Citation Nr: 21012750 Decision Date: 03/05/21 Archive Date: 03/05/21 DOCKET NO. 16-08 051 DATE: March 5, 2021 ORDER Service connection for gastroesophageal reflux disease (GERD), claimed as a recurrent cough, is granted. Service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) is denied. FINDINGS OF FACT 1. Recurrent cough, to include as caused by diagnosed gastroesophageal reflux disease (GERD), was incurred in or caused by active service. 2. The Veteran does not have currently diagnosed PTSD related to a verified in-service stressor. 3. Currently diagnosed depression was not incurred in or caused by active service. CONCLUSIONS OF LAW 1. The criteria for service connection for GERD, claimed as a recurrent cough, have been met. 38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2019). 2. The criteria for service connection for an acquired psychiatric disorder, to include PTSD, have not been met. 38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty with the U.S. Army from December 1963 to December 1966. This case comes before the Board of Veterans’ Appeals (Board) on appeal from a March 2013 rating decision issued by the Department of Veteran Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The Veteran testified at a February 2019 Travel Board hearing before the undersigned Veterans Law Judge. A copy of the hearing transcript has been associated with the claims file. The appeal was before the Board in September 2019 and was remanded for VA examinations and further record development. While the requisite record development was conducted and VA examinations were obtained, the Board, within an October 2020 Remand, found that additional remand was required for new VA examinations and medical opinions for the claims on appeal. The Board finds, in the aggregate, that substantial compliance has been obtained with prior remand directives, and that the Board may proceed with appellate adjudication at this time. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998), where the Board’s remand instructions were substantially complied with), aff’d, Dyment v. Principi, 287 F.3d 1377 (Fed. Cir. 2002). Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. § 1110 (2012); 38 C.F.R. § 3.303 (a) (2019). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d) (2019). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); see also Hickson v. West, 12 Vet. App. 247, 253 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff’d, 78 F.3d 604 (Fed. Cir. 1996). In rendering a decision on appeal, the Board must analyze the credibility and probative value of all medical and lay evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. 38 U.S.C. § 1154 (a) (2012); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). The standard of proof to be applied in decisions on claims for veterans’ benefits is set forth in 38 U.S.C. § 5107. A veteran is entitled to the benefit of the doubt when there is an approximate balance of evidence for and against the claim. See 38 C.F.R. § 3.102 (2018). When a veteran seeks benefits and the evidence is in relative equipoise, the veteran prevails. See Gilbert, 1 Vet. App. 49. The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). 1. Entitlement to service connection for GERD, claimed as chronic cough In a June 2013 notice of disagreement, the Veteran contended that his chronic cough disability came from contaminants that were sprayed at Ft. Riley, Kansas, which were detected in the drinking water. Service treatment records include an August 1964 treatment record in which the Veteran was diagnosed with an upper respiratory infection. The Veteran had a cough and a runny nose and was prescribed medication for his cough. A January 1966 note shows the Veteran had a clear chest. A November 1966 separation examination shows a normal clinical evaluation of the mouth and throat. Private treatment records include a January 2008 nuclear medicine report, which showed that the Veteran complained of chest pain and unstable angina. The Veteran exercised for seven minutes, 30 seconds, per standard Bruce protocol, and achieved 92 percent of his max heart rate. The Veteran denied any chest pain or shortness of breath. In an Environmental Protection Agency (EPA) Region 7 record, dated April 2010, of Ft. Riley, Kansas, it is stated that numerous environmental investigations and sampling events at Ft. Riley were performed in the 1970s and 1980s. These investigations identified activities and facilities where hazardous substances had been released or had the potential to be released to the environment, to include chlorinated solvents, petroleum hydrocarbons, metals, tetrachloroethylene, trichloroethene, cis-1,2-dichloroethene and benzene which were the contaminants found in the groundwater. Private medical records from May 2011 showed the Veteran complained of a non-productive cough, and was assessed with GERD. VA treatment records in July 2014 show the Veteran had been diagnosed with persisting cough, and was to be referred to ENT. In a January 2015 VA medical opinion, the VA physician opined that the Veteran’s chronic cough was less likely than not caused by or the result of contaminated drinking water at Ft. Riley Kansas in 1966. The VA physician reviewed the Agency for Toxic Substances and Disease Registry article dealing with environmental exposures at Ft. Riley, Kansas, their conclusion was that in the evaluation of the ground water exposure pathway, “[n]o public health hazards associated with consuming water from ground water-supplied drinking water sources have occurred in the past, even for people who drank water from the downgradient auto speedway drinking water wells.’ Therefore, the examiner indicated that based on this information, the Veteran’s health complaints would not be due to the consumption of the drinking water at Ft. Riley, Kansas. A July 2017 VA treatment note shows the Veteran reported a history of a previous hiatal hernia repair in the 1980s. Within a February 2019 Travel Board hearing, the Veteran testified that soon after service separation, in January 1967, the Veteran met his wife, who was always complaining about his cough. He went to the doctors, who believed it was due to an allergy, and had chest x-rays done, but his lungs appeared ok and were not damaged. Since then, the Veteran tried all types of allergy medicines which would work sometimes or would slow down the cough, and sometimes wouldn’t work. Recently, the Veteran testified that he began taking antiacid medicines and his cough lessened, but that medicine would bother his chest, so he was taken off that medication. He indicated that his doctor believed his cough might be from acid reflux. The Veteran believed that contaminated water at Ft. Riley, Kansas caused his cough. Within a February 2020 VA examination, the Veteran was diagnosed with asthma. The Veteran reported having a chronic cough since leaving service which occurred daily, and mostly in the evening. A February 2020 chest x-ray showed no acute pulmonary disease. A January 2021 VA examination showed that the Veteran was also diagnosed with GERD and hiatal hernia. In describing the medical history, the VA examiner indicated that GERD was discovered while having a procedure, which began by symptoms of unexplained coughing. The Veteran had two hiatal hernia procedures which improved the Veteran’s cough but symptoms had not gone away. The VA examiner opined, that GERD was at least as likely as not incurred or caused by service. The VA examiner stated that the Veteran had diagnosed GERD in VA treatment records in January 2011 and again in a January 2021 VA examination. It was noted that service treatment records are quiet for a diagnosis however the Veteran reports during his Board hearing that he had a chronic cough that started directly after he separated from service in 1966. Upon medical literature review from uptodate.com: a cough is a common symptom of GERD. In considering the Board’s October 2020 Remand, in which the Board indicated that the Veteran was competent to report symptoms of recurrent cough, the examiner ultimately concluded that the GERD was at least as likely as not incurred or caused by GERD in service. Upon review of all the evidence, lay and medical, the Board finds that recurrent cough, to include as caused by diagnosed GERD, was incurred in or caused by active service. The January 2021 VA examiner opined that GERD was at least as likely as not incurred in or caused by service even though a diagnosis of GERD was not detected in service. The examiner found it significant that the Veteran reported a continuity of symptomology of recurrent coughing since service separation. Accordingly, the Board finds that entitlement to service connection for GERD, claimed as chronic cough is warranted. Entitlement to service connection for an acquired psychiatric disorder, to include PTSD Service connection for PTSD requires medical evidence establishing a diagnosis of the condition, credible supporting evidence that the claimed in-service stressor actually occurred, and a link, established by medical evidence, between current symptomatology and the claimed in-service stressor. Cohen v. Brown, 10 Vet. App. 128 (1997). In adjudicating a claim for service connection for PTSD, the Board is required to evaluate evidence based on places, types, and circumstances of service, as shown by the veteran’s military records and all pertinent medical and lay evidence. Hayes v. Brown, 5 Vet. App. 60, 66 (1993); see also 38 U.S.C. § 1154 (a) (2012); 38 C.F.R. § 3.304 (f) (2019). The evidence necessary to establish the occurrence of an in-service stressor for PTSD will vary depending on whether or not the veteran “engaged in combat with the enemy.” Id. If VA determines that a veteran engaged in combat with the enemy and that the alleged stressor is related to combat, then the veteran’s lay testimony or statements are accepted as conclusive evidence of the occurrence of the claimed stressor. 38 U.S.C. § 1154 (b) (2012); 38 C.F.R. § 3.304 (f) (2018). No further development or corroborative evidence is required, provided that the claimed stressor is “consistent with the circumstances, conditions, or hardships of the veteran’s service.” Id. If, however, VA determines that the veteran did not engage in combat with the enemy or that the alleged stressor is not related to combat, the veteran’s lay testimony by itself is not sufficient to establish the occurrence of the alleged stressor. Instead, the record must contain service records or other evidence to corroborate the veteran’s testimony or statements. See Moreau v. Brown, 9 Vet. App. 389, 394 (1996). The question of whether a veteran was exposed to a stressor in service is a factual one, and VA adjudicators are not bound to accept uncorroborated accounts of stressors or medical opinions based upon such accounts. Wood v. Derwinski, 1 Vet. App. 190 (1991), aff’d on reconsideration, 1 Vet. App. 406 (1991). Hence, whether a stressor was of sufficient gravity to cause or support a diagnosis of PTSD is a question of fact for medical professionals and whether the evidence establishes the occurrence of stressors is a question of fact for adjudicators. Here, the Veteran has claimed, within a June 2013 notice of disagreement, that PTSD and depression were related to a gunshot to his lower left thigh while he was stationed in Ft. Riley, Kansas. Specifically, within an August 2010 statement, the Veteran reported that close to the date of his discharge from the military, he was shot when breaking up a bar fight while stationed in Ft Riley, Kansas with the 387th Replacement Company. He indicated that the medic and doctor took a look at it, and the bullet was removed with a scalpel. The bullet had entered his lower left quad. He indicated that he cleared post and was discharged at the scheduled time. The Veteran stated that he could not find evidence of this incident within his service treatment records. Service treatment records do not show complaints, treatment or diagnosis of a psychiatric disorder or treatment for a gunshot wound. Military personnel records show that the Veteran was stationed in Ft. Riley, Kansas in December 1966 with the 387th Replacement Company and was ordered for discharge. A Defense Personnel Records Information Retrieval System (DPRIS) search of the U.S. Army historical records, to include casualty data, was unable to document the incident described pertaining to the Veteran’s injury in 1966. A search of the U.S. Army Crimes Record Center returned a negative records request regarding the Veteran’s mid-November 1966 bar fight and gunshot in Junction City, Kansas. VA treatment records include an April 2011 note, in which the Veteran was advised to have an appointment by his veteran’s advocate. The Veteran was not interested in medication management or psychotherapy. The Veteran reported that while he was stationed in Korea, he saw a boy get injured, in which he “lost half of his face” but the Veteran didn’t know what happened to him. He also reported having dreams of men that he trained to go to Vietnam, and also reported that he got shot splitting up a bar fight as an MP. The VA psychiatrist diagnosed the Veteran with major depressive disorder, mild. In a June 2011 statement, the Veteran reported that, with regard to his claim of service connection for PTSD, he was shot in the abdomen during an altercation while on MP duty. VA treatment records also include a July 2016, June 2017, July 2017 and July 2018 treatment notes show negative depression screens or notations that the Veteran denied any current depression. In the February 2019 Travel Board hearing, the Veteran testified that at the end of his term in the Army, he was in an MP company and during that time, in Junction City, a guy came out of the bar and said there was a fight about to happen, so he went in to investigate. He testified that he saw movement, and thought a man had a knife, but found out that he had been shot by a small pistol. He went to the hospital and had a .25 automatic bullet removed. The Veteran was told by his VA counselor that this event could be the reason why he had anger issues. When he first saw a VA psychiatrist, he was asked whether he wanted to take medication, and the Veteran indicated that he did take Prozac back in the 1990s when he was feeling lethargic and felt that nothing mattered. The Veteran testified that he began to get upset at small things starting after military service, but never really was depressed. He believed he felt guilty for deciding not to re-enlist or extend a year but never sought treatment for this. He indicated that he was going through rough times with martial issues in the 1990s, went to a private doctor who told him he was depressed and prescribed him Prozac, but he stopped using it after three months. Within a February 2020 VA contracted-examination, the VA examiner found that the Veteran was not diagnosed with PTSD, as his symptoms did not meet the diagnostic criteria for PTSD under the DSM-V criteria, and that the Veteran did not have a mental disorder that conformed with the DSM-V criteria. During the examination, the Veteran reported feeling down when his first wife died in 2017, but currently denied depression, anxiety or any other psychiatric symptoms. A January 2021 VA examination shows the Veteran had diagnosed major depressive disorder, recurrent in remission. The VA examiner denoted that the Veteran had mild depressed mood and anxiety noted but did not meet the full criteria during the examination. Upon review of the medical evidence and examination of the Veteran, the VA examiner opined that the Veteran did not meet the DSM-V criteria for PTSD, but met the criteria for major depressive disorder in remission, meaning the Veteran had intermittent, recurring depression, but symptoms did not currently meet criteria for a diagnosis. The examiner indicated that this explained his inconsistencies in his diagnoses and examinations. The VA examiner stated that the Veteran was depressed due to marital issues in April 2011 but was not depressed and did not get diagnosed with depression in the July 2017 treatment records. The Veteran was depressed in September 2019 due to the loss of his brother and was depressed in 2020 after losing his son. The VA examiner opined that the Veteran’s depression, recurrent in remission, was less likely than not related to active service. The examiner reasoned that during the examination, the Veteran denied problems with depressed mood or PTSD from being shot in 1966, with the onset of depression not reported until after service separation. The Board finds that the Veteran does not have currently diagnosed PTSD related to a verified in-service stressor. The Board notes that both the February 2020 and January 2021 VA examination reports show that the Veteran does not have currently diagnosed PTSD, and the claimed in-service gunshot has not been corroborated by the evidence of record or other credible supporting evidence. The Veteran has contended that while in service, just prior to discharge in early December 1966, he was shot in the left leg when breaking up a bar fight while stationed in Ft. Riley, Kansas. Service treatment records do not document treatment of a gunshot wound, or show complaints, treatment or diagnoses of PTSD. Military personnel records to include a search within DPRIS and the U.S. Army Crimes Record Center were unable to corroborate the Veteran’s reports of a 1966 gunshot wound. The Board finds that the Veteran is competent to recall incidents that occurred during service, however, the Board finds that information from such official sources outweighs the Veteran’s own assertions made for compensation purposes. Therefore, the Board finds that the Veteran’s in-service stressor is unverified. See Wood, 1 Vet. App. at 190 (The question of whether a veteran was exposed to a stressor in service is a factual one, and VA adjudicators are not bound to accept uncorroborated accounts of stressors or medical opinions based upon such accounts). Additionally, the Board finds probative the VA examinations of record, which found no diagnosis if PTSD, as they are well reasoned, based off an interview with the Veteran and a thorough review of the Veteran’s claim’s file. Therefore, the Board finds that the Veteran does not have diagnosed PTSD which is related to a verified in-service stressor. Finally, the Board finds that currently diagnosed depression, recurrent in remission, was not incurred in or caused by active service. Service treatment records do not show complaints, treatment or diagnoses of depression in service. VA treatment records show the Veteran was first diagnosed with a compensable psychiatric disorder in April 2011, many decades after service separation in December 1966. Maxson, 230 F.3d at 1333 (Fed. Cir. 2000) (the passage of many years between discharge from active service and the medical documentation of a claimed disability is one factor to consider as evidence against a claim of service connection). Additionally, the January 2021 VA examiner concluded that diagnosed depression was less likely than not incurred in or caused by active service, citing to the length of time between discharge and any assistance for a mental health issue. Further, the examiner noted that the Veteran denied problems with depressed mood or PTSD from being shot in 1966 during the examination. Therefore, the Board finds that depression was not incurred in or caused by active service. Based on the above analysis, the Board finds that service connection for an acquired psychiatric disorder, to include PTSD, is not warranted. Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. See 38 U.S.C. § 5107 (2012); 38 C.F.R. § 3.102 (2019). K. Parakkal Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. R. Woodarek 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.