Citation Nr: 21026986 Decision Date: 05/04/21 Archive Date: 05/04/21 DOCKET NO. 13-03 402 DATE: May 4, 2021 ORDER Service connection for a disability manifested by heartburn is denied. REMANDED The issue of entitlement to service connection for a low back disability is remanded. The issue of entitlement to service connection for bilateral hearing loss is remanded. VETERAN'S CONTENTIONS The Veteran contends that he has a disability manifested by heartburn that was caused or aggravated by his service-connected polyarthralgia and/or related medications. Alternately, the Veteran contends that his disability manifested by heartburn is an undiagnosed illness related to his service in Southwest Asia during the Persian Gulf War. FINDINGS OF FACT 1. The Veteran served in Southwest Asia during the Persian Gulf War. 2. The Veteran is not shown to have a disability manifested by heartburn that had its clinical onset in active service, manifested within one year of his discharge from active service, is an undiagnosed illness or medically unexplained chronic multisymptom illness, or that is otherwise related to his period of active service, to include as secondary to polyarthralgia and related medications. CONCLUSION OF LAW The criteria for service connection for a disability manifested by heartburn are not met. 38 U.S.C. §§ 1110, 1131, 1117; 38 C.F.R. §§ 3.303, 3.317. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from November 1990 to May 1991. These matters come to the Board of Veterans' Appeals (Board) on appeal from an April 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Decatur, Georgia. Jurisdiction is currently with the RO in Togus, Maine. The Veteran testified at a hearing before a Veterans Law Judge (VLJ) who is no longer at the Board in April 2016 and a transcript of the hearing has been associated with the claims file. The Veteran did not respond to February 2021 correspondence asking whether he wanted an opportunity for a new hearing before a different VLJ. As such, the Board presumes he does not desire another hearing. These matters were previously before the Board in May 2018 at which time they were remanded for further development. Entitlement to service connection for a disability manifested by heartburn Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303 (d). Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a chronic condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. § 3.303(b). Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). Service connection may also be established for a Persian Gulf Veteran who exhibits objective indications of a qualifying chronic disability which became manifest either during active service in the Southwest Asia theater of operations during the Persian Gulf War, or to a degree of 10 percent or more not later than December 31, 2016; and by history, physical examination, and laboratory tests cannot be attributed to any known clinical diagnosis. 38 U.S.C. § 1117; 38 C.F.R. § 3.317 (a)(1). A "qualifying chronic disability" includes an undiagnosed illness or a medically unexplained chronic multisymptom illness that is defined by a cluster of signs or symptoms, such as chronic fatigue syndrome, fibromyalgia, and functional gastrointestinal disorders. 38 C.F.R. § 3.317(a)(2)(i). The term "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, such as diabetes and multiple sclerosis, will not be considered medically unexplained. 38 C.F.R. § 3.317 (a)(2)(ii). "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). Signs or symptoms that may be manifestations of undiagnosed illness or medically unexplained chronic multisymptom illness include, but are not limited to, the following: (1) fatigue; (2) signs or symptoms involving skin; (3) headache; (4) muscle pain; (5) joint pain; (6) neurologic signs or symptoms; (7) neuropsychological signs or symptoms; (8) signs or symptoms involving the respiratory system (upper or lower); (9) sleep disturbances; (10) gastrointestinal signs or symptoms; (11) cardiovascular signs or symptoms; (12) abnormal weight loss; and (13) menstrual disorders. 38 C.F.R. § 3.317(b). For purposes of section 3.317, disabilities that have existed for six months or more and disabilities that exhibit intermittent episodes of improvement and worsening over a six-month period will be considered chronic. The six-month period of chronicity will be measured from the earliest date on which the pertinent evidence establishes that the signs or symptoms of the disability first became manifest. 38 C.F.R. § 3.317(a)(3)(4). Determinations as to service connection will be based on review of the entire record, to include all pertinent medical evidence. VA must also consider all favorable lay evidence of record. 38 U.S.C. § 5107(b); see also Layno v. Brown, 6 Vet. App. 465, 469-70 (1994) (a Veteran is competent to report on that of which he or she actually observed and is within the realm of his or her personal knowledge). In addressing the criterion of a current diagnosis, the evidence of record includes a January 2010 VA Gulf War Examination Report in which the examiner diagnosed the Veteran with heartburn with reflux and an August 2016 VA Esophageal Conditions Examination Report in which the examiner diagnosed the Veteran with gastroesophageal reflux disease (GERD). In addressing in-service incurrence, the Veteran's military personnel records confirm service in Southwest Asia during the Persian Gulf War. The Veteran's service treatment records (STRs) are negative for complaints of or treatment for a disability manifested by heartburn and/or related symptoms. The Veteran testified during the April 2016 Board hearing that he did not have any stomach problems while in service. In addressing nexus, to the extent that the Veteran has stated that he has a disability manifested by heartburn attributable to service, the Board finds that he is competent to report on his symptoms and that of which he has personal knowledge, but he is not competent to provide an opinion as to the etiology of his disability because such a question is not answerable by the application of knowledge within the realm of a lay person. See Layno, 6 Vet. App. at 469-70; Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Therefore, the Board finds that the Veteran is not competent to relate his disability to his service or to any incident therein. The evidence of record otherwise includes a January 2010 VA Gulf War examination report in which the examiner diagnosed the Veteran with heartburn with reflux and opined that all symptoms, abnormal findings, and abnormal laboratory test results were determined to be part of a known clinical diagnosis. An August 2017 VA examiner opined that the claimed condition was less likely than not incurred in or caused by service, or any incident thereof. The examiner reasoned that there was no report of symptoms, diagnosis, or treatment of GERD documented in the STRs. Although the Veteran had a current diagnosis of GERD on examination and he had ongoing symptoms, the examiner was unable to establish a nexus between military service and the current diagnosis. An October 2019 VA examiner also opined that it was less likely than not that the Veteran's claimed heartburn and GERD disability was etiologically related to his active military service. The examiner reasoned that there was no documentation in the Veteran's available military STRs that the Veteran was evaluated for, diagnosed with, or treated for GERD while on active duty military service. A clinician documented that the Veteran was having no problems on April 11, 1991; indigestion, heartburn, and GERD were not documented on his April 25, 1991 separation report of medical history; and the Veteran's separation report of physical examination was normal. A clinician documented GERD on January 16, 2006. Another clinician documented GERD on December 12, 2006, 15 years after the Veteran completed his active duty military service. The examiner further reasoned that according to the Mayo clinic, risk factors for GERD include obesity and the Veteran is 5 foot 9 inches tall and 212.5 pounds with a body mass index of 31.4. According to the National Institute of Health (NIH), a body mass index of 31.4 is in the obese range. Additionally, according to the Mayo Clinic, alcohol use can aggravate GERD and VA clinicians documented that the Veteran had alcohol abuse. The October 2019 VA examiner also opined that it was less likely than not that the Veteran's disability manifested by heartburn including GERD was caused or aggravated by the medications that the Veteran takes to treat his service-connected polyarthralgia. The examiner reasoned that according to the Veteran's medication list, he is currently taking Gabapentin and Flexeril for his polyarthralgia. According to Rx List, GERD is not listed as a side effect for either medication. The examiner further reasoned that none of the medications listed by the Mayo Clinic as known to cause irritation to the esophagus, heartburn and pain, increased acid reflux, or worsening of GERD are included in the Veteran's medication list. According to new developments in extraesophageal reflux disease, Gabapentin has been shown an off-label benefit of treating cough which may occur with GERD. In a January 2021 addendum, an examiner opined that it was less likely than not that the Veteran's disability manifested by heartburn including GERD was caused by or aggravated by polyarthralgia. The examiner reasoned that there was no direct cause-effect relationship between GERD and polyarthralgia. GERD is a gastrointestinal condition manifested by symptoms of heartburn due to a relaxed, or weakened esophageal sphincter resulting in acid reflux from the stomach, whereas, polyarthralgia is a musculoskeletal condition manifested by symptoms of pain due to multiple impaired joints. The Board finds the January 2010, August 2017, October 2019, and January 2021 VA examiner opinions to be highly probative. The opinions were based on review of the claims file, relevant facts, and peer reviewed medical literature, and the examiners provided a detailed rationale. Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). There is no competent evidence to the contrary. Overall, the competent evidence of record fails to show that the Veteran has a disability manifested by heart burn that had its clinical onset in active service, manifested within one year of his discharge from active service, is an undiagnosed illness or medically unexplained chronic multisymptom illness, or that the Veteran has a disability manifested by heartburn that is otherwise related to his period of active service, to include as secondary to service-connected polyarthralgia and related medications. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim for service connection for a disability manifested by heartburn, that doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 53-56. REASONS FOR REMAND 1. Entitlement to service connection for a low back disability is remanded. The Veteran contends that he has a low back disability as a result of running into bunkers during alarms, jumping down from military service vehicles, and/or lifting/rigging/unloading ammunition and parachutes to be carried to the front lines. Alternately, the Veteran contends that his low back disability is an undiagnosed illness related to service in Southwest Asia during the Persian Gulf War. In this regard, the evidence of record includes a January 2010 Gulf War Examination report in which an examiner noted the Veteran's back pain and opined that all symptoms, abnormal findings, and abnormal laboratory test results were determined to be part of a known clinical diagnoses. An August 2017 VA examiner opined that the claimed condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner reasoned that there was no showing of symptoms of back pain, diagnosis related to back pain, or treatment of back pain documented in the STRs. Although the Veteran has a current diagnosis and on examination, and he has ongoing symptoms, a nexus has not been established between military service and civilian life. An October 2019 and a September 2020 VA examiner opined that the claimed condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner reasoned that a normal spine was documented on the Veteran's military separation examination on April 25, 1991; the Veteran indicated on his April 25, 1991 military report of medical history that he did not have recurrent back pain; and a normal spine was indicated on the Veteran's November 20, 1996 military report of medical history. On September 17, 2007, 16 years and 4 months after the Veteran completed his active duty service, a backache was documented in the Veteran's problem list and on May 20, 2009, which was 18 years after the Veteran completed his active duty military duty, back pain was documented by a VA clinician. The examiner further reasoned that the Veteran reported that he worked as a truck driver when he was not on active duty military service. According to research, 25% - 40% of all truck drivers suffer from chronic back pain because of long hours in the driver's seat and inability to exercise. The Board finds the VA examiner opinions inadequate to decide the Veteran's claim for service connection for a low back disability. The examiner failed to address the Veteran's competent lay testimony. Specifically, his testimony regarding running into bunkers during alarms, jumping down from military service vehicles, and/or lifting/rigging/unloading ammo and parachutes to be carried to the front lines. The Veteran also testified that he did not go to sick call for his low back disability because he self-medicated with over the counter drugs. The Veteran is competent to testify to in-service injuries, symptoms, and events. Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). In light of the aforementioned deficiencies of the VA examinations, the Board finds that an addendum opinion must be provided on remand. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate.) 2. Entitlement to service connection for bilateral hearing loss is remanded. The Veteran contends that he was exposed to jet engine noise while lifting/rigging/unloading ammo and parachutes to be carried to the front lines. He also contends that his bilateral hearing loss began during service and continued thereafter. In this regard, the evidence of record includes an October 2020 VA hearing loss and tinnitus examination report in which the examiner opined that the claimed condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner reasoned that the Veteran's entrance and separation examinations showed normal hearing for VA purposes. There was no significant shift in hearing thresholds beyond test variability from entrance to separation, which is objective evidence of no permanent auditory damage on active duty. The examiner further reasoned that there was no report of complaint/treatment for hearing decrease in the STRs or at separation and the Veteran's military occupational specialty (MOS) of food service had low probability of hazardous noise exposure. The Board finds the October 2020 VA examiner opinion inadequate to decide the Veteran's claim for service connection for bilateral hearing loss. The examiner improperly relied on the absence of an in-service hearing disability. The Board notes that the absence of in-service evidence of a hearing disability during service (i.e., one meeting the requirements of 38 C.F.R. § 3.385) is not always fatal to a service connection claim. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Evidence of a current hearing loss disability and a medically sound basis for attributing that disability to service may serve as a basis for a grant of service connection for hearing loss where there is credible evidence of acoustic trauma due to significant noise exposure in service, post-service audiometric findings meeting the regulatory requirements for hearing loss disability for VA purposes, and a medically sound basis upon which to attribute the post-service findings to the injury in service (as opposed to intercurrent causes). See Hensley v. Brown, 5 Vet. App. 155, 159 (1993). Additionally, the examiner did not consider the Veteran's contentions regarding his exposure to jet engine noise while lifting/rigging/unloading ammo and parachutes to be carried to the front lines. In light of the aforementioned deficiencies of the October 2020 VA examination, the Board finds that an addendum opinion must be provided on remand. See Bar v. Nicholson, 21 Vet. App. 303, 312 (2007) (when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate.) The matters are REMANDED for the following action: 1. Request that the Veteran provide or authorize VA to obtain records of his relevant treatment that have not yet been associated with the claims file, and associate with the claims file any outstanding VA treatment records. 2. Ensure that the Veteran's complete military personnel records are associated with the claims file; including military personnel records associated with any Army Reserve service. 3. Return the claims file to the audiologist who conducted the Veteran's October 2019 Back (thoracolumbar spine) examination, if available. If that examiner is not available, send the claims file to another qualified examiner. The claims file and this remand should be made available to the examiner and review of the file should be noted in the requested report. After reviewing the claims file the audiologist should respond to the following: (a.) Is it at least as likely as not (50 percent probability or greater) that any current low back disability had its onset in, or is related to any in-service disease, event, or injury? The examiner should specifically address the Veteran's contention that he has a low back disability as a result of running into bunkers during alarms, jumping down from military service vehicles, and/or lifting/rigging/unloading ammo and parachutes to be carried to the front lines. The Veteran testified that he did not go to sick call for his low back disability because he self-medicated with over the counter drugs. All findings and conclusions should be supported with a complete rationale and set forth in a legible report, which should reflect the examiner's consideration and analysis of both the medical and lay evidence of record. If it is not possible to provide an opinion without resort to speculation, the reason that is so should be explained, indicating whether there is additional evidence that could enable an opinion to be provided or whether the inability to provide an opinion is based on the limits of medical knowledge. 4. Return the claims file to the audiologist who conducted the Veteran's October 2020 audiological examination, if available. If that audiologist is not available, send the claims file to another audiologist. The claims file and this remand should be made available to the examiner and review of the file should be noted in the requested report. After reviewing the claims file the audiologist should respond to the following: (a.) Is it at least as likely as not (50 percent probability or greater) that any current hearing loss disability had its onset in, or is related to any in-service disease, event, or injury, including noise exposure, including on a delayed onset theory of causation? (b.) Is it at least as likely as not that any current sensorineural hearing loss manifested to a compensable degree within one year of service discharge? The audiologist should specifically address the Veteran's contention that he was exposed to jet engine noise while lifting/rigging/unloading ammo and parachutes to be carried to the front lines and his contention that his bilateral hearing loss began during service and continued thereafter. The audiologist is advised the lack of a diagnosis of hearing loss in service is not, by itself, a sufficient reason to find there is no nexus to service. The salient question is whether any incident of service, including noise exposure, caused a current hearing loss disability even though it may have been initially diagnosed years after the Veteran's discharge from service (delayed on-set hearing loss). All findings and conclusions should be supported with a complete rationale and set forth in a legible report, which should reflect the examiner's consideration and analysis of both the medical and lay evidence of record. If it is not possible to provide an opinion without resort to speculation, the reason that is so should be explained, indicating whether there is additional evidence that could enable an opinion to be provided or whether the inability to provide an opinion is based on the limits of medical knowledge. S.C. Krembs Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Smith-Jennings, 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.