Citation Nr: 21021204 Decision Date: 04/12/21 Archive Date: 04/12/21 DOCKET NO. 15-27 996 DATE: April 12, 2021 ORDER Entitlement to service connection for GERD is denied. FINDINGS OF FACT 1. The Veteran does not have a chronic disability due to undiagnosed illnesses or a combination of undiagnosed illnesses related to his service in Southwest Asia. 2. The Veteran’s GERD is not related to an in-service event, injury, or disease. CONCLUSION OF LAW The criteria for entitlement to service connection for GERD have not been met. 38 U.S.C. §§ 1101, 1110, 1113, 1117, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.317. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the United States Army from October 2004 to January 2006, with service in Kuwait. This matter originally came before the Board of Veterans’ Appeals (Board) on appeal from a September 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in North Little Rock, Arkansas. The undersigned conducted a video conference hearing with the Veteran in March 2019. A transcript of the hearing is in the claims file. The Board remanded this case in August 2020 to obtain outstanding treatment records. Service Connection Generally, to establish service connection a Veteran must show: “(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service.” Davidson v. Shinseki, 581 F.3d 1313, 131516 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). Compensation may be paid to a Persian Gulf War Veteran who exhibits objective indications of chronic disability due to undiagnosed illnesses or a combination of undiagnosed illnesses that became manifest either during active duty in the Southwest Asia theater of operations during the Persian Gulf War or to a degree of 10 percent or more. 38 U.S.C. § 1117 (a)(1)(2012); 38 C.F.R. § 3.317 (a)(2020). A Persian Gulf Veteran is one who served in the Southwest Asia theater of operations during the Persian Gulf War. Id. The Southwest Asia theater of operations includes Iraq, Kuwait, Saudi Arabia, the neutral zone between Iraq and Saudi Arabia, Bahrain, Qatar, the United Arab Emirates, Oman, the Gulf of Aden, the Gulf of Oman, the Persian Gulf, the Arabian Sea, the Red Sea, and the airspace above these locations. 38 C.F.R. § 3.317 (d)(2). For purposes of 38 C.F.R. § 3.317, there are three types of qualifying chronic disabilities: (1) an undiagnosed illness; (2) a medically unexplained chronic multisymptom illness (such as chronic fatigue syndrome, fibromyalgia, and irritable bowel syndrome) that is defined by a cluster of signs or symptoms; and (3) a diagnosed illness that the Secretary determines in regulations prescribed under 38 U.S.C. § 1117 (d) warrants a presumption of service connection. An undiagnosed illness is defined as a condition that by history, physical examination, and laboratory tests cannot be attributed to a known clinical diagnosis. 38 C.F.R. § 3.317 (a)(1)(ii) (2020). In the case of claims based on undiagnosed illness under 38 U.S.C. § 1117, unlike other claims for "direct service connection," there is no requirement that there be competent evidence of a nexus between the claimed illness and service. Gutierrez v. Principi, 19 Vet. App. 1, 8-9 (2004). Lay persons are competent to report objective signs of illness, such as joint pain. Id. at 9. A "medically unexplained chronic multisymptom illness" means a diagnosed illness without the conclusive pathophysiology or etiology, which is characterized by overlapping symptoms and signs and has features such as fatigue, pain, disability out of proportion to physical findings, and inconsistent demonstration of laboratory abnormalities. Chronic multisymptom illnesses of partially understood etiology and pathophysiology will not be considered medically unexplained. 38 C.F.R. § 3.317 (a)(2)(ii) (2020). Objective indications of chronic disability include both "signs," in the medical sense of objective evidence perceptible to an examining physician, and other, non-medical indicators that are capable of independent verification. 38 C.F.R. § 3.317 (a)(3) (2020). It is VA policy to administer the laws and regulations governing disability claims under a broad interpretation and consistent with the facts shown in every case. When a reasonable doubt arises regarding service origin, the degree of disability, or any other point, after careful consideration of all procurable and assembled data, such doubt will be resolved in favor of the claimant. Reasonable doubt is one which exists because of an approximate balance of positive and negative evidence which does not prove or disprove the claim satisfactorily. It is a substantial doubt and one within range of probability as distinguished from pure speculation or remote possibility. See 38 C.F.R. § 3.102. Entitlement to service connection for GERD. The Veteran has a current diagnosis of GERD. See March 2011 VA Treatment Records. As for the second element of service connection, the Board finds that there is no gastrointestinal-related in-service event, injury, or disease. The Veteran testified at his March 2019 hearing and stated in December 2011 correspondence that he started having GERD symptoms about one year after service. The Board notes that the Veteran has only alleged that his GERD should be presumptively service-connected based on his service in Southwest Asia. See December 2011 correspondence. Although the Veteran served on active duty in Southwest Asia, he has a diagnosed disability and therefore, does not have a “qualifying chronic disability” including a “medically unexplained chronic multisymptom illness” under 38 U.S.C. § 1117 (a)(1). See Atencio v. O'Rourke, 30 Vet. App. 74 (2018). Additionally, the Board notes that the Veteran’s post-service treatment records are devoid of any statements or references linking his GERD to his military service. As mentioned above, the Veteran did not have symptoms of GERD until about a year after service. See March 2019 Hearing Testimony; December 2011 correspondence. Further, the Veteran was not diagnosed with GERD until 2011, approximately 5 years after service. As such, the Board finds that there is no indication of a relationship between the Veteran’s military service and his subsequent development of GERD. The Board acknowledges that the Veteran was afforded a VA examination with respect to his claim for service connection for GERD but was not afforded a medical opinion. However, the Board finds no such medical opinion was required because the evidence does not indicate that the claimed disability, or symptoms thereof, may be associated with the Veteran’s active service. 38 U.S.C. § 5103A(d); McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). Under McLendon, VA is obligated to provide an examination and medical opinion when the record contains (1) competent evidence of a current disability (or persistent or recurrent symptoms of a disability), (2) evidence establishing that an event, injury, or disease occurred in service, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran’s service, but (4) there is insufficient competent medical evidence on file to decide the claim. 38 U.S.C. § 5103A(d); McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). For the reasons stated above, the Board finds that there is no competent evidence showing that the Veteran’s diagnosed GERD may be related to service or a chronic disability due to an undiagnosed illness or a combination of undiagnosed illnesses related to his service in Southwest Asia. The Veteran is not competent to relate his service in Southwest Asia to the development of GERD as it involves a complex medical question, and there is otherwise no competent evidence that suggests such a link. As such, the Board finds a VA medical opinion is not necessary to decide the Veteran’s claim of entitlement to service connection for GERD. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt rule does not apply. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Therefore, service connection cannot be granted based on the Veteran’s GERD. TANYA SMITH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Papacalos, Law Clerk 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.