Citation Nr: 21014075 Decision Date: 03/11/21 Archive Date: 03/11/21 DOCKET NO. 15-08 708 DATE: March 11, 2021 ORDER Entitlement to service connection for a gastroesophageal reflux disorder (GERD), to include hiatal hernia, is granted. REMANDED Entitlement to service connection for a sinus disability is remanded. Entitlement to service connection for headaches, to include as secondary to a sinus disability, is remanded. FINDING OF FACT GERD had its onset during the Veteran’s active service. CONCLUSION OF LAW The criteria for service connection for GERD with hiatal hernia are met. 38 U.S.C. §§ 1110, 5107 (2018); 38 C.F.R. §§ 3.102, 3.303 (2019). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from October 1994 to June 2000. This case comes before the Board of Veterans’ Appeals (Board) on appeal from a June 2012 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a hearing before the undersigned Veterans Law Judge in April 2018. A transcript of that hearing has been added to the record. This case was previously before the Board, most recently in July 2020, at which time the case was remanded for additional development. The case has now been returned to the Board for further appellate action. Service Connection – GERD, to include Hiatal Hernia The Veteran contends that his GERD with hiatal hernia had its onset during active service, or in the alternative, was caused or aggravated by stress caused by his service-connected posttraumatic stress disorder (PTSD). Specifically, at his April 2018 hearing before the Board, the Veteran testified that during his time in Germany during service he began to experience acid reflux and was given Pepto Bismol. He noted that he would have trouble eating not only spicy foods, but a wide range of foods including hamburgers and turkey sandwiches. He testified that at times during service he relied on eating baby food and applesauce as they were the only things that did not give him indigestion. Service treatment records (STRs) are silent for complaints of, treatment for, or a diagnosis of GERD or hiatal hernia while he was in active service. However, the Board notes that the Veteran is competent to report when he first experienced symptoms of GERD, and that they have continued since service. Moreover, the Board finds that the Veteran is credible in that regard. Heuer v. Brown, 7 Vet. App. 379 (1995); Falzone v. Brown, 8 Vet. App. 398 (1995); Caldwell v. Derwinski, 1 Vet. App. 466 (1991). The Veteran also testified that in 2008, post-service, he felt like he was having a heart attack but, after going to the hospital was diagnosed with acid reflux and was sent for an endoscopy. At the time of the endoscopy, the hiatal hernia was discovered. A review of the post-service medical evidence of record shows that the Veteran was seen for symptoms of GERD in 2009. He was sent for another endoscopy in January 2010, at which time the diagnoses of GERD and a hiatal hernia were confirmed. The Board notes that in connection with this claim, the Veteran was afforded a VA examination in September 2019, and VA medical opinions were provided in both September 2019 and July 2020. However, the Board finds that the opinions provided are not adequate as the examiners failed to give adequate consideration to the Veteran’s lay statements regarding the onset and continuity of the Veteran’s symptoms. As such, those medical opinions are of no probative value. Lay 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. In fact, competent medical evidence is not necessarily required when the determinative issue involves either medical etiology or a medical diagnosis. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). Here, as noted above, the Veteran is competent to identify when he first experienced symptoms of GERD, and that they have continued since service. In sum, the Veteran has competently and credibly reported that he first experienced symptoms of GERD while he was in active service, and that they have continued since that time. The Veteran has a current diagnosis of GERD and hiatal hernia. The VA medical opinions against the claim are inadequate, and are of no probative value. Accordingly, the Board finds that the evidence for and against the claim is at least in equipoise. Therefore, the benefit of the doubt must be resolved in favor of the Veteran, and entitlement to service connection for GERD and hiatal hernia is warranted. 38 U.S.C. § 5107 (b) (2018); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND Service Connection – Sinus Disability In the July 2020 remand, the Board directed that additional medical opinions be obtained regarding the nature and etiology of the Veteran’s sinus disability. A review of the record shows that the directed VA medical opinions were obtained in July 2020. However, a review of the opinions obtained show that they are inadequate. Specifically, the VA examiner did not sufficiently clarify whether the Veteran had a sinus disability that existed prior to service, and was not aggravated by service. therefore, the Board finds that the development conducted does not adequately comply with the directives of the July 2020 remand. Compliance with remand directives is not discretionary, and failure to comply with the terms of a remand necessitates remand for corrective action. Stegall v. West, 11 Vet. App. 268 (1998). Accordingly, the Veteran should be afforded a new VA examination to determine the nature and etiology of any currently present Service Connection - Headaches, Secondary to Sinus Disability The issue of entitlement to service connection for headaches is inextricably intertwined with the claim for entitlement to service connection for a sinus disability remanded herein, as the Veteran has claimed this condition as secondary to a sinus disability. Harris v. Derwinski, 2 Vet. App. 180, 183 (1991). Hence, a determination on the claim for entitlement to service connection for headaches should be deferred pending a final disposition of the claim for entitlement to service connection for a sinus disability. The matters are REMANDED for the following action: 1. Identify and obtain any pertinent, outstanding VA and private treatment records and associate them with the claims file. 2. Then, schedule the Veteran for an examination by an examiner with appropriate expertise to determine the nature and etiology of the Veteran’s sinus disability. The claims file must be made available to, and reviewed by, the examiner. Any indicated studies should be performed. Based on the examination of the Veteran and the review of the record, the examiner should first identify all sinus disabilities present during the pendency of the appeal, or proximate thereto. Then, for each disability identified, the examiner must provide an opinion as to whether such disability clearly and unmistakably existed prior to the Veteran’s service, and if so, was clearly and unmistakably NOT aggravated by service. The examiner is instructed that the Veteran’s lay statements alone are not sufficient to based a conclusion that a disability clearly and unmistakably existed prior to service. For any diagnosed sinus disability NOT found to clearly and unmistakably exist prior to service, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent or better probability) that such disability had its onset during the Veteran’s active service, or is otherwise etiologically related to such service. In forming the opinion, the examiner must address the Veteran’s lay statements regarding the continuity of his symptoms. A complete and detailed rationale for all opinions expressed must be provided. 3. Confirm that the VA examination report and all medical opinions provided comport with this remand, and undertake any other development determined to be warranted, to include obtaining any necessary VA examinations and opinions pertaining to the Veteran’s claim of entitlement to service connection for headaches. 4. Then, readjudicate the remaining issues on appeal. If a decision is adverse to the Veteran, issue a supplemental statement of the case and allow appropriate time for response. Then, return the case to the Board. Kristin Haddock Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Andrew Ledman II 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.