Citation Nr: 21015226 Decision Date: 03/17/21 Archive Date: 03/17/21 DOCKET NO. 18-42 068 DATE: March 17, 2021 ORDER Entitlement to service connection for gastroesophageal reflux disease (GERD), including as due to herbicide agent exposure, and to include as secondary to service-connected type II diabetes mellitus, is denied. FINDING OF FACT The preponderance of the evidence is against a finding that the Veteran’s GERD was caused or aggravated by service-connected diabetes mellitus, began during active service, or is otherwise related to any incident of service, to include exposure to an herbicide agent such as Agent Orange. CONCLUSION OF LAW The criteria for service connection for GERD have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1116, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from December 1967 to July 1969, to include service in the Republic of Vietnam. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). In September 2018, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge (VLJ) of the Board. A transcript of that hearing is of record. The case was previously before the Board in September 2020, at which time the Board granted entitlement to service connection for type II diabetes mellitus and remanded the claims for service connection for bilateral upper and lower extremity peripheral neuropathy and GERD for additional evidentiary development, to include providing VA examinations and etiological opinions. See September 2020 Board Decision. The examinations occurred in September 2020. Thereafter, in a November 2020 decision, the agency of original jurisdiction (AOJ) granted service connection for peripheral neuropathy of the left and right upper and lower extremities, assigning each extremity a 20 percent evaluation, effective from September 4, 2012. See November 2020 Rating Decision. As this represents a full grant of the benefits sought on appeal, those issues are no longer before the Board. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997). The claim for service connection for GERD remained denied, however, and has since returned to the Board. 1. Service connection for GERD is denied. The Veteran asserts entitlement to service connection for GERD. In particular, the Veteran maintains that his current GERD was either caused or aggravated by his service-connected diabetes mellitus, to include medications prescribed for the treatment of his diabetes. See, e.g., June 2018 Notice of Disagreement (VA Form 21-0958); September 2018 Board Hearing Transcript; February 2021 Informal Hearing Presentation (IHP). See also September 2020 Rating Decision (granting service connection for diabetes mellitus and assigning a 20 percent evaluation, effective from September 4, 2012). In this regard, service connection may be established on a secondary basis for a disability which is proximately due to, or the result of, a service-connected disease or injury. 38 C.F.R. § 3.310 (a); Allen v. Brown, 7 Vet. App. 439, 448 (1995). In order to establish entitlement to service connection on a secondary basis, the evidence must show (1) that a current disability exists and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. Id. Additionally, as pertinent to the present claim, direct service connection means that a disability resulting from disease or injury was incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge when the evidence shows that the disease was incurred in service. 38 C.F.R. § 3.303(d). Establishing service connection on a direct basis generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); see also 38 C.F.R. § 3.303(a). Moreover, where, as here, a Veteran served on active duty in the Republic of Vietnam during the Vietnam era and is thus presumed to have been exposed to an herbicide agent (such as Agent Orange), see 38 C.F.R. § 3.307(a)(6)(iii), then certain specified diseases shall be presumptively service connected if such disease became manifest to a degree of 10 percent or more at any time after service. See 38 C.F.R. §§ 3.307(a), 3.309(e). The lists of diseases that are presumed to be related, or due to, herbicide exposure are updated by the Secretary based on information provided by the National Academies of Sciences, Engineering, and Medicine (NASEM) (formerly the National Academy of Sciences (NAS)). The Secretary of VA has determined that there is no positive association between exposure to herbicides and any other condition for which the Secretary has not specifically determined that a presumption of service connection is warranted. See Determinations Concerning Illnesses Discussed in National Academy of Sciences Report: Veterans and Agent Orange: Update 2012, 79 Fed. Reg. 20,308 (April 11, 2014); see also National Academy of Sciences, Veterans and Agent Orange: Update 2014 (2016); National Academies of Sciences, Engineering, and Medicine, Veterans and Agent Orange Update 11 (2018). As noted, the Veteran asserts that his current GERD was either caused or aggravated by his service-connected diabetes mellitus. See, e.g., September 2018 Board Hearing Transcript; February 2021 Informal Hearing Presentation (IHP). See also 38 C.F.R. § 3.310(a); Allen, 7 Vet. App. at 448. As noted, in September 2020, the Board remanded the issue for medical evaluation and etiological discussion. See September 2020 Board Decision. Accordingly, the Veteran was afforded a VA esophageal conditions examination in September 2020, at which the examining VA physician confirmed the diagnosis of GERD. See September 2020 VA Esophageal Conditions Disability Benefits Questionnaire (DBQ). The examiner discussed the Veteran’s relevant medical history, noting that the Veteran’s “medical records show that [he] has been suffering [from] reflux since June 2005.” Id. Based on an examination of the Veteran, the Veteran’s medical history, a review of the medical evidence of record, and a review of pertinent medical literature, the September 2020 examining VA physician opined that the diagnosed GERD was less likely than not caused or aggravated by his service-connected diabetes, including medications taken for the management of this condition. See September 2020 VA Medical Opinion DBQ. In support of this finding, the VA examiner noted that the GERD diagnosis predated the Veteran’s diabetes diagnosis by many years. Moreover, as to causation, the VA examiner stated that a review of the pertinent medical literature does not reflect that diabetes causes GERD. Id. Regarding aggravation, the VA physician reasoned that the Veteran’s VA treatment records show that his GERD has been clinically evaluated “stable” since he began taking medication to manage his symptoms and that his symptoms remained “stable” and “controlled” following his diabetes diagnosis and the commencement of his VA prescribed treatment. Id. The Board finds the September 2020 VA examination report and opinion to be highly probative, as they represent the informed conclusion of a medical professional supported by thorough explanations and based on a review of the Veteran’s medical history, the clinical findings made on examination, the symptomatology reflected in the medical and lay evidence of record, and relevant medical literature and treatise evidence. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (holding that the probative value of a medical opinion comes from its reasoning); Prejean v. West, 13 Vet. App. 444, 448 (2000) (holding that the Board may determine the probative value of medical opinions based on their detail and persuasiveness, and the physicians’ access to a Veteran’s medical records). Accordingly, the September 2020 VA examination report and opinion carry significant probative weight in the Board’s determination. See Caluza v. Brown, 7 Vet. App. 498, 506 (1995). The Board has considered the Veteran’s statements and testimony asserting that his GERD was caused or aggravated by his service-connected diabetes mellitus. In this regard, the Board notes that lay statements submitted by or on behalf of a claimant can be competent with respect to both the diagnosis and the etiology or cause of a disability. See Davidson, 581 F.3d at 1316 (holding that it was error to reject “categorically” lay statements on the issue of medical nexus, and similarly to make a categorical finding that a medical opinion was required); see also Kahana v. Shinseki, 24 Vet. App. 428, 434 (2011) (holding that the Board erred in categorically rejecting lay evidence without assessing its competence). However, as a lay person in the field of medicine, the Veteran does not have the training or expertise to render a competent opinion on the medical issue in this case, namely whether his currently diagnosed GERD was caused or aggravated by his service-connected diabetes mellitus, since that is a medical determination that is too complex to be made based on lay observation alone. See Jandreau v. Nicholson, 492 F. 3d 1372, 1376-77 (Fed. Cir. 2007) (observing that a layperson can be competent to identify conditions that are simple, such as a broken leg, but is not competent to identify more complex conditions such as a form of cancer); Barr v. Nicholson, 21 Vet. App. 303, 309 (2007) (holding that lay testimony is competent as to matters capable of lay observation, but not with respect to determinations that are “medical in nature”); Layno v. Brown, 6 Vet. App. 465, 469-71 (1994) (holding that in order for testimony to be probative of any fact, the witness must be competent to testify as to the facts under consideration, and that lay testimony is not competent to prove that which would require specialized knowledge, training, or medical expertise). Here, the only evidence suggesting a medical nexus between the Veteran’s diagnosed GERD and his service-connected diabetes mellitus is the Veteran’s lay assertion of causation. And, as noted, this etiological question is a medical determination that is too complex to be made based on lay observation alone. See Jandreau, 492 F. 3d at 1376-77; Barr, 21 Vet. App. at 309; Layno, 6 Vet. App. at 469- 71. Moreover, although the Veteran contends that his current GERD is related to his service-connected condition, he has submitted no competent medical evidence or opinion to corroborate this contention. See 38 C.F.R. § 3.159 (a)(1) (defining competent medical evidence as evidence provided by a person who is qualified through education, training or experience to offer medical diagnoses, statements, or opinions). In fact, when asked by his representative at the September 2018 Board hearing whether any of his medical treatment providers told him that his diabetes and/or the medication prescribed for it “had anything to do” with his GERD symptoms, the Veteran answered that he “doesn’t remember” anything like that. See September 2018 Board Hearing Transcript. Accordingly, although lay persons are competent to provide opinions on some medical issues, because the specific issue in this case, the etiology of GERD, falls outside the realm of common knowledge of a lay person, the Veteran’s unsupported assertions concerning the etiology of his current GERD lack probative value, and are outweighed by the VA examination report and opinion to the contrary. See King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2012) (affirming the Court’s conclusion that the Board did not improperly discount the weight of a lay opinion in finding a medical expert’s opinion more probative on the issue of medical causation); Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997) (holding that the Board has the “authority to discount the weight and probity of evidence in the light of its own inherent characteristics in its relationship to other items of evidence”); see also Jandreau, 492 F. 3d at 1376-77; Layno, 6 Vet. App. at 469-71; Kahana, 24 Vet. App. at 435. Thus, service connection on a secondary basis for the Veteran’s currently diagnosed GERD is unwarranted. Nevertheless, the Board notes that the Veteran has alluded to the possibility that his GERD is the result of his exposure to herbicides during his active service in Vietnam during the Vietnam Era. See June 2018 Notice of Disagreement (VA Form 21-0958); February 2021 Informal Hearing Presentation (IHP). However, although the Veteran served in the Republic of Vietnam while on active duty and is thus presumed to have been exposed to an herbicide agent, presumptive service connection is not available under 38 C.F.R. § 3.309(e) for GERD. Accordingly, presumptive service connection on the basis of herbicide agent exposure is not warranted. See 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. Despite this, service connection for the Veteran’s GERD may still be established on the basis of direct causation. See McCartt v. West, 12 Vet. App. 164, 167 (1999); Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994); see also Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007) (observing that the “availability of presumptive service connection for some conditions based on exposure to Agent Orange does not preclude direct service connection for other conditions based on exposure to Agent Orange”). In this regard, in disassociating the Veteran’s GERD from his active service, including his exposure to herbicide agents, the September 2020 VA examining physician noted that medical literature does not show a relationship between herbicide agent exposure and GERD. See September 2020 VA Medical Opinion DBQ. Furthermore, the examiner reasoned that the medical evidence of record does not reflect, and the Veteran does not contend, that he experienced any symptoms attributable to GERD during or for many years following his active service. Id. Accordingly, the September 2020 VA opinion found against any relationship between the Veteran’s active service, including his presumed exposure to Agent Orange, and his current GERD. See id. See also See also National Academies of Sciences, Engineering, and Medicine, Veterans and Agent Orange Update 11, 526-534 (2018) (available at https://www.nap.edu/catalog/25137/ veterans-and-agent-orange-update-11-2018) (finding that “there is inadequate or insufficient evidence to determine whether there is an association between exposure to [herbicide agents] and gastrointestinal and digestive diseases”). The Board finds this determination to be especially probative for the same reasons that the September 2020 VA physician’s etiological determination concerning secondary service connection was found to be of significant probative value, namely because the September 2020 VA examination and opinion contain the informed and well-supported conclusions of an appropriate medical professional. See Nieves-Rodriguez, 22 Vet. App. at 304; Prejean, 13 Vet. App. at 448; Caluza, 7 Vet. App. at 506. Additionally, the Veteran is no more competent to adduce an opinion on the medical question of a potential relationship between herbicide exposure and GERD than he is to opine as to the relationship, discussed above, between his GERD and his service-connected diabetes mellitus. See Jandreau, 492 F. 3d at 1376-77; Barr, 21 Vet. App. at 309; Layno, 6 Vet. App. at 469- 71. Thus, in the absence of any supporting evidence, medical or otherwise, suggesting a relationship between his GERD and his active service, the Veteran’s bare assertion of a relationship to active service is outweighed by the opinion of the September 2020 VA examiner. See King, 700 F.3d at 1345; Madden, 125 F.3d at 1481; see also Jandreau, 492 F. 3d at 1376-77; Layno, 6 Vet. App. at 469-71; Kahana, 24 Vet. App. at 435. In sum, the preponderance of the evidence is against the Veteran’s claim. Consequently, the benefit-of-the-doubt rule does not apply, and service connection for GERD, including as secondary to service-connected diabetes mellitus, is denied. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). JENNIFER HWA Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board L. McCabe, 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.