Citation Nr: 21023757 Decision Date: 04/21/21 Archive Date: 04/21/21 DOCKET NO. 16-24 077 DATE: April 21, 2021 ORDER Entitlement to service connection for gastroesophageal reflux disease (GERD) is denied. FINDING OF FACT The preponderance of the evidence shows that GERD was not present in service or until many years thereafter, it is not related to service or to an incident of service origin, it is not caused or aggravated by a service-connected disability, and it is not an undiagnosed illness, a diagnosable but medically unexplained chronic multisymptom illnesses of unknown etiology, or a diagnosable chronic multisymptom illness with a partially explained etiology. CONCLUSION OF LAW The criteria for service connection for GERD are not met. 38 U.S.C. §§ 1101, 1110, 1117, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.310, 3.317. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service with the United States Army from February 1996 to December 2000 and from June 2006 to October 2007 with service in Iraq from September 2006 to September 2007. This matter was previously before the Board and was remanded for further development in July 2020. Post-Remand Compliance The Board finds that the post-Remand development complied with the Remand. The Board has reached this conclusion because the September 2020 examination, when taken together with the July 2014 and April 2016 VA examinations, provided opinions based on the record and controlling scientific and medical evidence as to the diagnoses and etiology of the Veteran’s GERD taking into account, among other things, his in-service and post-service records as well as his lay claims regarding observable symptomatology. See 38 U.S.C. § 5103A(d); Barr v. Nicholson, 21 Vet. App. 303 (2007); Stegall v. West, 11 Vet. App. 268 (1998); D’Aries v. Peake, 22 Vet. App. 97 (2008) (holding that only substantial, and not strict compliance with the terms of a remand request, is required); Dyment v. West, 13 Vet. App. 141, 146-47 (holding that there was no Stegall violation when the examiner made the ultimate determination required by the Board’s remand, because such determination more than substantially complied with the Board’s remand order). The Board also finds that the post-Remand development complied with the Remand because while the appeal was in Remand status the regional office (RO) obtained and associated with the record all identified and available VA and private treatment records. See 38 U.S.C. § 5103A(b); Stegall, supra; D’Aries, supra. Given the above the Board finds that it need not again remand the claim because it would further delay the appeal and impose additional burdens on VA with no benefit. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran are to be avoided). The Service Connection Claim The Veteran claims, in substance, that service connection is warranted for GERD because it is caused by his military service to include his exposure to toxins in the Persian Gulf. Specifically, in October 2014 the Veteran notified VA that he had been told his GERD was a presumptive illness due to exposure during the Gulf War. The Veteran pointed out that he was in Iraq from 2006-2007. The Veteran also said he felt like his GERD was misdiagnosed up until 2011 because he was being treated for anxiety and sleep problems. In May 2016, the Veteran said he never had GERD until after his deployment. The Veteran also stated that all the medications he took from VA compounded and complicated his condition and his GERD was a result of these and his stress and environmental conditions. In September 2020, the Veteran said that his GERD and spitting excess saliva was an issue while he was deployed but he didn’t report it because he didn’t know what GERD was and assumed it was a natural reaction to stress. The Veteran said he was also exposed to septic burn pits on a daily basis, his uniform was treated with DEET, and that stress and anxiety were non-stop. The Veteran also stated he believed his medications for his other service-connected disabilities contributed to his GERD. Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. If a condition noted during service is not shown to be chronic, then generally a showing of continuity of symptomatology after service is required for service connection if the disability is one that is listed in 38 C.F.R. § 3.309. 38 C.F.R. § 3.303(b); see also Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In addition, service connection may also be granted on the basis of a post-service initial diagnosis of a disease, where the physician relates the current condition to the period of service. 38 C.F.R. § 3.303(d). Other specifically enumerated disorders will be presumed to have been incurred in service if they manifested to a compensable degree within the first year following separation from active duty. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. In this regard, in order to establish service connection for the claimed disorders, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). Service connection may also be established on a secondary basis for a disability proximately due to or aggravated by a service-connected disease or injury. See 38 C.F.R. § 3.310; see also Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). To establish secondary service connection, a Veteran must show: (1) the existence of a present disability; (2) the existence of a service-connected disability; and (3) a causal relationship between the present disability and the service-connected disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998); see also Ward v. Wilkie, 31 Vet. App. 233 (2019). The requirement of a current disability is “satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim.” See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). The Court in Joyner v. McDonald, 766 F.3d 1393, 1395 (Fed. Cir. 2014) held, in part, that the Board needs to always consider 38 U.S.C. § 1117 and 38 C.F.R. § 3.317 in cases like the current appeal in which Veterans have served in the Persian Gulf since August 2, 1990. Therefore, the Board finds that it is also required to consider 38 U.S.C. § 1117 and 38 C.F.R. § 3.317. See 38 C.F.R. § 3.117 (d)(1) and (2) (a “Persian Gulf veteran” is defined as “a veteran who served on active military, naval, or air service in the Southwest Asia theater of operations during the Persian Gulf War. 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). In this regard, service connection may be warranted for a Persian Gulf Veteran who exhibits objective indications of a qualifying chronic disability that became manifest during active military, naval or air service in the Southwest Asia theater of operations during the Persian Gulf War, or that became manifest to a degree of 10 percent or more not later than December 31, 2021. 38 C.F.R. § 3.317(a)(1). 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 multi symptom illness; 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. In the case of claims based on undiagnosed illness under 38 U.S.C. § 1117; 38 C.F.R. § 3.317, unlike those for “direct service connection,” there is no requirement that there be competent evidence of a nexus between the claimed illness and service. Gutierrez, 19 Vet. App. at 8-9. Further, lay persons are competent to report objective signs of illness. Id. To determine whether the undiagnosed illness is manifested to a degree of 10 percent or more the condition must be rated by analogy to a disease or injury in which the functions affected, anatomical location or symptomatology are similar. See 38 C.F.R. § 3.317(a)(5); see also Stankevich v. Nicholson, 19 Vet. App. 470 (2006). A medically unexplained chronic multisymptom illnesses is one defined by a cluster of signs or symptoms and specifically includes chronic fatigue syndrome, fibromyalgia, and functional gastrointestinal disorders (excluding structural gastrointestinal diseases), as well as any other illness that the Secretary determines meets the criteria in paragraph (a)(2)(ii) of this section for a medically unexplained chronic multisymptom illness. A “medically unexplained chronic multisymptom illness” means a diagnosed illness without conclusive pathophysiology or etiology that 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). Functional gastrointestinal disorders are a group of conditions characterized by chronic or recurrent symptoms that are unexplained by any structural, endoscopic, laboratory, or other objective signs of injury or disease and may be related to any part of the gastrointestinal tract. Specific functional gastrointestinal disorders include, but are not limited to, irritable bowel syndrome, functional dyspepsia, functional vomiting, functional constipation, functional bloating, functional abdominal pain syndrome, and functional dysphagia. These disorders are commonly characterized by symptoms including abdominal pain, substernal burning or pain, nausea, vomiting, altered bowel habits (including diarrhea, constipation), indigestion, bloating, postprandial fullness, and painful or difficult swallowing. Diagnosis of specific functional gastrointestinal disorders is made in accordance with established medical principles, which generally require symptom onset at least 6 months prior to diagnosis and the presence of symptoms sufficient to diagnose the specific disorder at least 3 months prior to diagnosis. 38 C.F.R. § 3.317 (a)(2)(i)(B)(3). In evaluating the evidence, the Board has been charged with the duty to assess the credibility and weight given to evidence. Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). Indeed, the Court has declared that in adjudicating a claim, the Board has the responsibility to do so. Bryan v. West, 13 Vet. App. 482, 488-89 (2000). In doing so, the Board is free to favor one medical opinion over another, provided it offers an adequate basis for doing so. Owens v. Brown, 7 Vet. App. 429, 433 (1995). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA. VA shall consider all information and medical and lay evidence of record. Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Initially, the Board notes that the post-service record shows the Veteran being diagnosed GERD. See, e.g., VA examination dated in July 2014. The Board also finds that the Veteran is both competent to report on the events he experienced in-service as well as the observable manifestations of his disability. See Davidson, supra. However, the Veteran’s service treatment records (STRs) do not indicate he was treated for or complained of GERD symptoms while in service. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (VA may only consider independent medical evidence to support its findings and is not permitted to base decisions on its own unsubstantiated medical conclusions). In this regard, while the Veteran has said that his symptoms began during his 2006-2007 deployment, in a September 2007 post-deployment assessment, the Veteran responded “no” to whether he had frequent indigestion or not and did not indicate he had suffered from GERD symptoms while on deployment in this assessment. However, the Veteran reported other problems from this deployment such as respiratory issues, neck, and shoulder pain, but not GERD or digestion problems. At this point, it is important to note that it is the Veteran himself that provides evidence against his own claim, clearly indicating he did not have a history, symptoms, complaints, diagnoses, or treatment for GERD while on active duty. Accordingly, the Board finds that the most probative evidence of record shows that the Veteran did not have a disease or an injury while on active duty that caused his current GERD. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a); Colvin, supra. The detailed records in service provide particularly negative evidence against the claim, clearly indicating treatment for problems other than the issue before the Board. Similarly, the Board finds that the record does not show that the Veteran had a continued problem with GERD in and since his service ended. In fact, as noted above, service treatment records including the September 2007 post-deployment assessment, are negative for a history, symptoms, complaints, diagnoses, or treatment for GERD while on active duty. Likewise, and more important than the above, the post-service record is negative for symptoms of GERD until 2011-approximately 4 years after the Veteran’s separation from his second period of service. See e.g., October 2011 and November 2011 treatment records. However, a December 2011 barium study was normal and did not show any epigastric or esophageal problems. In May 2018 the Veteran reported no GERD symptoms but did again in September 2019. These records provide particularly negative evidence against this claim. At this point, the service medical records and the post-service medical records provides evidence against the claim. See Owens, supra. Therefore, the Board finds that the most probative evidence of record shows that the Veteran did not have a continued problem with GERD in and since his last period of qualifying service despite any claim to the contrary. See 38 U.S.C. § 1110; 38 C.F.R. § 3.303(b). Furthermore, the Board finds that the most probative evidence of record shows that the Veteran’s post-service GERD is not due to a disease or injury while on active duty. See 38 U.S.C. § 1110; 38 C.F.R. § 3.303(d); also see Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992) (establishing service connection requires finding a relationship between a current disability and events in service or an injury or disease incurred therein). In this regard, the July 2014, April 2016, and September 2020 VA examiners opined, in substance, that GERD is not due to his military service. Furthermore the Board finds these opinions when taken together are adequate to adjudicate the claim and are the most probative evidence of record because they were provided after a review of the record on appeal and an examination of the Veteran as well as because they are supported by citation to evidence found in the record, controlling medical literature, not contradicted by any other medical evidence of record, and take into account the appellant’s lay claims. See Owens, supra; Colvin, supra. Accordingly, the Board finds that the preponderance of the evidence is against the Veteran’s claim of service connection for GERD. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.303(d). Likewise, the Board finds that the most probative evidence of record shows that the Veteran’s GERD is not caused or aggravated by an already service connected disability. See 38 U.S.C. § 1110; 38 C.F.R. § 3.310; also see; Allen, supra; Wallin, supra; Ward, supra. In fact, the April 2016 and September 2020 VA examiners opined, in substance, that GERD is not caused or aggravated by any of his service-connected disabilities to include the medications he takes to treat his service-connected disabilities. Furthermore, the Board finds these opinions when taken together are adequate to adjudicate the claim and are the most probative evidence of record because they were provided after a review of the record on appeal and an examination of the Veteran as well as because they are supported by citation to evidence found in the record, controlling medical literature, not contradicted by any other medical evidence of record, and take into account the appellant’s lay claims. See Owens, supra, Colvin, supra. Accordingly, the Board finds that the preponderance of the evidence is against the Veteran’s claim of secondary service connection for GERD. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.310. Lastly, the Board will address the Veteran’s undiagnosed illness claim under 38 U.S.C. § 1117; 38 C.F.R. § 3.317. In this regard, given the Veteran’s documented service in South West Asia from September 2006 to September 2007, the Board finds that the laws and regulations governing undiagnosed illnesses are applicable to the current claim. See 38 U.S.C. § 1117; 38 C.F.R. § 3.317. However, not only did the July 2014, April 2016, and September 2020 VA examiners diagnosis GERD but the September 2020 VA examiner opined that the Veteran’s GERD was due to a known cause. Specifically, the September 2020 VA examiner opined that the Veteran was obese by BMI standards and that there was “little to dispute that his obesity is the primary risk factor in his present GERD over any theoretical service related occupational exposure.” Moreover, the Board finds these medical opinions the most probative evidence of record because they are supported by an examination of the claimant with citation to evidence in the record and at the examination as well as because they are supported by controlling medical literature, not contradicted by any other medical evidence of record, and take into account the appellant’s lay claims. See Owens, supra, Colvin, supra. Therefore, the Board finds that the VA examinations when taken together with the Veteran’s treatment records that also show a diagnosis of GERD is not an undiagnosed illness, a diagnosable but medically unexplained chronic multisymptom illnesses of unknown etiology, or a diagnosable chronic multisymptom illness with a partially explained etiology despite his South West Asia service because the GERD is a known diagnosis with a known etiology. See 38 U.S.C. §§ 1110, 1117; Owens, supra, Colvin, supra. In addition, the Board finds that the Veteran is not competent to provide the missing nexus opinion or diagnosis of an undiagnosed illness because he does not have the required medical expertise to provide answers to these complex medical questions (i.e., what caused his current GERD). See Davidson, supra. It is vital for the Veteran to again understand that the Board has taken his concerns seriously, however, there is now overwhelming medical evidence against this claim from the VA examiners that the Board cannot ignore. Therefore, the Board finds that the claim of service connection for GERD is denied. 38 U.S.C. §§ 1110, 1117; 38 C.F.R. §§ 3.303, 3.310, 3.317. (Continued on the next page)   In reaching the above conclusions, the Board has also considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the probative evidence is against the claim, the Board finds that this doctrine is not applicable in the instant appeal. See 38 U.S.C. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert, 1 Vet. App. at 55-56. NEIL T. WERNER Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Snoparsky 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.