Citation Nr: 21009696 Decision Date: 02/23/21 Archive Date: 02/23/21 DOCKET NO. 16-49 443 DATE: February 23, 2021 ORDER Service connection for hiatal hernia (also claimed as erosive esophagitis and heartburn), to include as secondary to service-connected degenerative and discogenic changes of the lumbosacral spine with thoracic strain, is denied. Service connection for erosive duodenitis, to include as secondary to service-connected degenerative and discogenic changes of the lumbosacral spine with thoracic strain, is denied. REMANDED Entitlement to a compensable disability rating prior to September 9, 2020, and a disability rating in excess of 10 percent from that date, for service-connected right foot strain is remanded. FINDINGS OF FACT 1. Hiatal hernia (also claimed as erosive esophagitis and heartburn) did not manifest in service and is not otherwise shown to be related to the Veteran’s service or to his service-connected degenerative and discogenic changes of the lumbosacral spine with thoracic strain. 2. Erosive duodenitis did not manifest in service and is not otherwise shown to be related to the Veteran’s service or his service-connected degenerative and discogenic changes of the lumbosacral spine with thoracic strain. CONCLUSIONS OF LAW 1. The criteria for service connection for hiatal hernia (also claimed as erosive esophagitis and heartburn), to include as secondary to service-connected degenerative and discogenic changes of the lumbosacral spine with thoracic strain, are not met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310. 2. The criteria for service connection for erosive duodenitis, to include as secondary to service-connected degenerative and discogenic changes of the lumbosacral spine with thoracic strain are not met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service from May 1991 to December 1994. In February 2020, the Veteran testified before the undersigned Veterans Law Judge at a video conference hearing. A transcript is of record. In April 2020, the Board of Veterans’ Appeals (Board), in pertinent part, remanded the issues of entitlement to a compensable disability rating for service-connected right foot strain, entitlement to service connection for hiatal hernia, and entitlement to service connection for erosive duodenitis for further development. Following the additional development, in an October 2020 rating decision, the evaluation for the Veteran’s service-connected right foot strain was increased to 10 percent, effective September 9, 2020. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Direct service connection may not be granted without evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury. Id.; see also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff’d, 78 F.3d 604 (Fed. Cir. 1996). Secondary service connection is also warranted where a disability is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Briefly, the threshold legal requirements for a successful secondary service connection claim are: (1) evidence of a current disability for which secondary service connection is sought; (2) a disability for which service connection has been established; and (3) competent evidence of a nexus between the two. 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; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Entitlement to service connection for hiatal hernia and erosive duodenitis, to include as secondary to service-connected degenerative and discogenic changes of the lumbosacral spine with thoracic strain The Veteran contends he suffers from a hiatal hernia and from erosive duodenitis following many years of Ibuprofen use, which he took for his service-connected degenerative and discogenic changes of the lumbosacral spine with thoracic strain. See November 2020 Statement. At the February 2020 Board hearing, the Veteran testified specifically that although his symptoms started right after he got out of service, he believed they were related to his longstanding use of Ibuprofen for a back disability. He further testified that this position was supported by his treating physician who had provided a favorable medical opinion. See Hearing Transcript. Upon review of the claims file, the medical evidence supports a finding that the Veteran has current diagnoses of celiac disease, gastroesophageal reflux disease (GERD), hiatal hernia, Garrett’s esophagus, and erosive esophagitis as well as duodenitis, without mention of hemorrhage. See February 2013 VA examination, see August 2015 VA examination, and see September 2020 VA examination. The Veteran is also service-connected for degenerative and discogenic changes of the lumbosacral spine with thoracic strain. However, the record contains conflicting medical evidence as to whether the Veteran’s diagnosed gastrointestinal conditions are caused or aggravated by his use of Ibuprofen for his service-connected back disability. In support of his claim, the Veteran submitted a letter dated September 2017 from Dr. R.R.-V., his private physician, who noted that the Veteran reported having GERD from long term use of nonsteroidal anti-inflammatory drugs (NSAIDs) for a service-connected back disability. The private physician stated that the Veteran’s service and VA treatment records showed consistent use of NSAIDs for more than 24 years and that the Veteran’s medical history indicated frequent medical treatment visits for GERD, esophageal reflux, hiatal hernia, and erosive esophagitis. The private physician then stated, “NSAIDs can cause dyspeptic symptoms (epigastric discomfort, upper/lower abdominal pain, nausea, fullness, bloating and dysphagia),” and opined that it was at least as likely as not that the Veteran’s use of NSAIDs to treat his service-connected back pain had adversely contributed to his esophageal reflux, hiatal hernia, duodenitis and erosive esophagitis. See February 2020 Medical Treatment Record. The Veteran was also provided a VA examination in February 2013. After examining the Veteran and reviewing his claims file, the examiner opined that the claimed disabilities were less likely as not proximately due to or the result of his chronic nonsteroidal anti-inflammatory drug use for chronic back pain. In support of that opinion, the examiner indicated that “[p]er the Veteran’s own admission on history, he started taking [medications] for acid reflux due to certain highly spiced Mexican foods AFTER SEPARATION in 1995.” (Emphasis original.) The examiner further stated that although the Veteran claimed to have been first prescribed medication for problems in 1999, no such documentation existed. The examiner also noted that the Veteran denied ever seeing anyone in the military for his problems and, according to the documented records, did not complain to any of his VA treaters until mid-2012. Additionally, there was no evidence the Veteran had taken Ibuprofen 3 times daily for chronic back pain. The examiner pointed out that if the Veteran had used Ibuprofen as claimed and gastrointestinal symptoms developed earlier at such dosage, “no treating physician in their right mind would continue a patient on such treatment regimen.” He concluded his opinion by stating that the Veteran’s claim for chronic NSAID treatment causing his gastrointestinal conditions were without merit See February 2013 VA examination. In April 2020, the Board determined that although the February 2013 VA examiner had provided a thorough rationale for the opinion regarding the negative association of chronic NSAID use causing gastrointestinal conditions for the Veteran, the examiner did not adequately address the question of aggravation. Accordingly, another VA examination and medical opinion was obtained in September 2020 to determine whether the claimed hiatal hernia and erosive duodenitis were etiologically related to the Veteran’s military service or caused or aggravated by his service-connected back disability. After examining the Veteran and reviewing the claims file, the September 2020 VA examiner also provided a negative nexus for each theory of causation. Specifically, the examiner found it was less likely as not that the Veteran’s hiatal hernia, including erosive esophagitis and heartburn as well as erosive duodenitis was caused by or incurred during his military service. The examiner explained that there were no records to support that the Veteran developed the initial signs and/or symptoms that might indicate erosive esophagitis, heartburn or erosive duodenitis while in service. Instead, the available records showed that the first complaints of these conditions were around 2010, 16 years after his separation from service. Next, the examiner opined it was less likely as not that the Veteran’s hiatal hernia, including erosive esophagitis and heartburn as well as erosive duodenitis were caused or aggravated by his service-connected back disability. In support of that opinion, the examiner acknowledged that current medical literature did support in general the position that chronic NSAID use could lead to irritation of the inner lining of the digestive tract. However, the examiner also observed that this was not a constant or automatic occurrence, and there was no evidence to support that the Veteran’s NSAID use over the years had been excessive and suggestive of detrimental. The examiner emphasized that while medical literature showed an increased risk of GERD and duodenitis with increased use of NSAIDs, it was not automatically causative. The examiner pointed out that there were individuals with GERD or duodenitis who did not use NASIDs, and there were chronic NSAID users who did not have GERD or duodenitis. In the Veteran’s case, the examiner found that although his medical records supported his statement that he had used NSAIDs for many years for his back, they did not indicate either that his back pain had been significant (by way of frequency seeking help, as well as his report of not taking pain medications consistently). It was also noted that his prescriptions did not show that all of his Motrin had been prescribed (with some reports indicating he bought over the counter Motrin) and there were also indications that he had taken Motrin for other conditions too (such as headaches or ear infection). In other words, the examiner found that the record did not show that the Veteran had used Motrin excessively, in inappropriate amounts, or that he only used Motrin for his back. The examiner stated that, most importantly, the Veteran (as early as 2016) had stated that he noted stomach problems and switched his medication to Tylenol. The examiner then noted that the Veteran had a significant risk factor for developing GERD and duodenitis, which was his morbid obesity. The examiner explained that along with aging, the Veteran’s obesity showed he had a higher risk for developing these conditions regardless of medication use. The examiner also noted that the Veteran’s records included a past medical history of treatment for H. Pylori and for Celiac disease, which was diagnosed in or around 2015. The examiner pointed out that H. Pylori was a significant risk for developing GERD and duodenitis and that Celiac disease also caused heartburn and stomach pain. For these reasons, the examiner stated the evidence showed that it was less likely than not that the Veteran’s erosive esophagitis and/or heart burn or erosive duodenitis were secondary to chronic NSAID use. Finally, regarding aggravation, the examiner opined that the claimed conditions were not at least as likely as not aggravated beyond their natural progression by the service-connected back disability. The examiner explained that degenerative and discogenic changes of the lumbosacral spine with thoracic strain would not be expected to aggravate a hiatal hernia, erosive esophagitis, heartburn, or duodenitis because the Veteran’s musculoskeletal condition did not directly affect the size and/or severity of the claimed conditions or their symptoms. The examiner also observed that while longterm use of NSAIDs might cause temporary increases with GERD or the duodenitis, if taken during a flare-up or episode of irritation, it would not cause a permanent aggravation beyond its natural progression. The examiner explained using as an example that someone taking an NSAID while having a heartburn or duodenal symptoms might make that heartburn or those symptoms worsen; however, it would not cause one to have more serious flare-ups or frequent symptoms if the said NSAIDs were not taken. To emphasize that point, the examiner noted that the Veteran stopped taking Motrin as early as 2016, however, he still had heartburn and reported symptoms of duodenitis. After reviewing the foregoing medical opinions, the Board finds the September 2020 VA medical examiner’s opinions to be the most probative because they contain thorough explanations for the rationale of the opinions provided and were based on a physical examination and interview of the Veteran with careful review of the claims file. Significantly, the examiner acknowledged that medical literature did support in general the position that chronic NSAID use could lead to irritation of the inner lining of the digestive tract, but ultimately, based on the specific facts of the Veteran’s case, it was his opinion that the more likely causes of the Veteran’s claimed conditions were his other significant risk factors, which included obesity, Celiac disease, and past treatment for an H. Pylori infection. As for Dr. R.R.-V.’s September 2017 private medical opinion, as was indicated in the Board’s April 2020 remand, this opinion is speculative in nature. It uses speculative words such as “can” when it discusses a relationship between the Veteran’s claimed disabilities and NSAID use, does not appear to consider all the specific facts of the Veteran’s medical history, and does not discuss either his other risk factors. Without any adequate medical support or rationale, the conclusory opinion is speculative at best and does not warrant any probative weight in considering the evidence relating to these claims. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Obert v. Brown, 5 Vet. App. 30, 33 (1993). In giving the September 2020 VA medical opinion probative weight, the Board acknowledges the Veteran and his representative’s contention that the examiner “cherry picked” the evidence of record to “undermine [the] Veteran”. Specifically, the Veteran argues the examiner did not address the literature he referenced and erroneously reported his medical history. For example, the Veteran states that while the examiner highlighted the fact that he had switched to Tylenol due to stomach problems, he omitted the fact that he was removed from Ibuprofen by his treating physician because it was his opinion that the medication was making his GERD and gastrological condition worse. The Veteran further argues that his medical records reflect he was prescribed 800 ml of Ibuprofen for his back pain for many years, which should be considered “overuse”. In support of that claim, the Veteran submitted a lay statement from his former spouse who stated that from 1991 through 2014, she interacted with the Veteran daily and recalled him needing to use Motrin and Ibuprofen daily for his back pain. She also recollected that after his back injury in 1993, he developed heartburn and would take over the counter medication along with medication prescribed by his VA treatment providers to relieve his symptoms. See November 2020 Statement from G.V. The Veteran also submitted a lay statement from his present spouse who stated that since meeting the Veteran in late 2013, she had known him to suffer from back pain, for which he took large amounts of Ibuprofen, and heartburn. She further indicated that she had attended most of the Veteran’s appointments with Dr. R.R.-V. who told the Veteran to stop taking Ibuprofen since it was making his GERD worse. See November 2020 Statement from A.N.V. While the Board understands the Veteran’s argument regarding his usage of NSAIDs for treatment of his back and is sympathetic to his symptomatology, the Board does not find the September 2020 VA examiner’s opinion to be inadequate. The Veteran and representative take issue with the examiner’s characterization of his NSAID use, essentially asserting that it was of greater quantity than that recognized by the VA examiner. However, as noted above, the examiner did consider the effect of chronic NSAID use in relation to the claimed conditions and his conclusion was that regardless of medication use, the Veteran’s other significant risk factors outweighed his use of NSAIDs as a causative or aggravation factor for his hiatal hernia and erosive duodenitis. To the extent the Veteran believes he has a current hiatal hernia and erosive duodenitis that was caused by overuse of medication to treat his service-connected back disability, he is not competent to provide a nexus opinion regarding this issue. Whether a current disability is related to a service-connected disability involves medical questions and is not capable of resolution through lay observation. Therefore, it is outside the competence of the Veteran in this case because the record does not show that he has the medical training or credentials to make such a determination. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). In conclusion, the Board finds that there is no probative evidence to warrant service connection for hiatal hernia (also claimed as erosive esophagitis and heartburn) and erosive duodenitis, to include as secondary to the service-connected degenerative and discogenic changes of the lumbosacral spine with thoracic strain. The Board has considered the applicability of the benefit of the doubt doctrine; however, as the preponderance of the evidence is against the Veteran’s claims, the doctrine is not applicable. Service connection for hiatal hernia (also claimed as erosive esophagitis and heartburn) and erosive duodenitis, to include as secondary to service-connected degenerative and discogenic changes of the lumbosacral spine with thoracic strain is denied. See 38 U.S.C. § 5107(b); Gilbert, 1 Vet. App. 49, 55-57 (1990). REASONS FOR REMAND Entitlement to a compensable disability rating prior to September 9, 2020, and a disability rating in excess of 10 percent from that date, for service-connected right foot strain Pursuant to the Board’s April 2020 remand directives, a VA examination was performed in September 2020. Based upon findings from that examination, a rating decision was issued in October 2020, awarding an increased disability rating of 10 percent, effective from September 9, 2020. As noted in the rating decision and its accompanying notice letter, this was considered a partial grant and did not fully resolve the Veteran’s appeal. Therefore, the continued appeal was to be addressed in a Supplemental Statement of the Case (SSOC). However, a review of the October 2020 SSOC shows that the issue was not addressed. Accordingly, the Veteran’s claim for higher disability ratings for his service-connected right foot strain must be remanded for the RO to readjudicate the claim and issue an SSOC. The matter is REMANDED for the following action: The RO should readjudicate the issue of entitlement to a compensable disability rating prior to September 9, 2020, and a disability rating in excess of 10 percent from that date, for service-connected right foot strain by considering all newly and pertinent associated evidence and issuing an SSOC. A. ISHIZAWAR Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Churchwell, 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.