Citation Nr: A25035654 Decision Date: 04/17/25 Archive Date: 04/17/25 DOCKET NO. 210804-176984 DATE: April 17, 2025 ORDER Entitlement to service connection for gastroesophageal reflux disease (GERD) with gastritis and esophagitis is granted. FINDING OF FACT The evidence is approximately evenly balanced as to whether the Veteran's GERD with gastritis and esophagitis is related to his active-duty service. CONCLUSION OF LAW With reasonable doubt resolved in favor of the Veteran, the criteria for service connection for GERD with gastritis and esophagitis are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1988 to October 1997. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2021 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In that decision, the RO found the evidence submitted by the Veteran was new and relevant, readjudicated the claim and continued the denial of the claim for service connection for GERD with gastritis and esophagitis (previously adjudicated as gastrointestinal problems) on the merits. The Board is bound by this favorable finding. 38 U.S.C. § 5104(b)(4); 5104A; 38 C.F.R. § 20.801(a). In March 2021, the Veteran submitted a VA Form 20-0995, Decision Review Request: Supplemental Claim, and requested readjudication of entitlement to service connection for gastrointestinal problems most recently addressed in a March 2017 rating decision. In May 2021, the agency of original jurisdiction (AOJ) issued the supplemental claim decision on appeal, which found that new and relevant evidence had been received and denied the claim based on the evidence of record at the time of that decision. In the August 2021 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran elected the Hearing docket. A Board hearing was held before the undersigned Veterans Law Judge (VLJ) on April 14, 2025. Although a transcript of the hearing has not yet been associated with the claims file, one is not necessary, as the Board is granting the benefit sought in full. The case has been advanced on the docket. Therefore, the Board may only consider the evidence of record at the time of the May 2021 agency of original jurisdiction (AOJ) decision on appeal, as well as any evidence submitted by the Veteran or representative at the hearing or within 90 days following the hearing. 38 C.F.R. § 20.302(a). If evidence was submitted either (1) during the period after the AOJ issued the decision on appeal and prior to the Board hearing, or (2) more than 90 days following the hearing, the Board did not consider it in its decision. 38 C.F.R. §§ 20.300, 20.302(a), 20.801. If the Veteran would like VA to consider any evidence that was submitted that the Board could not consider, the Veteran may file a Supplemental Claim (VA Form 20-0995) 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 evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision. Service Connection Service connection will be granted if the evidence demonstrates that current disability resulted from an injury suffered or disease contracted in active military, naval, or air service. 38 U.S.C. §§ 1110; 38 C.F.R. § 3.303 (a). Establishing service connection generally requires competent evidence of three things: (1) current disability; (2) in-service injury or disease; and (3) a relationship between the two. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). Consistent with this framework, service connection is warranted for a disease first diagnosed after service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). GERD with gastritis and esophagitis The Veteran contends that he has experienced continuous GERD symptoms in and since separation from service. The Board is bound by the favorable finding in the May 2021 rating decision that the Veteran has a diagnosis of GERD with gastritis and esophagitis as diagnosed in the May 2021 VA examination report. Thus, the Veteran meets the current disability requirement for the claim. Regarding, in-service injury, a September 1991 service treatment record (STR) shows that the Veteran was treated for stomach issues. The clinician noted that the Veteran was constipated and possibly had colic. Additionally, the Veteran testified during the April 2025 Board hearing that he started to experience persistent GERD symptoms while in service in approximately 1995/1996 after he started taking medication for HIV. The Veteran has reported throughout the entire appeal period that he experienced continuous GERD symptoms both in and since separation from service. Buchanan v. Nicholson, 451 F.3d 1331, 1337 (holding lay evidence concerning continuity of symptoms after service, if credible, is ultimately competent, regardless of the lack of contemporaneous medical evidence). The Veteran's reports are credible and competent as they have been consistent throughout the appeal period. Moreover, a May 2021 VA opinion that found the Veteran's GERD was less likely than not related to service is inadequate as it incorrectly found that the Veteran did not have GERD symptoms in service even though the September 1991 STR shows his complaint of abdominal pain with assessment of constipation with possible colic. Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (a medical opinion based on an inaccurate factual premise is not probative). In addition, the May 2021 VA opinion did not consider the Veteran's lay statements regarding continuous symptoms both in and since separation from service. Buchanan, 451 F.3d at 1336 (VA's examiner's opinion, which relied on the absence of contemporaneous medical evidence, "failed to consider whether the lay statements presented sufficient evidence of the etiology of [the veteran's] disability such that his claim for service connection could be proven without contemporaneous medical evidence"). To the extent that the grant of service connection in this matter is based primarily on lay evidence, "[i]f the Board concludes that the lay evidence presented by a veteran is credible and ultimately competent, the lack of contemporaneous medical evidence should not be an absolute bar to the veteran's ability to prove his claim of entitlement to disability benefits based on that competent lay evidence." Id. at 1337. At this point, the Board could remand the claim for a VA examination or opinion. However, a request for an opinion could be construed as obtaining additional evidence for the sole purpose of denying the claim, which is impermissible. 38 C.F.R. § 3.304 (c) ("The development of evidence in connection with claims for service connection will be accomplished when deemed necessary but it should not be undertaken when evidence present is sufficient for this determination"); Andrews v. McDonough, 34 Vet. App. 216, 225 (2021) ("Remand is inappropriate where the predominant purpose is not to allow the Board to make a fully informed decision unencumbered by error but to allow VA to obtain more evidence so that it can properly deny the claim"). (continued on next page) For the above reason, the evidence is approximately evenly balanced as to whether the Veteran's GERD with gastritis and esophagitis is related to service. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to service connection for GERD with gastritis and esophagitis is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Jonathan Hager Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Hemphill, 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.