Citation Nr: 21076181 Decision Date: 12/22/21 Archive Date: 12/22/21 DOCKET NO. 16-18 598 DATE: December 22, 2021 ORDER Entitlement to service connection for a stomach condition, to include gastroesophageal reflux disorder (GERD) is denied. Entitlement to service connection for tension and/or migraine headaches is denied. FINDINGS OF FACT 1. The preponderance of the evidence is against a finding that a stomach condition, to include gastroesophageal reflux disorder (GERD) began during active service, or is otherwise related to an in-service injury or disease. 2. The preponderance of the evidence is against a finding that tension and/or migraine headaches began during active service, or is otherwise related to an in-service injury or disease. CONCLUSIONS OF LAW 1. The criteria for service connection for a stomach condition, to include gastroesophageal reflux disorder (GERD) are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for tension and/or migraine headaches 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 August 1965 to February 1966. These matters come before the Board of Veterans' Appeals (Board) on appeal from a July 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In July 2020, the Veteran was afforded a Board hearing before the undersigned Veterans Law Judge. The transcript is of record. In October 2020 and May 2021, the Board remanded the issues on appeal for further development. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may also be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). To establish service connection for the claimed disorder, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical, or in certain circumstances, lay evidence of a nexus between the claimed in-service disease or injury and the current disability. 38 C.F.R. § 3.303; Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). The Board must analyze the credibility and probative value of the evidence, account for the evidence that it finds persuasive or unpersuasive and provide the reasons for its rejection of any material evidence favorable to the claimant. Kahana v. Shinseki, 24 Vet. App. 428, 433 (2011). This includes weighing the credibility and probative value of lay evidence against the remaining evidence of record. See King v. Shinseki, 700 F.3d 1339 (Fed. Cir. 2012); Kahana, 24 Vet. App. at 433-34. 1. Entitlement to service connection for a stomach condition, to include gastroesophageal reflux disorder (GERD) The Veteran contends that his stomach condition had its onset in service. The Veteran testified that he did not have a preexisting stomach condition. The Veteran stated that when he was overseas in Vietnam, he would constantly have an upset stomach. The Veteran expressed that he would go to the ship's doctor and that he would be prescribed TUMS or a bottle of Rolaids. The Veteran's wife testified that the Veteran never had any discomfort with regards to stomach issues or even acid reflux prior to service and that the Veteran has had continuous stomach issues since service. The Veteran submitted buddy statements from his brother and mother indicating that the Veteran has had stomach pains continuously since service. The Veteran's service treatment records are absent of any diagnosis of a stomach condition to include GERD in service. The Veteran was afforded a VA examination in January 2021. The Veteran was diagnosed with GERD. The examiner opined that the Veteran's GERD was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner stated that the Veteran has never had a diagnosis of stomach ulcers and that there was not a diagnosis of GERD until August 2009. The examiner noted that he reviewed the Board's remand, the Veteran's medical records, and the Veteran's buddy statements. The examiner acknowledged the Veteran's brother's and mother's statements indicating that the Veteran had headaches and stomach pains since service. However, the examiner found that the Veteran's brother and mother were not competent to diagnose GERD, but they are competent to report the Veteran's complaints of stomach pains and headaches since service. The examiner noted that during the interview, the Veteran indicated that he would get a sour stomach in service, and he would take antacids and it would go away. The examiner stated that the Veteran's statements indicate having brief and occasional bouts of a "sour stomach" related to stress for his brief period of service. The examiner expressed that there is no medical evidence that the Veteran developed GERD due to nerves or having a sour stomach. The examiner stated that GERD is a medical condition which occurs when stomach acid flows back into the tube connecting your mouth and stomach. The examiner expressed that it's cause is usually anatomic, either by a hiatal hernia or by a weakness in the lower esophageal sphincter which becomes too relaxed and allows food and acid to backtrack up into the esophagus. The examiner noted that symptoms include trouble swallowing, chest, pain, indigestion, regurgitation, cough, nausea, loss of appetite, weight loss, or bleeding, however, none of those symptoms were present during the Veteran's period of service. In May 2021, the Board remanded for an addendum opinion. The Veteran was afforded an addendum opinion in September 2021. The examiner noted that he reviewed the entire claims file. The examiner provided his background and indicated that he was in the Army for two years and retired as an Army Surgeon. The examiner noted that from 2002 to 2006, he was the Chief of the Denver Military Entrance Processing Station and thus was an expert on military entrance processing and entrance requirements. The examiner stated that he was also an expert on the day in and day out workings of military medicine to include enlisted duty obligations, sick call, profiles, and record keeping. The examiner noted that the Veteran contends that his stomach issues and/or gastroesophageal reflux (GERD) plus his chronic headaches had an active-duty onset and progressively worsened to date. The examiner expressed that there is absolutely no objective service treatment medical data of record to support any contention that the Veteran had an active-duty onset of stomach issues/GERD or chronic headaches. The examiner expressed that the earliest documentation of the Veteran's stomach issues/GERD and migraine headaches is contained in the June 2007, Dr. Michelson's multispecialty care note. The examiner noted that all the other VBMS contained treatment records, from 2006 to 2021 simply confirm ongoing diagnoses and treatments for stomach issues/GERD and migraine headaches. The examiner expressed that the previous VA examiner opined negativity on the Veteran's stomach issue/GERD and migraine headaches claim based largely on the absence of any objective medical data to support the Veteran's claim of an active-duty onset. The examiner noted that the January 2021 VA examiner pointed out that the lay Veteran and buddy statements in support of claim could well be subjectively self-serving and therefore he clearly gave them little weight. The examiner stated that the two buddy statements only confirm long-standing post-service stomach issues and chronic headaches with no clear onset date but specifically no declaration of an active-duty onset. The examiner found the Veteran's spouse's testimony that the Veteran did not have stomach issues and chronic headaches prior to service as immaterial based on the fact that the Veteran's spouse was young and not many fifteen-year-old teen girls get into the intimate medical histories of a teen boy. Thus, the examiner opined that the statements in support of claims do not confirm any active-duty onset of stomach issues /GERD and/or chronic headaches but that they competently confirm longstanding post-service stomach issues/GERD and chronic headaches. Thus, the examiner stated that without supporting medical or lay objective data, the critical issue is whether the Veteran's statement in support of claims and Hearing testimony are credible and the examiner found that it was not credible. The examiner noted that on the August 1965 entrance examination, the Veteran provided multiple patently false statements. The examiner noted that the Veteran's report of medical history self-reported that he had never had any (potentially disqualifying) bed-wetting problem or blood in the urine, however in December 1965, the examiner noted that the Veteran's mental health service treatment record documented that the Veteran suffered from enuresis through twelve years of age. In addition, the examiner noted that a November 1965 service treatment record documented a rodeo accident, at fifteen years of age, with a lacerated kidney injury, with hematuria, that required medical evaluation. Furthermore, the examiner noted that three months in service, the Veteran regretted his decision to serve, and per a November 1965 service treatment record, started to complain of headaches, back pain, and weakness specifically to get out of the service. The examiner noted that the December 1965 service treatment record documented five enuresis episodes over the past two weeks, which is a real problem shipboard when more than one sailor may share the same "rack". Thus, the examiner noted that the Veteran was then rapidly administratively discharged for unsuitability to service. The examiner opined that it is irrefutable that the Veteran medically provided false medical information to both gain and then leave military service, and thus the examiner found the Veteran's lay testimony to be not credible, based on no objective treating medical records for stomach issues/GERD and chronic headaches until 2006. After carefully reviewing the record, the Board finds that the preponderance of the evidence is against the Veteran's claim. As noted above, there is no evidence that the Veteran developed a stomach issue/GERD in active service, nor is there any evidence that the Veteran's stomach condition was incurred in service. The Board finds the VA examiners' medical opinions highly probative to the issue of whether the Veteran has a stomach condition related to service. The examiner possesses the necessary education, training, and expertise to provide the requested opinions. Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). In addition, the September 2021 VA examiner is an expert on military entrance processing and entrance requirements and the day in and day out workings of military medicine to include enlisted duty obligations, sick call, profiles, and record keeping as he was the Chief of the Denver Military Entrance Processing Station. Significantly, the Veteran has not presented or identified any medical opinion that supports the claim for service connection. VA adjudicators are not free to ignore or disregard the medical conclusions of a VA physician, and are not permitted to substitute their own judgment on a medical matter. Colvin v. Derwinski, 1 Vet. App. 171 (1991); Willis v. Derwinski, 1 Vet. App. 66 (1991). In this regard, the Board acknowledges that the Veteran is competent to relate symptoms within the realm of his personal knowledge, just as he is competent to relate what he has been told by an examiner. Layno v. Brown, 6 Vet. App. 465, 469-70 (1994); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). However, the question of whether his stomach condition is related to his service is a complex medical question, not capable of lay observation. See Jandreau, 492 F.3d at 1376 (noting that lay witness capable of diagnosing dislocated shoulder); Barr v. Nicholson, 21 Vet. App. 308 -09 (2007) (finding that lay testimony is competent to establish the presence of varicose veins). The Board acknowledges that the Veteran reported that he has had continuous stomach issues since service, which the examiner took into consideration in his opinion. However, the evidence does not indicate that the Veteran has the appropriate training, experience, or expertise to provide a medical opinion concerning the etiology of his stomach condition, he is not competent to comment on its etiology. Given the above, the Board finds that the most probative evidence of record shows that the Veteran's stomach condition is not due to an incident during service and did not begin in service or manifest shortly thereafter. For these reasons, service connection must be denied. The Board has considered the applicability of the benefit-of-the-doubt doctrine; however, because the preponderance of the evidence is against the claims, that doctrine is not applicable. 38 U.S.C. § 5107. 2. Entitlement to service connection for tension and/or migraine headaches The Veteran contends that his headache condition had its onset in service. The Veteran and his wife testified that prior to entering service, the Veteran did not have headaches. The Veteran testified that his headaches have been continuous since his discharge from service. The Veteran submitted buddy statements from his mother and brother that indicated that the Veteran has had headaches since his military service. The Veteran's service treatment records show that the Veteran complained of headaches. A review of the Veteran's service treatment records show complaints of headaches in service. The Veteran was afforded a VA examination in January 2021. The Veteran was diagnosed with both migraines and tension headaches. The examiner opined that the Veteran's headaches were less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner noted that he reviewed the Board's remand, the Veteran's medical records, and the Veteran's buddy statements. The examiner acknowledged that the Veteran's service medical records showed that on November 24, 1965, the Veteran complained of headaches, back pain, and weakness. However, the examiner stated that subsequently, the Veteran admitted to having personal problems and was attempting to get out of the Navy. The examiner reported that during the current interview, the Veteran indicated that he would have headaches that would occur with tension and under stress. The examiner noted that the Veteran's separation examination was negative for mention of headaches. The examiner expressed that a review of the Veteran's medical records showed that his migraines did not develop until years after his period of service. Thus, the examiner concluded that there is no medical evidence that the Veteran had migraines during his period of service. The examiner acknowledged the Veteran's brother's and mother's statements indicating that the Veteran had headaches and stomach pains since service. However, the examiner found that the Veteran's brother and mother were not competent to diagnose migraine headaches. The examiner noted that the Veteran currently has occasional migraines, but mainly has tension headaches. The examiner stated that there are many causes of tension headache and they include stress, conflict, missed meals, clenched jaw, dehydration, overexertion, lack of sleep, holding different positions that strain the head or neck muscles, poor posture, and dysfunction of the TMJ. The examiner expressed that there is no objective evidence that the Veteran experienced migraine headaches during service. The examiner concluded that the Veteran's current headaches are related to short stressful events including finances and work and to normal life stress and worry. In May 2021, the Board remanded for an addendum opinion. The Veteran was afforded an addendum opinion in September 2021. The examiner noted that he reviewed the entire claims file. The examiner provided his background and indicated that he was in the Army for two years and retired as an Army Surgeon. The examiner noted that from 2002 to 2006, he was the Chief of the Denver Military Entrance Processing Station and thus was an expert on military entrance processing and entrance requirements. The examiner stated that he was also an expert on the day in and day out workings of military medicine to include enlisted duty obligations, sick call, profiles, and record keeping. The examiner noted that the Veteran contends that his chronic headaches had an active-duty onset and progressively worsened to date. The examiner expressed that there is absolutely no objective service treatment medical data of record to support any contention that the Veteran had an active-duty onset of chronic headaches. The examiner expressed that the earliest documentation of the Veteran's migraine headaches is contained in the June 2007, Dr. Michelson's multispecialty care note. The examiner noted that all the other VBMS contained treatment records, from 2006 to 2021 simply confirm ongoing diagnoses and treatments for migraine headaches. The examiner expressed that the previous VA examiner opined negativity on the Veteran's migraine headaches claim based largely on the absence of any objective medical data to support the Veteran's claim of an active-duty onset. The examiner noted that the January 2021 VA examiner pointed out that the lay Veteran and buddy statements in support of claim could well be subjectively self-serving and therefore he clearly gave them little weight. The examiner stated that the two buddy statements only confirm long-standing chronic headaches with no clear onset date but specifically no declaration of an active-duty onset. The examiner found the Veteran's spouse's testimony that the Veteran did not have chronic headaches prior to service as immaterial based on the fact that the Veteran's spouse was young and not many fifteen-year-old teen girls get into the intimate medical histories of a teen boy. Thus, the examiner opined that the statements in support of claims do not confirm any active-duty onset of chronic headaches but that they competently confirm longstanding post-service chronic headaches. Thus, the examiner stated that without supporting medical or lay objective data, the critical issue is whether the Veteran's statement in support of claims and Hearing testimony are credible and the examiner found that it was not credible. The examiner noted that on the August 1965 entrance examination, the Veteran provided multiple patently false statements. The examiner noted that the Veteran's report of medical history self-reported that he had never had any (potentially disqualifying) bed-wetting problem or blood in the urine, however in December 1965, the examiner noted that the Veteran's mental health service treatment record documented that the Veteran suffered from enuresis through twelve years of age. In addition, the examiner noted that a November 1965 service treatment record documented a rodeo accident, at fifteen years of age, with a lacerated kidney injury, with hematuria, that required medical evaluation. Furthermore, the examiner noted that three months in service, the Veteran regretted his decision to serve, and per a November 1965 service treatment record, started to complain of headaches, back pain, and weakness specifically to get out of the service. The examiner noted that the December 1965 service treatment record documented five enuresis episodes over the past two weeks, which is a real problem shipboard when more than one sailor may share the same "rack". Thus, the examiner noted that the Veteran was then rapidly administratively discharged for unsuitability to service. The examiner opined that it is irrefutable that the Veteran medically provided false medical information to both gain and then leave military service, and thus the examiner found the Veteran's lay testimony to be not credible, based on no objective treating medical records for stomach issues/GERD and chronic headaches until 2006. The examiner also noted that the Veteran reported weekly episodes of presumed severe migraine headaches that would last six to eight hours and require going to his "rack" so he could be in a dark place and rest until his migraine headaches resolved. The examiner found that statement to be not credible and noted that no sailor cannot just leave shipboard duty station and just "rack out" at his whim. The examiner stated that if this periodic "racking out" was ship doctor ordered, then it would be documented in the service treatment record. The examiner noted that no military provider can pull a service member away from their military duties without documentation. The examiner indicated that he fully supported the January 2021 VA opinion. The examiner reiterated that the service treatment records are silent for any chronic headaches whatsoever, to include no migraine headaches and no tension headaches. Thus, the examiner opined that the Veteran's current tension headaches have a post-service onset and not connected to service in any way. After carefully reviewing the record, the Board finds that the preponderance of the evidence is against the Veteran's claim. The Board finds the VA examiners' medical opinions highly probative to the issue of whether the Veteran has tension and/or migraine headaches related to service. The examiner possesses the necessary education, training, and expertise to provide the requested opinions. Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). In addition, the September 2021 VA examiner is an expert on military entrance processing and entrance requirements and the day in and day out workings of military medicine to include enlisted duty obligations, sick call, profiles, and record keeping as he was the Chief of the Denver Military Entrance Processing Station. Significantly, the Veteran has not presented or identified any medical opinion that supports the claim for service connection. VA adjudicators are not free to ignore or disregard the medical conclusions of a VA physician, and are not permitted to substitute their own judgment on a medical matter. Colvin v. Derwinski, 1 Vet. App. 171 (1991); Willis v. Derwinski, 1 Vet. App. 66 (1991). In this regard, the Board acknowledges that the Veteran is competent to relate symptoms within the realm of his personal knowledge, just as he is competent to relate what he has been told by an examiner. Layno v. Brown, 6 Vet. App. 465, 469-70 (1994); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). However, the question of whether his tension and/or migraine headaches is related to his service is a complex medical question, not capable of lay observation. See Jandreau, 492 F.3d at 1376 (noting that lay witness capable of diagnosing dislocated shoulder); Barr v. Nicholson, 21 Vet. App. 308 -09 (2007) (finding that lay testimony is competent to establish the presence of varicose veins). The Board acknowledges that the Veteran reported that he has had continuous since service, which the examiner also considered in his opinion. However, because the evidence does not indicate that the Veteran has the appropriate training, experience, or expertise to provide a medical opinion concerning the etiology of his tension and/or migraine headaches, he is not competent to comment on its etiology. Given the above, the Board finds that the most probative evidence of record shows that the Veteran's tension and/or migraine headaches is not due to an incident during service and did not begin in service or manifest shortly thereafter. For these reasons, service connection must be denied. The Board has considered the applicability of the benefit-of-the-doubt doctrine; however, because the preponderance of the evidence is against the claims, that doctrine is not applicable. 38 U.S.C. § 5107. LESLEY A. REIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M.D. 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.