Citation Nr: 21007387 Decision Date: 02/09/21 Archive Date: 02/09/21 DOCKET NO. 17-31 848 DATE: February 9, 2021 ORDER Entitlement to service connection for gastroesophageal reflux disease (GERD) is denied. Entitlement to service connection for Barrett's esophagus is denied. FINDINGS OF FACT 1. GERD is not shown to be causally related to an in-service injury or disease or to have been caused or aggravated by another service-connected disability. 2. Barrett's esophagus is not shown to be causally related to an in-service injury or disease or to have been caused or aggravated by another service-connected disability. CONCLUSIONS OF LAW 1. The criteria for service connection for GERD have not been met. 38 U.S.C. §§ 1101, 1110, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 2. The criteria for service connection for Barrett’s esophagus have not been met. 38 U.S.C. §§ 1101, 1110, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1960 to July 1985. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a rating decision issued in September 2013 by a Department of Veterans Affairs (VA) Regional Office (RO). The Board most recently remanded the issues on appeal for additional development in October 2020, and the requested addendum opinion was obtained in November 2020. As such, the directives have been substantially complied with and the matter is again properly before the Board. D’Aries v. Peake, 22 Vet. App. 97, 105 (2008); Stegall v. West, 11 Vet. App. 268, 271 (1998). The Veteran testified at a hearing before the undersigned Veterans Law Judge (VLJ) in October 2018. A transcript of the hearing is of record. Service Connection Generally, to establish service connection a Veteran must show: “(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service.” Davidson v. Shinseki, 581 F.3d 1313, 1315–16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). Service connection may be granted on a secondary basis for a disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310. The evidence must show: (1) that a current disability exists; and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated (worsened) by a service-connected disability. Id. 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 evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Lay evidence cannot be determined to be not credible merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1336–37 (Fed. Cir. 2006). 1. Entitlement to service connection for GERD and Barrett’s esophagus. As an initial matter, as the facts and analysis for the two claims for service connection currently on appeal are substantially the same, the Board will address them together for the purposes of brevity. Concerning current disabilities, private treatment records reflect a diagnosis of GERD via endoscopy in February 2008, as well as a note to follow up on possible Barrett’s esophagus. A diagnosis of Barrett’s esophagus based on an endoscopy was then later rendered in August 2009. Therefore, current disabilities have been shown. With respect to an in-service injury or disease, the Veteran’s service treatment records do not reflect that the Veteran was at any point diagnosed with or treated for GERD or Barrett’s esophagus. However, the Veteran has submitted statements from his children asserting that they witnessed the Veteran taking antacids during service. Further, the Veteran has asserted that both disabilities are alternatively due to various exposures, including herbicide agents, chemicals and asbestos. The Board notes that for at least a potion of his period of service the Veteran served as an engineman, which is consistent with probable asbestos exposure as well as exposure to chemicals generally. Further, the Veteran is presumed to have been exposed to herbicide agents based on his qualifying service in Vietnam. 38 C.F.R. § 3.307(a)(6)(iii). As such, in-service injuries have been shown. However, the preponderance of the evidence is against a finding that the Veteran’s GERD or Barrett’s esophagus are causally related to his active service. While the Veteran has asserted that both disabilities are causally related to his service, including the various exposures noted above, he is not competent to provide such an opinion as to do so requires medical training and expertise beyond that which may be expected of a lay person. Jandreau, 492 F.3d 1372; Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). As such, the Veteran’s assertions of a direct causal relationship between the diagnoses and his service are entitled to no probative weight. The Board notes that the Veteran has further stated that his GERD, and gastrointestinal symptoms generally, had its onset in-service and has persisted since. While a lay person is competent to report symptoms such as indigestion, the Veteran’s statements are not credible. In determining the weight to be assigned to evidence, credibility can be affected by inconsistent statements, internal inconsistency of statements, inconsistency with other evidence of record, facial implausibility, bad character, interest, bias, self-interest, malingering, desire for monetary gain, and witness demeanor. Caluza v. Brown, 7 Vet. App. 498, 511–12 (1995), aff’d per curiam, 78 F.3d. 604 (Fed. Cir. 1996). In this case, the Veteran attempted to submit falsified service treatment records in order to substantiate claims for disability compensation. Specifically, in November 2013 the Veteran submitted a copy of his May 1985 separation report of medical history on which the Veteran checked additional boxes, adding check marks in the “Don’t Know” boxes for “shortness of breath,” “arthritis, rheumatism or bursitis” and “recurrent back pain,” a check mark in the “Yes” box for “swollen or painful joints,” and a check mark in the “No” box for “VD – syphilis, gonorrhea, etc.” Thus, the document was falsified to indicate that the Veteran either did have or may have had additional disabilities at separation. Further, on a submitted copy of his separation examination report he added the handwritten word “hydrin,” a blood pressure medication the Veteran testified he took during service, next to the original notation that a serial blood pressure check had been okay, and thereby attempted to establish that he had heart difficulties at separation. The Board notes that these falsifications were submitted in support of other claims for disability benefits that have since been denied. However, the displayed willingness to submit false evidence to order to be awarded disability compensation renders the Veteran’s lay assertions offered in connection with any claim for benefits not credible. In light of the Veteran’s attempt to submit fraudulent evidence in support of his claim, the Board finds that the Veteran’s statements concerning the onset and persistence of his disabilities to be not credible and of no probative weight. Id. VA obtained an opinion concerning the etiology of the claimed GERD and Barrett’s esophagus in August 2013. The examiner stated that it was less likely than not that the Veteran’s GERD or Barrett’s esophagus was causally related to his service, as there was no evidence in the record that the Veteran was at any point treated for or diagnosed with either disability during service. However, subsequent to that opinion the Veteran submitted lay statements from his children which asserted that he took antacids during service. In light of the lay statements, VA obtained an addendum opinion in October 2019. The examiner stated that it was less likely than not that the GERD or Barrett’s esophagus was causally related to the Veteran’s service, to include exposure to herbicide agents, asbestos, radiation or chemicals generally. The examiner first noted that service treatment records were silent for any treatment for or diagnosis of either disability, nor was there evidence of treatment for either disability immediately following service. The examiner noted the reports of antacid use in service, but stated that antacid use, in and of itself, was not sufficient to establish the presence of either disability. The examiner explained that antacids are commonly also used to treat other disabilities as well, such as ulcers and dyspepsia, and thus their use does not affirmatively establish the presence of GERD or Barrett’s esophagus. The examiner continued on to state that a review of up-to-date and other medical literature did not show that general chemical exposure, radiation exposure, or asbestos exposure are recognized risk factors for the development of either GERD or Barrett’s esophagus. Lastly, the examiner stated that a review of the National Academies of Science report concerning herbicide agents did not indicate that herbicide agents are a risk factor for the development of GERD or Barrett’s esophagus. There is no evidence that the October 2019 examiner was not competent or credible, and further the opinion addressed the lay statements of record and was supported by a well-reasoned rationale that cited to the medical evidence associated with the file and current medical research and literature. As such, the Board finds that the opinion is entitled to significant probative weight as to the presence of a nexus. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Treatment records are silent for any opinions linking the Veteran’s GERD or Barrett’s esophagus directly to his period of service, with the first treatment for either disability occurring in February 2008, approximately 23 years after the Veteran’s separation from service. The Board notes that one of the Veteran’s children, M.S, stated that she was a medical assistant, and that in her opinion the Veteran’s use of antacids in service established that GERD had its onset in service. However, assuming for the purposes of argument that M.S. does have medical training and therefore is capable of providing a competent medical opinion, no rationale was provided supporting the conclusion that antacid use is sufficient to establish the presence of GERD. As noted by the October 2019 examiner, antacids may be used for a wide variety of reasons and are not clear indicators of the presence of GERD. As there is no explanation of why the use of antacids establishes the presence of GERD, the statement from M.S. is entitled to no probative weight. Id. Based on the foregoing, the preponderance of the evidence is against a finding that the Veteran’s GERD or Barrett’s esophagus are causally related to his period of service, to include the various asserted exposures. The Veteran is not competent to stated that there is a nexus between the disabilities and service, and his statements concerning the onset of symptoms in service and their persistence since are not credible. Caluza, 7 Vet. App. at 511–12. While the Veteran’s child M.S. asserted that the GERD had its onset in service based on the Veteran’s antacid use, no supporting rationale for this opinion was provided. Nieves-Rodriguez, 22 Vet. App. 295. Conversely, the October 2019 VA examiner stated that the GERD and Barrett’s esophagus were less likely than not due to service, based on a review of current medical research concerning risk factors for both disabilities and that the use of antacids does not affirmatively establish the presence of either disability, based on the fact that they may be used to treat a variety of symptoms or digestive issues. As the preponderance of the evidence is against the presence of a nexus, service connection for GERD and Barrett’s esophagus is not warranted on a direct basis. 38 C.F.R. § 3.102, 3.303. In addition to direct service connection, the Veteran has alleged that his GERD and Barrett’s esophagus are secondary to other disabilities. Beginning with GERD, in the most recent appellate brief the Veteran’s representative asserted that the Veteran’s GERD was either caused or aggravated by his service-connected heart disability. In support of this assertion the representative cited to two articles which discussed studies conducted on whether there is a medical relationship between GERD and heart disabilities. However, the subject of both articles was the question of whether individuals with GERD were more likely to develop heart disabilities, and not that heart disabilities may result in or correlate with GERD, which is the inverse of the representative’s argument. As such, the articles in no way support the conclusion that heart disabilities may cause or aggravate GERD, and are thus not relevant. Further, neither article comes to a clear, concrete conclusion as to whether there is any relationship between heart disabilities and GERD, with both containing notes that further studies or research was required, nor did either article deal with facts similar to the current Veteran’s case. Wallin v. West, 11 Vet. App. 509, 514 (1998); Libertine v. Brown, 9 Vet. App. 521, 523 (1996). As such, the cited articles are entitled to no probative weight. Neither the representative nor the Veteran are competent to state that his GERD was caused or aggravated by his heart disability, nor is there any other evidence indicating that the GERD is secondary to the service-connected heart disability. Therefore, service connection for GERD as secondary to a heart disability is not warranted. 38 C.F.R. § 3.310. The Veteran’s representative also argued in August 2020 that the Veteran’s GERD was caused or aggravated by the use of aspirin and nonsteroidal anti-inflammatory drugs (“NSAIDS”) to treat the Veteran’s service connected disabilities. However, neither the representative nor the Veteran are competent to provide such an opinion, as to do so requires medical training and expertise. Jandreau, 492 F.3d 1372. Further, no competent evidence was provided to support the assertion that NSAID or aspirin use may cause or aggravate GERD, nor is there any medical evidence of record linking the Veteran’s GERD to NSAID use. Further, in a November 2020 opinion a VA examiner noted that based on a review of the medical evidence the Veteran was only taking NSAIDS and opioids for his low back and knee pain, neither of which are service-connected disabilities. There is no evidence that the examiner was either not competent or credible, and the examiner based his opinion on a complete review of the medical evidence of record. As such, the Board finds that each respective examination report is entitled to significant probative weight as to the question of secondary service connection. Nieves-Rodriguez, 22 Vet. App. 295. The November 2020 examiner’s opinion is supported by the Veteran’s July 2013 VA spine, knee and wrist examinations, during which the Veteran reported using opioids and NSAIDS for his back and knees but only topical treatment for his wrist. No other examination reports note the use of NSAIDS or aspirin for service-connected disabilities, nor do the Veteran’s treatment records reflect such use. As there is no competent and credible evidence showing that NSAID use may cause or aggravate GERD, or indeed that the Veteran uses NSAIDS for service-connected disabilities, secondary service connection for GERD is not warranted on this theory. Based on the above, the preponderance of the evidence is against a finding that the Veteran’s GERD was caused or aggravated by another service-connected disability, to include the use of NSAIDS, and therefore secondary service connection is not warranted. 38 C.F.R. § 3.102, 3.310. As to the Barrett’s esophagus, the Board notes that the evidence of record indicates that the disability is due to GERD. However, the Veteran is not service connected for GERD, and therefore service connection for Barrett’s esophagus as secondary to GERD is not possible. 38 C.F.R. § 3.310. There is no other competent and credible evidence indicating that the Barrett’s esophagus is causally related to a service-connected disability. As such, the preponderance of the evidence is against a finding that Barrett’s esophagus was caused or aggravated by a service-connected disability. 38 C.F.R. §§ 3.102, 3.310. The preponderance of the evidence weighs against a finding that the Veteran’s GERD or Barrett’s esophagus are causally related to his service or were caused or aggravated by another service-connected disability. Since the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. 38 U.S.C. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55–57 (1990); 38 C.F.R. § 3.102. For these reasons, the claim is denied. LESLEY A. REIN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Wendell, 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.