Citation Nr: 21026552 Decision Date: 05/03/21 Archive Date: 05/03/21 DOCKET NO. 15-16 793 DATE: May 3, 2021 ORDER Entitlement to service connection for gout is granted. Entitlement to service connection for a gastrointestinal disability, to include acid reflux, gastritis and chest pain, is granted. FINDINGS OF FACT 1. The Veteran's gout is related to his military service. 2. The Veteran's GERD is related to his military service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for gout have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for entitlement to service connection for a gastrointestinal disability, to include acid reflux, gastritis and chest pain, have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Air Force from November 1978 to October 1998. In July 2020, the Board remanded the above claims to obtain VA examinations and opinions, which were obtained in February 2021. The case has since returned to the Board for appellate review. Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. To establish entitlement to service-connected compensation benefits, 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. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Service connection may be granted for any disease initially diagnosed after service when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). For veterans with 90 days or more of active service during a war period or after December 31, 1946, certain chronic diseases, including organic diseases of the nervous system such as sensorineural hearing loss, are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service. 38 U.S.C. §§ 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. Pursuant to 38 C.F.R. § 3.303(b), where a chronic disease is shown as such in service, subsequent manifestations of the same chronic disease are generally service connected. If a chronic disease is noted in service but chronicity in service is not adequately supported, a showing of continuity of symptomatology after separation is required. Entitlement to service connection based on chronicity or continuity of symptomatology pursuant to 38 C.F.R. § 3.303(b) applies only when the disability for which the Veteran is claiming compensation is due to a disease enumerated on the list of chronic diseases in 38 U.S.C. § 1101(3) or 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). 1. Entitlement to service connection for gout is granted. The Veteran contends that his gout is related to his military service. First, the Board notes that the Veteran has a diagnosis of gout. The February 2021 VA examiner noted that the Veteran's medical records are consistent with gout being diagnosed and confirmed with a laboratory evaluation in June 2003 and April 2004. Therefore, the first element of service connection, a diagnosis, has been met. Second, as an in-service incurrence, the Veteran reported gout symptoms started during his military service. A November 1988 service treatment record (STR) showed that the Veteran had foot problems in service. As the Veteran's STRs tend to support his competent and credible statements, the Board finds that the second element of service connection, an in-service incurrence, has been met. Therefore, the only remaining issue is whether a nexus may be established. In February 2021, the VA examiner opined that the Veteran's gout was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. The examiner acknowledged that the Veteran was diagnosed with gout per a medical record review. However, the examiner concluded that his gout was not related to active duty service. Therefore, the examiner concluded that no service connection can be established. In August 2018, a private physician opined that the Veteran's gout had its onset during military service. The physician noted that, in forming the opinion, he conducted a thorough review of available military records and lay statements. The physician also reasoned that the Veteran was seen for gout symptoms throughout his military career. The Board finds these opinions equally probative, thus, the evidence is in equipoise as to whether or not the Veteran's current gout is related to his active service. As a result, the benefit of the doubt is in the Veteran's favor, and a positive nexus is established. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 2. Entitlement to service connection for a gastrointestinal disability, to include acid reflux, gastritis and chest pain is granted. The Veteran contends that he has a gastrointestinal disability that is related to his military service. Specifically, the Veteran reported that his gastritis condition spontaneously began in 1998. See October 2013 VA examination. First, the Board notes that the Veteran has a diagnosis of gastroesophageal reflux disease (GERD). See February 2021 VA examination. Therefore, the first element of service connection, a diagnosis, has been met. Second, as noted above, the Veteran asserts that he had gastrointestinal symptoms during his military service. The Veteran's STRs also show that he sought treatment for abdominal pain and gastrointestinal discomfort on multiple occasions. As the Veteran's STRs support his competent and credible argument, the Board finds that the second element of service connection, an in-service incurrence, has been met. Therefore, the only remaining issue is whether a nexus may be established. In October 2013, a VA examiner concluded that the Veteran did not have any stomach or duodenum conditions. The examiner also opined that the Veteran's claimed gastrointestinal disability was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness, as the examiner reasoned that there was no diagnosis of gout. The examiner further reasoned that, while the Veteran's STRs reference a stomach condition, the STRs are essentially episodic which indicates that the conditions were acute and transitory. Specifically, a September 1990 STR note stated the Veteran's condition resolved, and the November 1993 STR note stated the condition was of viral origin which indicates the condition was self-limiting. The examiner also noted that the last STR dated in 1993 represents about a 20-year time gap from the October 2013 VA examination, which does not establish a longitudinal trend of subjective complaints and objective findings. The examiner also indicated that the Veteran's military examinations, including his separation examination, was normal. In February 2021, another VA examiner opined that the Veteran's gastrointestinal disability was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. The examiner acknowledged that the Veteran's STRs show he sought treatment for abdominal pain and gastrointestinal discomfort on multiple occasions. However, the examiner noted that military medical records are not indicative of evaluation and treatment of a stomach condition or chronic stomach pain, which was noted to be recurrent in nature, or an injury which would result in a residual gastrointestinal diagnosis. Therefore, the examiner concluded that there was no evidence to support the Veteran's claim. The examiner also noted that there was no evidence of GERD symptoms being chronic or recurrent while the Veteran was in the service, and there was over a 20-year gap between the Veteran's military service and suggestive diagnosis of GERD. The Board finds both the October 2013 and February 2021 VA opinions inadequate, as the opinions does not take into account the Veteran's lay statements that he started suffering gastrointestinal conditions while in service. In August 2018, a private physician opined that the Veteran's GERD had its onset during military service. The physician noted that, in forming the opinion, he conducted a thorough review of available military records and lay statements. The physician also reasoned that he was seen for GERD-like symptoms throughout his military career. Given that the physician considered the evidence of record and lay statements when rendering his opinion, the Board finds the August 2018 VA opinion is probative. The August 2018 opinion is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Given the probative August 2018 private opinion, a nexus has been established. As the preponderance of the evidence supports the Veteran's service connection claim for a gastrointestinal disability, the claim is granted. GAYLE STROMMEN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. E. Grossman, 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.