Citation Nr: A25035197 Decision Date: 04/16/25 Archive Date: 04/16/25 DOCKET NO. 240506-438437 DATE: April 16, 2025 ORDER Entitlement to service connection for generalized anxiety disorder to include adjustment disorder with depressed mood is granted. Entitlement to service connection for a heart condition is denied. Entitlement to service connection for irritable bowel syndrome is denied. Entitlement to service connection for gastroesophageal reflux disease is denied. REMANDED Entitlement to service connection for hypertension is remanded. Entitlement to a compensable rating for right lower extremity radiculopathy for the period from November 16, 2023, through March 23, 2024, is remanded. Entitlement to a compensable rating for headaches for the period from November 16, 2023, through March 23, 2024, is remanded. FINDINGS OF FACT 1. Service connection for generalized anxiety disorder (GAD) to include adjustment disorder with depressed mood was granted in a March 2025 rating decision; however, applicable law requires the Board to regrant an appeal under such circumstances unless there is no possibility that regranting would result in ancillary benefits, which is not explicitly obvious in this case. 2. A chronic heart condition did not begin during military service or within a year of discharge; and, the persuasive weight of the evidence is against a nexus between a heart condition and active duty service. 3. The persuasive weight of the evidence is against a nexus between irritable bowel syndrome (IBS) and active duty service. 4. The persuasive weight of the evidence is against a nexus between gastroesophageal reflux disease (hereafter "GERD") and active duty service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for GAD to include adjustment disorder with depressed mood have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for entitlement to service connection for a heart condition have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 3. The criteria for entitlement to service connection for IBS have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 4. The criteria for entitlement to service connection for GERD have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Air Force from May 1986 to October 1990. These matters come before the Board of Veterans' Appeals (Board) on appeal of a March 2024 rating decision issued by the Department of Veterans Affairs (VA). The Veteran appealed the decision by filing a VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement (NOD)), in May 2024. He chose the direct review docket. This means that the evidentiary review period closed as of the date of the initial decision. The Board docketed the appeal in May 2024. While the appeal was pending, the Veteran filed another claim for VA compensation benefits for headaches, a mental health condition, back disorder, and right lower extremity radiculopathy in November 2024. This resulted in a spurious (out-of-turn) rating decision in March 2025. Therein, the agency of original jurisdiction (AOJ) granted service connection for GAD to include adjustment disorder with depressed mood. It also increased the ratings for the Veteran's headaches and right lower extremity radiculopathy from non-compensable to 30 percent and 10 percent, respectively, from November 14, 2024. Applicable caselaw has clarified that an appeal is moot only if the granting of the claim would not lead to any effectual relief whatsoever to the appellant, such as preserving the possibility of an earlier effective date or ancillary benefits. See Green v. McDonough, 37 Vet. App. 127, 136-48 (2024); Bailey v. Wilkie, 33 Vet. App. 188, 204 (2021); see also Warren v. McDonald, 28 Vet. App. 214, 221 (2016) (holding that a subsequent AOJ decision cannot divest the Board of jurisdiction over the prior appeal; therefore, an AOJ grant of service connection cannot finally decide the claim of service connection already on appeal to the Board). This means that the current appeal of service connection for a mental health condition is not moot. The Board will grant the claim again, consistent with the caselaw. The grants of benefits for headaches and right lower extremity radiculopathy are considered partial grants of the appeal. The Board will still consider entitlement to additional higher staged ratings during the relevant appeal period. Evidence was added to the claims file during a period of time when new evidence was not allowed. This includes all of the evidence resulting from the Veteran's spurious claim filed in November 2024. As the Board is deciding the claims pertaining to the heart, IBS, GERD, and mental health condition, it may not consider this evidence in its decision on those matters. 38 C.F.R. § 20.300. The Veteran may file a Supplemental Claim and submit or identify this evidence. 38 C.F.R. § 3.2501. If the evidence is new and relevant, VA will issue another decision on the claim, considering the new evidence in addition to the other evidence. Id. Specific instructions for filing a Supplemental Claim are included with this decision. As the Board is remanding the claims of service connection for hypertension and increased ratings for headaches and right lower extremity radiculopathy for further development, this additional evidence will be considered by the AOJ during the re-adjudication of those claims. Service Connection - Legal Criteria Service connection may be granted for a disability resulting from disease or injury incurred coincident with or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing direct service connection generally requires competent evidence of: (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). Service connection for certain chronic diseases, including cardiovascular-renal disease (such as hypertension), listed at 38 C.F.R. § 3.309(a) may be established on a presumptive basis if the chronic disease was shown as chronic in service; manifested to a compensable degree within a presumptive period (1 year, in the case of cardiovascular-renal diseases) after separation; or was noted in service with continuity of symptomatology since service. See 38 C.F.R. §§ 3.303(b), 3.307, 3.309(a); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The Sergeant First Class Heath Robinson Honoring our Promise to Address Comprehensive Toxics (PACT) Act added additional requirements to VA's duty to assist in providing exams and medical opinions for veterans who engaged in a Toxic Exposure Risk Activity (TERA) during active duty service. See 38 U.S.C. § 5103A(d); PACT Act, Pub. L. No 117-168, § 404(c) (2022). This includes providing an examination to discuss the combined impact of all of a veteran's toxic exposures unless an exception to the rule applies. 38 U.S.C. § 1168. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt shall be given to the claimant. 38 U.S.C. § 5107(b). An approximate balance of the evidence includes but is not limited to equipoise. Lynch v. McDonough, 21 F.4th 776, 781 (Fed. Cir. 2021). Evidence is not in "approximate balance" or "nearly equal" when the evidence persuasively favors one side or the other. Id. All relevant lay and medical evidence was considered in adjudicating these appeals. See Gonzalez v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that the Board is not required to discuss every piece of evidence in a claims file). Service Connection - Mental Health Condition Service connection was granted for a mental health condition (GAD to include adjustment disorder with depressed mood) in a spurious rating decision in March 2025. In other words, the benefit that the Veteran seeks has already been granted. Under such circumstances, the Board must grant the appeal again unless the granting of the claim would not lead to any effectual relief whatsoever to the appellant, such as preserving the possibility of an earlier effective date or ancillary benefits. The Board is not certain that there would be no possibility of relief whatsoever to the appellant. Therefore, the appeal is granted. Service Connection - Heart The Veteran seeks service connection for a heart condition. He generally asserts entitlement to the benefit, but did not specifically allege why he believed his disease is related to military service. The AOJ conceded a favorable finding that the Veteran is prescribed aspirin (81 milligrams) for heart treatment. This appears to be a concession of a current disability. VA medical records also confirm that he has been diagnosed with ischemic heart disease. The remaining elements of service connection are an in-service event, injury or disease relevant to the current disability and a nexus. The appeal must fail for lack of an in-service event, injury or disease relevant to the current disability. Service medical records do not show complaints, symptoms, treatment, or a diagnosis of a heart condition. The Veteran did not specifically allege why he believed his heart condition is related to active duty. He provided statements for his headaches, radiculopathy, and back, but not his heart. He did not suggest, and neither does the evidence, that he engaged in a TERA during active duty. His DD Form 214 shows that he did not have any foreign service during his time in the Air Force. His occupational specialty was an inventory management specialist. This position does not carry obvious indications of TERA. No VA examination was provided for the heart. However, without a discernable allegation of an event, injury, or disease during service relevant to a heart condition, a VA examination is not legally warranted. See Waters v. Shinseki, 601 F.3d 1274, 1278-79 (Fed. Cir. 2010) (rejecting an appellant's argument that his "conclusory generalized statement that his service illness caused his present medical problems was enough to entitle him to a medical examination...)"). There is also no indication of a nexus between a heart condition and active service. VA medical records show that the Veteran appears to have had a stent put in at a private hospital in 2013. This is 23 years after his discharge. He did not tell his VA providers that his heart problems began during military service. No competent medical evidence suggests a link between his heart condition and active duty. Service connection is not warranted under the chronic disease presumption. See 38 C.F.R. §§ 3.307, 3.309. The evidence does not suggest that a chronic heart condition began to a compensable degree within a year of discharge. In summary, the evidence does not support an in-service event, injury or disease relevant to the current disability or a nexus to an approximate balance standard. See 38 U.S.C. § 5107(a) ("[A] claimant has the responsibility to present and support a claim for benefits...."). At least two essential elements of service connection are not met. 38 C.F.R. § 3.303. The appeal is denied. Service Connection - IBS and GERD The Veteran seeks entitlement to service connection for IBS and GERD. He generally claims entitlement to the benefits, but did not provide specific evidence or argument for these claims. The AOJ conceded current disabilities and in-service events for both conditions. The remaining element of service connection is a nexus. Service medical records show that the Veteran was treated for stomach disorders and viral syndromes while on active duty. For example, the Veteran reported symptoms of nausea, vomiting, and diarrhea in December 1986. The clinician assessed acute viral gastroenteritis. In December 1987, he was treated for a sore throat and viral syndrome. He was treated for another "stomach virus" in October 1989. The record does not show further stomach or gastrointestinal complaints or problems associated with acid reflux during service. The report of a separation examination report is not of record. It is unclear if one was performed. The AOJ ordered VA medical opinions in January 2024. The examiner reviewed the claims file and opined that it is less likely than not that the claimed IBS and GERD are caused by the stomach and viral disorders during active duty service. She reasoned that service treatment records indicate only acute, limited stomach illnesses (mainly viral gastroenteritis) during service and that those reported issues during service are unrelated to the claimed conditions. The remainder of the medical evidence was reviewed. The Board does not see evidence therein of a nexus between the Veteran's acute gastroenteritis or viral syndromes in service and his present IBS and/or GERD. The persuasive weight of the evidence is against a nexus between the Veteran's IBS and/or GERD and active duty service. The VA examiner found that a nexus is less likely than not. She reasoned that the Veteran's conditions during active duty were only acute, limited stomach illnesses (mainly viral gastroenteritis). She explained that these issues are unrelated to his present IBS or GERD. Her findings stand unchallenged by any competent evidence. Her opinion is entitled to weight. Indeed, the report of the January 2024 examination is more than adequate. The Veteran was examined and interviewed and his medical records were reviewed. In relation thereto, the examiner considered the lay and medical evidence in providing her opinions, which were supported by rationale. Consideration was given to lay evidence. However, as a lay person, the Veteran does not have the competence to link current IBS or GERD to certain acute viral infections during active duty. The ability to specifically diagnose IBS and GERD and link it to viral infections occurring about 33 years ago requires knowledge of the internal anatomy of the digestive tract and applicable medical standards and diagnostic testing that is outside of ordinary capacity. Additionally, the Veteran did not report that he had symptoms of IBS and GERD capable of lay observation (i.e., diarrhea, nausea, or throat pain) continuously since active duty service. A nexus based on reports of continuity of symptomatology is not supported in this case. In summary, the persuasive weight of the evidence is against a nexus between IBS and GERD and active duty service. The benefit-of-the doubt standard is not invoked. 38 U.S.C. § 5107(a). The appeal is denied. REASONS FOR REMAND In remanding these matters, the Board makes no credibility findings as to the lay evidence of record. Such findings will be made when (or if) these matters return to the Board. Smith v. Wilkie, 32 Vet. App. 332 (2020). Under the Appeals Modernization Act (AMA), the Board must remand to the AOJ to correct pre-decisional duty to assist errors (including when the AOJ failed to make reasonable efforts to obtain VA treatment records or relevant federal or private treatment records, failed to obtain a VA examination, or provided an inadequate VA examination or opinion). 38 C.F.R. § 20.802(a). VA's duty to assist includes providing an examination when evidence of record (1) contains competent evidence of diagnosed disability or symptoms of disability, (2) establishes that the veteran suffered an event, injury or disease in service, or has a presumptive disease during the pertinent presumptive period, and (3) indicates that the claimed disability may be associated with the in-service event, injury, or disease, or with another service-connected disability. 38 U.S.C § 5103A(d); 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79, 83-86 (2006). Service Connection - Hypertension The AOJ erred by not scheduling a VA examination for the Veteran's hypertension prior to the initial rating decision on appeal. 38 U.S.C § 5103A(d). The AOJ conceded that the Veteran has a current hypertension. Service medical records show several elevated blood pressure readings. For example, the Veteran's blood pressure in April 1987 was 142/90. Two months later it was 140/80. In June 1989, the Veteran's blood pressure was found to be 158/85 and 140/68 while being treated for abdominal pain in the emergency room. He had another elevated blood pressure reading of 140/90 in May 1990. Given that the Veteran has hypertension and had elevated blood pressure readings during service, the Board finds error in the AOJ's decision to not schedule a VA examination. Increased Ratings - Headaches and Radiculopathy The AOJ failed to obtain an adequate medical opinion addressing the ameliorative effects of medication regarding the Veteran's headaches and radiculopathy before the initial decision. See Jones v. Shinseki, 26 Vet. App. 56, 63 (2012); Ingram v. Collins, No. 23-1798, 2025 U.S. App. Vet. Claims LEXIS 327 (12 Mar 2025). The Veteran reported that he takes Excedrin for his headaches, and that he had taken ibuprofen and Tylenol in the past. He reported taking methocarbamol, ibuprofen, and Tylenol for his back condition (and presumably his radiculopathy). Neither the rating criteria for headaches nor the criteria for radiculopathy specifically contemplate the ameliorative effects of medication. See 38 C.F.R. § 4.124a. It is possible that the Veteran's headaches and radiculopathy would be more severe but for his use of medication. The VA examiner did not address this in the examination reports. Remand for an addendum medical opinion is required. The AOJ likewise did not obtain a specific examination for radiculopathy (as opposed to including it as a finding within the lumbar spine exams) or perform electromyography (EMG) testing prior to the initial decision. The VA spinal examiner in January 2024 wrote that the Veteran had "severe" intermittent pain due to right lower extremity radiculopathy of the sciatic nerve. However, she did not perform EMG testing to determine whether the involvement was wholly sensory or not. If the involvement is wholly sensory, then the Veteran is limited to rating for the mild or, at most, moderate degree. See 38 C.F.R. § 4.124a, Diseases of the Peripheral Nerves. The Board cannot conclude that this error was harmless. The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination to determine the nature and etiology of his hypertension. The examiner is asked to review the claims file and opine as follows: Is it at least as likely as not (the likelihood is at least approximately balanced or nearly equal, if not higher) that the Veteran's hypertension began during or is causally related to active duty service? A complete rationale should be provided for all opinions. While a thorough and independent review of the claims file is expected, the Board calls the examiner's attention to the following relevant lay and medical evidence: " Service treatment records showing several elevated blood pressure readings including 142/90 in April 1987; 140/80 in June 1987; 158/85 and 140/68 in June 1989; and 140/90 in May 1990 2. Obtain an addendum medical opinion regarding the Veteran's migraine headaches. An in-person examination may be scheduled if deemed medically necessary by the clinician. The clinician is asked to review the claims file and opine as follows: Estimate the extent of the Veteran's functional loss during migraine headaches (expressed as frequency, severity, and duration of characteristic prostrating attacks and/or very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability, if any) if his Excedrin were removed. In other words, describe how frequent, severe, and long-lasting the headache symptoms and their impact on the Veteran's ability to function would be if the ameliorative effects of Excedrin were removed. A complete rationale should be provided for all opinions. If the examiner finds that an opinion cannot be provided without resorting to speculation, he or she must also certify that: (1) all available evidence was reviewed; (2) that there is no piece of existing evidence that has not been obtained that could impact ability to provide the opinion; and (3) that the inability to provide an opinion results from a lack of understanding in general medical knowledge as opposed to a deficiency in the examiner's personal knowledge. 3. Schedule the Veteran for a VA examination to determine the nature and severity of his right lower extremity radiculopathy. The examiner MUST perform EMG testing and any other necessary diagnostic testing. The examiner is also asked to review the claims file and opine on the following: Estimate the extent of the Veteran's functional loss caused by right lower extremity radiculopathy (expressed as mild, moderate, moderately severe, or severe incomplete paralysis or complete paralysis) if his methocarbamol, ibuprofen, and Tylenol were removed. In other words, describe how frequent, severe, and long-lasting the radiculopathy symptoms and their impact on the Veteran's ability to function would be if the ameliorative effects of methocarbamol, ibuprofen, and Tylenol were removed. A complete rationale should be provided for all opinions. If the examiner finds that an opinion cannot be provided without resorting to speculation, he or she must also certify that: (1) all available evidence was reviewed; (2) that there is no piece of existing evidence that has not been obtained that could impact ability to provide the opinion; and (3) that the inability to provide an opinion results from a lack of understanding in general medical knowledge as opposed to a deficiency in the examiner's personal knowledge. MICHAEL A. HERMAN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Reed, 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.