Citation Nr: 21010351 Decision Date: 02/24/21 Archive Date: 02/24/21 DOCKET NO. 15-19 921 DATE: February 24, 2021 ORDER Service connection for gastroesophageal reflux disease (formerly claimed as pylorospasm and hereinafter referred to as GERD) is granted. FINDING OF FACT Resolving all reasonable doubt in the Veteran’s favor, the Veteran’s GERD cannot be satisfactorily disassociated from disease incurred during active service. CONCLUSION OF LAW Resolving all reasonable doubt in the Veteran’s favor, the criteria for entitlement to service connection for GERD have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. § 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Air Force from February 1978 to February 1982, from February 1991 to July 1991, from October 2001 to September 2002, and from February 2003 to February 2004. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a September 2013 Department of Veterans Affairs (VA) Rating Decision (RO). The rating decision, inter alia, denied service connection for GERD. The Veteran’s Notice of Disagreement (NOD) was received in November 2003. The Statement of the Case was issued in April 2015 and the Veteran’s VA Form 9, substantive appeal to the Board was received in May 2015. In October 2018 the Board remanded the claim for further development and adjudication. Entitlement to service connection GERD. The Veteran seeks service connection for GERD and alleges that the disability began in service. Service connection may be established for a disability resulting from personal injury suffered or disease contracted in the line of duty or for aggravation of preexisting injury suffered or disease contracted in the line of duty. 38 U.S.C. §§ 1110, 1131, 1137; 38 C.F.R. § 3.303.   Generally, to establish service connection, there must be lay or medical evidence of (1) a current disability, (2) incurrence or aggravation of a disease or injury in service, and (3) a nexus between the in-service injury or disease and the current disability. Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004).   Lay assertions may serve to support a claim for service connection by establishing the occurrence of observable events or the presence of disability or symptoms of disability subject to lay observation. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F. 3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has clarified that lay evidence can be competent and sufficient to establish a diagnosis or etiology when (1) a lay person is competent to identify a medical condition; (2) the lay person is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009).   The credibility and weight of all the evidence, including the medical evidence, should be assessed to determine its probative value, and the evidence found to be persuasive or unpersuasive should be accounted for, and reasons should be provided for rejecting any evidence favorable to the claimant. See Masors v. Derwinski, 2 Vet. App. 181 (1992). Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value.   It is the Board’s responsibility to determine whether a preponderance of the evidence supports the claim or whether the evidence is in relative equipoise, with the veteran prevailing in either event, or whether there is a preponderance of evidence against the claim, in which case the claim must be denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Then, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. By reasonable doubt is meant one which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. 38 C.F.R. § 3.102.   The Veteran’s STRs indicate that his December 1981 separation examination was normal. However, the examiner did note that the Veteran had stomach trouble, cramps, indigestion, and nausea in 1980; there was a diagnosis “GE” and he was treated with Donnatel. Of note, a review of the Veteran’s records reveals that the some of the Veteran’s STRs are unavailable despite the RO’s multiple attempts to locate them. Specifically, in June 2012, the RO sent an email correspondence to the Records Management Center requesting the Veteran’s STRs. Only the Veteran’s dental records were received. Next, in June 2012, the RO sent a request to obtain complete STRs from the second and third tour of duty through Personnel Information Exchange System (PIES). The responses indicated that there were no records for this Veteran. A request to obtain STRs from the Veteran’s last tour of duty was also made in June 2012. The RO also requested that the Veteran submit STRs in this possession the same month. A Formal Finding on the Unavailability of STRs was issued in May 2013. Thus, it appears that only a few incomplete records from the Veteran’s second, third, and fourth tour of duty are available. There are no entrance or discharge examination reports available after the December 1981 separation examination. When STRs are incomplete as is the case here, the Board has a heightened obligation to explain its findings and conclusions and to consider carefully the benefit-of-the-doubt rule. See O’Hare v. Derwinski, 1 Vet. App. 365, 367 (1991); Russo v. Brown, 9 Vet. App. 46 (1996). There is no presumption, either in favor of the Veteran or against VA, arising from missing records. See Cromer v. Nicholson, 19 Vet. App. 215, 217-18 (2005). A July 2005 private questionnaire from Dr. T.H.’s office indicates that the Veteran reported having stomach problems and stomach ulcers. A February 2007 VA treatment note indicates that the Veteran was seen for abdominal pain which had its onset a week and a half ago. He was noted to have elevated AST and ALT. A February 2009 private treatment note from Dr. J.V. indicates that the Veteran was seen for a checkup. It was noted that the Veteran has been having a lot of stomach problems and reported having an upset stomach after every meal for the past six months. The Veteran reported being prescribed Nexium but running out of medication. Under history of present illness, it was noted that the Veteran has bloating after meals and mid epi pain. It was noted that Nexium made the Veteran red. Under assessments, it was noted that the Veteran had a peptic ulcer NOS. The Veteran was prescribed Aciphex enteric coated tablets. An October 2013 VA treatment note indicates that the Veteran was seen to establish care. He was noted to have GERD which he continues to treat with prescription medication. A January 2014 and April 2014 VA treatment notes indicate that the Veteran had a diagnosis of GERD and which he continues to treat with prescription medication. In the April 2014 VA treatment note he was noted to have nausea due to GERD. A July 2014 VA treatment note indicates that the Veteran underwent an esophagogastroduodenoscopy with generally normal results. It was noted that he had mild chronic gastritis. Under assessment, it was noted that the Veteran presented with exacerbated GERD with mostly nocturnal symptoms. It was noted that he had better control with prescription medication. An August 2014 VA treatment note indicates that the Veteran reported a 34-year history of GERD. He also reported that his private doctor prescribed medication to treat GERD several years ago. Under symptoms, the Veteran reported mostly nocturnal symptoms and having heartburn and regurgitation almost every night. He also reported persistent nausea with no abdominal pain or swallowing difficulties. A June 2015 VA prescription list indicates that the Veteran continues to take nightly antiacid tablets for stomach acid. A November 2015 VA treatment note indicates that the Veteran had GERD. It was noted that the disability was stable, and the Veteran is on prescribed medication for treatment. A November 2016 private treatment note from Dr. J.V. indicates that the Veteran was diagnosed with gastrointestinal hemorrhage, unspecified. He was also noted to have a peptic ulcer, site unspecified. In September 2019, the Veteran underwent a VA examination for his claim. The VA examiner reviewed and summarized the Veteran’s records, including the December 1981 in-service examination noting abdominal cramps, stomach pain, and nausea, the July 2014 VA gastric biopsy pathology report, and the October 2018 VA treatment notes containing a GERD diagnosis. The VA examiner confirmed the Veteran’s GERD diagnosis and indicated that the disability was treated with taking continuous medication. The Veteran’s symptoms were noted to be pyrosis and reflux. The Veteran was not noted to have an esophageal structure, spasm of the esophagus, or an acquired diverticulum of the esophagus. There were no other pertinent findings. The VA examiner concluded that after a review of the medical records and current exam findings, the records indicate no chronicity of abdominal pain since 1981. The VA examiner stated that the physical examination completed in November 2017 showed no abdominal pain and that the earliest note of abdominal complaints was in July 2014 VA treatment records which was long after the February 2004 discharge. Next, the VA examiner noted that February 2018 VA treatment notes showed a diagnosis of GERD, and it was noted that the Veteran’s private doctor told him he had symptoms of GERD. The VA examiner also noted that the July 2014 gastric biopsy pathology report showed chronic inflammation and that the November 2017 physical examination showed a history of GERD but the review of symptoms showed no abdominal pain. Based on this, the VA examiner concluded that the Veteran’s GERD was less likely than not incurred or caused by active service. Based on a review of the entire record, the evidence is at least in relative equipoise as to whether the Veteran’s GERD had its onset in service. Specifically, the evidence is more consistent with the Veteran’s contentions than the September 2019 VA medical opinion. As such, service connection is warranted. At the outset, the September 2019 VA medical opinion is not afforded high probative value. The VA examiner concluded that the records indicate no chronicity of abdominal pain since 1981, with the first record of abdominal complaints being in July 2014. This is clearly contradicted by the record. There are numerous notations containing complaints for abdominal pain, including the July 2005 private treatment note indicating a history of stomach problems and the February 2007 VA treatment note containing complaints of abdominal pain. Moreover, the VA examiner indicated that the Veteran was diagnosed with GERD in February 2018. However, the Veteran’s VA treatment records indicate a longstanding history of GERD, since he established care with that provider in October 2013. Moreover, the Veteran has consistently and competently reported having a longstanding history of GERD symptoms which began in service. The Veteran is competent to report that he had continuous symptoms such as abdominal pain, nausea, heartburn, epigastric distress, as these are capable of lay observation. Moreover, the Veteran have been consistent with respect to reporting these longstanding symptoms to his private treatment providers, to his VA treatment providers, during the September 2019 VA examination, and even during his December 1981 discharge examination. There is no reason to doubt the Veteran’s credibility in this regard. The Veteran’s medical records support this contention. Indeed, he reported having stomach problems in 1980, and again reported a history of stomach problems in July 2005, approximately one year after discharge. The Veteran’s STRs between December 1981 to discharge are incomplete, and a conclusion that there was not a continuity of symptoms from December 1981 to July 2005 cannot be made based on the existing record. More importantly, the Veteran’s records indicate that he was continuously prescribed medication to treat GERD. Even though the Veteran’s records including the July 2014 esophagogastroduodenoscopy do not contain a positive diagnostic test result for GERD, it is clear from his recorded treatment that the Veteran has a history of being prescribed medication to treat GERD symptoms. Of note, while the July 2014 esophagogastroduodenoscopy only showed chronic inflammation, the Veteran was still noted to have a GERD diagnosis. Thus, while the record does not contain an in-service diagnosis of GERD, the evidence is at least in relative equipoise as to whether the Veteran’s GERD had its onset in service. Given the documented history of chronicity of symptoms, the Veteran’s consistent contentions that his disability has a longstanding history, and his documented history of treatment, the Veteran’s GERD cannot be satisfactorily disassociated from in-service stomach complaints. With resolution of all doubt in the Veteran’s favor, his GERD, as likely as not, had its onset during active service and therefore entitlement to service connection is warranted. L. B. CRYAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Kuksova, Kseniya 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.