Citation Nr: 22017192 Decision Date: 03/24/22 Archive Date: 03/24/22 DOCKET NO. 15-06 624 DATE: March 24, 2022 ORDER Entitlement to service connection for hiatal hernia, including as secondary to posttraumatic stress disorder (PTSD), is denied. REMAND Entitlement to service connection for gastroesophageal reflux disease (GERD), including as secondary to PTSD, is remanded. FINDINGS OF FACT 1. The evidence of record persuasively weighs against finding that the Veteran has had a hiatal hernia at any time during or approximate to the pendency of the claim. CONCLUSIONS OF LAW 1. The criteria for service connection for hiatal hernia, including as secondary to PTSD, are not met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1992 to April 1995. This matter comes before the Board of Veterans' Appeal (Board) on appeal from a December 2011 rating decision from a Department of Veterans Affairs (VA) Regional Office (RO). The issues were previously before the Board in August 2018 when they were remanded for further development. The Board notes that the issues of entitlement to service connection for irritable bowel syndrome (IBS), sleep disorder, and PTSD were also remanded in August 2018. However, in a January 2022 rating decision, the RO awarded service connection for IBS, a sleep disorder, and PTSD. As this represents a full grant of the benefits sought, the issues are no longer before the Board for appellate consideration. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). Service connection may also be established on a secondary basis for: (1) a disability that is proximately due to or the result of a service-connected disease or injury; or, (2) any increase in the severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease or injury. 38 C.F.R. §§ 3.310(a)-(b); see also Harder v. Brown, 5 Vet. App. 183, 187 (1993) (explaining 38 C.F.R. § 3.310(a)); Allen v. Brown, 7 Vet. App. 439, 448 (1995) (explaining 38 C.F.R. § 3.310(b)). 1. Entitlement to service connection for hiatal hernia, including as secondary to PTSD The Veteran contends that he has a hiatal hernia as a result of his service. Specifically, the Veteran contends that environmental exposures and ready-to-eat meals during his deployment in Somalia caused his hiatal hernia. In the alternative, the Veteran contends that his hiatal hernia is secondary to his service-connected PTSD. The Board concludes that the Veteran does not have a current diagnosis of hiatal hernia and has not had one at any time during the pendency of the claim or recent to the filing of the claim. Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). The Veteran was provided with a VA examination in August 2010. At the examination, the Veteran "did not acknowledge nor address" having a hiatal hernia. The VA examiner noted that the Veteran did not have a history of hernia surgical repair or a history of injury or wound related to a hernia. The examiner noted that there was no hernia present upon examination. The Veteran also denied symptoms related to a hernia. The Veteran was provided with a VA esophageal condition examination in December 2020 where the VA examiner, again, did not find any evidence that the Veteran had a hiatal hernia. The Veteran reported that he could not recall a time where a diagnostic test revealed a hiatal hernia. The examiner noted that the Veteran's October 1995 and August 2010 VA examinations also did not reveal a hiatal hernia. There is no evidence that the August 2010 or December 2020 VA examiners were either not competent or credible. Further, the examiners based their findings on the Veteran's account of his symptoms, a review of the medical evidence, and an objective examination of the abdomen. As such, the Board finds that the August 2010 and December 2020 VA examination reports are entitled to significant probative weight as to the presence of a current disability. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). While pain alone may constitute a disability for the purposes of service connection, there must be a showing that the pain reaches the level of a functional impairment of earning capacity. Saunders v. Wilkie, 886 F.3d 1356, 136768 (Fed. Cir. 2018); Wait v. Wilkie, 33 Vet. App. 8, 1517 (2020). Here, there is no evidence that the Veteran's claimed hiatal hernia results in pain that results in impairment of earning capacity. Indeed, the Veteran denied symptoms of a hiatal hernia at the August 2010 and December 2020 VA examinations noted above. Thus, there is no competent, credible, and probative evidence of any functional loss or functional impairment due to hiatal hernia pain. Wait, 33 Vet. App. at 1517. As there is no competent and credible evidence of a current disability, service connection is not warranted on any basis. 38 C.F.R. §§ 3.102, 3.303; see Brammer, 3 Vet. App. at 225. Accordingly, the Board finds that service connection for a hiatal hernia, to include as secondary to PTSD, has not been established and the claim must be denied. In denying such rating, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5170; 38 C.F.R. §§ 4.3, 4.7. REASONS FOR REMAND 1. Entitlement to service connection for GERD, including as secondary to service-connected disabilities to include PTSD, is remanded The Veteran contends that he has GERD as a result of his service. Specifically, the Veteran contends that environmental exposures and ready-to-eat meals during his deployment in Somalia caused his GERD. In the alternative, the Veteran contends that his GERD is secondary to his PTSD. The Veteran was provided with a VA esophageal conditions examination in December 2020 where he was diagnosed with GERD. The VA examiner opined that the Veteran's "medical records do not support that the Veteran's currently diagnosed GERD is at least as likely as not incurred in or caused by the service with environmental exposures and ready to eat meals during his deployment." The examiner noted that examinations in August 1993 and October 1995 were "silent for GERD." The examiner added that the Veteran has "had a history of complaints diagnosed as GERD since discharge from active duty," but that "environmental exposure and consuming ready to eat meals are not causes of gastroesophageal reflux." She explained that "GERD is due to incompetence of the lower esophageal sphincter which allows reflux of acidic contents into the lower esophagus with irritation." The Board finds that this VA examination opinion to be inadequate. Here, while the VA examiner addressed direct service connection, the Veteran has raised another theory of secondary nexus to his already service-connected disabilities, to include his PTSD, and recently service-connected irritable bowel syndrome. The Board notes that the VA's statutory duty to assist the Veteran includes the duty to conduct a thorough and contemporaneous examination so that the evaluation of the claimed disability will be a fully informed one. Green v. Derwinski, 1 Vet. App. 121 (1991); Snuffer v. Gober, 10 Vet. App. 400 (1997). Assistance by VA includes providing a medical examination or obtaining a medical opinion when such an examination or opinion is necessary to make a decision on a claim. 38 U.S.C. § 5103A (d); 38 C.F.R. § 3.159 (c)(4); McLendon v. Nicholson, 20 Vet. App. 79 (2006). When the medical evidence is inadequate, as it is here, VA must supplement the record by seeking an advisory opinion or ordering another medical examination. Colvin v. Derwinski, 1 Vet. App. 171 (1991); Hatlestad v. Derwinski, 3 Vet. App. 213 (1992). Here, regardless of the Veteran's competency as a lay person to provide opinions on complex medical issues such as the etiology of his claimed GERD, the Board's duty to provide an adequate and complete nexus opinion must be fulfilled. Therefore, as the last VA examination did not address secondary etiology of the Veteran's GERD as it relates to both PTSD and IBS, remand is required for the VA to fulfill its duty to the Veteran. The matters are REMANDED for the following action: 1. Forward the claims file to an appropriate clinician who has not previously provided an opinion in this case to determine the nature and etiology of the Veteran's claimed GERD. If the clinician finds that a new examination (or telehealth interview, etc., if an in-person examination is not feasible) would be beneficial, one is to be provided. (a) The clinician should opine as to whether it is at least as likely as not (probability of about 50 percent) that the Veteran's GERD manifested during, or is the result of, his active duty service. (b) The clinician should opine as to whether it is at least as likely as not (probability of about 50 percent) that the Veteran's GERD is the result of, or aggravated by, any of his service-connected disabilities, to include his IBS and PTSD. A complete rationale must be provided for each opinion, that demonstrates consideration of the Veteran's lay statements and assertions regarding symptoms. Zi-Heng Zhu Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Morrad, 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.