Citation Nr: 21074154 Decision Date: 12/14/21 Archive Date: 12/14/21 DOCKET NO. 17-54 645 DATE: December 14, 2021 ORDER An evaluation in excess of 10 percent for bilateral hearing loss has been withdrawn. Entitlement to Dependents' Educational Assistance (DEA) has been withdrawn. Entitlement to a total disability rating based upon individual unemployability has been withdrawn. Service connection for gastroesophageal reflux disease (GERD) and Barrett's Esophagus is denied. FINDINGS OF FACT 1. An evaluation in excess of 10 percent for bilateral hearing loss. In November 2021, prior to the promulgation of a decision in the appeal, the Board received notification from the that a withdrawal of the appeal as to the issues in the October 2021 Supplemental Statement of the Case is requested. 2. Gastroesophageal reflux disease (GERD) and Barrett's Esophagus were not manifest in service and are not attributable to service. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the issue of an evaluation in excess of 10 percent for bilateral hearing loss by the Veteran have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 2. The criteria for withdrawal of the issues of entitlement to Dependents' Educational Assistance (DEA) by the Veteran have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 3. The criteria for withdrawal of the issue of entitlement to a total disability rating based upon individual unemployability by the Veteran have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 4. The criteria for service connection for gastroesophageal reflux disease (GERD) and Barrett's esophagitis have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1969 to October 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from April 2017 and January 2018 rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). A Board decision in January 2021 denied the Veteran's claim of service connection for GERD. The Veteran thereafter appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In an Order dated in July 2021, the Court granted a Joint Motion for Partial Remand (JMPR) by the Veteran and VA General Counsel, to vacate the Board's decision and remand the case for readjudication in accordance with the JMR. VA's Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). The VCAA applies to the instant claim. VA is required to notify the claimant and his or her representative of any information, and any medical or lay evidence, not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 U.S.C. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). The duty to notify in this case was satisfied by a form entitled "Notice to Veteran of Evidence Necessary to Substantiate a Claim for Veterans Disability Compensation and Related Compensation Benefits." The Veteran certified receipt of such notice in his December 2016 claim submitted under the Fully Developed Claim program. 38 U.S.C. §§ 5102, 5103, 5103A; 38 C.F.R. § 3.159; Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). The VCAA also requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate his claim. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c), (d). This "duty to assist" contemplates that VA will help a claimant obtain records relevant to his claim, whether or not the records are in Federal custody, and that VA will provide a medical examination or obtain an opinion when necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4). In that regard, the Veteran's service treatment records, VA treatment records, private treatment records, and lay statements have been associated with the record. Pursuant to a May 2019 Board remand, in October 2019, VA afforded the Veteran an examination and obtained a medical etiological opinion in December 2019 with respect to his GERD disability. The VA examiner reviewed the evidence of record, considered the Veteran's history and statements, and rendered a medical opinion based upon the facts of the case and the examiner's knowledge of medical principles. Therefore, the Board finds that the Veteran has been provided an adequate medical examination in conjunction with his claim. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). The May 2019 remand directives stated that the examiner should consider and discuss as necessary the Veteran's statement as noted in the December 2016 private examination that his GERD had its onset during his active duty and continued to the present. While the December 2019 VA examiner did not specifically address the December 2016 private opinion, the examiner affirmatively indicated that the Veteran's electronic file had been reviewed. The remand directives stated that the examiner was to discuss the statement "as necessary." The Board finds that such a discussion was not necessary as the December 2016 examination report was conclusory and highly unreliable. Accordingly, the Board finds that the RO substantially complied with the Board's remand instructions. See Donnellan v. Shinseki, 24 Vet. App. 167, 176 (2010) ("It is substantial compliance, not absolute compliance, that is required" under Stegall v. West) (citing Dyment v. West, 13 Vet. App. 141, 146-47 (1999)). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). 1. An evaluation in excess of 10 percent for bilateral hearing loss. 2. Entitlement to Dependents' Educational Assistance. 3. Entitlement to a total disability rating based upon individual unemployability. The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 19.55. Withdrawal may be made by the appellant or by his or her authorized representative. Id. In the present case, the Veteran submitted a November 2021 "Appeals Satisfaction Notice," indicating he wished to withdraw all remaining issues contained in the recent Statement of the Case/Supplemental Statement of the Case. The most recent SOC/SSOC was issued in October 2021 and addressed the above three listed issues. Thus, the Veteran has withdrawn the appeal as to the evaluation of hearing loss, entitlement to a TDIU, and entitlement to DEA, and, hence, there remain no allegations of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review the appealed issues and they are dismissed. 4. Service connection for gastroesophageal reflux disease (GERD) and Barrett's esophagitis. The Veteran seeks service connection for GERD. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that, while the Veteran has a current diagnosis of GERD and Barrett's Esophagus, the preponderance of the evidence weighs against finding that an esophageal condition began in service or is otherwise related to an in-service injury, event, or disease. The September 1970 service separation examination shows a normal abdomen and viscera on clinical evaluation. His service treatment records do not show gastrointestinal or esophageal symptoms. The VA treatment records show the Veteran was diagnosed with gastritis after a September 2001 esophagogastroduodenoscopy (EGD). He was not diagnosed with GERD at that time, nor apparently not until April 2007, after having had an additional EGD in June 2006 with only a gastritis finding. This is more than three decades after separation from service. A December 2016 private Report of Consultation and Examination is of record. The examiner reported that the Veteran was diagnosed with GERD or a "substantially similar" condition during military service, that he was treated with medications, and that the condition continues to the present without hiatus and with extension. The examiner referenced the condition as having been "discussed during active duty military service" and that this should qualify the condition for service connection. The Board observes that the examiner did not address the source of the statement that the Veteran was diagnosed with GERD or a substantially similar condition during military service. Moreover, this examination report is so inconsistent with the credible evidence, as will be discussed below, that the report is of diminished credibility and is assigned less probative weight. In that regard, service treatment records show that there were no notations of a gastroesophageal condition in service or symptoms thereof, let alone a diagnosis or use of medication. More persuasively, the service separation examination found a normal abdomen and viscera. Additionally, neither VA examination reports nor VA treatment records show the Veteran reporting that he was diagnosed with GERD or a substantially similar condition during military service. Indeed, at the October 2019 VA examination, the Veteran specifically reported that his intermittent acid reflux "started in 2000." Furthermore, a June 2001 VA gastroenterology consult note showed the Veteran reported "on and off" heartburn for more than 7 years. While, because of the "more than" language, this statement could conceivably be construed as meaning the Veteran had heartburn on and off beginning in service or near separation from service, nonetheless, the Board finds such an interpretation to be unreasonable. Such an interpretation would mean extending the roughly 7 year figure the Veteran reported by 24 more years. This is more than 4 times what the Veteran reported. It makes much more sense to construe the "more than 7 years" to mean a few or so more years than 7, but not 24 more years. It is reasonable to conclude that if the Veteran had been experiencing symptoms for more than two decades, he would have reported it more accurately when being asked by a gastroenterologist at a consult specifically for heartburn. The Federal Circuit has held, in the context of reviewing a Court of Federal Claims decision denying compensation under the Vaccine Act, that "[m]edical records, in general, warrant consideration as trustworthy evidence. The records contain information supplied to or by health professionals to facilitate diagnosis and treatment of medical conditions. With proper treatment hanging in the balance, accuracy has an extra premium. These records are also generally contemporaneous to medical events." Cucuras v. Secretary of Health & Human Servs., 993 F.2d 1525, 1528 (Fed. Cir. 1993). While this decision is not binding on the Board, the same logic applies here. The Veteran sought treatment for heartburn from a gastroenterologist and with "proper treatment hanging in the balance, accuracy has an extra premium." The June 2001 record is highly probative and supports a finding that GERD did not begin until years after service, and that there has not been continuity of symptoms since service. The June 2001 gastroenterology note also contradicts the December 2016 private medical examiner's statement as to onset and continuation. Finally, the diagnosis of GERD was not made until at least April 2007, despite the highly probative EGD procedure results showing only gastritis. This renders the December 2016 private examiner report's conclusory statements as to onset and diagnosis in service highly unreliable. The December 2019 VA medical opinion concluded that it was less likely as not that the Veteran's GERD was related to service because of absence of in-service symptoms during service and at separation. As noted above, the Veteran himself reported to the examiner that his symptoms began in 2000. Additionally, the VA claims file, which was reviewed by the examiner, does not support a link to service. As noted above, the December 2016 private opinion is not entitled to probative weight. The Veteran has not directly stated that his esophageal symptoms began in service and continued since service. The Board could infer from the December 2016 private medical report that the Veteran reported GERD symptoms in service. However, the December 2016 private medical report is lacking in credibility as discussed above that the Board does not make such an inference. Thus, the more credible lay reports do not indicate symptoms began in or near service. As discussed above, the most credible report of onset is at the June 2001 gastroenterology consult because the Veteran was being treated for the disability on appeal by a specialist physician and had great incentive to report his symptoms as accurately as he could. Consequently, an in-service incurrence has not been established. The preponderance of the probative evidence of record weighs against the claim of service connection for gastroesophageal reflux disease (GERD) and Barrett's Esophagus. The benefit of the doubt doctrine is not applicable where, as here, there is not an approximate balance of positive and negative evidence. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Alemany v. Brown, 9 Vet. App. 518 (1996). D. Martz Ames Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Rocktashel, 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.