Citation Nr: 21014529 Decision Date: 03/12/21 Archive Date: 03/12/21 DOCKET NO. 16-18 952A DATE: March 12, 2021 ORDER Entitlement to service connection for a gastric ulcer is denied. Entitlement to service connection for gastroesophageal reflux disorder (GERD) is denied. REMANDED Entitlement to service connection for internal hemorrhoids is remanded. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that gastric ulcer began during active service, or is otherwise related to an in-service injury or disease. 2. The preponderance of the evidence is against finding that GERD began during active service, or is otherwise related to an in-service injury or disease. CONCLUSIONS OF LAW 1. The criteria for service connection for GERD are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 2. The criteria for service connection for GERD are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active military service from May 2002 to November 2002, and from January 20, 2004 to February 4, 2004 with service in the Army National Guard from January 1979 to July 2004. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a November 2015 rating decision of the Department of Veterans Affairs (VA). The issues before the Board were remanded in October 2018 for further development. As pertaining to the Veteran’s gastric ulcer and GERD claims, the requested development is complete, and the case is ready for adjudication. Regrettably additional development is still necessary before adjudication of the Veteran’s claim for service connection for hemorrhoids may take place. Of note, the Veteran submitted a request for higher level review under the Appeals Modernization Act in February 2021, however the Veteran did not indicate that he wished to withdraw his appeal from the legacy appeals process, thus the form was incomplete. In a later February 2021 correspondence, the Veteran was informed that review was unavailable due to the incomplete form and that his claim would be reviewed under the legacy system. The Veteran has not submitted any additional forms indicating that he wished to opt out of the legacy review process and adjudication will continue under it. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). Service connection may additionally be granted for a disability that is proximately due to, or aggravated by, service-connected disease or injury. 38 C.F.R. § 3.310. Factual Background In this case, as pertaining to the Veteran’s service treatment records, the Veteran’s claims considered below are based upon the same facts. Thus, they will be discussed here, and each claim will be analyzed separately. A November 2000 report of medical history noted a 1987 operation for ulcer; however, a current ulcer was not noted at the time the Veteran’s active duty began. The record includes a June 2002 sick slip which notes the Veteran’s complaints of stomach aches which radiated to his esophagus region. The Veteran reported dark stools and stomach surgery which occurred twelve years prior. A history of peptic ulcer surgery was noted, it was noted that peptic ulcer disease (PUD) and Cholestasia should be ruled out. In a June 2002 treatment record, the Veteran was noted to have had an abdominal ultrasound which showed a gallbladder polyp. It was noted that the Veteran was treated with Aciphex for his stomach symptoms and that it was helping and would be continued. A January 2004 treatment note noted a complaint of stomach ulcers and bleeding, it was noted that a VA colonoscopy demonstrated a rectal polyp, ulcers were not found. A January 2004 physical profile noted abdominal pain and GI bleed, it was noted that the Veteran was not deployable overseas. Entitlement to Service Connection for a Gastric Ulcer The Veteran contends that he has a gastric ulcer which is due to service. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. As noted above, service treatment records show a history of gastric ulcer in 1987, and gastrointestinal symptoms, however a gastric ulcer is not shown. Post-service treatment records note a 1987 history of gastric ulcer, but a current diagnosis is not shown. In a December 2020 VA examination, the examiner stated that there was no evidence of recurrent active PUD in the Veteran’s VA medical files nor recorded complaints of the condition. It was noted that the Veteran denied being diagnosed with recurrent PUD after the surgical procedure in 1987. Therefore, the examiner explained, PUD was cured with surgical treatment with no evidence of recurrence since 1987. It was noted that during the Veteran’s induction examination, a history of PUD was mentioned, but the Veteran did not report symptoms related to this condition and it was not considered disabling at the time of induction. The examiner concluded that gastric ulcer was not incurred, aggravated or caused by service. It was noted that the Veteran was given a colonoscopy and radiologic studies with no evidence of ulcer disease. The examiner further explained that the Veteran’s reported complaints of abdominal pain and dark stools were at least as likely as not due to acute gastritis episodes. Therefore, stomach complaints were at least as likely as not related to acute gastritis episodes and there was no evidence of recurrent gastric ulcer. The Board concludes that the Veteran does not have a current diagnosis of gastric ulcer and has not had one at any time during the pendency of the claim or recent to the filing of the claim. Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). While the Veteran may sincerely believe he has a current diagnosis of he is not competent to provide a diagnosis in this case. The issue is medically complex, as it requires the ability to interpret complicated diagnostic medical testing and an understanding of the causes and symptoms of one disorder versus another. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to the competent medical evidence. In this case, then, the evidence is against a finding both that the Veteran had a gastric ulcer during his active duty service, as found by the VA examiner who noted that his symptoms were at least as likely as not due to gastritis and less likely as not due to gastric ulcer, and a finding that he has a current disability. As none of the elements of service connection are met, service connection must be denied. Entitlement to Service Connection for Gastrointestinal Reflux Disorder The Veteran contends that he has GERD due to service or to a gastric ulcer. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that, while the Veteran has a diagnosis of GERD, the preponderance of the evidence is against finding that it began during active service, or is otherwise related to an in-service injury, event, or disease. Initially, secondary service connection may only be granted for a condition which is due to or aggravated by a service-connected disability. Here, above, service connection for a gastric ulcer is denied. Thus, secondary service connection is not available. Post service treatment records include an October 2015 VA examination. In that examination report, the Veteran’s examiner provided a diagnosis of GERD, with a diagnosis date of 2012. The examiner stated that the Veteran’s GERD was not related to service as the Veteran’s service treatment records were silent regarding GERD. Following remand, new examinations were completed to supplement the October 2015 findings, as treatment notes did not specifically note GERD but did show stomach pains which radiated to the esophagus In September 2020, the Veteran was afforded a VA examination. Following review of the claims file and examination of the Veteran, the examiner concluded that the Veteran’s GERD was less likely than not the result of active military service as there was no evidence of in-service treatment. However, the examiner did not address the findings of pain to the esophagus region. The claims file was again provided to an examiner in December 2020, the examiner was noted to have reviewed the record and to have interviewed the Veteran telephonically. Following this review, the examiner found that it was less likely than not that the Veteran’s GERD was related to service. The examiner noted a medical diagnosis of rule out PUD and rule out Cholelithiasis were considered and that colonoscopic studies showed no evidence of ulcer disease. The examiner stated that the Veteran’s complaint of “dark stools” was at least as likely as not due to acute gastritis episodes. The examiner explained that the Veteran was continued under treatment with Aciphex and that there was no further evidence of recurrent complaints thereafter after the Veteran was treated with Aciphex. The examiner stated that although GERD and acute gastritis pertained to the digestive system, GERD was a different medical condition in a different anatomical area which was diagnosed eight years after military service and that GERD was not aggravated or etiologically related to acute gastritis. The preponderance of the evidence is against the Veteran’s claim for service connection for GERD. As noted by the VA examiner, the Veteran’s symptoms, which the Veteran may believe were related to GERD, were at least as likely due to acute gastritis and the evidence did not demonstrate that GERD, later found in 2012, was related to his service. Thus, the competent medical evidence is against a finding that the Veteran had GERD in service or that his GERD is related thereto. Further, for the reasons noted above, the Veteran is not shown ot have the expertise required to make a medical determination as to the cause of GERD. As the preponderance of the evidence is against the Veteran’s claim, service connection for GERD must be denied. REASONS FOR REMAND Entitlement to Service Connection for Hemorrhoids is Remanded A remand is necessary for further clarification following VA examinations and opinions. As noted above, the Veteran had two periods of active duty service, between May 2002 to November 2002, and from January 20, 2004 to February 3, 2004. Previously, in its October 2018 remand, the Board requested a medical opinion following an October 2015 examiner’s finding that the Veteran’s hemorrhoids were less likely than not related to service because there was no evidence in service treatment records of hemorrhoids. In its remand, the Board asked that the examiner discuss June 2002 treatment notes which reported a history of dark stool during mobilization. In September 2020, a VA examiner found that the Veteran’s hemorrhoids were not related to service, the examiner related the Veteran’s dark stools to acute gastritis rather than hemorrhoids. The examiner further stated that the first documentation of hemorrhoids was shown in a January 2004 colonoscopy performed, a year after the Veteran’s separation from service. Of note, the Veteran returned to active service on January 20, 2004, following a finding of rectal polyp on January 13, 2004. It appears that the examiner was unaware of the Veteran’s brief second period of active duty. The record includes a January 26, 2004 pre-deployment health assessment which reports a history of rectal polyp, however as the Veteran was on active duty from January 20, 2004, and the record does not include an examination report prior to the Veteran’s second period of active duty service, the record does not show that hemorrhoids were noted, thus the Veteran is presumed to have been in sound health as pertaining to hemorrhoids upon beginning active duty service unless clear and unmistakable evidence demonstrates that the disease existed prior thereto and was not aggravated by service. See 38 U.S.C. § 1111; see also 3.304(b) ("only such conditions as are recorded in examination reports are to be considered as noted"). A new medical examination is necessary so that the examiner can explain whether the Veteran’s hemorrhoid condition clearly and unmistakably pre-existed his second period of active duty service, whether the Veteran’s rectal polyp, found prior to the Veteran’s second period of active duty service, demonstrated the presence of hemorrhoids, and whether the Veteran’s active duty service aggravated this condition. The Board by this remand makes no determination, expressed or implied, concerning the credibility of any statements on file. The matters are REMANDED for the following action: 1. Provide the claims file to an appropriate clinician for review for a medical opinion. The claims file and a copy of this Remand must be made available to and reviewed in conjunction with this addendum opinion. The examiner is advised that the evidentiary standard for whether a condition existed prior to service is "clear and unmistakable," which is a formidable evidentiary standard requiring that the preexistence of a condition and the no-aggravation result be "undebatable." After reviewing the record, the examiner must provide medical findings or opinions for each of the following: a) Is the January 2004 finding of a rectal polyp 1) the same as, or 2) indicative of internal hemorrhoids? i) If no, is it medically undebatable that the Veteran's rectal polyp pre-existed his entry into active military service? ii) If it is found as medically undebatable that rectal polyp clearly and unmistakably preexisted service, is it also medically undebatable that it was NOT aggravated in service? iii) If a rectal polyp or hemorrhoid condition is NOT found to have clearly and unmistakably preexisted service, is it as least as likely as not (50 percent or greater probability) that the Veteran has had a rectal polyp or hemorrhoid disability during the appeal period (from June 16, 2015) which began in or is related to active military service? Why or why not? 2. Then readjudicate the claims remaining on appeal. If any of the benefits sought are not granted in full, furnish the Veteran and his representative with a supplemental statement of the case and an opportunity to respond, and return the case to the Board. KELLI A. KORDICH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board G. Slovick, 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.