Citation Nr: 22019740 Decision Date: 04/02/22 Archive Date: 04/02/22 DOCKET NO. 17-60 576 DATE: April 2, 2022 ORDER Entitlement to service connection for gastroesophageal reflux disease (GERD) is granted. REMANDED Entitlement to service connection for irritable bowel syndrome (IBS) is remanded. Entitlement to service connection for chronic sinusitis is remanded. FINDING OF FACT The evidence is in approximate balance as to whether the Veteran has experienced GERD symptoms continuously since active duty service. CONCLUSION OF LAW Resolving any reasonable doubt in the Veteran's favor, the criteria to establish service connection for GERD are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 2007 to June 2011. This matter comes on appeal before the Board of Veterans' Appeals (Board) from an October 2016 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In his November 2017 VA Form 9, the Veteran requested a Board hearing. In November 2021, she testified before the undersigned Veterans Law Judge, and a transcript of the hearing is associated with the claims file. The Board notes that, in correspondence received in October 2021, the Veteran's representative (Colorado Division of Veterans Affairs) indicated that it was withdrawing its representation of the Veteran as she no longer resided in Colorado; thus, the Veteran chooses to be unrepresented. Preliminary Matter The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016). Service Connection Claim Service connection will be granted for a disability resulting from a disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection requires: (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, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a claimant prevailing in either event. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. The claimant is entitled to the benefit of the doubt when there is an "approximate" (meaning nearly equal) balance of positive and negative evidence regarding any material determination. See Lynch v. McDonough, 999 F.3d 1391 (2021); Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). 1. Entitlement to service connection for GERD In July 2016, the Veteran requested service connection for GERD based on Gulf War syndrome. She reported being diagnosed with GERD by a private medical provider. She noted that she would have tried to receive treatment sooner, but did not have health insurance until recently. She felt the urge to vomit, had indigestion, had severe heartburn, and experienced difficulty swallowing; and was prescribed pantoprazole tablets. In her February 2017 Notice of Disagreement (NOD), the Veteran explained that continuity of care was not demonstrated because she became a student at a community college upon separation from service and did not have any medical care available at the campus. She also was not on her parents' insurance at the time of separation as she was 26 years old. She treated her symptoms with a controlled diet and over-the-counter medications, such as Mucinex DM, Tums, Prilosec, and Pepto-Bismol, which she had to use quite often. She did not seek treatment due to cost as she did not have insurance, so most of her treatment did not begin until she started studying at Colorado State University, where there was a clinic to which she could go. At this time, she also enrolled at the VA medical centers. Treatment continued when she started a job through which she received insurance benefits. Evidence Turning now to the evidence, service treatment records (STRs) include February 2007 enlistment and August 2007 Sea Duty examination reports reflecting the Veteran's denials of frequent indigestion or heartburn. In December 2009, she was assessed with viral syndrome/gastroenteritis. A February 2016 private treatment record reflects a diagnosis of GERD. A July 2016 VA treatment record reflects an assessment of GERD that was stable with medication. A September 2016 VA examination report reflects review of the Veteran's claims file and a diagnosis of GERD as of February 2016. The Veteran reported symptoms of burning in the epigastrium with nausea and regurgitation in 2009 and 2010. She used over-the-counter Tums to self-medicate frequently during the day. She denied being evaluated for this condition during service, and denied mentioning this condition at the time of separation. She was initially evaluated for these symptoms in 2015, diagnosed with GERD, and placed on Protonix. The examiner noted that there was no documentation in the provided records of the Veteran being evaluated, diagnosed, or treated for GERD during service. Rather, the evidence demonstrated an initial evaluation and diagnosis of GERD in February 2016, five years following service. The examiner then opined that the Veteran's GERD was less likely than not incurred in or caused by service as there was no documentation in the provided records that the Veteran was evaluated, diagnosed, or treated for any symptoms associated with GERD during service. In fact, there was no documentation of such until 2016, five years after separation from service, which did not establish continuity of care and concern for this condition. In an October 2017 VA addendum, the examiner opined that GERD was a disease with a clear and specific etiology and diagnosis. It was biomechanical in cause and was, therefore, not known to be causally related to environmental exposures during service in Southwest Asia. At the November 2021 Board hearing, the Veteran testified that she "definitely started dealing with GERD" during service, although she was not diagnosed until later as she did not have insurance. Even during service, she reported going through bottles of Tums in approximately a week as she had difficulty sleeping due to "really bad acid reflux" and a burning sensation no matter what she ate. She would just have to lay in her bunk or go and sit in the break room area to sit up. This occurred throughout the day, although it got worse in the evening when she went to bed. However, in the morning, it got to the point where she almost felt like she had to throw up. She indicated that it may be related to air contaminants while deployed in the 5th Fleet. Analysis After a review of all the evidence, both lay and medical, the Board finds that service connection for GERD is warranted. As an initial matter, the evidence reflects that the Veteran has a current diagnosis of GERD. See, e.g., September 2016 VA examination report. Additionally, the Veteran repeatedly contends that she experienced the same GERD symptoms during active duty service. Specifically, she had symptoms of burning with nausea and regurgitation in 2009 and 2010, for which she self-medicated with over-the-counter Tums frequently during the day. See id. Additionally, at the November 2021 Board hearing, she described difficulty sleeping due to "really bad acid reflux" and a burning sensation regardless of her diet for which she consumed bottles of Tums in a week during service. She reported that she did not seek treatment for these symptoms until 2016 as she did not have insurance and could not otherwise afford to seek treatment. However, once she did, she was diagnosed with GERD and prescribed medication. The Veteran's STRs do not document GERD symptoms or treatment; however, the Veteran is competent to report that she experienced acid reflux, regurgitation, and a burning sensation in her chest during service and thereafter. The Veteran's descriptions of her GERD symptoms, including their onset and continuity, are not the type of statements that require specialized knowledge to perceive or understand. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Board finds her statements not only competent, but credible as well. Moreover, although those symptoms in service have not been medically attributed to the current GERD symptoms, the Board finds that the symptoms for which she sought treatment after service are similar to those she experienced and managed with over-the-counter medications during service. Kahana v. Shinseki, 24 Vet. App. 428, 438 (2011). Although an unfavorable September 2016 VA etiology opinion is of record, it is inadequate to the extent that it did not address the Veteran's report of continued GERD symptoms since 2009, which the Board has found probative. Dalton v. Peake, 21 Vet. App. 23 (2007). At the very least, the favorable and unfavorable evidence as to the onset of the Veteran's GERD is in relative equipoise. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. Resolving all reasonable doubt in favor of the Veteran, the Board finds that the Veteran's GERD is related to her service and the appeal is granted. REASONS FOR REMAND 1. Entitlement to service connection for IBS is remanded. The service connection claim for IBS is being remanded for a new VA examination for further clarification. The threshold element of any service connection claim is evidence of a current (meaning, from the date of claim and during the pendency of the appeal) disability. A February 2016 private treatment record and a July 2016 VA treatment record reflect assessments of IBS. However, the September 2016 VA examiner stated that there was insufficient clinical evidence to support a diagnosis of IBS and found that her reported symptom of diarrhea was at least as likely as not secondary to dietary causes. However, the examiner did not address the nature and etiology of the prior assessments of IBS rendered in 2016. Additionally, the examiner did not address the Veteran's lay testimony regarding IBS symptoms during service and continued after separation from service. 2. Entitlement to service connection for chronic sinusitis is remanded. The service connection claim for chronic sinusitis is also being remanded for a new VA examination. An April 2015 private treatment record reflects an assessment of inflammatory sinusitis. However, the September 2016 VA examiner found that there was insufficient clinical evidence to support a diagnosis of chronic sinusitis. Based on this examination, the RO denied service connection for chronic sinusitis on the basis of no current disability. However, the VA examiner did not address the Veteran's report of sinus symptoms during service and since separation from service. Specifically, she reported being treated for symptoms of congestion, headache, and postnasal drip in 2008 to 2009; and seeking treatment for sinus infections in Kansas and at Colorado State University. At her November 2021 Board hearing, the Veteran also testified that she had a couple of sinus infections during service which never went away and had remained constant. A new VA examination is required to clarify whether the Veteran does indeed have a diagnosis of chronic sinusitis and, if so, whether it is related to service, especially given her report of continued symptoms since service. The matters are REMANDED for the following action: 1. Provide a comprehensive VA examination to determine the nature and etiology of the Veteran's claimed IBS. The claims file, and a copy of this remand, will be available to the examiner. After reviewing the claims file in its entirety and examining the Veteran, the examiner is asked to address the following: a) Confirm whether the Veteran currently has a diagnosis of IBS and, if so, the onset of such. b) Regardless of whether IBS is shown on the current examination, provide an opinion as to whether any IBS diagnosed during the appeal period, to include in February and July 2016, had its onset in service or is otherwise related to it. Address the December 2009 STR diagnosis of viral syndrome/gastroenteritis; her report to 2016 private provider that she had a long history of heartburn symptoms beginning in service, and the Veteran's testimony of IBS symptoms beginning during service and continued thereafter. A complete rationale should be provided for any opinion provided. 2. Provide a comprehensive VA examination to determine the nature and etiology of the Veteran's claimed chronic sinusitis. The claims file, and a copy of this remand, will be available to the examiner. After reviewing the claims file in its entirety and examining the Veteran, the examiner is asked to address the following: a) Clarify the nature of the Veteran's current sinusitis. Is it acute or chronic? Fully explain. See April 2015 private assessment of inflammatory sinusitis and September 2016 VA examination report showing impression of acute sinusitis. b) If chronic sinusitis is shown during the appeal period, provide an opinion as to whether it at least as likely as not had its onset during active service or is otherwise related to it. In doing so, address the August 2007 STR reflecting an assessment of chronic sinusitis; the Veteran's testimony that she believed she had some sinus infections (including headache, postnasal drip, and congestion) in service that never went away; her testimony that she self-medicated until she could get health insurance; and her report of continuing symptoms since service. A complete rationale should be provided for any opinion provided. 3. Thereafter, readjudicate the remanded claims on appeal. S. B. MAYS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Lee, 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.