08-06 853

• Court: Board of Veterans' Appeals
• Decided: March 8, 2010
• Docket: 08-06 853
• Status: Unpublished

Opinion

Citation Nr: 1008501 Decision Date: 03/08/10 Archive Date: 03/17/10

DOCKET NO. 08-06 853 ) DATE ) )

On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma

THE ISSUES

1. Entitlement to service connection for an upper gastrointestinal (GI) disorder, to include gastroesophageal reflux disease (GERD) and/or dyspepsia.

2. Entitlement to service connection for headaches.

3. Entitlement to service connection for insomnia.

REPRESENTATION

Appellant represented by: Disabled American Veterans

WITNESS AT HEARING ON APPEAL

Appellant

ATTORNEY FOR THE BOARD

O. Lee, Associate Counsel

INTRODUCTION

The Veteran served on active duty for training (ACDUTRA) from March 2004 to September 2004 and on active duty from August 2005 to December 2006, to include service in Iraq from December 2005 to November 2006. He had interim and subsequent periods of service in the Army National Guard.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2007 rating decision of the RO in Muskogee, Oklahoma, which denied service connection for GERD, headaches and insomnia.

The Veteran testified at a December 2009 videoconference hearing before the undersigned Veterans Law Judge. A transcript of that proceeding has been associated with the claims file.

The issues of service connection for headaches and insomnia are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.

FINDING OF FACT

The evidence is at least in equipoise that the Veteran's upper GI disorder is related to active service.

CONCLUSION OF LAW

Service connection for an upper GI disorder is warranted. 38 U.S.C.A. §§ 1110, 1111, 1153; 1154(b), 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304(b), 3.306(a) (2009); Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004)

REASONS AND BASES FOR FINDING AND CONCLUSION

The Board has thoroughly reviewed all the evidence in the appellant's claims file, and has an obligation to provide reasons and bases supporting the decision. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claims. The appellant must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the veteran).

The Board must assess the credibility and weight of all 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 appellant. 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. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

I. The Veterans Claims Assistance Act of 2000 (VCAA)

With respect to the Veteran's claim, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326. In this case, the Board is granting in full the benefit sought on appeal. As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006); Kent v. Nicholson, 20 Vet. App. 1 (2006).

II. Service Connection

The Veteran contends that he has GERD as a result of active service. For the reasons that follow, the Board concludes that service connection is warranted.

Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by active service. See 38 U.S.C.A. § 1110 (West 2002). For the showing of chronic disease in service there must be a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. See 38 C.F.R. § 3.303(b). If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. Id. Service connection may be granted for any disease diagnosed after discharge, when all of the evidence establishes that the disease was incurred in service. See 38 C.F.R. § 3.303(d).

A veteran is presumed to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C.A. § 1111; 38 C.F.R. § 3.304(b). Only such conditions as are recorded in examination reports are to be considered as noted. 38 U.S.C.A. § 1111; 38 C.F.R. § 3.304(b). The presumption of soundness, however, attaches only where there has been an induction medical examination during which the disability about which the veteran later complains was not detected. See Bagby v. Derwinski, 1 Vet. App. 225, 227 (1991). History provided by the veteran of the preservice existence of conditions recorded at the time of the entrance examination does not, in itself, constitute a notation of a preexisting condition. 38 C.F.R. § 3.304(b)(1); Paulson v. Brown, 7 Vet. App. 466, 470 (1995); Crowe v. Brown, 7 Vet. App. 238, 246 (1995). To rebut the presumption of sound condition for disorders not noted on the entrance examination report, VA must show by clear and unmistakable evidence that the disability existed prior to service and was not aggravated by service. 38 U.S.C.A. § 1111; VAOPGCPREC 3-2003. The claimant is not required to show that the disease or injury increased in severity during service before VA's duty under the second prong of this rebuttal standard attaches.

A preexisting injury or disease will be considered to have been aggravated by active service where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306(a); Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). Clear and unmistakable evidence (obvious or manifest) is required to rebut the presumption of aggravation where the pre-service disability underwent an increase in severity. 38 C.F.R. § 3.306(b). This includes medical facts and principles that may be considered to determine whether the increase is due to the natural progress of the condition. Id. Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during and subsequent to service. 38 C.F.R. § 3.306(b). The usual effects of medical and surgical treatment in service, having the effect of ameliorating disease or other conditions incurred before enlistment, will not be considered service connected unless the disease or injury is otherwise aggravated by service. 38 C.F.R. § 3.306(b)(1).

Active military, naval, or air service includes any period of active duty for training (ACDUTRA) during which the individual concerned was disabled or died from a disease or injury incurred in or aggravated in line of duty, or any period of inactive duty training (INACDUTRA) during which the individual concerned was disabled or died from injury incurred in or aggravated in line of duty. 38 U.S.C.A. § 101(21) and (24) (West 2002); 38 C.F.R. § 3.6(a) and (d). ACDUTRA includes full-time duty performed for training purposes by members of the National Guard of any state, pursuant to 32 U.S.C.A. §§ 316, 502, 503, 504, or 505. 38 U.S.C.A. § 101(22); 38 C.F.R. § 3.6(c)(3). Thus, service connection may be granted for disability resulting from disease or injury incurred or aggravated while performing ACDUTRA, or from an injury incurred or aggravated while performing INACDUTRA. 38 U.S.C.A. §§ 101(24), 106. However, presumptive provisions such as 38 C.F.R. §§ 3.307, 3.309 (presumption of service incurrence), 3.306 (presumption of aggravation), and 38 U.S.C.A. §§ 1111, 1131 (presumption of soundness) do not apply to ACDUTRA or INACDUTRA. Biggins v. Derwinski, 1 Vet. App. 474, 477-78 (1991).

In order to establish service connection for the claimed disorder, there generally must be (1) medical 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) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999).

Lay evidence of service incurrence of injury or disease, if consistent with the circumstances, conditions, or hardships of such service, will be accepted as sufficient proof of service connection of any disease or injury alleged to have been incurred in such service in the case of any veteran who engaged in combat with the enemy in active service with a military, naval, or air organization of the United States during a period of war. 38 U.S.C.A. § 1154(b) (West 2002); see also 38 C.F.R. § 3.304(b); Collette v. Brown, 82 F.3d 389 (Fed. Cir. 1996). Every reasonable doubt in these service connection cases will be resolved in favor of the veteran, and may only be rebutted by clear and convincing evidence. 38 U.S.C.A. § 1154(b).

Medical evidence is generally required to establish a medical diagnosis or to address questions of medical causation; lay assertions of medical status do not constitute competent medical evidence for these purposes. Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). However, lay assertions may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C.A. § 1153(a); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see Buchanan v. Nicholson, 451 F. 3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). Competency must be distinguished from weight and credibility, which are factual determinations going to the probative value of the evidence. Rucker v. Brown, 10 Vet. App. 67, 74 (1997).

The Veteran states that he first experienced a mild case of acid reflux in 2004 during basic training; he reported to sick hall and was given antacid tablets. Thereafter, he took over the counter medicine as needed. The Veteran contends that this condition has gradually worsened. He reports that during his deployment, he found it necessary to take a pill almost daily. He now takes double the daily dose of the Prilosec prescribed by VA and resorts to taking over the counter medicine when his prescription runs out. See videoconference hearing transcript, December 2009.

A December 2003 enlistment examination report for the National Guard is negative for any GI problems. At the time, the Veteran denied a history of frequent indigestion or heartburn. Service treatment records are silent concerning any complaints, treatment or a diagnosis of GERD or other related problems during basic training. A July 2005 annual medical certificate reflects that the Veteran had acid reflux controlled with medication. Likewise, a December 2005 medical assessment report, prior to deployment, shows that the Veteran had "reflux - GERD." Post-deployment health assessment reports dated in November 2006 and December 2006 indicate that the Veteran experienced frequent indigestion during the deployment and continued to have this problem thereafter.

At his December 2009 videoconference hearing, the Veteran testified not only that the onset of his upper GI problems occurred during his period of ACDUTRA, but also that he continued to experience upper GI symptoms during his deployment in Iraq and since his discharge from active service. In this regard, the Board notes that the Veteran is competent to attest to factual matters of which he has first- hand knowledge. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). In addition, Board finds the Veteran's lay statements to be credible as to in-service incurrence and continuity of symptomatology, as they are consistent with evidence of record and the circumstances of his service. See Buchanan, 451 F. 3d at 1336; Caluza v. Brown, 7 Vet. App. 498, 510-511 (1995) (Credibility can be generally evaluated by a showing of interest, bias, or inconsistent statements, and the demeanor of the witness, facial plausibility of the testimony, and the consistency of the witness testimony.). For this reason, the Board concludes that the Veteran has provided credible evidence that his upper GI problems began in service and that he has had such symptoms continuously since service.

The Board further finds that there is evidence of a current disability. VA treatment records reflect treatment for GERD and a current diagnosis of dyspepsia. Treatment notes dated in March 2007 indicate that the Veteran had tried a variety of medications and that Prilosec was the only one that seemed to be effective. It was also noted that the Veteran was experiencing dyspepsia despite taking GERD type medications. As noted above, the Veteran testified at the December 2009 hearing that he finds it necessary to take double the prescribed dose of Prilosec to treat his current symptoms. The Board finds the Veteran's lay statements regarding current symptomatology to be credible. See Buchanan, 451 F. 3d at 1336.

The Veteran was afforded a VA general medical examination in June 2007. The examination report includes a summary of the Veteran's relevant medical history and indicates that he is taking Prilosec for his acid reflux condition. Following a physical examination and a review of a March 2007 upper GI air contrast study, the examiner diagnosed the Veteran with a history of acid reflux with a normal examination and normal upper GI. Despite the normal June 2007 VA examination, the Board finds that the evidence is at least in equipoise that that the Veteran has a current disability given his consistent complaints of chronic symptoms of acid reflux which require medication treatment and given the fact that VA treatment records reflect a current diagnosis of dyspepsia. Taking into account all of the relevant evidence of record, the evidence shows that the Veteran has a current upper GI disorder that was incurred during active service.

As such, the Board concludes that the evidence is at least evenly balanced as to whether the Veteran's upper GI disorder, to include GERD and/or dyspepsia, is related to active service, and therefore, service connection is warranted. The benefit-of-the-doubt rule has been applied in reaching this decision. See 38 U.S.C.A. § 5107(b) (West 2002); see Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001); Gilbert, supra.

ORDER

Entitlement to service connection for an upper GI disorder is granted.

REMAND

The Veteran contends that he has headaches and insomnia as a result of his combat service in Iraq, which involved exposure to improvised explosive devices (IEDs). As noted above, the Veteran served in Iraq from December 2005 to November 2006. The provisions of 38 C.F.R. § 3.317 are therefore potentially applicable in this case. Under 38 C.F.R. § 3.317, service connection may be established for a chronic disability resulting from an undiagnosed illness which became manifest either during active service in the Southwest Asia theater of operations during the Persian Gulf War or to a degree of 10 percent or more not later than December 31, 2011; and by history, physical examination, and laboratory tests cannot be attributed to any known clinical diagnosis. 38 U.S.C.A. § 1117; 38 C.F.R. § 3.317. Signs or symptoms which may be manifestations of an undiagnosed illness or medically unexplained chronic multisymptom illness include, but are not limited to, headache and sleep disturbances. 38 C.F.R. § 3.317(b).

The record reflects that the Veteran was afforded a VA general medical examination in June 2007. This examination, however, did not address the onset and etiology of the Veteran's claimed headaches and insomnia, to include any possible relationship to his combat service in Iraq. Additionally, while the Veteran is service-connected for a scar on the posterior head as residuals of head trauma, there is no discussion as to whether his headaches could be related to his in-service head trauma, which resulted in a head laceration. Moreover, the Veteran testified at his December 2009 videoconference hearing that the medication that VA had prescribed for his sleep problems was one that was also used for anxiety. In this regard, it is noted that the Veteran was diagnosed with an anxiety disorder at a June 2007 PTSD examination. The general medical examination did not consider whether the Veteran's insomnia could be a symptom of his currently diagnosed anxiety. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). Based on the foregoing, the Board finds the June 2007 examination to be inadequate upon which to base a decision here. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). Furthermore, there is no indication that the Veteran has ever been afforded a Persian Gulf Registry Examination to assess any impact that his exposure to IED blasts may have on his currently claimed disabilities. As such, this case must be remanded for a new examination, specifically a Persian Gulf Registry Examination, to assess the current nature and etiology of the Veteran's claimed conditions and to determine whether he has a chronic disability resulting from an undiagnosed illness or combination of undiagnosed illnesses.

The Board further notes that the Veteran has not been provided with notice of how to establish entitlement to service connection for a disability due to an undiagnosed illness or a medically unexplained chronic multisymptom illness pursuant to 38 C.F.R. § 3.317. See 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002) (When VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim.); see also Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004). As this case is being remanded for other matters, the AOJ should take the opportunity to correct the aforementioned defect in the VCAA notice previously provided to the Veteran.

Accordingly, the case is REMANDED for the following action:

1. The Agency of Original Jurisdiction (AOJ) should send the Veteran a corrective VCAA notice under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) that includes information about how to establish entitlement to service connection for a disability due to an undiagnosed illness or a medically unexplained chronic multisymptom illness under 38 C.F.R. § 3.317.

2. The AOJ should also schedule the Veteran for a Persian Gulf War Registry examination to assess the current nature and etiology of his claimed headaches and insomnia, to include any related anxiety disorder. The entire claims folder and a copy of this REMAND must be made available to the examiner prior to the examination, and the examiner should note that the claims file has been reviewed.

After reviewing the file and performing any necessary tests, the examiner should list any current disorders related to the Veteran's complaints of headaches and insomnia, as well as any associated anxiety disorder. The examiner should render an opinion as to the following: (a) for each currently diagnosed disorder, whether it is at least as likely as not (i.e., to at least a 50:50 degree of probability) that the disorder is related to active service, to include exposure to IED blasts in Iraq and as residuals of in-service head trauma, or whether such a relationship is unlikely (i.e., less than a 50:50 degree of probability); (b) for any currently diagnosed sleep disorder (e.g., insomnia), whether such a condition is a symptom of the Veteran's anxiety disorder, which began in service; (c) whether the Veteran has objective indications of a chronic disability manifested by headaches, sleep disturbances (e.g., insomnia) and/or neuropsychological signs or symptoms (e.g., anxiety) which are signs and symptoms of an undiagnosed illness, that by history, physical examination, and laboratory tests cannot be attributed to any known clinical diagnosis; and (d) whether the Veteran has objective indications of a medically unexplained chronic multisymptom illness that is defined by a cluster of signs or symptoms. For this purpose, a "chronic disability" is defined as a disability that has existed for six months or more.

The examiner should provide a complete rationale for any opinion provided.

3. Thereafter, the AOJ should readjudicate the claims of service connection for headaches and insomnia, to include any related anxiety disorder. In doing so, the AOJ should consider whether service connection for the Veteran's claimed symptoms of headaches and insomnia may be warranted as a qualifying chronic disability under 38 C.F.R. § 3.317. All new evidence received since the issuance of the February 2008 SOC should be considered. If the benefits sought on appeal are not granted, the Veteran and his representative should be furnished an SSOC and afforded a reasonable opportunity to respond before the record is returned to the Board for further review.

The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999).

No action is required of the appellant until further notice. However, the Board takes this opportunity to advise the appellant that the conduct of the efforts as directed in this remand, as well as any other development deemed necessary, is needed for a comprehensive and correct adjudication of his claims. His cooperation in VA's efforts to develop his claim, including reporting for any scheduled VA examination, is both critical and appreciated. The appellant is also advised that failure to report for any scheduled examination may result in the denial of a claim. 38 C.F.R. § 3.655.

This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2009).

______________________________________________ K. PARAKKAL Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs