Citation Nr: 21073195 Decision Date: 12/07/21 Archive Date: 12/07/21 DOCKET NO. 15-39 087 DATE: December 7, 2021 REMANDED Service connection for gastroesophageal reflux disease (GERD) is remanded. REASONS FOR REMAND The Veteran served on active duty in the U.S. Army from March 2003 to March 2006. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Board previously remanded this matter in August 2019. 1. GERD The Veteran contends that his GERD is related to his service or in the alternative secondary to his service-connected posttraumatic stress disorder (PTSD) and anxiety disorder, not otherwise specified. The Veteran's representative specifically stated that heartburn noted prior to service does not amount to a diagnosis of GERD prior to service and cited website article, which linked anxiety and GERD. In March 2020, VA obtained a VA medical opinion. The examiner opined that the Veteran's GERD clearly and unmistakably existed prior to service and was not aggravated beyond its natural progression by an in-service event, injury, or illness. The examiner reasoned that according to the January 2003 physical examination report, the Veteran had heart burn which was treated with Pepcid. The examiner noted that it appeared the Veteran stopped his treatment for his heartburn when he entered service and his symptoms returned, which is expected. The examiner noted that GERD will also worsen with age and weight gain, the examiner noted the Veteran was 174 pounds in May 2007 and 213 pounds in August 2019. The examiner noted his weight gain was not due to military service. The examiner noted other factors which can worsen GERD include consuming alcohol, certain medications, smoking, eating large meals, certain foods, and lying down within 3 hours of eating or drinking. The examiner noted that the Veteran's March 2019 EGD report noted a normal esophagus. Thus, the examiner concluded that there is no evidence which found that his active military service from 2003 to 2006 permanently aggravated his preexisting GERD condition beyond its natural progression. Further, the examiner stated that the baseline level of severity of the Veteran's GERD could be determined prior to aggravation or the earliest medical evidence following aggravation by the service-connected acquired physiatric condition. The examiner found the Veteran's baseline was he had heartburn/GERD symptoms prior to service controlled with medications. The examiner found the current severity of the GERD is greater than the baseline. The examiner found it is less likely than not the Veteran's GERD was aggravated beyond its natural progression by the Veteran's acquired psychiatric disorder. The examiner reasoned that the Veteran had a normal March 2019 EGD and there was no evidence found that this GERD was permanently aggravated by its natural progression by his service-connected PTSD. In March 2020, VA obtained another medical opinion. The examiner opined the Veteran's GERD which clearly and unmistakably existed prior to service, was not aggravated beyond its natural progression by an in-service event, injury, or illness. The examiner reasoned that he reviewed the Veteran's electronic record. The examiner further opined that the Veteran's pre-existing condition of GERD was not aggravated beyond its natural progression. The examiner opined that the Veteran's GERD clearly and unmistakably preexisted the Veteran's active service. The examiner reasoned that heartburn was documented in the entrance examination and other in-service medical examinations. The examiner noted that upon entrance to service the Veteran stopped treatment for his symptoms and his symptoms returned in-service. The examiner stated that GERD's natural progression is to worsen with increasing age and weight, which is documented to have increased in the Veteran's case. The examiner noted that Veteran had a history of alcohol abuse, which also can worsen GERD. The examiner noted these factors are not due to the military. Further, the examiner noted the Veteran's March 2019 EGD report was essentially normal esophagus, and therefore, there is no evidence found that the Veteran's active-duty military service from 2003 to 2006 permanently aggravated his pre-existing GERD condition beyond its natural progression. The examiner who provided the previous opinion further opined that a determination of the baseline severity of the Veteran's GERD could be determined. The examiner reasoned that there were no medical records found to establish the base line, the medical evidence is insufficient to support a determination. The examiner noted that past records indicate that the Veteran's GERD was controlled with prior medication but there is a lack of corroborating data and therefore the conclusion is speculative. The examiner noted that regardless of an established baseline, the Veteran's GERD is less likely than not aggravated beyond its natural progression by his acquired psychiatric disorder. The examiner reasoned that there is no evidence found in the medical records to support a conclusion that the Veteran's pre-existing condition of GERD was aggravated by the service-connected disability of PTSD. The examiner noted that the Veteran's GERD did not undergo an increase in pathology as documented on the essentially normal EGD done in March 2019. The examiner further noted that the record is quiet on any relationship between the Veteran's pre-existing GERD and his service-connected PTSD. The examiner concluded that he found no medical evidence in the record that documents that the Veteran's pre-existing GERD was aggravated beyond its natural progression. In May 2020, an addendum medical opinion was obtained. The examiner opined that the claimed condition is less likely than not permanently aggravated beyond its natural progression by his PTSD, which include anxiety and panic attacks. The examiner reasoned that GERD is caused by gastric contents entering the esophagus, usually due to an incompetent sphincter at the top of the stomach. Since the esophagus does not have a lining to protect it from acidic stomach secretions, there is often an associated burning sensation with stomach acids come in contact with the esophagal tissue. The examiner noted that the Veteran's March 2019 EGD was normal, so no increase in pathology of the esophagus was documented after his panic attacks. The Board finds that a remand is required. The examiners' rationale relied on the wrong standard. The examiners' rationale based their opinions on permanent aggravation, which is not the standard set forth. The examiners did not address whether there had been "any incremental increase in disability and any additional impairment of earning capacity in nonservice-connected disabilities resulting from service-connected conditions, above the degree of disability existing before the increase regardless of its permanence." See Ward v. Wilkie, 31 Vet. App. 233 (2019); see also 38 C.F.R. §, 3.310. Therefore, the Board finds that a remand is required in order for a VA examiner to provide an opinion consistent with correct standard for aggravation. The matters are REMANDED for the following action: 1. Obtain an addendum medical opinion from an appropriate clinician relating to the Veteran's diagnosed GERD. The examiner must provide the following opinion: (a.) Whether it is at least as likely as not that the Veteran's GERD was aggravated by the Veteran's service connected acquired psychiatric disorder. i. The examiner must address the Veteran's statements that his PTSD related panic attacks have aggravated his GERD. ii. The examiner must address the website article submitted by the Veteran's representative: (https://www.healthline.com/health/gerd-and-anxiety) (b.) A complete medical rational for all opinions expressed must be provided. The examiner is cautioned that the term "aggravated," as used in and 38 C.F.R. § 3.304 (b), does not require that there be "permanent worsening". Instead, service connection is warranted for "any incremental increase in disability and any additional impairment of earning capacity[...]above the degree of disability existing before the increase regardless of its permanence." See Ward v. Wilkie, 31 Vet. App. 233, 239 (2019). J. Dworkin Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Robert Batten 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. Department of Veterans Affairs YOUR RIGHTS TO APPEAL OUR DECISION The attached decision by the Board of Veterans' Appeals (Board) is the final decision for all issues addressed in the "Order" section of the decision. The Board may also choose to remand an issue or issues to the local VA office for additional development. If the Board did this in your case, then a "Remand" section follows the "Order." However, you cannot appeal an issue remanded to the local VA office because a remand is not a final decision. The advice below on how to appeal a claim applies only to issues that were allowed, denied, or dismissed in the "Order." If you are satisfied with the outcome of your appeal, you do not need to do anything. Your local VA office will implement the Board's decision. However, if you are not satisfied with the Board's decision on any or all of the issues allowed, denied, or dismissed, you have the following options, which are listed in no particular order of importance: Appeal to the United States Court of Appeals for Veterans Claims (Court) File with the Board a motion for reconsideration of this decision File with the Board a motion to vacate this decision File with the Board a motion for revision of this decision based on clear and unmistakable error. Although it would not affect this BVA decision, you may choose to also: Reopen your claim at the local VA office by submitting new and material evidence. There is no time limit for filing a motion for reconsideration, a motion to vacate, or a motion for revision based on clear and unmistakable error with the Board, or a claim to reopen at the local VA office. Please note that if you file a Notice of Appeal with the Court and a motion with the Board at the same time, this may delay your appeal at the Court because of jurisdictional conflicts. If you file a Notice of Appeal with the Court before you file a motion with the Board, the Board will not be able to consider your motion without the Court's permission or until your appeal at the Court is resolved. How long do I have to start my appeal to the court? You have 120 days from the date this decision was mailed to you (as shown on the first page of this decision) to file a Notice of Appeal with the Court. If you also want to file a motion for reconsideration or a motion to vacate, you will still have time to appeal to the court. As long as you file your motion(s) with the Board within 120 days of the date this decision was mailed to you, you will have another 120 days from the date the Board decides the motion for reconsideration or the motion to vacate to appeal to the Court. You should know that even if you have a representative, as discussed below, it is your responsibility to make sure that your appeal to the Court is filed on time. Please note that the 120-day time limit to file a Notice of Appeal with the Court does not include a period of active duty. If your active military service materially affects your ability to file a Notice of Appeal (e.g., due to a combat deployment), you may also be entitled to an additional 90 days after active duty service terminates before the 120-day appeal period (or remainder of the appeal period) begins to run. How do I appeal to the United States Court of Appeals for Veterans Claims? Send your Notice of Appeal to the Court at: Clerk, U.S. Court of Appeals for Veterans Claims 625 Indiana Avenue, NW, Suite 900 Washington, DC 20004-2950 You can get information about the Notice of Appeal, the procedure for filing a Notice of Appeal, the filing fee (or a motion to waive the filing fee if payment would cause financial hardship), and other matters covered by the Court's rules directly from the Court. You can also get this information from the Court's website on the Internet at: http://www.uscourts.cavc.gov, and you can download forms directly from that website. The Court's facsimile number is (202) 501-5848. To ensure full protection of your right of appeal to the Court, you must file your Notice of Appeal with the Court, not with the Board, or any other VA office. How do I file a motion for reconsideration? You can file a motion asking the Board to reconsider any part of this decision by writing a letter to the Board clearly explaining why you believe that the Board committed an obvious error of fact or law, or stating that new and material military service records have been discovered that apply to your appeal. It is important that your letter be as specific as possible. A general statement of dissatisfaction with the Board decision or some other aspect of the VA claims adjudication process will not suffice. If the Board has decided more than one issue, be sure to tell us which issue(s) you want reconsidered. Issues not clearly identified will not be considered. Send your letter to: Litigation Support Branch Board of Veterans' Appeals P.O. Box 27063 Washington, DC 20038 VA FORM DEC 2016 4597 Page 1 CONTINUED ON NEXT PAGE Remember, the Board places no time limit on filing a motion for reconsideration, and you can do this at any time. However, if you also plan to appeal this decision to the Court, you must file your motion within 120 days from the date of this decision. How do I file a motion to vacate? You can file a motion asking the Board to vacate any part of this decision by writing a letter to the Board stating why you believe you were denied due process of law during your appeal. See 38 C.F.R. 20.904. For example, you were denied your right to representation through action or inaction by VA personnel, you were not provided a Statement of the Case or Supplemental Statement of the Case, or you did not get a personal hearing that you requested. You can also file a motion to vacate any part of this decision on the basis that the Board allowed benefits based on false or fraudulent evidence. Send this motion to the address on the previous page for the Litigation Support Branch, at the Board. Remember, the Board places no time limit on filing a motion to vacate, and you can do this at any time. However, if you also plan to appeal this decision to the Court, you must file your motion within 120 days from the date of this decision. How do I file a motion to revise the Board's decision on the basis of clear and unmistakable error? You can file a motion asking that the Board revise this decision if you believe that the decision is based on "clear and unmistakable error" (CUE). Send this motion to the address on the previous page for the Litigation Support Branch, at the Board. You should be careful when preparing such a motion because it must meet specific requirements, and the Board will not review a final decision on this basis more than once. You should carefully review the Board's Rules of Practice on CUE, 38 C.F.R. 20.1400-20.1411, and seek help from a qualified representative before filing such a motion. See discussion on representation below. Remember, the Board places no time limit on filing a CUE review motion, and you can do this at any time. How do I reopen my claim? You can ask your local VA office to reopen your claim by simply sending them a statement indicating that you want to reopen your claim. However, to be successful in reopening your claim, you must submit new and material evidence to that office. See 38 C.F.R. 3.156(a). Can someone represent me in my appeal? Yes. You can always represent yourself in any claim before VA, including the Board, but you can also appoint someone to represent you. An accredited representative of a recognized service organization may represent you free of charge. VA approves these organizations to help veterans, service members, and dependents prepare their claims and present them to VA. An accredited representative works for the service organization and knows how to prepare and present claims. You can find a listing of these organizations on the Internet at: http://www.va.gov/vso/. You can also choose to be represented by a private attorney or by an "agent." (An agent is a person who is not a lawyer, but is specially accredited by VA.) If you want someone to represent you before the Court, rather than before the VA, you can get information on how to do so at the Court's website at: http://www.uscourts.cavc.gov. The Court's website provides a state-by-state listing of persons admitted to practice before the Court who have indicated their availability to the represent appellants. You may also request this information by writing directly to the Court. Information about free representation through the Veterans Consortium Pro Bono Program is also available at the Court's website, or at: http://www.vetsprobono.org, mail@vetsprobono.org, or (855) 446-9678. Do I have to pay an attorney or agent to represent me? An attorney or agent may charge a fee to represent you after a notice of disagreement has been filed with respect to your case, provided that the notice of disagreement was filed on or after June 20, 2007. See 38 U.S.C. 5904; 38 C.F.R. 14.636. If the notice of disagreement was filed before June 20, 2007, an attorney or accredited agent may charge fees for services, but only after the Board first issues a final decision in the case, and only if the agent or attorney is hired within one year of the Board's decision. See 38 C.F.R. 14.636(c)(2). The notice of disagreement limitation does not apply to fees charged, allowed, or paid for services provided with respect to proceedings before a court. VA cannot pay the fees of your attorney or agent, with the exception of payment of fees out of past-due benefits awarded to you on the basis of your claim when provided for in a fee agreement. Fee for VA home and small business loan cases: An attorney or agent may charge you a reasonable fee for services involving a VA home loan or small business loan. See 38 U.S.C. 5904; 38 C.F.R. 14.636(d). Filing of Fee Agreements: If you hire an attorney or agent to represent you, a copy of any fee agreement must be sent to VA. The fee agreement must clearly specify if VA is to pay the attorney or agent directly out of past-due benefits. See 38 C.F.R. 14.636(g)(2). If the fee agreement provides for the direct payment of fees out of past-due benefits, a copy of the direct-pay fee agreement must be filed with the agency of original jurisdiction within 30 days of its execution. A copy of any fee agreement that is not a direct-pay fee agreement must be filed with the Office of the General Counsel within 30 days of its execution by mailing the copy to the following address: Office of the General Counsel (022D), Department of Veterans Affairs, 810 Vermont Avenue, NW, Washington, DC 20420. See 38 C.F.R. 14.636(g)(3). The Office of the General Counsel may decide, on its own, to review a fee agreement or expenses charged by your agent or attorney for reasonableness. You can also file a motion requesting such review to the address above for the Office of the General Counsel. See 38 C.F.R. 14.636(i); 14.637(d). VA FORM DEC 2016 4597 Page 2 SUPERSEDES VA FORM 4597, APR 2015, WHICH WILL NOT BE USED