Citation Nr: 1648516	
Decision Date: 12/29/16    Archive Date: 01/06/17

DOCKET NO.  11-19 229 	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin


THE ISSUE

Entitlement to service connection, to include on a secondary basis, for gastroesophageal disability to include gastroesophageal reflux disease (GERD) and gastroesophageal junction (GEJ) ulcer.


REPRESENTATION

Appellant represented by:	Wisconsin Department of Veterans Affairs


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

C. Lamb, Associate Counsel

INTRODUCTION

The Veteran served on active duty from October 1975 to February 1976, and from November 1990 to September 1991, with additional service in the Army Reserves.  

This matter is before the Board of Veterans' Appeals (Board) on appeal from a July 2009 rating decision of the Milwaukee, Wisconsin, Department of Veterans Affairs (VA) Regional Office (RO).  

In September 2015, the Veteran testified at a Board videoconference hearing before the undersigned.  A copy of the transcript of that hearing has been associated with the claims file.

In November 2015, the Board remanded this case and instructed the RO to obtain an addendum medical opinion.  The Board notes that a VA medical opinion was obtained in March 2016 and an addendum opinion was obtained in May 2016.  Both have been associated with the claims file.  The Board has reviewed the medical opinions and finds they are adequate to adjudicate the claim on appeal.  Accordingly, after reviewing the actions of the Agency of Original Jurisdiction, the Board finds there was substantial compliance with the requested development.  Dyment v. West, 13 Vet. App. 141 (1999); Stegall v. West, 11 Vet. App. 268 (1998).


FINDING OF FACT

The Veteran's gastroesophageal disability was chronically worsened by a service-connected disability.






CONCLUSION OF LAW

The criteria for service connection for gastroesophageal disability are met.  38 U.S.C.A. §§ 1110, 1112, 1131, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2016).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

Duties to Notify and Assist

VA has specified duties to notify a claimant as to the information and evidence necessary to substantiate a claim for VA benefits, as well as certain assistance duties.  However, given the disposition of the appeal below, discussion of VA's compliance with those duties are not necessary, and any deficiencies in such notice or assistance are harmless.

In the decision below, the Board grants the claim of service connection for gastroesophageal disability.  To the extent there are any notice defects as to the initial rating and effective date elements when effectuating the award, the Board trusts the RO will ensure they are rectified.  Dingess v. Nicholson, 19 Vet. App. 473 (2006). 

Service Connection

Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated during service.  38 U.S.C.A. § 1110, 1131 (West 2014); 38 C.F.R. § 3.303 (2016).  In order to establish entitlement to service connection, there must be (1) evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) a causal connection between the claimed in-service disease or injury and the current disability.  Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004).

Lay evidence presented by a Veteran concerning continuity of symptoms after service may not be deemed to lack credibility solely because of a lack of contemporaneous medical evidence.  Buchanan v. Nicholson, 451 F.3d 1331 (2006).  The Board has the authority to discount the weight and probity of evidence in light of its own inherent characteristics and its relationship to other evidence.  Madden v. Gober, 125 F.3d 1477 (Fed. Cir. 1997).  

The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant.  Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value.

The Board must determine whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either case, or whether the preponderance of the evidence is against the claim, in which case, service connection must be denied.  Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

Gastroesophageal Disability

The Veteran asserts that his gastroesophageal disability was caused or aggravated by his service-connected dysthymic disorder.

1. Factual Background

The Board notes that the Veteran's gastroesophageal disability has been diagnosed as gastroesophageal reflux disease (GERD) and gastroesophageal junction (GEJ) ulcer as shown by a March 2008 VA gastroenterology record noting an upper endoscopy procedure confirming those diagnoses.  

Since March 2005, VA medical records show that various symptoms have been associated with the Veteran's gastroesophageal disability.  A March 2005 VA medical record noted that the Veteran's GERD symptoms may have caused increased asthma.  In October 2007 a VA physician noted the Veteran had chest pains non-cardiac in nature that were possibly GERD related.  In a July 2008 letter, a VA nurse practitioner opined that the Veteran's major depressive disorder and underlying anxiety were contributing to and/or exacerbating many of his psychical problems.

An October 2008 VA medical record noted that the Veteran had continued symptoms of GERD despite therapy with omeprazole and ranitidine.  In November 2008, the Veteran reported continued GERD symptoms, but that his symptoms had improved since switching from omeprazole to ranitidine.  In December 2008, the Veteran reported that his GERD was controlled except for chest pains that occurred a few times per week.  The chest pains were reported as sharp on the left side. Additional symptoms included shortness of breath, tingling in the hands and diaphoresis.  Each episode reportedly lasted up to twenty minutes and would resolve spontaneously.

In a July 2009 VA medical record, the Veteran reported that medication did not help his anxiety symptoms that occurred two times a day and lasted for minutes.  In addition, the Veteran reported that once his symptoms began they lasted on and off for four hours.  These symptoms included chest tightness with occasional left shoulder pain.  A November 2009 VA medical record noted that the Veteran's complaint of chest pain was thought to be related to his anxiety.  A December 2009 VA psychology therapy note listed chest pains as a significant issue and a symptom of the Veteran's anxiety.

During a December 2010 VA mental disorder examination, the examiner noted several physical diagnoses including gastric ulcer with GERD.  The examiner concluded that it was "impossible to determine whether the service-connected mental health disability [had] caused the headaches, memory loss, aching joints, dizziness or ulcer, without mere speculation."

The Veteran underwent a VA examination in January 2011.  The examiner noted the Veteran was diagnosed with a GEJ ulcer.  The examiner further noted a history of occasional reflux symptoms with no dysphagia or chest pain.  In addition, the examiner noted that the Veteran was taking pantoprazole to treat his symptoms.  The Veteran reported having trouble telling doctors what his medical problems were including his symptoms.  He did report complaints of epigastric burning type pain that occurred once a week with no substernal or arm pain.  Regurgitation symptoms were reported two times per month, but those symptoms had decreased in frequency since taking pantoprazole.  No nausea, vomiting or esophageal trauma were reported.   The Veteran further reported being an active smoker.  In addition, the Veteran reported his symptoms worsened with his anxiety.  The examiner opined that the Veteran's anxiety disorder did not cause his GERD, but did find that it permanently aggravated it.  In making this determination the examiner noted that poorly controlled anxiety was well-known to aggravate GERD.  The examiner further opined that the current severity of the Veteran's GERD was more likely due to the natural progression of the gastroesophageal reflux as the veteran continued to smoke.  In addition, the examiner opined that the current severity was most likely due to a combination of multiple factors including anxiety and smoking, and due to those contributing factors he would need to resort to mere speculation as to which percentage each factor contributed.

Following the November 2015 Remand, an additional medical opinion was obtained in March 2016.  The VA examiner opined that the Veteran's gastrointestinal disability, including GERD and GEJ ulcer, "less likely as not had its clinical onset during the Veteran's active duty or [was] otherwise related to active military service."  This opinion was based on a review of the medical evidence, claims file, and examination and interview of the Veteran.  In addition, the examiner opined that the Veteran's gastrointestinal disability was "at least as likely as not permanently aggravated beyond normal progression by his service connected disabilities, to include a dysthymic disorder."  The examiner further stated that the Veteran's anxiety "did permanently aggravate his [GERD], but [was] not the direct cause of it."  

In April 2016, the RO returned the electronic claims file to the November 2015 VA examiner and asked the examiner to provide a baseline of the Veteran's GERD and GE junction ulcer, and the degree of increase in the disability that resulted from medications used to treat the service-connected psychiatric disorders.  Thereafter, in May 2016 the VA examiner opined that the Veteran's GERD and GEJ ulcer "were at least as likely as not only temporarily, and less likely as not permanently aggravated by medication taken for his service connected dysthymic disorder."  The examiner based this opinion on the Veteran's treatment records showing that the medication had controlled his GERD.

2. Legal Analysis

Service connection may be established if the evidence of record shows that a chronic disorder has been caused or aggravated by an already service-connected disability.  When aggravation of a nonservice-connected disability is proximately due to or the result of a service-connected disability, the Veteran shall be compensated for the degree of disability over and above the degree of disability existing prior to the aggravation.  38 C.F.R. § 3.310 (2016); Allen v. Brown, 7 Vet. App. 439 (1995).

The Board first notes that the preponderance of the evidence is against service connection on a primary basis.  The service treatment records are silent for gastrointestinal disability, such disability was not present until years after service, and the only medical opinions addressing whether the gastrointestinal disability is related to service are against the claim.

Turning to service connection on a secondary basis, in reviewing the evidence, the Board is aware that there are conflicting medical opinions of record regarding whether the Veteran's dysthymic disorder aggravated his gastroesophageal disability.  The January 2011 VA examiner opined that while the Veteran's anxiety disorder did not cause the gastroesophageal disability it did permanently aggravate it.  However, the examiner went on to opine that the current severity of the Veteran's GERD was more likely due to natural progression as the Veteran continued to smoke.  Thus, the January 2011 VA examiner issued somewhat conflicting medical opinions: one finding that the Veteran's dysthymic disorder initially aggravated the gastroesophageal disability; another finding that the current severity of the gastroesophageal disability had not worsened by the dysthymic disorder.  As such, both opinions regarding aggravation are essentially defined by specific time periods.  

The later opinion is supported by the examiner's additional finding that the current severity was most likely due to a combination of factors for which he was unable to delineate percentages each factor contributed without resorting to mere speculation.  However, the Board notes that the examiner found the Veteran's GERD symptoms did not include chest pains.  The examiner made this finding despite numerous medical records to the contrary; some of which attributed chest pain as a symptom of the Veteran's anxiety disorder, and others relating chest pain as a possible symptom of the Veteran's GERD.  Thus, the medical evidence clearly provides a connection between chest pain symptoms and the Veteran's anxiety and GERD disabilities.  The Board further notes that during the examination the Veteran reported trouble with communicating his medical problems including his symptoms.  Thus, the Board finds the later medical opinion of less probative value as the examiner failed to address pertinent medical evidence.

Following the November 2015 Board Remand, the March 2016 VA examiner opined that the gastroesophageal disability was "at least as likely as not permanently aggravated beyond normal progression by his service-connected disabilities, to include a dysthymic disorder."  

As a result of this opinion, the RO asked the examiner to provide a baseline of the Veteran's GERD and GE junction ulcer, and the degree of increase in the disability that resulted from medications used to treat his dysthymic disorder.  Therefore, following the VA examiner's finding that the Veteran's service-connected dysthymic disorder did permanently aggravate the gastroesophageal disability, the RO unnecessarily limited the scope of the aggravation claim to one based on medication taken to treat the Veteran's anxiety disorder.  In response, the examiner provided an addendum opinion and found that the Veteran's GERD and GEJ "were at least as likely as not only temporarily, and less likely as not permanently aggravated by medication taken for his service connected dysthymic disorder."  As noted above, the medical evidence suggests that the symptoms related to the Veteran's anxiety, such as chest pain and asthma, may also be symptoms related to the Veteran's GERD.  Thus, the medical evidence suggests that it is the physical symptoms, and not simply the medication, that are the aggravating components of the Veteran's gastroesophageal disability.  As such, the Board finds the May 2016 addendum opinion is not dispositive of the inquiry as to whether the Veteran's anxiety disorder permanently aggravated the Veteran's gastroesophageal disability.  

After a review of the evidence the Board finds the March 2016 VA medical opinion the most relevant evidence of record regarding aggravation.  In addition, while the January 2011 VA examiner was unable to determine the percentage the Veteran's dysthymic disorder contributed to aggravation, the examiner did find that initially the dysthymic disorder permanently aggravated the gastroesophageal disability.  As such, the Board finds that the January 2011 VA examination adds weight to the March 2016 VA examiner's medical opinion.  Both VA examiners are competent to provide opinions as to aggravation of the Veteran's gastroesophageal disability and both provided sufficient rationales for their etiological opinions supported by a reasoned analysis of medical facts.  Neives-Rodriguuez v. Peake, 22 Vet. App. 295 (2008).  

Accordingly, the Board finds that service connection for gastroesophageal disability on a secondary basis is warranted.  In granting the Veteran's claim, the Board does not intimate what the proper rating should be to take into account the aggravation caused by service-connected disability.  That determination will be decided by the AOJ in implementing the decision.  The claim is granted.  38 U.S.C.A. § 5107 (West 2014); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).





	(CONTINUED ON NEXT PAGE)

ORDER

Entitlement to service connection on a secondary basis for gastroesophageal disability, to include GERD and GEJ ulcer, is granted.




____________________________________________
Thomas H. O'Shay
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs

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