Citation Nr: 21028139 Decision Date: 05/10/21 Archive Date: 05/10/21 DOCKET NO. 15-32 031 DATE: May 10, 2021 ORDER Entitlement to service connection for a gastrointestinal disability, to include gastrointestinal reflux disease (GERD), is denied. FINDING OF FACT A gastrointestinal disability, to include GERD, did not have its onset during active service, did not manifest as peptic ulcers to a compensable degree within one year of service discharge, and a gastrointestinal disability is not otherwise related to active service. CONCLUSION OF LAW The criteria for service connection for a gastrointestinal disability, to include GERD, have not been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from June 1968 to December 1971. This matter originally came to the Board of Veterans' Appeals (Board) from a January 2015 rating decision. A December 2018 Board decision denied the Veteran's claim of service connection for a gastrointestinal disability, to include GERD, after which the Veteran appealed the matter to the United States Court of Appeals for Veterans Claims (Court). In December 2019, a Court Order granted a Joint Motion for Partial Remand (JMPR) between the Veteran and the Secretary of VA (parties), and vacated and remanded the matter. In June 2020, and most recently in December 2020, the Board remanded the claim of service connection for a gastrointestinal disability for further development, including an adequate medical opinion. As the requested development has now been completed, the Board finds that there has been substantial compliance with prior remand directives and the matter is properly returned to the Board for adjudication. The Veteran testified before a Veterans Law Judge (VLJ) regarding this claim in June 2016, and a transcript of the hearing has been associated with the claims file. In April 2020, following notice that the VLJ who held his June 2016 hearing was no longer employed by the Board, the Veteran declined an additional hearing before the Board and requested that the Board proceed to adjudicate his appeal based on the evidence of record. Entitlement to service connection for a gastrointestinal disability, to include GERD. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. To establish a right to compensation for a present disability, 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. For certain chronic diseases, including peptic ulcers, service connection may be granted on a presumptive basis if the disease manifests within one year following service discharge. Even where service connection cannot be presumed, service connection may still be established on a direct basis. The Veteran claims that a gastrointestinal disability, to include GERD, had its onset during active service and has continued since that time. At the June 2016 Board hearing, the Veteran testified that he suffered from "stomach problems" during active service that continued after separation to the present. He also testified that he was exposed to bacteria while working as a lab tech in Vietnam or contaminated water/food while in Vietnam that led to his indigestion issues. He stated that he did not seek treatment for stomach problems during service but that he sought treatment with a private doctor in Port Arthur, Texas within a year of separation from active service, and that his symptoms were later diagnosed as duodenal ulcer, peptic ulcer, gastritis, and GERD. The Board has carefully reviewed the evidence of record and finds that the preponderance of the evidence weighs against the Veteran's claim of entitlement to service connection for a gastrointestinal disability. The reasons for this decision follow. As to evidence of a current disability, the Board notes that post-service private treatment records document an April 1994 upper gastro-endoscopy, which revealed a duodenal ulcer and mild gastritis. In March 2010, the Veteran was prescribed proton pump inhibitors to relieve discomfort associated with GERD. The Veteran sought treatment in January 2012 for stomach problems which were diagnosed as peptic ulcer disease. In November 2013, the Veteran reported similar symptoms that were characterized as dyspepsia. Subsequent VA treatment records reflect that the Veteran has continued to be treated with omeprazole for his stomach and GERD. As such, the Board finds such evidence during the pendency of the claim sufficient to satisfy the requirement of a current disability. As to the second element of an in-service disease or injury, the service treatment records do not document complaints, treatment, or diagnosis of a gastrointestinal disability, to include GERD. Notably, the Veteran's May 1968 Report of Medical Examination at enlistment and his November 1971 Report of Medical Examination at separation each document normal relevant clinical evaluations, including of the mouth, throat, abdomen, and viscera, without a notation of a gastrointestinal defect or diagnosis. Additionally, the Veteran specifically denied a history of frequent indigestion or stomach, liver, or intestinal trouble within concurrent Reports of Medical History at both enlistment and discharge. The service treatment records show that the Veteran was treated for hepatitis as a viral illness in April 1969, which is not a gastrointestinal disability. Given the above, the Board finds that the most probative evidence does not support a finding that a current gastrointestinal disability, to include GERD, first had its onset during active service. Peptic ulcer disease may be entitled to presumptive service connection as a chronic disease under VA regulation; however, the most probative evidence of record documents that peptic ulcer disease was first diagnosed in 1994, more than two decades after the Veteran's separation from active service. Indeed, there is no competent evidence that peptic ulcers first manifested during active service or within one year of service discharge to warrant presumptive service connection for peptic ulcers as a chronic disease. The Board also finds that the preponderance of evidence weighs against the finding of a nexus between a current gastrointestinal disability and the Veteran's active service. Post-service employer records from Du Pont include a November 1979 Confidential Interval Health History form completed by the Veteran wherein he reported a positive history of gastrointestinal symptoms, including recurring indigestion, diarrhea, constipation, rectal bleeding, pains in abdomen, difficulty swallowing, or unexplained loss of weight, without further explanation. Attending Physician's Statements and Disability Wage Plans completed in June 1980, July 1980, and November 1980 document that the Veteran was treated for gastroenteritis from May 31, 1980 to June 3, 1980, on June 23, 1980, and again from November 11-14, 1980. A December 1980 Confidential Interval Health History completed by the Veteran again reports gastrointestinal symptoms, including a handwritten reference to "former gastroenteritis." An August 1985 Attending Physician's Statement and Disability Wage Plan documents that the Veteran was treated for a small duodenal ulcer in July and August 1985. Thus, the evidence shows the Veteran first documenting gastrointestinal symptoms almost eight years following service discharge, which does not lend to a finding that gastrointestinal symptoms had their onset in service. An April 1994 private treatment record documents an upper gastro-endoscopy, which revealed a duodenal ulcer and mild gastritis. In November 1994, the Veteran reported a history of abdominal complaints, including peptic ulcer disease (PUD) 2 years prior. In June 2000, the Veteran underwent an endoscopy based upon his reported history of dyspepsia, and the resulting report includes diagnoses of diffuse gastritis and duodenal ulcer, with recommended treatment with proton pump inhibitors given the history of recurrent ulcer. That same month, a biopsy revealed helicobacter pylori (H. pylori). In a July 2016 opinion, a private physician, Raj Bhandari, MD, stated that "in America, most H. pylori is obtained at young childhood through hand-to-mouth of fecal oral transmission." However, he stated that the Veteran "could have obtained this in Vietnam" or "at any time," and as such, Dr. Bhandari was "unable to discern at any convincing amount of when [the Veteran] may have obtained H. pylori. He noted that the Veteran was not having symptoms at that time other than reflux, which was controlled with proton pump inhibition. As noted above, following the December 2019 JMPR, the Board remanded this matter in June 2020 to afford the Veteran a VA examination regarding his claim. Upon VA examination in July 2020, the Veteran reported a history of abdominal pain and distress during active service, with subsequent diagnoses of gastritis and duodenal ulcer in 1994, and a 2000 biopsy for H. pylori. The Veteran also reported a history of chronic GERD, treated with Protonix, omeprazole, and Zantac, and current symptoms of monthly abdominal pain relieved by standard ulcer therapy. The VA examiner noted relevant diagnoses including resolved duodenal ulcer (1994), resolved hypertrophic gastritis (1994), resolved H. pylori (2000), and GERD (1994). Following a review of the claims file, the examiner opined that the claimed condition less likely as not incurred in or caused by the claimed in-service injury, event, or illness. As a rationale, the examiner stated that all available records were reviewed, and while service treatment records noted upset stomach and treatment for viral hepatitis, they were negative for any diagnosis of a chronic gastrointestinal disorder during active service. The examiner noted that the Veteran was evaluated in the 1990s for complaints of abdominal pain and dysphagia and found to have a small duodenal ulcer and gastritis, and in 2000, the Veteran had a gastric biopsy that noted H. pylori; however, the examiner stated that there was no objective evidence to support GERD, H. pylori, gastritis, or duodenal ulcer manifesting during active service, and as such, no nexus was established. The July 2020 VA examination and opinion has previously been found inadequate by the Board in its most recent December 2020 remand due to the failure of the VA examiner to address relevant treatment prior to the 1990s, as well as the Veteran's lay reports of treatment from a private gastroenterologist within a year of discharge from service and recurrent gastrointestinal symptoms ever since service. As such, following the December 2020 Board remand, VA obtained an additional medical opinion in January 2021. At that time, a new VA examiner reviewed the claims file and opined that the claimed condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. As a rationale, the examiner stated that there is no evidence of a chronic gastrointestinal condition while in service. The examiner noted that the Veteran had a viral episode in April 1969, which was originally thought to be hepatitis A; however, laboratory testing ruled out hepatitis and mono, and the final diagnosis was a viral illness. Additionally, the examiner stated that there is no evidence of chronicity, and the Veteran's separation exam was negative for any symptoms related to that April 1969 viral episode or to gastrointestinal disorders in general. The examiner was unable to locate treatment records regarding reported gastrointestinal problems in 1979; however, the examiner stated that even if conceded, there is no evidence of continuity since service. In support of this, the examiner noted that separation exams are notably thorough and it is unlikely that a significant gastrointestinal condition, especially after the Veteran's viral episode in 1969, would have gone unreported or unnoted. Therefore, the examiner wrote that even if the 1979 events are conceded, the examiner opined that they are less likely than not due to service. The examiner also noted that the Veteran reported treatment for PUD in 1985, which was confirmed by a physician's letter noting a small ulcer; however, the examiner stated that the same rationale applies to this. In other words, it is unlikely that such condition had onset during service and went undetected or unreported at separation. The examiner further noted that the Veteran had an endoscopy that revealed PUD, hypertrophic gastritis, and GERD in 1994; however, the examiner again stated there was no chronic condition in service or at separation. Similarly, the examiner noted that H. pylori was diagnosed and treated in 2000 but stated that the rationale above also applies to the H. pylori diagnosis, as there is no medical evidence supporting chronicity in service, presence at separation, or until the Veteran-reported 1979 complaints, at the earliest. The examiner added it was unlikely a significant gastrointestinal condition arising in service would have had a hiatus of eight years after service. The examiner also stated that the 1985 ulcer treatment also falls within this rationale. The other documented conditions arising in 1994 are, more likely than not, new-onset conditions at that time. In sum, the examiner concluded that the objective medical evidence does not support the Veteran's claims. The examiner noted that the only current diagnosis is GERD, which also, more likely than not, had its onset in or around 1994; therefore, it is less likely than not that any of the Veteran's previously discussed conditions had their onset in service. Notably, the examiner stated that the conclusion did not discount the Veteran's history as given, but the examiner concluded that it is not supported by the medical evidence. Given consideration of the VA and private nexus opinions discussed above, the Board finds that the January 2021 VA examiner's opinion is of the greatest probative value in the context of the Veteran's claim, as the opinion properly considered the Veteran's medical history, including his reported history, and included a rationale for the conclusion reached, which noted that despite the Veteran's lay history, the medical evidence did not support the onset of a chronic gastrointestinal disability during active service or prior to 1979 at the earliest, which is eight years after separation. While the Board has considered the positive July 2016 private opinion by Dr. Bhandari, the Board finds that it is of little probative value given that it is stated in speculative terms, finding that the Veteran "could have obtained [H. pylori] in Vietnam" or "at any time." Given the speculative nature of this opinion, it does not weigh in favor of the Veteran's claim. As such, the Board concludes that the most probative medical evidence of record is against a finding of a nexus between the Veteran's claimed gastrointestinal disability, to include GERD, and his active service. To the extent that a March 2021 brief by the Veteran's representative asserts that the January 2021 VA examiner's opinion is inadequate as it is "a foray into the prohibited area of an examiner evaluating credibility," the Board disagrees. Notably, the examiner's rationale was based on a review of the objective evidence of record, and the negative nexus opinion provided ultimately relied on a temporal gap in time between the Veteran's service separation and his documented subsequent complaints and/or treatment for the claimed condition. Moreover, the examiner specifically noted that he did not discount the Veteran's history in providing the opinion. He said that the medical evidence did not support a nexus, which includes the service treatment records, which show that after the one-time viral illness that the Veteran experienced in April 1969, he did not continue to have gastrointestinal symptoms for the remainder of his service. The November 1971 Report of Medical Examination shows that clinical evaluation of the abdomen and viscera were normal at separation, and the Veteran specifically denied a history of frequent indigestion and stomach and liver, or intestinal trouble at service discharge. Thus, by the time the Veteran was being discharged from service, he was not experiencing ongoing gastrointestinal symptoms. For these reasons, the Board finds that the January 2021 VA opinion is of the most probative value in the context of the Veteran's claim. Additionally, to the extent that the representative further asserts that complaints or treatment for digestive-type symptoms in 1979, 1985, and 1994 show a continuity of symptomatology consistent with the Veteran's presentation of the facts, the Board also disagrees, as a medical professional has determined that such symptoms would not have been indicative of an onset of a gastrointestinal disability during service. The Board has considered that the Veteran recently submitted March 2021 private treatment records documenting that he underwent a recent colonoscopy, with noted impressions including severe diverticulosis of the transverse colon, descending colon, and sigmoid colon, and a polyp in the descending colon. However, such records do not provide probative evidence of a nexus between a current gastrointestinal disability and the Veteran's active service, and they do not support his claim. The Board has also considered the Veteran's lay statements of record, which are probative evidence insofar as they report observable symptomatology; however, to the extent that the Veteran asserts a nexus between a current gastrointestinal disability and his active service, such statements lack probative value, as the Veteran is not shown to possess medical expertise required to render a nexus opinion regarding an internal condition and his active service. Moreover, to the extent the Veteran asserts that his gastrointestinal symptoms first had their onset during active service and have continued since that time, including that they required treatment as early as within one year of service discharge, the Board affords such statements no probative value as they are inconsistent with the objective evidence of record, including contemporaneous service treatment records. For example, in the November 1971 Report of Medical History that the Veteran completed prior to his discharge from active service, he specifically denied frequent indigestion and stomach, liver, or intestinal trouble while reporting a positive history for other unrelated medical symptoms. The Board reasonably concludes from this that the Veteran read through the medical symptoms and checked "yes" to those he had experienced and "no" to those he had not experienced. Moreover, the Board finds no reason to question the accuracy of what the Veteran documented in this record, as he completed it contemporaneously with his active service, which facts tend to be highly reliable. To the extent that the Veteran's current reports of in-service symptoms or related treatment within a year of service discharge conflict with his probative in-service reports and the objective medical evidence of record which fails to document related treatment prior to 1979, the Board finds that such reports lack probative value generally. In conclusion, for all the reasons laid out above, the Board finds that the preponderance of the evidence is against the Veteran's claim of entitlement to service connection for a gastrointestinal disability, to include GERD. As such, there is no reasonable doubt to be resolved, and the claim for service connection is denied. A. P. SIMPSON Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Chad Johnson, 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.