Citation Nr: 21074804 Decision Date: 12/16/21 Archive Date: 12/16/21 DOCKET NO. 18-28 915 DATE: December 16, 2021 ORDER Entitlement to service connection for gastroesophageal reflux disease (GERD) is granted. FINDING OF FACT Resolving all doubt in favor of the Veteran, the Veteran's GERD is attributable to active service. CONCLUSION OF LAW The criteria for entitlement to service connection for GERD have been met. 38 U.S.C. §§ 1110, 5107 (2018); 38 C.F.R. §§ 3.102, 3.303 (2021). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 1964 to January 1966, then served in the United States Army Reserve from January 1966 to January 1970. This matter came before the Board of Veterans Appeals (Board) on appeal from an August 2017 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). October 2019 and May 2021 Board decisions remanded the issue on appeal for further development. Entitlement to service connection for GERD The Veteran contends that his GERD began during service and has continued since service. Upon review of the evidence of record, the Board concludes that the Veteran's GERD was incurred during active service and that service connection is therefore warranted. Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disability or injury; and (3) a nexus between the claimed in-service disability or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303(a). VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. 38 U.S.C. § 1154(a). Lay testimony is competent to prove that a claimant exhibited certain lay-observable symptoms and the time that those symptoms appeared. Layno v. Brown, 6 Vet. App. 465, 470 (1994). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). For benefits to be denied, "the preponderance of the evidence must be against the claim." Id. at 54. The evidence of record shows that the Veteran suffered from gastrointestinal issues during service. Specifically, January 1966 service treatment records show stomach or intestinal trouble. An August 2021 VA examination noted a diagnosis of GERD and listed the date of diagnosis as 1964. The examiner noted the Veteran's reports that while in service he had suffered from intestinal conditions and that after discharge from service his condition persisted. The examiner also noted that the Veteran continuously takes Pepcid for his condition. The examiner opined, however, that it was less likely than not that the Veteran's GERD was incurred in or caused by service because there was no evidence of the disability in his service treatment records. However, an opinion based on the absence of a disability in service, as this one, is inadequate. See Hensley v. Brown, 5 Vet. App. 155, 159 (1993). Therefore, the opinion is inadequate and the Board places no probative weight on the opinion. However, in regard to the diagnosis of GERD noted by the August 2021 examiner, the Board finds the examination and diagnosis rendered adequate for appellate review. There is no evidence that the examiner was not competent or credible, and as the report is based on the Veteran's statements, in-person examination and the examiner's observations, the Board finds it is entitled to significant probative weight. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 30205 (2008). Upon consideration of the evidence above, the Board finds that the competent evidence of record indicates that the Veteran has a current diagnosis of GERD that is attributable to his active service. Indeed, as noted STRs document stomach or intestinal trouble. The August 2021 VA examiner diagnosed the Veteran with GERD, noting that the Veteran continuously treats his condition with Pepcid an assertion which is supported by the VA treatment records. Moreover and significantly, the August 2021 VA examiner listed a diagnosis date of 1964, the year the Veteran began his military service. The Board acknowledges the negative etiology opinion, however, as noted above, the opinion has been deemed inadequate. (Continued on next page) Therefore, the Board is left with evidence of a current disability of GERD and a noted diagnosis date of 1964 which is when the Veteran was in service. As such, service connection for GERD is warranted. 38 C.F.R. § 3.303(d). E. I. VELEZ Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Y. Akkad 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.