Citation Nr: 21009903 Decision Date: 02/23/21 Archive Date: 02/23/21 DOCKET NO. 19-23 954 DATE: February 23, 2021 ORDER Entitlement to service connection for a gastrointestinal disability, to include gastroesophageal reflux disease (GERD) and polyps of the stomach and duodenum, as secondary to medications used to treat his service-connected status post C5-6 fusion subluxation for hairline fracture (hereafter cervical spine disability) and gastritis, is granted. REMANDED Entitlement to an initial rating in excess of 20 percent for gastritis is remanded. FINDING OF FACT The Veteran’s gastrointestinal disability is proximately due to medications used to treat his service-connected cervical spine disability and gastritis. CONCLUSION OF LAW The criteria for entitlement to secondary service connection for a gastrointestinal disability, to include GERD and polyps of the stomach and duodenum, are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Air Force from August 1982 to November 1992. This matter comes before the Board of Veterans’ Appeals (Board) from an August 2018 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Board remanded the appeal in February 2020. The Board notes that in December 2019, the Veteran filed an additional NOD (VA Form 10182) for the same issues, attempting to opt into review under the Appeals Modernization Act (AMA). However, given that his December 2019 AMA opt-in form was not submitted within 60 days of the July 2019 SOC, his request was not timely, and the Board will address his appeal under the legacy system. 38 C.F.R. § 3.2400(c)(2). The Board has broadened the claim for GERD to one for a gastrointestinal disability to account for all diagnoses of record. 1. Entitlement to secondary service connection for a gastrointestinal disability, to include GERD and polyps of the stomach and duodenum, is granted. Service connection may also be established on a secondary basis for a disability proximately due to or aggravated by a service-connected disease or injury. 38 C.F.R. § 3.310; see also Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). To establish a secondary service connection, a veteran must show: (1) the existence of a present disability; (2) the existence of a service-connected disability; and (3) a causal relationship between the present disability and the service-connected disability. Wallin v. West, 11 Vet. App. 509, 512 (1998). The Veteran relates his gastrointestinal disability to use of non-steroidal anti-inflammatory medication (NSAIDs) to treat his service-connected cervical spine disability and gastritis. See June 2018 VA Form 21-4138, Statement in Support of Claim; September 2020 Post-Remand Brief. As secondary service connection under 38 C.F.R. § 3.310(a) is warranted, the Board need not address direct service connection in the instant decision. The presence of a current disability is not in dispute, the Veteran is currently diagnosed with GERD and polyps of the stomach and duodenum, and is service-connected for a cervical spine disability and gastritis. See July 2018 Esophagogastroduodenoscopy (EGD) and Endoscopy; May 2020 VA Esophageal Conditions Disability Benefits Questionnaire (DBQ). Thus, the first two elements of secondary service connection are met, and the crux of this issue centers on element three, nexus. Wallin, supra. Regarding the last element, nexus, the only competent opinions of record are in favor of the claim. Specifically, the May 2020 VA examiner determined that the Veteran’s stomach and duodenum polyps were associated with gastritis, reasoning that polyps were a known progression of the gastritis disease process. Regarding GERD, the July 2020 VA examiner initially opined the Veteran’s GERD was related to NSAID use to treat his service-connected cervical spine disability and gastritis, highlighting that a relationship between GERD and NSAID use was well-known in the medical literature. For reasons unknown, the RO did not accept this opinion as supportive of a secondary service connection nexus, and requested an additional statement from the examiner pointing to in-service evidence of NSAID use. The July 2020 examiner thereafter reached a conclusion on direct service connection that was unfavorable, with the examiner emphasizing that there were no in-service records that would evidence an event in service, to include the use of Motrin, that would result in GERD. The Board emphasizes that in order to award service connection on a secondary basis based on medications used for a service-connected disability, such medication use would not have to occur during service. In other words, if the service-connected disability required NSAID use at any point, to include after service, and such NSAID use caused GERD, then secondary service connection is warranted. Here, the Board infers a positive secondary service connection nexus from the July 2020 VA examiner’s opinions, as the record is replete with references to NSAID use for the Veteran’s service-connected disabilities. See, e.g., July 2015 and November 2018 VA treatment record (noting use of Motrin for neck pain); July 2018 VA examination report (noting Motrin use for neck pain); see Jackson v. Virginia, 443 U.S. 307, 319 (1979) (stating it is “the responsibility of the trier of fact fairly to... draw reasonable inferences from basic facts to ultimate facts”); Bastien v. Shinseki, 599 F.3d 1301, 1306 (Fed. Cir. 2010) (“The evaluation and weighing of evidence and the drawing of appropriate inferences from it are factual determinations committed to the discretion of the fact finder.”) Thus, for reasons outlined above, secondary service connection for a gastrointestinal disability, to include GERD and polyps of the stomach and duodenum, is granted. REASON FOR REMAND 2. Entitlement to an initial rating in excess of 20 percent for gastritis is remanded. Action on the Veteran’s initial rating claim for his service-connected gastritis is remanded to allow for the implementation of the Board’s award of service connection for the Veteran’s GERD. The matters are REMANDED for the following action: 1. Issue a rating decision that implements the Board’s award of secondary service connection for GERD. 2. Then readjudicate the Veteran’s increased rating claim. S. BUSH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Victoria L. Stephens 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.