Citation Nr: 21020974 Decision Date: 04/08/21 Archive Date: 04/08/21 DOCKET NO. 09-08 070 DATE: April 9, 2021 REMANDED Entitlement to service connection for a gastrointestinal disorder, to include gastroesophageal reflux disease (GERD), is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from May 1973 to March 1976. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2007 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before a Decision Review Officer (DRO) at the Waco, Texas RO in May 2009. A transcript of this proceeding has been associated with the claims file. In June 2012, September 2014 and February 2017, the Board remanded this matter for further development. Then, in an August 2017 decision, the Board denied entitlement to service connection for GERD. Subsequently, the Veteran appealed the Board’s decision to the United States Court of Appeals for Veterans Claims (Court). In an August 2018 Order, the Court granted a Joint Motion for Remand (JMR) and vacated and remanded the August 2017 Board decision, noting the medical opinion was inadequate in that it failed to address whether the lay statements provided were consistent with the medical evidence of record. The Board then remanded the appeal in November 2018 and July 2020. The Board has recharacterized the Veteran’s claims, as reflected on the title page, to include consideration of all the related disorders reasonably raised by the record. See Clemons v. Shinseki, 23 Vet. App. 1, 6 (2009). The Veteran asserts that his current digestive disorder, to include GERD, had its onset during his active duty service and has persisted since his discharge from active duty to the present. See March 2007 VA Form 21-4138, November 2014 Veteran lay statement, November 2014 lay statement from R.J. Initially, the Board notes that since his discharge from active duty, the Veteran has been diagnosed at varying times with hiatal hernia, Schatzki’s Ring, chronic recurrent duodenal ulcer disease, GERD, peritonsillar abscess, gastroenteritis, and gastritis. See February 1999, March 1999, November 1999, May 2005, July 2020 VA treatment records; October 2012, October 2020 VA examination reports. The Veteran was given a provisional diagnosis of possible gastroenteritis in service based upon his reports of excess flatulence and stomach pain that onset after eating. See October 1973 Service Treatment Records (STRs). Dorland’s Medical Dictionary describes gastroenteritis as being characterized by, among other things, “nausea, diarrhea, abdominal pain, and weakness.” See Dorland’s Illustrated Medical Dictionary, 758 (30th ed. 2003). Dorland’s also notes that gastroesophageal reflux is also known as esophagitis. Id. at 1605. Both hiatal hernia and gastroesophageal reflux disease are rated pursuant to 38 C.F.R. § 4.114, Diagnostic Code (DC) 7346, for symptoms such as dysphagia, pyrosis, regurgitation, substernal pain, shoulder and arm pain, and vomiting. In this regard, the Board notes the Veteran complained of chest pain at the time of his enlistment and was treated in service for a dental abscess and coughing (though associated with an upper respiratory infection). The Veteran testified at a Decision Review Officer Hearing that he was treated in service and provided medication for his digestive complaints. See May 2009 Hearing Testimony at 3. In a November 2014 lay statement, the Veteran reported that his symptoms of regurgitation and a burning feeling in his stomach began in service and have continued since that time. A fellow soldier who reports to have served with the Veteran on active duty indicates he remembers the Veteran complaining of a “sour stomach” in service that at times prevented the Veteran from sleeping. See November 2014 lay statement from R.J. The Board notes that both the Veteran and R.J. are competent to report these symptoms because this requires only personal knowledge, not medical expertise, as it comes to one through their senses. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). The Board finds that as the symptoms reported by the Veteran are consistent with the treatment the Veteran received in service, that both the Veteran and R.J. are credible in this regard. Thus, as has been noted in the multiple prior remands, the crux of this matter is whether there exists a nexus between the Veteran’s in-service complaints of a digestive disorder and his currently diagnosed GERD. In this regard, the Veteran submitted to VA examinations in October 2012 and October 2020. Additionally, VA addendum opinions were rendered in March 2017, September 2019, and October 2020. The October 2012 VA examiner diagnosed the Veteran with GERD and opined that he didn’t believe there was a relationship between the in-service provisional diagnosis of gastroenteritis and the currently diagnosed GERD. The Board notes the examiner failed to provide any rationale and relied on speculative language (“I don’t believe”) in denying a nexus, and the opinion is therefore inadequate and of no probative value. Hood v. Shinseki, 23 Vet. App. 295, 298 99 (2009) (medical opinion is speculative when it uses equivocal language such as could or might, without any other rationale or supporting data). In a March 2017 VA addendum opinion, a VA medical doctor discussed February 1997 and 2009 VA treatment records that did not show any hiatal hernia or GERD. Critically, and as noted above, the Veteran was diagnosed with a hiatal hernia with Schatzki’s Ring and chronic recurrent duodenal ulcer disease by a VA medical doctor and staff radiologist reviewing imaging produced after a barium swallow, or esophagogram. See February 1999 VA treatment records. The March 2017 VA examiner also failed to adequately address the multiple lay statements submitted in November 2014. See also August 2018 Joint Motion for Remand. Accordingly, the March 2017 VA examiner’s opinion is of no probative value. Nieves-Rodriguez v. Nicholson, 22 Vet. App. 295 (2008). In September 2019, a VA examiner confirmed the diagnosis of GERD and opined that it was less likely than not that the Veteran’s in-service complaints represented the onset of the Veteran’s currently diagnosed GERD. The September 2019 VA examiner incorrectly concluded that the November 2014 the lay statements only addressed symptoms reported by the Veteran since 2006. See September 2019 VA examination report. As noted above, the November 2014 lay statement from R.J. specifically addressed the Veteran’s in-service symptoms and was based upon R.J.’s personal observation of the Veteran while both were serving on active duty. Thus, the September 2019 VA medical opinion is of no probative value. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (a medical opinion based on an inaccurate factual premise is not probative). Finally, and most recently, the Veteran submitted to an examination in October 2020. The VA examiner once again confirmed the diagnosis of GERD and opined that it was “difficult to presume continuity” between the in-service symptoms and the current diagnosis of GERD based on a lay statement written 41 years later. The Board sympathizes with the Veteran and the examiners who have repeatedly reviewed this evidence; however, such speculative language, i.e. “difficult to presume,” is insufficient to deny the claim and the opinion is inadequate in this regard. See Hood, supra. The Board also notes the opinion is inadequate as there is no medical rationale provided other than the statement that “gastroenteritis is a self-limited condition and is not a true stomach condition leading to GERD.” See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning). Accordingly, this matter must be remanded once again for an addendum opinion. All outstanding treatment records should also be obtained. The matters are REMANDED for the following action: 1. Obtain all outstanding VA treatment records. 2. With any necessary assistance from the Veteran, obtain any outstanding relevant private treatment records. 3. Then obtain an addendum opinion from an examiner other than the October 2012, March 2017, September 2019, and October 2020 VA examiners, preferably a gastroenterologist, addressing the nature and etiology of the Veteran’s digestive disorders, to include GERD. No additional examination is necessary unless the examiner determines otherwise. The entire claims file must be made available to and reviewed by the examiner. After a review of the claims file, the examiner should address the following: (a.) Identify all digestive disorders diagnosed since March 2007, to include GERD, even if resolved. Please also address the February 1999 diagnoses of small sliding hiatal hernia with Schatzki’s Ring and chronic duodenal ulcer disease verified by esophagram. See February 1999 VA treatment records. (b.) Then, the examiner should opine as to whether it is as least as likely as not (50 percent or greater probability) that any diagnosed digestive disorder, to include GERD, had its onset in or is otherwise related to service, to include as a continuation or the result of the October 1973 provisional diagnosis of gastroenteritis. In answering this question, the examiner must address the following: 1. the October 1973 provisional diagnosis of gastroenteritis, 2. the February 1974 treatment for a cough, 3. the March 1975 complaints of shoulder pain, 4. the January 1976 mouth abscess, 5. December 1983 VA treatment records that notes the Veteran has trouble sleeping, smokes a pack of cigarettes per day, and drinks heavily, 6. the Veteran’s March 1988 complaint of left shoulder pain since 1973 at a VA medical center, 7. the February 1999 VA diagnoses of small sliding hiatal hernia with Schatzki’s Ring and chronic duodenal ulcer disease verified by esophagram, 8. the March 1999 VA treatment record diagnosing GERD with peritonsillar abscess, 9. the Veteran’s long-standing history of substance abuse (see November 1999 VA treatment records), 10. the November 1999 VA diagnosis of gastritis, 11. the February 2000 VA treatment records noting chest pain after eating, 12. the October 2004 VA diagnosis of atypical chest pain possibly related to GERD, 13. the May 2005 VA diagnosis of gastroenteritis, 14. the July 2020 diagnosis of gastritis, 15. the Veteran’s May 2009 testimony that he was treated in service with medication for his upset stomach, 16. the Veteran’s November 2014 lay statement wherein he reports that his symptoms of regurgitation and burning in stomach began in service and continued to the present, 17. the November 2014 lay statement from S.T. reporting that the Veteran has only complained about GERD since 2006, and 18. the November 2014 lay statement from R.J. reporting that he personally witnessed the Veteran complaining in-service about a sour stomach and trouble sleeping due to his stomach, that he remembered the Veteran complaining about his stomach discomfort, and that the Veteran said he had trouble getting medical care due to their chain of command. In addressing this question, the examiner must assume items 15-18 as true, even despite the absence of “objective documentation.” (c.) Please state whether the Veteran’s current digestive disorders, to include GERD, are medically consistent with the symptomatology reported by the Veteran in items 15-18 above, and whether a nexus is “medically plausible” based on the same. The examiner is advised that the Veteran is competent to report symptoms and treatment, and these reports must be considered when formulating the requested opinion. The examiner should provide a complete rationale for any opinion given. The absence of evidence of treatment for specific digestive disorders in the Veteran’s service treatment records cannot, standing alone, serve as the basis for a negative opinion and any reliance on such will render any opinion inadequate. If unable to opine without resorting to speculation, the examiner should provide a basis for reaching this conclusion. S. BUSH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board G. Rouse, Associate 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.