Citation Nr: 21069623 Decision Date: 11/19/21 Archive Date: 11/19/21 DOCKET NO. 18-53 971 DATE: November 19, 2021 ORDER Entitlement to service connection for gastroesophageal reflux disease (GERD) (also claimed as dysphagia) is granted. REMANDED Entitlement to a compensable initial evaluation for chronic obstructive pulmonary disease (COPD) is remanded. FINDING OF FACT Resolving reasonable doubt in the Veteran's favor, the Veteran's GERD symptoms had its onset in service. CONCLUSION OF LAW Resolving reasonable doubt in the Veteran's favor, the criteria for service connection for GERD have been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1992 to July 1996. This case is before the Board of Veterans' Appeals (Board) on appeal from a September 2015 rating decision by a Department of Veterans Affairs (VA) Regional Office. In August 2020, the Veteran and his spouse testified at a virtual hearing before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the electronic claims file. Now the matter is before the Board. The Board notes that the Veteran's service connection claim for an intestinal condition was previously on appeal, but service connection for irritable bowel syndrome has been granted in the interim. See December 2018 Rating Decision. Thus, that issue is no longer on appeal. The Veteran is seeking service connection for GERD and contends that his current condition had its onset in service. A veteran is entitled to VA disability compensation if there is disability resulting from personal injury suffered or disease contracted in line of duty in active service, or for aggravation of a preexisting injury suffered or disease contracted in line of duty in active service. 38 U.S.C. §§ 1110 (2012). To establish an entitlement to service connection for a disability, a veteran must show: (1) a present disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service, the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the United States Court of Appeals for Veterans Claims stated that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail." When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b) (2012). For VA to deny a claim on its merits, the preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App., at 54. The evidence of record shows the Veteran's current diagnosis of GERD. See e.g., July 2016 Esophageal Conditions Disability Benefits Questionnaire (DBQ). Initially, the Board notes that the Veteran's service treatment record does not contain any diagnosis or treatments related to an esophageal condition. On September 2015 VA examination for esophageal conditions, the examiner noted that the onset of the Veteran's esophageal condition was in 1995. The Veteran described his GERD-related symptoms as epigastric discomfort following meal consumption, regurgitation, reflux, pyrosis, dysphagia, and sleep disturbance. In December 2018, the Veteran submitted an esophageal conditions DBQ completed by his private medical provider. In the DBQ, the Veteran's history of more than 15 years of chronic burning in the throat was noted. Also, the Veteran's symptoms of reflux and nausea were reported. During the August 2020 Board hearing, the Veteran testified that the Veteran had constant heartburn symptoms in service and took a lot of antacid and Alka-Seltzer to treat the symptoms. The Veteran also provided that he had more GERD symptoms, including severe acid reflux, during his deployment. The Board finds the Veteran competent and credible to report his symptoms experienced in service. The Veteran's spouse also testified that she remembers the Veteran having heartburn and upset stomach in service and taking a lot of Alka-Seltzer to treat the symptoms. Based on above, the Board resolves reasonable doubt in the Veteran's favor and finds that the Veteran's GERD symptoms had its onset in service. Consequently, resolving reasonable doubt in the Veteran's favor, the Veteran's entitlement to service connection for GERD is warranted. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2020). REASONS FOR REMAND The Veteran is also seeking a higher initial evaluation for his service-connected COPD. However, the Board is unable to make a fully informed decision on the matter without additional development. The Veteran underwent VA examinations for respiratory conditions in September 2015 and July 2016. In that regard, the Veteran contends that the previous VA examiners failed to adequately consider the Veteran's occupational impairment due to COPD. The Board notes that the July 2016 examiner mostly noted the Veteran's work history and current work routine, but did not sufficiently provide the occupational impact of the Veteran's current COPD. The Board also notes that the Veteran's spouse testified during the August 2020 Board hearing that the Veteran has been having constant chronic coughs which impacts his daily activities. In light of the above, the Board finds that an updated medical examination to determine the current severity of the Veteran's service-connected COPD and occupational impairment due to the disability should be obtained prior to final adjudication of the matter. Accordingly, the matter is REMANDED for the following action: 1. The Agency of Original Jurisdiction must schedule the Veteran for an examination by an appropriate medical examiner to determine the current severity of his service-connected COPD. The examiner must review the Veteran's claims file and a copy of this REMAND order in conjunction with the examination. The examiner must provide a full description of the Veteran's COPD disability and report all signs and symptoms necessary for evaluating it under the rating criteria. The examiner must also attempt to elicit information regarding the severity, frequency, and duration of any flare-ups. To the extent possible, the examiner should discuss the effect of the Veteran's COPD disability on any occupational functioning and activities of daily living. 2. After completing the above action and any other necessary development, the issue on appeal must be readjudicated. If the claim remains denied, a Supplemental Statement of the Case must be provided to the Veteran and his representative. After the Veteran and his representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. MICHAEL LANE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. E. Kim, 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.