Citation Nr: 21075324 Decision Date: 12/20/21 Archive Date: 12/20/21 DOCKET NO. 08-23 238A DATE: December 20, 2021 ORDER Service connection for hiatal hernia, to include as secondary to thyroid cancer, is denied. Service connection for gastroesophageal reflux disease (GERD) with erosive esophagitis, to include as secondary to thyroid cancer, is denied. REMANDED Entitlement to a rating in excess of 10 percent for thyroid cancer residuals from August 1, 2007 is remanded. Entitlement to special monthly compensation (SMC) based on the need for aid and attendance is remanded. FINDINGS OF FACT 1. The evidence weighs against a finding that the Veteran's hiatal hernia was incurred in service or is otherwise related to an in-service event, injury, or disease; or, that the Veteran's disability was proximately caused or aggravated beyond its natural progression by a service-connected disability. 2. The evidence weighs against a finding that the Veteran's hiatal hernia was incurred in service or is otherwise related to an in-service event, injury, or disease; or, that the Veteran's disability was proximately caused or aggravated beyond its natural progression by a service-connected disability. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for hiatal hernia, to include as secondary to thyroid cancer, are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310(a), 3.310(b). 2. The criteria for entitlement to service connection for gastroesophageal reflux disease (GERD) with erosive esophagitis, to include as secondary to thyroid cancer, are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310(a), 3.310(b). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1980 to November 2001. The case was previously before the Board in October 2011 and October 2018 when, in pertinent part, the issue of entitlement to an increased rating for thyroid cancer residuals was remanded for further development. In April 2011, the Veteran presented testimony at a hearing before another Veterans Law Judge (VLJ) on the issue of entitlement to an increased rating for thyroid cancer. In October 2016, the Veteran and her attorney were notified that the VLJ who held the hearing was no longer employed by the Board. In November 2016, the Veteran's attorney declined an additional Board hearing. In February 2020, an additional hearing was held before the undersigned for the issues of entitlement to service connection for GERD with erosive esophagitis, hiatal hernia, and esophagus stricture. A transcript of the hearing is in the record. In September 2020, the Board remanded the issues for further development. In a June 2021 rating decision, the RO granted service connection for esophageal stricture. As such, the matter previously on appeal seeking service connection for esophageal stricture has been resolved, and will not be addressed further in this decision. Service Connection The Veteran contends that she is entitled to service connection for hiatal hernia and GERD as secondary to her service-connected thyroid cancer. Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303. Establishing service connection requires evidence of: (1) a current disability; (2) a disease, injury, or event in service; and (3) a causal link (nexus) between the claimed disability and the disease, injury, or event in service and the present disability. See Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Alternatively, service connection may be granted on a secondary basis for a disability which is proximately due to or the result of a service-connected disease or injury. See 38 C.F.R. § 3.310. Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that it was either caused or aggravated by a service-connected disability. See 38 C.F.R. § 3.310(a), (b); Allen v. Brown, 7 Vet. App. 439, 448-49 (1995) (en banc). VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). In this case, in January 2014, VA obtained a medical opinion in which the clinician opined that the Veteran's GERD was less likely than not caused by her service-connected thyroid cancer therapy. The clinician explained that the mechanism of reflux is located in the distal esophagus and the gastroesophageal junction and that there was no evidence observed in the medical literature that GERD results from radiation treatments to the laryngeal region of the throat. The examiner also indicated that the most likely cause of the GERD condition is the Veteran's hiatal hernia. As the rationale reflects thorough consideration of the medical literature and the nature of the Veteran's condition, the Board assigns a moderate degree of probative value to this opinion regarding whether the Veteran's service-connected thyroid cancer therapy caused GERD. In March 2014, VA obtained a medical opinion in which the clinician opined that the Veteran's hiatal hernia is less likely than not caused or aggravated by the service-connected thyroid cancer. The clinician stated that hiatal hernia can happen in people of any age and that many otherwise healthy people over 50 have a small one. He noted that it is believed that hiatal hernias occur due to the repetitive stress of swallowing as well as abdominal straining and episodes of vomiting. He noted that it is a plausible target of age-related degeneration. He noted that other causes include an injury to the area, being born with an unusually large hiatus with the risk factors being age 50 and over and obesity. He noted that there has been no scientific information presented showing that NSAIDs resulted in the development of a hiatal hernia. The examiner noted no reports of anemia, weight loss, dysphagia, vomiting, hematemesis, melena, or surgical scars. As the rationale reflects thorough consideration of the medical literature and the nature of the Veteran's condition, the Board assigns a high degree of probative value to this opinion regarding whether the Veteran's service-connected thyroid cancer therapy caused or aggravated the hiatal hernia. During the February 2020 hearing, the Veteran stated the irritation in her throat worsened because of the radiation and that the GERD caused additional damage in her throat. She stated that she was told by Dr. G.K. that there was most likely a connection. The Board finds no reason to doubt the credibility or sincerity of the Veteran's statement. However, the Board finds that the Veteran's account of what a medical professional purportedly said, filtered as it was through a lay person's sensibilities, is simply too attenuated and inherently unreliable to hold any probative value. The Board is not able to evaluate the reasoning of the doctor's conclusion based on this lay report alone and therefore cannot weigh the value of such an opinion. The Veteran's attorney also discussed a recent study in which he said that there was shown to be some link between hypothyroidism and GERD. However, due to the complexity of the Veteran's condition and medical history, the interpretation and application of medical literature in this case requires the expertise of a medical professional who has the specialized education, training, and experience. 38 C.F.R. § 3.159(a)(2). As such, the Board does not assign significant probative weight to these lay statements. In April 2021, the Veteran was provided with a VA examination in which the examiner opined that it is less likely than not that the Veteran's hiatal hernia or GERD was proximately due to or aggravated by her service-connected thyroid cancer. The examiner discussed medical literature addressing the cause of hiatal hernias and noted that doctors do not know why most hiatal hernias happen but that causes might include being born with a larger hiatal opening than usual, injury to the area, changes in the diaphragm as you age, a rise in pressure in the stomach such as from pregnancy, obesity, coughing, lifting something heavy, or straining on the toilet. She noted that hiatal hernias happen more often in women, people who are overweight, and people older than 50 years old. In a separate examination report, the clinician explained that it is most likely that the Veteran's GERD is the result of her hiatal hernia which causes refluxing of the stomach acid contents into the esophagus. As this opinion reflects thorough consideration of the medical literature and the nature of the Veteran's condition, the Board assigns a high degree of probative value to this opinion. As the medical opinions that have been obtained are all entitled to a moderate to high degree of probative value and all weigh against the Veteran's claims, the Board finds that the preponderance of the evidence is against the Veteran's claims. The Board has considered the benefit-of-the-doubt rule; however, since a preponderance of the evidence is against the Veteran's claim, the benefit-of-the-doubt rule is not for application. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Therefore, the claims seeking service connection for GERD and hiatal hernia as secondary to service-connected thyroid cancer residuals are denied. REASONS FOR REMAND 1. Entitlement to a rating in excess of 10 percent for thyroid cancer residuals from August 1, 2007 is remanded. The Veteran contends that she is entitled to a rating in excess of 10 percent for thyroid cancer residuals from August 1, 2007. However, due to developments in this case during the pendency of the appeal, the Board finds that further development is necessary prior to adjudication. In correspondence received in December 2020, the Veteran stated that on November 11, 2020, she went to the emergency room because she could not breathe. She stated that the medical providers discovered a visible tumor in the throat that was obstructing her airway and an additional sub-mucosal tumor of approximately 3 centimeters pushing up behind her ear. Pursuant to Diagnostic Code 7914, a 100 percent disability rating is warranted when the evidence indicates malignant neoplasms of any specified part of the endocrine system. 38 C.F.R. § 4.119, DC 7914. DC 7914 also indicates that thyroid cancer should be rated on residuals if there is no local recurrence or metastasis. Thus, a VA opinion must be obtained to determine whether this recent symptomatology indicates the presence of malignant neoplasms of the thyroid, local recurrence, or metastasis. The record also reflects the Veteran receives VA treatment; thus, updated VA treatment records should be associated with the claims file. 2. Entitlement to special monthly compensation (SMC) based on the need for aid and attendance is remanded. VA received correspondence from the Veteran in December 2020 in which she stated that she now requires the assistance of a home healthcare nurse and her husband to care for the tracheotomy tube inserted in her throat in November 2020 and will continue to need this assistance going forward. She requested a reevaluation of her thyroid cancer residuals and requested entitlement to SMC. SMC is payable under 38 U.S.C. § 1114(l) if, as the result of service-connected disability, the Veteran is permanently bedridden or is so helpless as to be in need of regular aid and attendance of another person. 38 U.S.C. § 1114(l); 38 C.F.R. § 3.350(b). The question of whether the Veteran is entitled to SMC is inextricably intertwined with the matter seeking an increased rating for thyroid cancer residuals, including the question of whether the tumor discovered in November 2020 is a malignant neoplasm of the thyroid, local recurrence, or metastasis of her thyroid cancer. Therefore, adjudication of the claim must be deferred until the development requested above is completed and the RO must adjudicate entitlement to SMC based on the need for aid and attendance in the first instance. The matters are REMANDED for the following action: 1. Obtain updated VA treatment records. 2. After completing the development in item 1, schedule the Veteran for an examination (or telehealth interview, if an in-person examination is not feasible) of the current severity of her thyroid cancer residuals. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria. In doing so, the examiner must address whether the November 2020 discovery of a tumor indicates the presence of malignant neoplasms of the endocrine system, a local recurrence of thyroid cancer, or a metastasis of thyroid cancer. The clinician must indicate whether there was any further need for information or testing necessary to make a determination. 3. Thereafter, readjudicate the claims on appeal, to include initial adjudication of the Veteran's SMC claim. If any benefit sought on appeal is not granted, furnish the Veteran and her attorney with a supplemental statement of the case and afford them an opportunity to respond before the file is returned to the Board for appellate consideration. M. SORISIO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. H. White, 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.