Citation Nr: 21024433 Decision Date: 04/22/21 Archive Date: 04/22/21 DOCKET NO. 19-22 529 DATE: April 22, 2021 ORDER Entitlement to service connection for a gastrointestinal disorder, to include gastroesophageal reflux disease (GERD), is granted. REMANDED Entitlement to service connection for a respiratory condition, including pleural disease from exposure to asbestos or owing to exposure to ionizing radiation, is remanded. FINDING OF FACT The Veteran's gastrointestinal disorder as likely as not began during his time in service. CONCLUSION OF LAW Resolving all reasonable doubt in his favor, the criteria are met for entitlement to service connection for a gastrointestinal disorder, including GERD. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from November 1951 to September 1955. This appeal to the Board originates from a June 2018 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified in support of these claims during a “virtual” hearing in July 2020 before the undersigned Veterans Law Judge (VLJ) of the Board. A transcript of the hearing is of record. The Board subsequently remanded these claims back to the RO in October 2020 for further development. The claim now being decided initially was characterized as for service connection for GERD, specifically. During the pendency of this appeal, however, the evidence has revealed a diagnosis of Barrett's esophagus and/or GERD. The United States Court of Appeals for Veterans Claims (Court/CAVC) has held that a claimant's identification of the benefit sought does not require any technical precision. See Ingram v. Nicholson, 21 Vet. App. 232, 256-57 (2007). A claimant may satisfy this requirement by referring to a body part or system that is disabled or by describing symptoms of the disability. Brokowski v. Shinseki, 23 Vet. App. 79, 86-87 (2009); see also Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009); Robinson v. Nicholson, 21 Vet. App. 545, 552 (2008); 38 C.F.R. § 3.159(c). The Veteran's pleadings have shown that he is essentially claiming entitlement to service connection for a gastrointestinal disorder of some sort, regardless of how it may be diagnosed or labeled. So, the Board has recharacterized the claim more generically as for a gastrointestinal disorder – inclusive of, but not limited to, GERD. Entitlement to service connection for a gastrointestinal disorder, including GERD The Veteran contends that his gastrointestinal disorder is attributable to his service or, at the very least, started during his time in service and has persisted during the many years since. In reviewing the evidence of record, the Board sees there is conflicting evidence regarding the presence, or lack thereof, of a diagnosis of a gastrointestinal disorder. In a February 2021 VA medical opinion, a VA examiner concluded there is no objective evidence of endoscopy or barium swallow to establish the diagnosis of GERD/Barrett’s esophagus. While VA and private treatment records note a diagnosis of Barrett’s esophagus and treatment with 40mg of omeprazole, the February 2021 VA examiner concluded that such findings were subjective. In this regard, the Board finds that VA and private treatment records noting diagnoses of GERD and Barrett’s esophagus or as probative as the February 2021 VA opinion based on a review of the record, with no physical examination. Consequently, the Board finds that the evidence of record shows the Veteran has had a diagnosis of a gastrointestinal disorder during the pendency of this claim. See McLain v. Nicholson, 21 Vet. App. 319, 321 (2007) (holding that the requirement of the existence 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, and that a claimant may be granted service connection even though the disability resolves prior to VA's adjudication of the claim). See also Romanowsky v. Shinseki, 26 Vet. App. 289 (2013) (considering the application of McLain on a recent diagnosis even predating the filing of a claim). Therefore, the remaining question is whether there also the required attribution of this disability to the Veteran’s military service. See Watson v. Brown, 4 Vet. App. 309, 314 (1993) ("A determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or a disease incurred in service.").   In support of his claim and this posited correlation (“nexus”), the Veteran testified before the Board, under oath, in July 2020. He said the onset of his gastrointestinal disorder was during his service. He reported experiencing heartburn during service that he self-treated with over-the-counter TUMS. The Board also realizes that the VA examiner who was asked on remand to comment on this posited correlation between the Veteran’s gastrointestinal disorder and his service concluded unfavorably. The examiner was asked to specifically address whether the Veteran's disability began during his active duty service or is otherwise related to a disease, an event, or an injury during his service. And, as already indicated, in response the February 2021 examiner determined there was no objective evidence to support a diagnosis of GERD or Barrett’s esophagus. The examiner nonetheless added that subjective findings of GERD or Barrett’s esophagus some 65 years after the Veteran’s service were less likely than not related to exposure to radiation during his service and most likely, instead, due to his history of smoking. For claims, as here, filed on or after June 9, 1998, there is an express prohibition against granting service connection for any disability resulting from injury or disease attributable to chronic smoking. 38 U.S.C. § 1103; 38 C.F.R. § 3.300. Precedent opinions of VA's General Counsel have discussed the cause-and-effect correlation between chronic smoking and the eventual development of certain disorders. See VAOPGCPREC 2-93 (Jan. 13, 1993) and VAOPGCPREC 19-97 (May 13, 1997). That notwithstanding, the Board finds the July 2020 opinion at least partially deficient. The examiner did not answer the Board’s request, certainly not entirely. Further, the examiner seemed to ignore the Veteran’s competent lay statements dating this disorder back to when he was in service. See Dalton v. Nicholson, 21 Vet. App. 23 (2007) (examination inadequate where the examiner did not comment on the appellant's report of relevant injury in service and instead relied on the mere absence of evidence in the service treatment records (STRs) to provide a negative opinion). Because there was not compliance – or acceptable substantial compliance, with the Board’s remand directives concerning this claim, it normally is incumbent on the Board to correct the prior failings before deciding the claim. Indeed, this responsibility is mandatory and not discretionary. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (Board remand confers a right on a claimant to compliance with the remand order, as a matter of law). This Veteran’s appeal, however, has been advanced on the docket (AOD), so rather than again remanding this claim for yet another medical opinion, the Board is resolving all reasonable doubt in his favor and going ahead and granting this claim for a gastrointestinal disorder, inclusive of GERD or Barrett’s esophagus. REASONS FOR REMAND Entitlement to service connection for a respiratory condition, including pleural disease from exposure to asbestos or owing to exposure to ionizing radiation The Veteran has offered two theories as to the etiology of his respiratory condition: 1) that it is due to exposure to asbestos or 2) that it is due to exposure to ionizing radiation. During his July 2020 hearing before this Board, the Veteran testified that he had developed respiratory issues from exposure to radiation during Operation Ivy. In the prior October 2020 remand, the Board instructed the RO to attempt to verify whether the Veteran was exposed to radiation in service. In a February 2021 VA Memorandum, the Appeals Resource Center (ARC) conceded the Veteran’s exposure to ionizing radiation. Other evidence in the file shows the Veteran has a current diagnosis of pleural plaques and nodules; however, this disease is not listed amongst those that are presumptively associated with his military service. 38 C.F.R. §§ 3.307, 3.309. In addition, the Veteran’s pleural disease is not considered a “radiogenic disease;” therefore, service connection cannot be granted under the regulatory procedures established by 38 C.F.R. § 3.311. Notwithstanding the presumptive provisions, service connection still may be granted on a direct basis if the evidence shows that the claimed disability was caused by the Veteran's exposure to radiation. See Combee v. Brown, 34 F.3d 1039, 1043-44 (Fed Cir. 1994). To this end, the February 2021 VA medical opinion obtained pursuant to the Board’s prior October 2020 remand directive addressed the claim based on exposure to asbestos but did not additionally address whether the Veteran’s pleural plaques and nodules, instead, are directly related to his military service or were aggravated by his service, including by his conceded exposure to ionizing radiation. Accordingly, this claim is again REMANDED for the following still additional development and consideration: Obtain supplemental comment (addendum opinion) concerning the cause of the Veteran’s pleural plaques and nodules – specifically in terms of whether as likely as not caused or aggravated by his conceded exposure to ionizing radiation during his service.   To assist in making this important determination, the claims file, including a complete copy of this decision and remand, must be made available to the designated clinician. The opinion must include discussion of the Veteran’s documented medical history and assertions. Rationale for the opinion is essential, regardless of whether favorable or unfavorable to this claim, preferably citing to evidence in the file supporting conclusions and/or accepted medical authority. KEITH W. ALLEN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board P. Poindexter 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.