Citation Nr: 21010961 Decision Date: 02/26/21 Archive Date: 02/26/21 DOCKET NO. 14-33 848 DATE: February 26, 2021 ORDER Entitlement to service connection for gastroesophageal reflux disease (GERD), to include as secondary to service-connected disabilities, is denied. Entitlement to service connection for hypertension, to include as secondary to service-connected disabilities, is denied. FINDINGS OF FACT 1. The Veteran’s GERD was not diagnosed during a period of active service; he did not sustain an in-service incident, illness or injury to which it may be etiologically linked; his GERD did not undergo any worsening during his final three periods of active service. The evidence fails to establish an etiological relationship between the Veteran’s diagnosed GERD and a service-connected disability. 2. The Veteran’s hypertension was not diagnosed during a period of active service; he did not sustain an in-service incident, illness or injury to which it may be etiologically linked; his hypertension did not undergo any worsening during his final two periods of active service. The evidence fails to establish an etiological relationship between the Veteran’s diagnosed hypertension and a service-connected disability. CONCLUSIONS OF LAW 1. The criteria for service connection for GERD are not met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1137, 1153, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.306, 3.307, 3.309, 3.310, 3.317. 2. The criteria for service connection for hypertension are not met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1137, 1153, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.306, 3.307, 3.309, 3.310, 3.317. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 1970 to November 1971, from September 1990 to June 1991, from January 2003 to September 2003, from September 2004 to December 2005, and from January 2009 to June 2010. The Veteran testified before the undersigned Veterans Law Judge in May 2017. This case was originally before the Board in March 2018, when the claims listed above were remanded for further development. An additional claim of entitlement to service connection for a left knee disability was remanded for further development at that time. The Board notes that in a subsequent September 2019 Board remand, a service connection claim for headaches was remanded for further development. In March 2020, the Veterans Benefits Administration (VBA) granted service connection for degenerative joint disease of the left knee, scars of the left knee, and tension headaches. Thus, these issues are no longer in appellate status. This case was once again before the Board in May 2020, when the claims listed above were remanded for additional development. An August 2020 supplemental statement of the case was issued, and the appeal is once again before the Board. Service Connection 1. Entitlement to service connection for GERD. 2. Entitlement to service connection for hypertension. The Veteran contends that he has GERD and hypertension related to service. He testified at his BVA hearing that he started experiencing symptoms of GERD in service from eating meals ready to eat (MRE’s). See BVA Hearing Transcript (T.) at 21-25. The Veteran also testified that he was diagnosed with hypertension in service. See T. at 14. Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131. Generally, the evidence 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. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden element is through a demonstration of continuity of symptomatology if the disability claimed qualifies as a chronic disease listed in 38 C.F.R. § 3.309(a). Regulations also provide that service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury which was incurred in or aggravated by service. 38 C.F.R. § 3.303(d). Service connection is also warranted for a disability which is aggravated by, proximately due to, or the result of a service-connected disease or injury. 38 C.F.R. § 3.310. Any additional impairment of earning capacity resulting from an already service-connected condition, regardless of whether or not the additional impairment is itself a separate disease or injury caused by the service-connected condition, should also be compensated. Allen v. Brown, 7 Vet. App. 439 (1995). When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. Id. Finally, 38 U.S.C. § 1154(a) requires that VA give “due consideration” to “all pertinent medical and lay evidence” in evaluating a claim for disability or death benefits. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Specifically, “[l]ay 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); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). Service Connection Based on an Undiagnosed Illness The Board will first address the Veteran’s contentions that his GERD and hypertension are caused by his service in Southwest Asia. In addition to the regulations cited above, because the Veteran served in the Southwest Asia Theater of Operations since August 2, 1990, service connection may also be established under 38 C.F.R. § 3.317. Under 38 C.F.R. § 3.317, service connection may be warranted for a Persian Gulf Veteran who exhibits objective indications of a qualifying chronic disability that became manifest during active military, naval or air service in the Southwest Asia Theater of operations during the Persian Gulf War. For a disability due to undiagnosed illness and medically unexplained chronic multi symptom illness, the disability must have been manifest either during active military service in the Southwest Asia Theater of Operations or to a degree of 10 percent or more not later than December 31, 2021. 38 C.F.R. § 3.317(a)(1)(i). An undiagnosed illness is defined as a condition that by history, physical examination and laboratory tests cannot be attributed to a known clinical diagnosis. In the case of claims based on undiagnosed illness under 38 U.S.C. § 1117; 38 C.F.R. § 3.317, 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). A medically unexplained chronic multi symptom illnesses is one defined by a cluster of signs or symptoms and specifically includes chronic fatigue syndrome, fibromyalgia, and functional gastrointestinal disorders (excluding structural gastrointestinal diseases). A ‘medically unexplained chronic multi symptom illness contemplates a diagnosed illness without conclusive pathophysiology or etiology that is characterized by overlapping symptoms and signs and has features such as fatigue, pain, disability out of proportion to physical findings, and inconsistent demonstration of laboratory abnormalities.’ Chronic multi symptom illnesses of partially understood etiology and pathophysiology will not be considered medically unexplained. 38 C.F.R. § 3.317(a)(2)(ii). For purposes of 38 C.F.R. § 3.317, disabilities that have existed for six months or more and disabilities that exhibit intermittent episodes of improvement and worsening over a six-month period will be considered chronic. The six-month period of chronicity will be measured from the earliest date on which the pertinent evidence establishes that the signs or symptoms of the disability first became manifest. 38 C.F.R. § 3.317(a)(4). ‘Objective indications of chronic disability’ include both ‘signs,’ in the medical sense of objective evidence perceptible to an examining physician, and other, non-medical indicators that are capable of independent verification. 38 C.F.R. § 3.317(a)(3). Signs or symptoms that may be manifestations of undiagnosed illness or medically unexplained chronic multi symptom illness include, but are not limited to, the following: (1) fatigue; (2) signs or symptoms involving skin; (3) headache; (4) muscle pain; (5) joint pain; (6) neurologic signs or symptoms; (7) neuropsychological signs or symptoms; (8) signs or symptoms involving the respiratory system (upper or lower); (9) sleep disturbances; (10) gastrointestinal signs or symptoms; (11) cardiovascular signs or symptoms; (12) abnormal weight loss; and (13) menstrual disorders. 38 C.F.R. § 3.317(b). Upon consideration of the above evidence, and a review of the entire record, the Board finds that the preponderance of the evidence is against the claims of service connection for his GERD or hypertension under the presumptive provisions related to Persian Gulf claims. The record reflects that the Veteran has been diagnosed with GERD and hypertension. To whatever extent the Veteran had at any point suffered from gastrointestinal and blood pressure issues, these symptoms were ascribed to known clinical diagnoses - which precludes service connection under the statutes and regulations that govern claims based upon service in the Persian Gulf. (Those provisions require a qualifying chronic disability as defined above, such as an undiagnosed illness.) A December 2010 VA examiner noted that the Veteran has diseases with clear and specific etiology and diagnosis, and it is less likely than not that these diagnoses (including essential hypertension and GERD) are related to any specific exposure in Southwest Asia. In short, the Board finds that the Veteran’s symptoms were fully attributed to clinical diagnoses (GERD and hypertension) and are thus not a qualifying chronic disability under § 1117. Therefore, the theory that the Veteran has undiagnosed illnesses, or medically unexplained chronic multi-symptom illnesses, that are related to his service in Southwest Asia, does not have merit. For all the foregoing reasons, the Board finds that the claims on appeal must be denied under 38 C.F.R. § 3.317. The Board further notes that, in cases where a veteran applies for service connection under 38 C.F.R. § 3.317 but is found to have a disability attributable to a known diagnosis, further consideration under the direct service connection provisions of 38 U.S.C. §§ 1110, 1131 is warranted. The Veteran has additionally made general assertions that the claimed disabilities are related to his various service-connected disabilities or directly to service. These contentions are addressed below. Service Connection on a Secondary Basis The Board will first consider these claims on a secondary service connection basis. The Veteran essentially contends that his GERD and hypertension are due to his service-connected disabilities. The Veteran is service-connected for prostate cancer with voiding dysfunction, sleep apnea, gouty arthritis of the left foot, degenerative joint disease of the left knee, an adjustment disorder with depressed mood, scars of the left knee, erectile dysfunction, and tension headaches. With respect to his claim for hypertension, the Board notes that an April 2011 VA examiner considered in his opinion that the Veteran had a diagnosis of posttraumatic stress disorder (PTSD) and commented that the Veteran is overweight and that some aggravation to the hypertension or etiology of the hypertension can be attributed to his PTSD. However, sufficient rationale for this poorly worded opinion is not provided. The Board accords little probative weight to his opinion. A subsequent opinion was obtained in October 2019 to address the Veteran’s secondary service connection concerns with respect to his hypertension claim. In an October 2019 VA opinion, the examiner opined that his hypertension was less likely as not due to or the result of the Veteran’s service-connected condition. The VA examiner noted that the Veteran’s hypertension disability is a separate entity entirely from his service-connected mental health conditions and unrelated to them. She noted that the medical literature does not support a medical relationship. The examiner stated that hypertension is caused by genetics, obesity, poor diet and lifestyle, and a nexus had not been established. The examiner additionally noted that the Veteran’s hypertension was not at least as likely as not aggravated beyond its natural progression by a service-connected condition. She stated that there is no clinical evidence the Veteran’s hypertension has been aggravated by any service-connected condition (including mental health). The examiner noted that an increase in medications is not an indication of aggravation. With respect to his claim for GERD, secondary service connection opinions were obtained in June 2020. The examiner opined that the Veteran’s claimed GERD is less likely than not proximately due to or the result of the Veteran’s service-connected condition. She noted that the causes of GERD do not include any of the Veteran’s service-connected medications or conditions and no nexus exists. The examiner noted that causes of GERD are transient lower esophageal sphincter (LES) relaxation, hypotensive lower esophageal sphincter, and anatomic disruption of the gastroesophageal junction. She stated that risk factors for LES relaxation include obesity, bulging of the top of the stomach up into the diaphragm, pregnancy, connective tissue disorders and delayed stomach emptying. She also noted that factors that can aggravate acid reflux include smoking, eating large meals or eating late at night, eating certain food, drinking certain beverages, and taking certain medications such as aspirin. The examiner additionally opined that the Veteran’s claimed GERD was not at least as likely as not aggravated beyond its natural progression by a service-connected disability. She stated that there is no evidence of Barret’s esophagitis which would indicate aggravation of GERD and no aggravation by any cause is plausible. The Board has also considered the statements made by the Veteran relating his GERD and hypertension to his service-connected disabilities. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), the specific issues in this case, the etiology of GERD and hypertension, fall outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer). Here, there is little probative evidence supporting the conclusion that the Veteran’s GERD or hypertension was caused or worsened by any service-connected disability. To the contrary, the well-reasoned VA examinations discussed above each concluded that such causation or aggravation is less than likely. Therefore, after weighing the pertinent evidence of record, the Board concludes that the preponderance of the evidence is against entitlement to service connection for either GERD or hypertension, as secondary to a service-connected disability. Service Connection on a Direct Basis Service connection may be established based on aggravation of a pre-existing condition, presuming that the pre-existing condition is shown to have been aggravated beyond natural progression by active service. A veteran will be considered to have been in sound condition when examined and accepted for service, except as to disorders noted on entrance into service, or when clear and unmistakable evidence demonstrates that the disability existed prior to service and was not aggravated by service. Only such conditions as are recorded in examination reports are to be considered as noted. 38 U.S.C. § 1111; 38 C.F.R. § 3.304(b). A preexisting injury or disease will be considered to have been aggravated by service where there is an increase in disability during service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 U.S.C. § 1153; 38 C.F.R. § 3.306. The burden falls on VA to rebut the presumption of soundness by clear and unmistakable evidence that the disability was both preexisting AND not aggravated by service. Wagner v. Principi, 370 F.3d 1089 (2004). In order to support a finding of aggravation, the evidence must establish that the underlying disability underwent an increase in severity; the occurrence of symptoms, in the absence of an increase in the underlying severity, does not constitute aggravation of the disability. Davis v. Principi, 276 F.3d 1341 (Fed. Cir. 2002). As an initial matter, the Board acknowledges that the Veteran has present diagnoses of GERD and hypertension. Treatment records reflect a diagnosis of GERD around May 1997 and hypertension around May 2004. A July 2017 letter from the Veteran’s physician reflects that the Veteran was first diagnosed with reflux in May 1997 and with hypertension in April 2004. The evidence clearly reflects that the Veteran was diagnosed with hypertension prior to entrance into his fourth period of active duty (September 2004-December 2005), and that he was diagnosed with GERD prior to his third period of active duty (January 2003-September 2003). The Veteran’s personal physician of approximately thirty-three years, in his July 2017 letter, confirmed the date of diagnoses for these disabilities. The Board notes that there is no evidence of an in-service incident, illness or injury in his first two periods of active service to which his GERD may be etiologically linked. Additionally, there is no evidence of an in-service incident, illness or injury in his first three periods of active service to which his hypertension may be etiologically linked. With respect to his GERD claim, the Veteran was provided a November 2019 VA opinion. The VA examiner noted that the claimed condition is less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The VA examiner noted that per the notes the Veteran had GERD in 1997 prior to his last periods of active duty. A specific opinion as to whether his GERD was related to the first two periods was not provided. An October 2019 VA opinion regarding his hypertension briefly noted that the Veteran’s hypertension was diagnosed during a period between active duty and was less likely than not incurred in or caused by the claimed in-service injury, event or illness. A specific opinion as to whether his hypertension is related to his first three periods of active duty was not provided. To the extent that the Veteran has not been afforded a VA examination in connection with these outstanding questions, absent some finding of an incident, illness or injury during a prior period of active service, VA is not obligated to provide such an examination. McLendon v. Nicholson, 20 Vet. App. 79 (2006). Turning to the question of whether the Veteran’s GERD, which was noted prior to entrance into his third period of active duty, and his hypertension, which was noted prior to entrance into his fourth period of active duty, were aggravated thereby, the Board similarly finds that this is not the case. The medical evidence does not support such a conclusion. The November 2019 VA examiner specifically found that the Veteran’s GERD was not aggravated by service. She stated that there is no evidence for permanent aggravation by subsequent periods of active duty and only routine care with medications is documented. With respect to his hypertension claim, opinions obtained in May 2014, August 2014 and October 2019 were noted to be inadequate in the prior Board remands. A June 2020 VA examiner noted that the Veteran’s hypertension was a preexisting condition. The examiner opined that the claimed condition, which clearly and unmistakably existed prior to service, was clearly and unmistakably not aggravated beyond its natural progression by an in-service injury, event, or illness. The examiner noted that there is evidence to indicate that the Veteran continued to suffer from the disorder during service, which is typical of a condition requiring medications. However, the examiner stated that the progression is not beyond the normal progression for this disorder. The examiner noted that prescription of additional medications does not equate to worsening of hypertension and that blood pressure elevations/temporary aggravations if present are due to many factors including diet, weight, exercise. The Board has reviewed the extensive records and VA examination opinions of record. In sum, the Board finds that the Veteran’s GERD and hypertension were not incurred during a period of active service. Neither did he suffer an in-service incident, illness or injury in his first two periods of active service to which his GERD may be etiologically linked, or in his first three periods of active service to which his hypertension may be etiologically linked. His GERD did not undergo any worsening during his final three periods of active service. His hypertension did not undergo any worsening during his final two periods of active service. As such, the claims of service connection for GERD and hypertension must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine; however, because the preponderance of the evidence is against the claim, that doctrine does not apply. See 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 C.F.R. § 3.102. Caroline Fleming Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. M. Clark, 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.