Citation Nr: 21010953 Decision Date: 02/26/21 Archive Date: 02/26/21 DOCKET NO. 13-18 565 DATE: February 26, 2021 ORDER Entitlement to service connection for gastroesophageal reflux disease (GERD) is denied. REMANDED Entitlement to service connection for a disability manifested by cough, to include as due to exposure to burn pit and depleted uranium, is remanded. FINDING OF FACT The Veteran’s gastrointestinal symptoms have been attributed to GERD and the preponderance of the evidence weighs against a finding that the current GERD disability was incurred during or as a result of active service, to include as due to exposure to burn pits and depleted uranium. CONCLUSION OF LAW The criteria for entitlement to service connection for GERD have not been met. 38 U.S.C. §§ 1110, 1117, 1131; 38 C.F.R. §§ 3.303, 3.317. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1996 to September 1998 and from October 2007 to October 2008, with additional periods of active and inactive duty for training. See service personnel records (SPRs). The Veteran’s DD Form 214 reflects that he was awarded the Iraq Campaign Medal and Bronze Star for his service in Southwest Asia. This appeal was previously before the Board in October 2020, at which time the Board adjudicated several claims but remanded the claims remaining on appeal for additional evidentiary development. All requested development has been completed with respect to the GERD claim; however, further development is needed for the cough claim, which will be discussed in the remand section of this decision. 1. Entitlement to service connection for gastroesophageal reflux disease (GERD) Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active service. 38 U.S.C. § 1131; 38 U.S.C. § 3.303. Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). Establishing service connection generally requires competent evidence of the following: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. See Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009). Service connection may also be established for a Persian Gulf veteran who exhibits objective indications of a qualifying chronic disability resulting from undiagnosed illness that became manifest either during active service in the Southwest Asia theater of operations during the Persian Gulf War, or to a degree of 10 percent or more not later than December 31, 2021, and cannot be attributed to any known clinical diagnosis by history, physical examination, or laboratory tests. 38 U.S.C. § 1117; 38 C.F.R. § 3.317(a)(1). In claims based on qualifying chronic disability, unlike those for “direct service connection,” there is no requirement that there be competent evidence of a nexus between the claimed illness and service. Gutierrez v. Principi, 19 Vet. App. 1 (2004). Notably, laypersons are competent to report objective signs of illness. A qualifying chronic disability for VA purposes is a chronic disability resulting from (A) an undiagnosed illness, (B) a medically unexplained chronic multi-symptom illness (such as, but not limited to, chronic fatigue syndrome (CFS), fibromyalgia, or functional gastrointestinal disorders) that is defined by a cluster of signs or symptoms, or (C) any diagnosed illness that VA determines in regulation prescribed under 38 U.S.C. § 1117(d) warrants a presumption of service connection. 38 U.S.C. § 1117(a)(2); 38 C.F.R. § 3.317 (a)(2)(i)(B). If signs or symptoms have been medically attributed to a diagnosed (rather than undiagnosed) illness, the Persian Gulf War presumption of service connection does not apply. VAOPGCPREC 8-98. As noted, the Veteran’s DD Form 214 reflects that he had service in Southwest Asia during the Persian Gulf War. Therefore, he is considered a Persian Gulf War Veteran, which triggers consideration of his claims under 38 C.F.R. § 3.317. In January 2011, the Veteran filed a claim seeking service connection for several disabilities, including GERD. He has been afforded two VA examinations in conjunction with this claim, which confirm that his symptoms of persistent epigastric distress, reflux, regurgitation, and pyrosis are all consistent with a diagnosis of GERD. See VA examinations dated October 2011 and February 2020. Because the Veteran’s gastrointestinal symptoms have been attributed to a known clinical diagnosis, service connection based on the presumption concerning undiagnosed illnesses is not warranted in this case. See 38 C.F.R. § 3.317. The Board also notes that GERD is not a functional gastrointestinal disorder that qualifies as a MUCMI. See 38 C.F.R. § 3.317(a)(2)(i)(B)(3), Note; see also Atencio v. O’Rourke, 30 Vet. App. 74 (2018). Nevertheless, service connection may be granted if the evidence is sufficient to establish service connection on a direct basis. See Combee v. Principi, 34 F.3d 1039, 1043 (1994). Therefore, the remaining inquiries in this case are (1) whether there is an in-service event, injury, or disease to which the current disabilities may be related and (2) whether a causal relationship or nexus exists between the Veteran’s current diagnosis and active service. The Veteran’s exposure to burn pits and depleted uranium have been acknowledged by VA, which is sufficient to establish an in-service injury in this case. The Veteran has also reported that his gastrointestinal symptoms began in 2008 when he was stationed in Iraq. The Veteran is competent to report the symptoms he experienced during service; however, the Board notes that his service treatment records (STRs) do not contain any complaints or treatment for symptoms generally associated with GERD. Notably, the Veteran denied having frequent indigestion or heartburn during his August 2008 post-deployment health assessment and he also consistently denied having frequent indigestion or stomach/intestinal trouble during examinations otherwise conducted throughout active service. See STRs dated June 1998 reports of medical history and examination; October 2007 report of medical history; and August 2008 post-deployment health assessment. The post-service medical evidence shows the Veteran reported having gastrointestinal symptoms in March and October 2011, when he complained of acid reflux and reported having chronic gastrointestinal symptoms. He reported taking Tums for his symptoms but stated he had not had a gastrointestinal examination. See VA treatment records dated March and October 2011. A diagnosis of GERD was not rendered during those evaluations and subsequent VA treatment records do not contain any complaints or treatment for GERD or gastrointestinal symptoms but, as noted, a diagnosis of GERD was confirmed by VA examination in October 2011 and February 2020. After examining the Veteran, the October 2011 VA examiner opined that the Veteran’s GERD is not related to any exposure event during his service in Southwest Asia, noting that GERD is not associated with environmental exposures. The examiner did not, however, provide an opinion with respect to a direct relationship to service. See October 2011 VA examination. The February 2020 VA examiner addressed direct service connection and opined that the Veteran’s GERD is less likely than not related to any in-service complaints, noting there were not medical records during active service that noted complaints or treatment for GERD. See February 2020 VA opinion. This portion of the February 2020 VA opinion is deemed inadequate, however, because the opinion is based solely on the lack of evidence of the claimed condition in the STRs. See October 2020 Board remand. In November 2020, a VA physician reviewed the record and noted the Veteran’s acknowledged exposure to burn pits during service, but she stated that the current medical literature does not acknowledge burn pits to be a causative or event risk factor in developing GERD. The VA examiner further noted the Veteran’s report that his symptoms began in 2008 but noted that the Veteran denied experiencing symptoms that resembled GERD in 2008. The examiner also noted the Veteran’s description that his gastrointestinal symptoms were chronic in 2011 but she noted that, while the Veteran continued to seek medical consultation for various reasons thereafter, there were no complaints resembling GERD. Therefore, the examiner opined that it is less likely than not that the Veteran’s GERD had its onset in service or is otherwise related to service. See November 2020 VA opinion. Based on the foregoing, the Board finds the preponderance of the evidence weighs against a finding that a causal relationship, or nexus, exists between the Veteran’s GERD and active service. As an initial matter, the Board notes that, while the Veteran has attributed his GERD to exposure to burn pits and depleted uranium, two VA clinicians have ruled out any such relationship, as they noted that GERD is not associated with or caused by environmental exposures, to specifically include exposure to burn pits. See VA opinions dated October 2011 and November 2020. Because these opinions are based on medical expertise, knowledge, and literature and are not contradicted by any other competent evidence or opinion of record, the Board ascribes significant probative value to the medical opinions and finds that they outweigh the Veteran’s lay statements and beliefs that his GERD is due to environmental exposures during service in Southwest Asia. With respect to direct service, the Board again notes that the Veteran is competent to report the events that occurred and symptoms he experienced during service, but the service records are deemed more probative with respect to service incurrence, as they weigh against a finding that he experienced chronic gastrointestinal symptoms or disability during active service. In this regard, the evidence shows the Veteran has reported being diagnosed with dyspepsia while in Iraq and being told to continue taking Tums and Pepto-Bismol. See October 2011 VA esophageal conditions examination. However, there is no medical evidence showing the Veteran was shown to be or reported being diagnosed with dyspepsia during service. Instead, the STRs reflect that he consistently denied having symptoms generally associated with GERD during service and explicitly denied having frequent indigestion or heartburn during his August 2008 post-deployment health assessment. See also September 2008 STR. The first time the Veteran is shown to endorse having gastrointestinal symptoms is in 2011, at which time he reported having chronic acid reflux but also stated that he had not had a gastrointestinal evaluation. See March 2011 VA treatment record. Notably, despite reporting having chronic symptoms at that time, the Veteran did not state that his symptoms began during active service. The November 2020 VA examiner considered the Veteran’s competent reports of having gastrointestinal symptoms during service and chronic symptoms after service; however, the examiner found probative that, despite his report, the evidence shows the Veteran denied experiencing symptoms that resembled GERD while seeking medical treatment in 2008 and after 2011 and opined that it is less likely as not that his GERD was incurred during or as a result of service. While the law is clear that the absence of documented treatment in service or thereafter is not fatal to a service connection claim, the Board finds that the absence of treatment in this case, in addition to the Veteran’s explicit denial of having symptoms generally associated with GERD during service or until 2011 when he filed a claim seeking benefits for GERD, is significant evidence that weighs against a finding of in-service incurrence or nexus to service. Indeed, the Board finds that the credibility of the Veteran’s lay assertions regarding in-service incurrence and chronicity are outweighed by the other evidence of record, particularly statements or indications he made during service as to the lack of gastrointestinal symptoms. See Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff’d 78 F.3d 604 (Fed. Cir. 1996). There is no medical evidence or opinion of record that attributes the Veteran’s GERD to active service and the Veteran’s assertions in this regard are not considered persuasive. Indeed, opinions regarding the etiology of gastrointestinal disorders are complex and generally beyond the competency of a lay witness. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The evidence does not reflect, nor has the Veteran alleged, that he has any medical education, experience, or training; nor has he offered any basis in common lay knowledge to support his assertions attributing his GERD to active service. Instead, the Veteran’s statements and beliefs regarding the cause of his GERD are based upon his assertion that his symptoms began during service, which are not deemed credible and, thus, are not afforded any probative value. Therefore, the Board finds the preponderance of the evidence is against a finding that the Veteran’s GERD was incurred during or as a result of active service, to include exposure to burn pits and depleted uranium. As such, the Veteran’s claim is denied, and the benefit of the doubt doctrine is not applicable. REASONS FOR REMAND 1. Entitlement to service connection for a disability manifested by cough, to include as due to exposure to burn pit and depleted uranium is remanded. There remains a question as to whether the Veteran has a disability manifested by cough that was incurred during service or is otherwise related to active service or, in the alternative, whether his cough represents an undiagnosed illness. VA clinicians have consistently attributed the Veteran’s reports of experiencing a cough to various known diagnoses, including GERD and chronic obstructive pulmonary disease (COPD). See VA opinions dated October 2011 and November 2020. Additionally, the clinician who examined the Veteran in February 2020 stated that his cough could be due to his allergies, GERD, or another unknown condition. See April 2020 VA opinion. The various opinions of record seem to suggest that the Veteran’s cough could be related to any of the foregoing known diagnoses but do not sufficiently establish that clinical findings, in fact, show his cough likely attributable to a known diagnosis. Notably, while clinicians have attributed the Veteran’s cough to his GERD and sinus disabilities, the VA examinations of record do not show that the signs and symptoms attributable to those disabilities include a cough. See e.g., October 2011 VA esophageal and sinus examinations; February 2020 VA esophageal examination. The November 2020 VA examiner stated that the Veteran’s cough is likely associated with GERD because a recent pulmonary function test (PFT) was unremarkable. This statement suggests that his cough could be due to COPD if that disability is shown by the evidence. However, the evidence shows that a chest x-ray conducted in October 2011 revealed findings consistent with COPD and that a diagnosis of COPD was made based upon a PFT conducted in May 1998. See October 2011 gastroesophageal conditions examination and medical opinion; October 2011 VA treatment record. This evidence suggests the Veteran’s cough may be related to COPD which was manifested during the appeal period and reportedly diagnosed during active service which, in turn, triggers DeLisio v. Shinseki, 25 Vet. App. 45 (2011). Therefore, the Board finds a remand is needed to clarify (1) if history, physical examination, and laboratory findings establish that the Veteran’s cough is due to GERD, COPD, sinusitis, or any other known clinical diagnosis and (2) if service connection is warranted for COPD. The matters are REMANDED for the following action: 1. Conduct all required development to adjudicate a claim of entitlement to service connection for COPD. If a medical examination and/or opinion is obtained, the examiner must review the claims file and must note that review in the report. Following a review of the record, the examiner is asked to opine as to the following: (a) Is it as likely as not (50 percent or more probability) that the Veteran manifested COPD since January 2011? In answering the foregoing, the examiner must consider an address the findings of the chest x-ray conducted in October 2011 and the VA treatment records that document a diagnosis of COPD. (b) Is it as likely as not (50 percent or more probability) that the Veteran’s COPD had its onset during or is otherwise related to the Veteran’s military service, to include any exposures during service in Southwest Asia? In answering the foregoing, the examiner must consider and address the PFT report conducted in May 1998 and the October 2011 VA opinion that states a diagnosis of COPD was rendered upon the 1998 PFTs. (c) Is it as likely as not (50 percent or more probability) that the Veteran’s COPD is manifested by a cough? (d) A complete rationale must be provided for each opinion offered. The examiner must consider and address all lay and medical evidence of record with respect to the onset and progression of the Veteran’s symptoms. 2. Obtain an addendum opinion regarding the Veteran’s cough. The need for an additional examination of the Veteran is left to the discretion of the clinician selected to write the addendum opinion. Following a review of the complete record, the examiner is asked to address the following: (a) Are there objective indications that the Veteran has a cough? (b) If so, is the disability pattern consistent with (i) an undiagnosed illness; (ii) a diagnosable but medically unexplained chronic multisymptom illness; (iii) a diagnosable chronic multisymptom illness with a partially explained etiology and pathophysiology; or (iv) a disease with a clear and specific diagnosis, etiology, and pathophysiology? (c) If the Veteran’s cough is attributable to either (iv) a disease with a clear and specific diagnosis, etiology, and pathophysiology OR (iii) a diagnosable chronic multisymptom illness with a partially explained etiology and pathophysiology, the examiner should state whether it is at least as likely as not (50 percent or more probability) that the disability had its onset during or is otherwise related to the Veteran’s military service, to include any exposures during service in Southwest Asia. (d) If the Veteran’s cough is not attributable to a known clinical diagnosis, the examiner should opine whether it is as likely as not (50 percent or more probability) that the symptoms are due to an undiagnosed illness resulting from service in Southwest Asia during the Gulf War. (e) A complete rationale must be provided for each opinion offered. The examiner must consider and address all lay and medical evidence of record with respect to the onset and progression of the Veteran’s symptoms. M. Donohue Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Turnipseed, 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.