Citation Nr: A24061237 Decision Date: 09/26/24 Archive Date: 09/26/24 DOCKET NO. 220202-219615 DATE: September 26, 2024 ORDER Service connection for upper gastrointestinal disability, claimed as gastroesophageal reflux disease (GERD), is granted. REMANDED Service connection for lower gastrointestinal disability, claimed as diarrhea, is remanded. Service connection for psychiatric disability, claimed as insomnia, is remanded. FINDING OF FACT The evidence is at least in approximate balance regarding whether the Veteran's upper gastrointestinal disability, claimed as GERD, had its onset in service. CONCLUSION OF LAW The criteria for service connection for upper gastrointestinal disability, claimed as GERD, have been met. 38 U.S.C. §§ 1110, 1154(a), 5107(b); 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from September 2000 to January 2001 and from January 2003 to August 2003. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2021 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In the February 2022 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran elected the Direct Review docket. Therefore, the Board may only consider the evidence of record at the time of the April 2021 agency of original jurisdiction (AOJ) decision on appeal. 38 C.F.R. § 20.301. Any evidence submitted after the AOJ decision on appeal cannot be considered by the Board. 38 C.F.R. §§ 20.300, 20.301, 20.801. However, because the Board is remanding the claims of service connection for lower gastrointestinal disability, claimed as diarrhea, and insomnia, any evidence the Board could not consider will be considered by the AOJ in the adjudication of those claims. 38 C.F.R. § 3.103(c)(2)(ii). As a final point, the Board has recharacterized the Veteran's claims of service connection for GERD and diarrhea as entitlement to service connection for upper and lower gastrointestinal disabilities, and to service connection for psychiatric disability in light of his insomnia claim. Clemons v. Shinseki, 23 Vet. App. 1 (2009). Service connection for upper gastrointestinal disability, claimed as GERD, is granted. Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). In support of this appeal, the Veteran and his representative cite the fact that service treatment records are missing. In an April 2021 letter, the RO notified the Veteran that it had determined that these records cannot be located and therefore were unavailable for review. The RO added, "All efforts to obtain the needed information have been exhausted, and based on these facts, we have determined that further attempts to obtain the records would be futile." Given the missing service treatment records, VA has a heightened duty to assist the Veteran in developing his claim. O'Hare v. Derwinski, 1 Vet. App. 365 (1991); Cuevas v. Principi, 3 Vet. App. 542 (1992). Although missing service treatment records do not establish a heightened benefit of the doubt, they do create a heightened duty to consider applicability of the benefit of the doubt rule, to assist the Veteran in developing the claim, and to explain its decision when the Veteran's medical records have been destroyed. Cromer v. Nicholson, 19 Vet. App. 215 (2005); Russo v. Brown, 9 Vet. App. 46 (1996). With regard to whether there is corroborating lay evidence, the Board observes that in Washington v. Nicholson, 19 Vet. App. 362, 370 (2005), the United States Court of Appeals for Veterans Claims (Court) noted that in Dixon v. Derwinski, 3 Vet. App. 261 (1992), the Court had held that when VA is unable to locate a claimant's records, it should advise him to submit alternative forms of evidence to support his claim and should assist him in obtaining sufficient evidence from alternative sources. Id. at 263. Here, VA advised the Veteran as to the alternative forms of information and evidence that he could use to establish his claim, and in particular, "buddy statements." The Veteran has done so, and in Washington, the Court recognized that an in-service injury or disability could be established by way of corroboration in the form of "buddy statements" from fellow service members as to the occurrence of an in-service injury or disease. Id.; see also Sizemore v. Principi, 18 Vet. App. 264, 273-74 (2004). The Veteran contends his upper gastrointestinal disability, claimed as GERD, began in service. Specifically, the Veteran contends his symptoms began at Fort Leonard Wood, Missouri, where he was given medication. The Veteran contends he had surgery for his GERD, and his conditions worsened while on deployment in 2003. See June 2020 VA Form 21-526EZ. See June 2020 VA Form 21-4138. The Veteran submitted a buddy statement from his bunk mate while on deployment in 2003. The statement corroborates the Veteran's contentions that he had surgery for his GERD, and conditions worsened while on deployment. See June 2020 Buddy Statement. In its role as a finder of fact, the Board finds credible that the Veteran has had upper gastrointestinal symptoms consistent with GERD since service. In August 2021, the Veteran submitted a VA Form 20-0995 for the April 2021 rating decision. The Veteran submitted a buddy statement, private medical records, a lay statement from himself, and a VA Form 21-4138. In a November 2021 rating decision, the RO found that new and relevant evidence had been received and confirmed and continued the denial of diarrhea, insomnia, and GERD. See November 2021 rating decision. Critically, the November 2021 rating decision favorable findings for GERD states the Veteran has been diagnosed with a disability, and the VA outpatient treatment records dated September 5, 2019, shows you have been treated for GERD. The Board notes that the RO's favorable finding is a legal determination, as opposed to evidence (a favorable finding means a conclusion either on a question of fact or on an application of law to facts made by an adjudicator concerning the issue(s) under review). 38 CFR 3.104(c); see also Green v. McDonough, 37 Vet. App. 127, 136 (2024). The February 2022 VA Form 2022 and August 2021 VA Form 20-0995 both concern the April 2021 rating decision. See Terry v. McDonough, 37 Vet. App. 1 (2023) (a claimant can file more than one administrative review request in response to an AOJ decision, provided that the requests are filed within one year of the AOJ decision and that the review requests are not pending concurrently). In February 2022, the Veteran submitted a VA Form 21-4138 contending that his service treatment records were not forwarded to the VA from his time in service. In May 2022, the American Legion submitted written argument on behalf of the Veteran. The American Legion maintained that a remand was necessary to correct pre-decisional duty to assist errors. The American Legion contended that the Veteran's earlier period of active duty was not considered in the April 2021 and November 2021 rating decisions. His representative requested that the Board remand this appeal to correct a pre-decisional duty to assist error and for a VA examination and medical opinion addressing the issue of aggravation. See May 2022 Brief. Here, in light of the legal determination and favorable; see 38 C.F.R. § 3.104(c), a finding that the Veteran has been diagnosed as having a disability in the November 2021 rating decision. Further, given the competent and credible lay evidence showing that the Veteran has had GERD manifestations in and since service connection, and after resolving all reasonable doubt in the Veteran's favor, the Board concludes that service connection for an upper gastrointestinal disability, claimed as GERD, is warranted. See Green v. McDonough, 37 Vet. App. 127, 136 (2024). REASONS FOR REMAND 1. Service connection for lower gastrointestinal disability, claimed as diarrhea, is remanded. 2. Service connection for psychiatric disability, claimed as insomnia, is remanded. The Veteran contends his upper gastrointestinal disability, claimed as GERD, began in service, and the Board has determined that service connection is warranted for this disability. The Veteran seeks service connection for a lower gastrointestinal disability, claimed as diarrhea, and for a psychiatric disability, claimed as insomnia, on the basis that these conditions are secondary to his now service-connected GERD. Pursuant to the Sergeant First Class Heath Robinson Honoring our Promise to Address Comprehensive Toxics Act of 2022 (PACT Act), VA must provide a VA examination and obtain a medical opinion when there exists evidence of a disability and evidence of participation in a toxic exposure risk activity (TERA) when such evidence is not sufficient to establish service connection for the disability. 38 U.S.C. § 1168(a). In the present case, the Veteran has contended that he had exposure to environmental toxins while in service. See June 2020 VA Form 21-526EZ. The record does not include a TERA memorandum and/or corresponding Individual Longitudinal Exposure Record (ILER). On remand, such should be completed. The PACT Act directs if there is no record of a veteran in an exposure tracking record system that indicates that the veteran was subject to a toxic exposure during active-duty service, VA should consider the totality of the circumstances of the veteran's service to determine if there was participation in a TERA. 38 U.S.C. § 1119. In light of the favorable decision in this appeal granting service connection for GERD, the Board remands the issue of service connection for lower gastrointestinal disability, claimed as diarrhea and for insomnia for the RO to reconsider the merits of the claim. Accordingly, on remand, the RO should reconsider this claim in light of the subsequent grant of service connection for GERD. See Green v. McDonough, 37 Vet. App. 127, 136 (2024) ("The Board also has the discretion to 'remand for correction of any other error by the [AOJ] in satisfying a regulatory or statutory duty, if correction of the error would have a reasonable possibility of aiding in substantiating the appellant's claim.' 38 C.F.R. § 20.802(a)"). As such, the Board will remand the Veteran's claims of service connection for lower gastrointestinal disability, claimed as diarrhea and for psychiatric disability, claimed as insomnia claim, for initial AOJ consideration on the merits without directing additional development pursuant to Green; see also Hickson v. Shinseki, 23?Vet. App.?394 (2010); 38?C.F.R. §?20.802(a). The matters are REMANDED for the following action: 1. Prepare a TERA memorandum and ILER report for the Veteran. 2. Readjudicate the Veteran's claims of entitlement to service connection for lower gastrointestinal disability, claimed as diarrhea, and for psychiatric disability, claimed as insomnia, in light of the grant of service connection for GERD. STEVEN D. REISS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Yarbrough 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.