Citation Nr: 21067823 Decision Date: 11/05/21 Archive Date: 11/05/21 DOCKET NO. 16-13 332 DATE: November 5, 2021 ORDER As new and material evidence has been submitted, the previously denied claim of entitlement to service connection for gastroesophageal reflux disease (GERD), is reopened, and to that extent only, the appeal is granted. REMANDED Service connection for GERD is remanded. Service connection for lumbosacral sprain (claimed as lower back condition) is remanded. Service connection for trapezius strain, resolved without residuals (claimed as lower back condition) is remanded. FINDINGS OF FACT 1. An unappealed October 2009 rating decision denied service connection for GERD finding no diagnosis and no nexus to service; treatment records were received shortly thereafter, and in an unappealed June 2010 rating decision, the matter was readjudicated and the denial was continued. 2. Additional evidence received since the June 2010 final decision is not cumulative or redundant of the evidence of record at the time of that decision, relates to an unestablished fact necessary to substantiate the claim of service connection for GERD, and raises a reasonable possibility of substantiating the claim. CONCLUSIONS OF LAW 1. The June 2010 rating decision denying service connection for GERD is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.200, 20.201, 20.1103. 2. New and material evidence has been submitted to reopen the claim for service connection for GERD. 38 U.S.C. §§ 1110, 7105; 38 C.F.R. §§ 3.303, 3.156, 20.1103. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1991 to December 1995. These matters come to the Board of Veterans' Appeals (Board) on appeal from August 2013 and November 2014 rating decisions issued by the Department of Veterans' Affairs (VA) Regional Office (RO). The Veteran initially requested a hearing before a Veterans Law Judge. His hearing was postponed and rescheduled four times, with the most recent hearing date set for October 2021. The Veteran did not appear for the October 2021 hearing, and to date, has not requested a new hearing be scheduled. As such, his hearing request is considered withdrawn, and the Board will proceed to address the claims. 38 C.F.R. § 20.704. The Board has limited the discussion below to the relevant evidence required to support its findings of fact and conclusions of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). 1. As new and material evidence has been submitted, the previously denied claim of entitlement to service connection for GERD, is reopened, and to that extent only, the appeal is granted. Generally, a claim that has been denied in an unappealed RO decision or an unappealed Board decision may not thereafter be reopened and allowed. 38 U.S.C. §§ 7104, 7105. The exception to this rule is 38 U.S.C. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. New evidence is defined as evidence not previously submitted to agency decision-makers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). The Court of Appeals for Veterans Claims has interpreted the language of 38 C.F.R. § 3.156(a) as creating a low threshold and has viewed the phrase "raises a reasonable possibility of substantiating the claim" as "enabling rather than precluding reopening." Shade v. Shinseki, 24 Vet. App. 110, 121 (2010). The regulation is designed to be consistent with 38 C.F.R. § 3.159(c)(4), which "does not require new and material evidence as to each previously unproven element of a claim." Id. For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence, although not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510 (1992). In determining whether this low threshold is met, VA should not limit its consideration to whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the Secretary's duty to assist or through consideration of an alternative theory of entitlement. See Shade, 24 Vet. App. at 118. In this case, the RO first denied service connection for GERD in an October 2009 rating decision determining that the evidence did not show a diagnosis or treatment for GERD in service treatment records (STRs) or treatment for GERD in post-separation records. Upon receipt of additional treatment records, the RO issued another rating decision in June 2010 continuing the denial of service connection for GERD because STRs were silent for treatment of GERD, VA treatment records were silent for treatment of GERD and only noted heartburn, and there was no evidence to show that GERD is related to service. The RO notified the Veteran of its decision and the Veteran's appellate rights. The Veteran did not initiate an appeal of the RO's decision within one year nor submit additional evidence within one year of the RO's decision. As a result, the RO's June 2010 rating decision became final. Thus, the Veteran's service connection claim for GERD may only be considered on the merits if new and material evidence has been received since the time of the prior adjudication. The Veteran filed a petition to reopen the claim in July 2014 contending that the additional evidence of record since the June 2010 rating decision is new and material. As will be discussed in more detail below, the Board agrees and finds reopening of the claim is warranted. Evidence of record at the time of the June 2010 rating decision, relevantly, included STRs noting chest discomfort, nausea, and stomach pain, and post-separation VA and private treatment records, which included a medication for abdominal pain in 2009 and a diagnosis of mild spontaneous gastroesophageal reflux in 2009. Since June 2010, the record now contains lay statements from the Veteran describing his symptoms since service and additional treatment records noting treatment for GERD with symptoms including chest pain and nausea. Given that the claim was previously denied in part on a finding of "no" diagnosis, the treatment records are certainly "new" and "material" as they pertain to a basis of the prior denial. Given that the claim was previously denied in part on a finding as no nexus to service, the Veteran's description of symptoms since service are certainly "new" and "material" as they too pertain to a basis of the prior denial. For these reasons, the Board finds the combination of the additional treatment records and lay statements are not duplicative, not cumulative, and raises a reasonable possibility of substantiating the Veteran's service connection claim for GERD as the Veteran's STRs include notations of similar symptoms. Based on the above, the Veteran's service connection claim for GERD is reopened. REASONS FOR REMAND 1. Service connection for GERD is remanded. The Veteran contends his GERD was caused by or incurred during service. The Board finds remand is necessary to afford the Veteran a VA examination to determine the nature and etiology of any GERD disability. See 38 U.S.C. § 5103A; 38 C.F.R. § 3.159; see also McLendon v. Nicholson, 20 Vet. App. 79 (2006). Upon review, post-separation treatment records reference treatment for and diagnosis of GERD with various symptoms including nausea and chest pain. The Veteran stated that his GERD began during service. STRs mention symptoms of chest pain and nausea during service. There is insufficient competent medical evidence of record, however, to determine the nature and etiology of any GERD disability and whether it is related to service. Accordingly, this matter is remanded to afford the Veteran a VA examination. 2. Service connection for lumbosacral sprain (claimed as lower back condition) is remanded. 3. Service connection for trapezius strain, resolved without residuals (claimed as lower back condition) is remanded. The Veteran contends he has a lower back condition that was caused by or incurred during service and has continued since separation. The Board finds the evidence of record is insufficient to resolve his claim. The Veteran was afforded a VA examination in August 2013 during which the examiner noted a diagnosis of lumbosacral strain and trapezius strain, resolved without residuals. The examiner opined the Veteran's lumbosacral strain was less likely than not related to service because there was no objective evidence of chronic lumbosacral spine pathology and STRs only mentioned a trapezius strain in 1992. The examiner opined that the Veteran's trapezius strain was a transient condition with no objective evidence of chronicity. Upon review, however, it appears the Veteran referenced the 1992 incident during service in relation to his back condition generally. Indeed, the Veteran's STRs reference back pain, pain in the upper back, and neck pain in 1992 with a noted diagnosis of trapezius strain. The examiner failed to address or consider the Veteran's lay statements of experiencing symptoms related to his back condition since service. See Miller v. Wilkie, 32 Vet. App. 249 (2020). Additionally, following the August 2013 VA examination, more treatment records were added to the claims file including lumbosacral spine imaging which revealed mild to moderate degenerative joint disease (DJD) of the lower lumbosacral spine. This additional diagnosis has not been addressed by a VA examiner. The Board notes the Veteran filed a claim for benefits for a "lower back condition." Following the August 2013 VA examination which noted both lumbosacral strain and trapezius strain, resolved without residuals, the RO treated both diagnoses as separate disabilities and separated the claim into two, denying each individually. The Board finds these claims are inextricably intertwined as the Veteran has contended his back condition is related to the same in-service incident in 1992 and it remains unclear from the record whether the Veteran has a lumbosacral spine disability and / or a thoracic spine disability. Considering Langdon v. McDonough, wherein the Court held that the thoracic and lumbar spines must be treated as a single unit, the Board finds these claims inextricably intertwined and remands both for additional development and clarification. See Langdon v. McDonough, 1 F.4th 1008 (Fed. Cir. 2021); Smith v. Gober, 236 F.3d 1370, 1373 (Fed. Cir. 2001). Accordingly, these claims are remanded for another VA examination. The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination before an appropriate examiner to determine the nature and etiology of any GERD disability. The entire claims file and this remand should be made available to the examiner for review. The examiner should render an opinion, including rationale, addressing whether the Veteran has a GERD disability that is at least as likely as not related to service, to include in-service complaints of chest pain and nausea. In so opining, the examiner is directed to address and consider the Veteran's post-separation treatment records referencing a diagnosis of GERD with symptoms including, but not limited to, chest pain and nausea along with the Veteran's STRs noting complaints of chest pain and nausea and any other overlapping symptoms. 2. Schedule the Veteran for a VA examination before an appropriate examiner to determine the nature and etiology of any back condition, to include lumbosacral strain and / or trapezius condition. The entire claims file and this remand should be made available to the examiner for review. The examiner should render an opinion, including rationale, addressing the following: -Whether the Veteran has a back disability and / or trapezius strain? In so opining, the examiner is directed to address and consider the 2013 VA examination noting a diagnosis of lumbosacral strain and trapezius strain, resolved without residuals, as well as the August 2013 imaging revealing mild to moderate DJD of the lower lumbosacral spine. If a diagnosis cannot be provided but the Veteran's condition manifests in symptoms that cause functional impairment, then the examiner should consider them a "disability" for the purpose of providing the requested opinions below. - For any arthritis condition, is it at least as likely as not that the disability (1) began during active service, (2) manifested within a year after discharge from service, or (3) was noted during service with continuity of the same symptomatology since service? In so opining, the examiner is directed to address and consider the Veteran's lay statements of experiencing symptoms related to the back since service. - For any other disabilities, is it at least as likely as not related to service, to include the 1992 injury after moving boxes? In so opining, the examiner is directed to address and consider the Veteran's STRs including references to back pain, neck strain, and trapezius strain in 1992 following lifting boxes. The examiner must provide a complete rationale for any opinion expressed, based on the examiner's clinical and medical expertise; established medical principles; and references to the evidence of record, as appropriate. If any opinion cannot be expressed without resort to speculation, ensure that the examiner so indicates and discusses why an opinion is not possible, to include whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. 3. After the above development, and any other development deemed necessary, readjudicate the claims. SHEREEN M. MARCUS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A.C. Allen, 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.