. BPPV can have various etiologies, such as head trauma, vestibular diseases, infections, medications, etc. The ultimate questions in this case are related to an internal medical process which extend beyond an immediately observable cause and effect relationship. While the Veteran is competent to attest to dizziness and balancing problems, as a lay person, it has not been shown that he had specialized training sufficient to determine the etiology of BPPV, especially when the onset date is many decades after service. Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Such competent evidence has been provided by the VA examiner. The Board finds the medical opinion rendered by the VA examiner to be significantly more probative than the Veteran's lay assertions. Significantly, there is no competent evidence that supports the claim. Simply stated, both the best medical evidence in this case, and the facts of this case, provide highly probative evidence against the claim. In reaching this decision, the Board has considered the applicability of the benefit of the doubt doctrine. However, the preponderance of the evidence is against the Veteran's claims for service connection for vertigo or a balance disability. As such, that doctrine is not applicable in the instant appeal, and the claim must be denied. See 38 U.S.C. § 5107 (b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert, 1 Vet. App. at 55-56. REASONS FOR REMAND 1. Entitlement to service connection for hypertension is remanded. The Veteran contends that he suffers from hypertension that is related to his military service, or in the alternative, to a service connected disability. The Board previously remanded the appeal to obtain a VA opinion addressing whether the Veteran's hypertension had been aggravated by his service-connected PTSD. A VA examiner in December 2019, opined that hypertension was not at least as likely as not aggravated beyond its natural progression by the service connected PTSD. The examiner explained that hypertension commonly had multiple contributing factors and causes, including genetic factors, environmental factors, drug abuse, metabolic syndromes, kidney disease, heart disease, lung disease, lifestyles and diet. The examiner further stated that there was no direct pathophysiologic link between PTSD aggravating hypertension, since there was no direct causal relationship between the PTSD and hypertension. However, in a September 2021 Brief, the Veteran's representative raised additional theories of entitlement with supporting evidence, asserting that the Veteran developed hypertension as a result of weight gain due to his service-connected PTSD. The Board notes that obesity is not a disability for purposes of VA benefits; hence, it cannot be service connected on a direct basis. See Marcelino v. Shulkin, 29 Vet. App. 155, 158 (2018). However, indirect secondary service connection can be granted with obesity acting as an "intermediate step." See VAOPGCPREC 1 2017 (Jan. 6, 2017). Specifically, a grant is warranted (1) if the service-connected disability caused or aggravated the obesity, (2) if obesity was a substantial factor in causing a subsequent disability, and (3) if the subsequent disability would not have occurred but for obesity. Id. Additionally, the representative appears to be raising a claim for service connection for hypertension as secondary to the now-service connected obstructive sleep apnea. The Court has an interest in conservation of judicial resources and in avoiding piecemeal litigation. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) ("Court will [not] review BVA decisions in a piecemeal fashion"); Fugere v. Derwinski, 1 Vet. App. 103, 105 (1990) ("[a]dvancing different arguments at successive stages of the appellate process does not serve the interests of the parties or the Court"). Nonetheless, given the Court's holding in ElAmin v. Shinseki, 26 Vet. App. 136, 140-41 (2013) (holding that when multiple theories of entitlement are at issue, the Board must ensure that the medical opinions of record directly address all theories reasonably raised by the record), the Board will consider these theories of entitlement at this time. Therefore, because none of the earlier VA examiners provided medical opinions as to whether any obesity could be an "intermediate step" between his service-connected PTSD and his hypertension, or whether obstructive sleep apnea caused or aggravated the Veteran's hypertension, because these theories of entitlement were not raised at those times (see ElAmin, supra.) and because when VA undertakes to provide a VA examination or obtain a VA opinion it must ensure that the examination or opinion is adequate (see Barr v. Nicholson, 21 Vet. App. 303, 312 (2007)), the Board finds that the appeal must again be remanded to obtain an etiology opinion that covers all his theories of entitlement. See 38 U.S.C. § 5103A(d). In light of the fact that the Veteran is already receiving a 100 percent disability, the Veteran, in consultation with his representative, may wish to withdraw (in writing) the claim being remanded. Unless this is done, the Board must proceed on this issue. The matters are REMANDED for the following action: 1. Request the Veteran to identify all medical providers (VA and private) from whom he has received treatment for hypertension, and complete and return an appropriate authorization form for each treatment provider identified. After obtaining the completed release forms, request all identified pertinent medical records (if any). If possible, the Veteran (or his representative) should get these records and submit them himself to expedite the case. This would help the Board greatly. 2. Forward the claims file to a qualified VA examiner/s for an addendum opinion. The claims file, including a copy of this remand, should be made available to the examiner, who should indicate a review of the file in the examination report. Examination of the Veteran is not required unless the examiner/s determines that one is necessary to provide a reliable opinion. If an examination is required, all indicated tests and studies should be completed. Then, the examiner/s should opine as to the following, with full supporting rationales: a. Is it at least as likely as not (50 percent or greater probability) that the service-connected PTSD caused the Veteran to become obese? Please explain why or why not. b. If so, was the resulting obesity a substantial factor in causing the Veteran's hypertension? c. If yes, but for the Veteran's obesity, would the Veteran have developed hypertension? Please explain why or why not. d. Is it at least as likely as not (a probability of 50 percent or greater) that hypertension was caused and/or aggravated by a service-connected obstructive sleep apnea? Please explain why or why not. The examiner/s should provide a complete rationale for any opinions offered. If the examiner/s is unable to provide any requested opinion without resort to speculation, he or she should explain why this is so. John J. Crowley Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Azizi, T. 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.