Citation Nr: 21030858 Decision Date: 05/19/21 Archive Date: 05/19/21 DOCKET NO. 16-18 598 DATE: May 19, 2021 REMANDED Entitlement to service connection for a stomach disorder, to include gastroesophageal reflux disorder (GERD) is remanded. Entitlement to service connection for tension and/or migraine headaches is remanded. REASONS FOR REMAND The Veteran served on active duty from August 1965 to February 1966. These matters come before the Board of Veterans' Appeals (Board) on appeal from a July 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In July 2020, the Veteran was afforded a Board hearing before the undersigned Veterans Law Judge. The transcript is of record. In October 2020, the Board remanded the issues on appeal in order to obtain private treatment records and VA examinations. 1. Entitlement to service connection for a stomach disorder, to include gastroesophageal reflux disorder (GERD) is remanded. Although further delay is regrettable, the Board finds that additional development is necessary prior to appellate review. The Veteran contends that his stomach condition had its onset in service. The Veteran testified that he did not have a preexisting stomach condition. The Veteran stated that when he was overseas in Vietnam, he would constantly have an upset stomach. The Veteran expressed that he would go to the ship's doctor and he would be prescribed TUMS or a bottle of Rolaids. The Veteran's wife testified that the Veteran never had any discomfort with regards to stomach issues or even acid reflux prior to service and that the Veteran has had continuous stomach issues since service. The Veteran submitted buddy statements from his brother and mother indicating that the Veteran has had stomach pains continuously since service. In its October 2020 Board remand, the Board requested for a VA examination with a VA opinion that specifically addresses the Veteran's contention of continuous stomach issues since service. Pursuant to the Board remand, the Veteran was afforded a VA examination in January 2021. The Veteran was diagnosed with GERD. The examiner opined that the Veteran's GERD was less likely than not incurred in or caused by the claimed in-service injury, event or illness. The examiner stated that the Veteran has never had a diagnosis of stomach ulcers and that there was not a diagnosis of GERD until August 2009. The examiner noted that he reviewed the Board's remand, the Veteran's medical records, and the Veteran's buddy statements. The examiner acknowledged the Veteran's brother's and mother's statements indicating that the Veteran had headaches and stomach pains since service. However, the examiner found that the Veteran's brother and mother were not competent to diagnose GERD. But, they are competent to report the Veteran's complaints of stomach pains and headaches since service. The examiner noted that during the interview, the Veteran indicated that he would get a sour stomach in service, and he would take antacids and it would go away. The examiner stated that the Veteran's statements indicate having brief and occasional bouts of a "sour stomach" related to stress for his brief period of service. The examiner expressed that there is no medical evidence that the Veteran developed GERD due to nerves or having a sour stomach. The examiner stated that GERD is a medical condition which occurs when stomach acid flows back into the tube connecting your mouth and stomach. The examiner expressed that it's cause is usually anatomic, either by a hiatal hernia or by a weakness in the lower esophageal sphincter which becomes too relaxed and allows food and acid to backtrack up into the esophagus. The examiner noted that symptoms include trouble swallowing, chest, pain, indigestion, regurgitation, cough, nausea, loss of appetite, weight loss, or bleeding, however, none of those symptoms were present during the Veteran's period of service. The Board is not satisfied that the lay statements were adequately considered as to the Veteran's mother, brother and his own statements regarding continuous stomach issues and complaints since service. Thus, a remand for an addendum opinion is necessary. 2. Entitlement to service connection for tension and/or migraine headaches is remanded. The Veteran contends that his headache condition had its onset in service. The Veteran and his wife testified that prior to entering service, the Veteran did not have headaches. The Veteran testified that his headaches have been continuous since his discharge from service. The Veteran submitted buddy statements from his mother and brother that indicated that the Veteran has had headaches since his military service. The Veteran's service treatment records show that the Veteran complained of headaches. In its October 2020 Board remand, the Board requested for a VA examination with a VA opinion that specifically addresses the Veteran's contention of continuous headaches since service. Pursuant to the Board remand, the Veteran was afforded a VA examination in January 2021. The Veteran was diagnosed with both migraines and tension headaches. The examiner opined that the Veteran's headaches were less likely than not incurred in or caused by the claimed in-service injury, event or illness. The examiner noted that he reviewed the Board's remand, the Veteran's medical records, and the Veteran's buddy statements. The examiner acknowledged that the Veteran's service medical records showed that on November 24, 1965, the Veteran complained of headaches, back pain and weakness. However, the examiner stated that subsequently, the Veteran admitted to having personal problems and was attempting to get out of the Navy. The examiner reported that during the current interview, the Veteran indicated that he would have headaches that would occur with tension and under stress. The examiner noted that the Veteran's separation examination was negative for mention of headaches. The examiner expressed that a review of the Veteran's medical records showed that his migraines did not develop until years after his period of service. Thus, the examiner concluded that there is no medical evidence that the Veteran had migraines during his period of service. The examiner acknowledged the Veteran's brother's and mother's statements indicating that the Veteran had headaches and stomach pains since service. However, the examiner found that the Veteran's brother and mother were not competent to diagnose migraine headaches. The examiner noted that the Veteran currently has occasional migraines, but mainly has tension headaches. The examiner stated that there are many causes of tension headache and they include stress, conflict, missed meals, clenched jaw, dehydration, overexertion, lack of sleep, holding different positions that strain the head or neck muscles, poor posture, and dysfunction of the TMJ. The examiner expressed that there is no objective evidence that the Veteran experienced migraine headaches during service. The examiner concluded that the Veteran's current headaches are related to short stressful events including finances and work and to normal life stress and worry. After review, the Board finds that a new VA examination is warranted. First, the Board notes that the Veteran was diagnosed with both migraine headaches and tension headaches, however, the January 2021 VA examiner's opinion focused mostly on why the Veteran's migraines are not related to service. For example, during the VA examination, the Veteran indicated that his headaches would occur with tension and under stress. However, instead of discussing whether the Veteran's tension headaches were related to service, the examiner expressed that the Veteran's migraines did not develop until years after his period of service and thus, the examiner concluded that there is no medical evidence that the Veteran had migraines during his period of service. Second, in its October 2020 Board remand, the Board requested for a VA opinion that specifically addresses the Veteran's contention of continuous headaches since service. Here, the January 2021 VA examiner acknowledged the Veteran's statements and buddy statements regarding continuous headaches, but indicated that the Veteran's brother and mother were not competent to diagnose migraines. The examiner failed to discuss whether the Veteran's complaints of continuous headaches since service were in fact tension headaches and thus the Veteran was able to competently diagnose tension headaches. Therefore, a remand for a new VA examination and opinion is necessary. The matters are REMANDED for the following action: 1. Inform the Veteran that in November 2020, Saint Luke's North Hospital informed the RO that they refused to waive the fees associated with submitting the Veteran's private treatment records to VA; inform the Veteran that he may submit such records on his own behalf is he so chooses. 2. Ask the Veteran to complete a VA Form 21-4142 for any outstanding, relevant private treatment records not of record, regarding his claimed stomach and headache condition. Advise the Veteran that although VA has a duty to assist in obtaining relevant evidence, it is ultimately his responsibility to obtain non-Federal records. Therefore, he "must cooperate fully with VA's reasonable efforts to obtain relevant records from non-Federal agency or department custodians," "must provide enough information to identify and locate the existing records," and "[i]f necessary... must authorize the release of existing records." 38 C.F.R. § 3.159(c)(1)(i)-(ii). All steps taken to obtain such records, as well as any subsequent responses, should be documented in the claims file and the Veteran should be informed of any negative response. The Veteran should also be notified that he may also submit medical evidence and clinical records to support his claims. 3. Thereafter, obtain an addendum opinion from an examiner who has not previously provided an opinion (only schedule a new VA examination if required to respond to the questions asked below) to determine the nature and etiology of any diagnosed stomach disorder, to include GERD. A copy of the claims file, including a copy of this Remand, must be provided to the examiner. The examiner is asked to provide an opinion as to whether it is at least as likely as not (i.e., 50 percent or greater probability) that any current stomach condition, to include GERD had its onset or is related to the Veteran's military service. In providing the requested opinion, the examiner should consider all relevant evidence of record, including both medical and lay evidence, citing to specific evidence where appropriate. The examiner should specifically discuss the Veteran's contention, along with the Veteran's wife, mother, and brother's statements regarding continuous stomach issues/complaints since service. The examiner is advised that the Veteran is competent to report symptoms, treatment, and injuries observable to a layperson. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The examiner is also reminded that the absence of documented treatment in service or thereafter is not fatal to a service connection claim, and the absence of evidence in the service treatment records is an insufficient basis, by itself, for a negative opinion. The examiner must provide a comprehensive rationale for all opinions expressed. Obtain an addendum VA opinion from an examiner who has not previously provided an opinion (only schedule a new VA examination if required to respond to the questions asked below) to determine the nature and etiology of his tension and/or migraine headaches. A copy of the claims file, including a copy of this Remand, must be provided to the examiner. The examiner is asked to provide an opinion as to whether it is at least as likely as not (i.e., 50 percent or greater probability) that any current tension OR migraine headache condition had its onset or is related to the Veteran's military service. In providing the requested opinion, the examiner should consider all relevant evidence of record, including both medical and lay evidence, citing to specific evidence where appropriate. The examiner should specifically discuss the Veteran's service treatment records reporting headaches, and the Veteran's contention, along with the Veteran's wife, mother, and brother's statements regarding continuous headaches since service. The examiner is advised that the Veteran is competent to report symptoms, treatment, and injuries observable to a layperson. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). (Continued on the next page) The examiner is also reminded that the absence of documented treatment in service or thereafter is not fatal to a service connection claim, and the absence of evidence in the service treatment records is an insufficient basis, by itself, for a negative opinion. The examiner must provide a comprehensive rationale for all opinions expressed. LESLEY A. REIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M.D. 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.