Citation Nr: 21072549 Decision Date: 12/03/21 Archive Date: 12/03/21 DOCKET NO. 07-16 137 DATE: December 3, 2021 ORDER Entitlement to service connection for gastroesophageal reflux disease (GERD), to include as secondary to a service-connected lumbar spine disability, is denied. FINDING OF FACT The preponderance of the evidence is against finding that the Veteran's GERD began during active service, is otherwise related to an in-service injury or disease, or is secondary to his service-connected lumbar spine disability. CONCLUSION OF LAW The criteria for service connection for GERD, to include as secondary to a service-connected lumbar spine disability, are not met. 38 U.S.C. §§ 1110, 1112, 1113, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the U.S. Army from June 1970 to May 1975 and December 1990 to September 1991, including service in the Republic of Vietnam and Southwest Asia theater of operations during the Persian Gulf War. The Board sincerely thanks the Veteran for his service to our country. This matter comes before the Board of Veterans' Appeals (Board) from a September 2010 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Board acknowledges the time that the Veteran has devoted to this appeals process and appreciates his patience. This claim was previously before the Board in March 2013, November 2019, April 2021, and July 2021, when it was remanded for further development. It now returns for appellate review. 1. Entitlement to service connection for GERD, to include as secondary to a service-connected lumbar spine disability Service connection may be granted for disability due to disease or injury incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Service connection also may be granted for any disease initially diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that it was incurred in service. 38 C.F.R. § 3.303(d). To establish service connection for a claimed disability, there must be evidence of: (1) a current disability; (2) incurrence or aggravation of a disease or injury in service; and (3) a causal connection between the disease or injury in service and the current disability. See Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and an evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a). Disabilities which are proximately due to or the result of a service-connected disease or injury shall be service connected. 38 C.F.R. § 3.310. Establishing service connection on a secondary basis requires (1) competent evidence (a medical diagnosis) of current chronic disability; (2) evidence of a service-connected disability; and (3) competent evidence that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. Id. The Board also notes that secondary service connection on the basis of aggravation is permitted under 38 C.F.R. § 3.310, and compensation is payable for that degree of aggravation of a non-service-connected disability caused by a service-connected disability. Allen v. Brown, 7 Vet. App. 439 (1995). It is the defined and consistently applied policy of VA to administer the law under a broad interpretation, consistent; however, with the facts shown in every case. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. By reasonable doubt is meant one which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. It is a substantial doubt and one within the range of probability as distinguished from pure speculation or remote possibility. See 38 C.F.R. § 3.102. The Veteran asserts that his GERD is coincidental to his service in Vietnam and Desert Storm. See November 2010 Statement in Support of Claim. In his January 2012 VA Form 9 and August 2012 Statement in Support of Claim, the Veteran clarified that he contended that his stomach disorder (now claimed as GERD) was due to medication taken for his service-connected lumbar spine disability. The Veteran has a diagnosis of GERD. See, e.g., August 2015 VA Treatment Record. The Veteran has been awarded service connection for a lumbar spine disability (characterized as degenerative joint disease of the lumbar spine; lumbar myositis; and bulging disc). The issue remaining before the Board is whether the Veteran's GERD is related to his active duty service, or in the alternative, is secondary to his service-connected lumbar spine disability. However, service connection on a direct incurrence basis is not warranted. In this regard, the January 2017 and August 2021 VA examiners each indicated that the Veteran's GERD was less likely than not directly related to service. The January 2017 VA examiner reasoned that the Veteran's service treatment records (STRs) were silent for a stomach/gastrointestinal condition, and the August 2021 VA examiner reasoned that there was no objective evidence of related complaints or treatment during service. Additionally, a May 2021 VA examiner also provided reasoning that addressed the claim on a direct incurrence basis. Specifically, the May 2021 VA examiner explained that the Veteran's STRs were silent for diagnosis of, or treatment for, GERD, that the Veteran specifically denied "frequent indigestion" at the September 1991 separation examination, and in January 1993, July 1995, and May 1999 periodic examinations, the Veteran specifically denied "indigestion, stomach, liver, or intestinal trouble." The May 2021 VA examiner also noted that, per review of the Veteran's VA medical record, the Veteran was successfully treated for Helicobacter pylori gastritis in 2003 with resolution of symptoms. The May 2021 VA examiner also reasoned that the Veteran's current GERD had its onset in August 2005, per VA medical records. Reading these medical opinions together, the Board finds that the medical evidence does not show that the Veteran's GERD is directly related to service. Further, the Veteran does not contend, and the evidence does not show, that the Veteran's GERD is otherwise related to his service in Republic of Vietnam or the Southwest Asia Theater of Operations. Moreover, GERD is a structural gastrointestinal disorder and therefore is not considered a medically unexplained chronic multisymptom illness. 38 C.F.R. § 3.317(a)(2)(i)(B)(3); 76 Fed. Reg. 41,696 (Jul. 15, 2011); see Atencio v. O'Rourke, 30 Vet. App. 74, 83 (2018). Thus, presumptive service connection for GERD under § 3.317 is not warranted. Regarding whether the Veteran's GERD was proximately due to, or aggravated, by his service-connected lumbar spine disability, a February 2020 VA examiner provided a negative nexus opinions. The February 2020 VA examiner explained GERD was caused by frequent acid reflux - the backflow of stomach acid or bile into the esophagus. The February 2020 VA examiner further explained that factors that contributed to GERD were lower esophageal sphincter abnormalities, hiatal hernia, abnormal esophageal contractions, and slow or prolonged emptying of the stomach. The February 2020 VA examiner further reasoned that intervertebral disc syndrome was a common condition characterized by the breakdown (degeneration) of one or more of the discs that separate the bones of the spine (vertebrae), causing pain in the back, and concluded that it was physically impossible for intervertebral disc syndrome to cause GERD; there was no direct or indirect causal relationship between the two conditions. Similarly, a May 2021 VA examiner found the Veteran's GERD was less likely than not proximately due to or the result of his service-connected condition. The May 2021 VA examiner reasoned that review of current medical literature was silent for any mechanism by which degenerative joint disease of the lumbar spine; with lumbar myositis; and bulging disc may cause or aggravate gastroesophageal reflux disease (GERD). Taking these opinions together, the preponderance of the evidence is against a finding that the Veteran's lumbar spine disability caused or aggravated his GERD. Regarding whether the Veteran's GERD is proximately due to, or aggravated, by treatment for his service-connected lumbar spine disability, the January 2017, May 2021, and August 2021 VA clinicians provided negative nexus opinions. The January 2017 VA examiner addressed the claim as proximately due to or the result the Veteran's service-connected lumbar spine disability. The January 2017 VA examiner noted the Veteran was service-connected for a lumbar spine condition and records indicated the Veteran had been treated for this condition with a variety of medications; however, these were predominantly opioids with a long history of prescriptions for morphine, oxycodone and tramadol. The January 2017 VA examiner noted that there was a prescription for indomethacin in 2001 for a 30 day supply and one refill, and naproxen in 2003 without refill. The January 2017 VA examiner explained that not until 2014, was another NSAID prescribed, when ibuprofen was provided (also 30-day supply without refill). The January 2017 VA examiner noted that there were no non-government medical treatment records available for review to indicate increased intake of NSAIDs. [In February 2020 Correspondence, the Veteran reported he had not received private treatment for his GERD]. The January 2017 VA examiner opined that there was no link between the lumbar spine condition and GERD. The January 2017 VA examiner explained that NSAIDs have been linked to gastroesophageal erosion/reflux; however, as stated above, there was limited evidence of chronic use of this type of medication. The January 2017 VA examiner concluded that there was no clear link between opioid medication and GERD/erosion, though a potential side effect could be nausea, which was a central (i.e. neurologic) phenomena and was unrelated to acid flux in the gut. The January 2017 VA examiner reiterated the reasoning in providing a rationale as to why the Veteran's GERD was not proximately due to or the result of medications used to treat his lumbar spine condition namely that there was no evidence of chronic/long term NSAID use as evidenced by available medical records. The May 2021 VA examiner addressed the claim as proximately due to or the result the Veteran's service-connected lumbar spine disability, and reasoned that, as to the question of NSAIDs (Naprosyn) taken for service-connected degenerative joint disease of the lumbar spine; with lumbar myositis; and bulging disc, a review of current medical literature was silent for NSAIDs as a risk factor in the development of GERD symptoms unless they remained in direct contact with the lining of the esophagus for too long, i.e., taking the pill with little or no water (drug-induced esophagitis). The May 2021 VA examiner reasoned that the Veteran's VA medical record and claims file were silent for evidence of drug-induced esophagitis. The May 2021 VA examiner explained that the most common type of esophagitis was reflux esophagitis, which was caused by reduced lower esophageal sphincter pressure, and reasoned that Naprosyn had been shown not to induce reflux in normal subjects, nor had it been shown to have any significant effect on esophageal motility. The August 2021 VA examiner addressed the claim aggravated by Veteran's service-connected lumbar spine disability, and reasoned that, while heavy NSAID use could represent a risk factor for development of gastroesophageal reflux disease, there was no evidence that (in the Veteran's case) NSAID use was excessive or otherwise significantly deviated from the standard of care. The August 2021 VA examiner noted that gastroesophageal reflux disease was an exceedingly common condition which often occurred without a specific predisposing etiology. Finally, the August 2021 VA examiner reasoned that the February 2020 VA examination demonstrated GERD was controlled with daily omeprazole and 2007 endoscopy demonstrated no evidence of esophageal abnormalities, which fell within the projected natural history of the condition and does not represent aggravation (beyond natural progression). Reading the February 2020, May 2021, and August 2021 VA medical opinions together, the preponderance of the evidence is against a finding that the Veteran's GERD is due to or aggravated by medications taken for his service-connected lumbar spine disability. Further, the Board recognizes the August 2021 VA examiner indicated the Veteran's GERD was not aggravated beyond its natural progression, which is the incorrect standard, as the aggravation prong of secondary service connection requires a worsening of the claimed disorder, but not a permanent worsening of the claimed disorder. However, the August 2021 VA examiner also found there was no evidence in the Veteran's case, that NSAID use was excessive or otherwise significantly deviated from the standard of care. This finding reflects the frequency of NSAID use necessary to cause any incremental increase was not present because the frequency of NSAID use was not excessive and did not deviate from the standard of care. Thus, this finding does not show any incremental increase in the Veteran's GERD, regardless of permanence, due to his service-connected lumbar spine disability, and the opinion is adequate. See Ward v. Wilkie, 31 Vet. App. 233, 240-41 (2019). The Board acknowledges the representative's July 2021 argument that the VA examiners' opinions do not adequately identify any conditions that cause the Veteran's symptoms for conditions on appeal and do not conclusively address whether the conditions are related to the Veteran's service. However, the question of whether an examiner is competent and whether he or she has rendered an adequate opinion are two separate inquiries. See Francway v. Wilkie, 930 F.3d 1377, 1381 (Fed. Cir. 2019). Absent some challenge to the expertise of a VA expert, there is no requirement that VA present affirmative evidence of a medical professional's qualifications in every case as a precondition for the Board's reliance upon that person's opinion, and the Board is entitled to assume the competence of a VA examiner unless the competence is challenged. Sickels v. Shinseki, 643 F.3d 1362, 1365-66 (Fed. Cir. 2011); Rizzo v. Shinseki, 580 F.3d 1288 (Fed. Cir. 2009). This presumption is rebutted when the Veteran raises the issue of competency. See Francway, 930 F.3d at 1380. After the Veteran challenges the competency of a medical examiner, the Board must then make factual findings regarding the qualifications and provide reasons and bases for concluding whether or not the medical examiner was competent to provide the opinion. Id. at 1381. Rather than challenging the competency of the VA examiners in this case, the Veteran's representative's objections are generally based on how the examiner reviewed the evidence and provided the findings within the report. However, the conclusions and explanations of the rationale provided by the examiners cited in this decision are sufficient, accurately portray the evidence, and address the relevant facts, including describing the Veteran's accurate diagnoses, medical risk factors, describing disease process, and specifics regarding medications prescribed. These opinions are based on interview and examination of the Veteran and review of his claims file (consideration of his contentions). See Monzingo v. Shinseki, 26 Vet. App. 97, 106 (2012). As it is not shown (or alleged) the VA examiners were unaware of any significant fact in his case, lacked impartiality or were otherwise incompetent; the burden to show the VA examinations are inadequate is not met and the arguments in this regard are unpersuasive. Hilkert v. West, 12 Vet. App. 145, 151 (1999) (an appellant bears the burden of persuasion to show that the Board's reliance on an examiner's opinion was in error). The Board finds that the medical opinions cited in this decision are adequate for VA purposes. The Board has considered the Veteran's contentions that his GERD is due to treatment for his service-connected lumbar spine disability. However, although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), whether his current GERD may be related to his service-connected lumbar spine disability is a medical question and requires medical expertise. See Jandreau v. Nicholson, 492 F. 3d 1372, 1377 (Fed. Cir. 2007). As the Veteran is a layperson and does not profess to have had any medical training, his opinion as to these matters is not competent evidence. This decision is in no way meant to diminish the Veteran's honorable service to our country; however, as the preponderance of the evidence is against the claim of service connection for GERD, the benefit-of-the-doubt doctrine is not for application, and the claim must be denied. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). M. ESPINOZA Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board O. Halpern 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.