HIATAL HERNIA

Summary

The Veteran served on active duty from April 1994 to January 1997. The Veteran appeals the denial of service connection for PTSD and seeks an earlier effective date for the grant of PTSD, as well as an increased rating for PTSD. The case also involves a remanded issue for service connection of a lung disorder, including bronchitis. The Board found that the Veteran's gastrointestinal conditions, specifically GERD, hiatal hernia, and gastritis, are related to service. This finding was based on the principle of benefit of the doubt, as the evidence was found to be in relative equipoise. The Board noted that while service treatment records (STRs) did not explicitly diagnose a chronic gastric condition, they did document multiple complaints and treatment for similar symptoms during service. A VA examiner's opinion stating the condition was less likely than not service-related was given no probative weight due to its reliance on an inaccurate factual premise (absence of evidence in STRs). Service connection for PTSD was granted, but the Board denied an earlier effective date than April 25, 2017, citing the lack of formal or informal claim submission prior to that date. The issue of an increased rating for PTSD was remanded for a Statement of the Case (SOC). The claim for a lung disorder, including bronchitis, was also remanded for further development, including obtaining in-service hospitalization records and a new VA examination to determine the nature and etiology of the condition.

Rationale

Evidence in relative equipoise; Benefit of the doubt applied; VA examiner opinion based on inaccurate premise

Full Decision Text

Citation Nr: 22042451
Decision Date: 07/27/22	Archive Date: 07/27/22

DOCKET NO. 20-00 387A
DATE: July 27, 2022

ORDER

Service connection for a gastrointestinal disorder defined as gastroesophageal reflux disorder (GERD), hiatal hernia, and gastritis is granted.

An effective date prior to April 25, 2017, for the award of service connection for post-traumatic stress disorder (PTSD) is denied.

REMANDED

An initial rating in excess of 50 percent for PTSD is remanded.

Service connection for a lung disorder, to include bronchitis, is remanded.

FINDINGS OF FACT

1. The evidence is at least in relative equipoise as to whether the Veteran's GERD, a hiatal hernia, and gastritis are related to her in-service gastrointestinal symptoms. 

2. VA received the Veteran's Intent to File on April 25, 2017; there is no formal and informal communication prior to that time regarding a claim for service connection for a psychiatric disorder.  

CONCLUSIONS OF LAW

1. The criteria for service connection for a gastrointestinal disorder characterized as GERD, a hiatal hernia, and gastritis are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 

2. The criteria for an effective date prior to April 25, 2017, for the award of service connection for PTSD are not met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.1, 3.155, 3.400. 

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from April 1994 to January 1997. During the current appeal and specifically in September 2021, the Veteran testified at a hearing before the undersigned Veterans Law Judge.  A transcript of the hearing is associated with the file.

Service Connection  Gastrointestinal Disorder

The Veteran has been diagnosed with various gastrointestinal conditions, including GERD, a hiatal hernia, and gastritis. Service treatment records (STRs) document her multiple complaints of symptoms such as abdominal pain, diarrhea, nausea, and vomiting. She was assessed to have gastroenteritis four times. In June 1995, she was assessed to have abdominal pain with unclear etiology. See June 2017 STR- Medical; November 2021 Medical Treatment Record  Government Facility.

A November 2017 VA examiner opined that it was less likely than not that the Veteran's gastrointestinal condition incurred in service. The examiner explained that STRs do not contain a chronic gastric condition diagnosis. As previously noted, the STRs contain multiple complaints of, and treatment for, a gastric condition. Thus, this opinion is based on an inaccurate factual premise.  A medical opinion based upon an inaccurate factual premise is not probative. Reonal v. Brown, 5 Vet. App. 458, 461 (1993). At the examination, the Veteran reported that her symptoms of chronic abdominal pain, bloating, constipation, and pyrosis began in 1995 and were still present on a daily basis. Relying on the absence of evidence in medical records, without regard for lay statements, to provide a negative opinion is contrary to established case law, and such opinions are therefore inadequate. Dalton v. Nicholson, 21 Vet. App. 23 (2007) & Dalton v. Peake, 21 Vet. App. 23 (2007). The Board thus assigns no probative weight to this opinion.

Post-service medical records and examinations have shown that the Veteran experiences symptoms of epigastric distress, abdominal pain, nausea, vomiting and substernal pain as a result of her gastrointestinal conditions. These are similar symptoms documented in her service treatment records. 

After a thorough consideration of the evidence, the Board finds that the evidence is at least in relative equipoise regarding whether the Veteran's current gastrointestinal conditions (defined as GERD, a hiatal hernia, and gastritis) are related to her in-service complaints. Although it cannot with medical certainty be attributed to her later developed conditions, when thoroughly considering her accounts of relevant, and similar, symptoms during and after service, the nature and circumstances of the conditions, and the lack of findings of any intercurrent causes, the evidence raises a reasonable doubt as to the initial onset of her conditions. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Resolving all reasonable doubt in favor of the Veteran, the Board finds that her gastrointestinal conditions, characterized as GERD, a hiatal hernia
 regarding whether the Veteran's current gastrointestinal conditions (defined as GERD, a hiatal hernia, and gastritis) are related to her in-service complaints. Although it cannot with medical certainty be attributed to her later developed conditions, when thoroughly considering her accounts of relevant, and similar, symptoms during and after service, the nature and circumstances of the conditions, and the lack of findings of any intercurrent causes, the evidence raises a reasonable doubt as to the initial onset of her conditions. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Resolving all reasonable doubt in favor of the Veteran, the Board finds that her gastrointestinal conditions, characterized as GERD, a hiatal hernia, and gastritis, are related to her service. Accordingly, the Board finds that the criteria for service connection for these conditions are met and that service connection for these disorders are warranted.

Effective Date Prior To April 25, 2017  Grant Of Service Connection  PTSD

In a December 2017 rating action, the AOJ granted service connection for PTSD, effective from April 25, 2017, the date the Veteran's Intent to File form was received by VA. The Veteran asserts that an earlier effective date is warranted. 

Except as otherwise provided, the effective date of an evaluation and award of compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. 

Effective dates for service connection based on an original claim generally are not based on the date the condition began and cannot be any earlier than date of receipt of claim. See, Lalonde v. West, 12 Vet. App. 377, 382 (1999) ("the effective date of an award of service connection is not based on the date of the earliest medical evidence demonstrating a causal connection, but on the date that the application upon which service connection was eventually awarded was filed with VA").

Based on the relevant procedural history and the laws and regulations, April 25, 2017 is the earliest effective date allowed. In April 2017, the Veteran filed a VA Form 21-0966 (Intent to File). In May 2017, the AOJ notified the Veteran that her Intent to File form was received. Shortly after, the Veteran filed her completed application seeking service connection for PTSD. After undertaking further evidentiary development, such as affording the Veteran with a VA examination, the AOJ granted service connection for PTSD. Prior to April 25, 2017, there were no formal or informal communications regarding a claim of service connection for a psychiatric disorder, to include PTSD. 

The Board acknowledges the Veteran's contentions that she is entitled to an earlier date because her condition began prior to that date. However, as previously stated herein, effective dates for service connection based on the original claim are generally not based on the date the condition began. If a claim is received within one year after separation from service, the effective date of an award of disability compensation shall be the day following separation from active service. 38 U.S.C. § 5110(b)(1); 38 C.F.R. § 3.400(b)(2)(i). The Board has truly heard and considered the Veteran's assertions that she has dealt with her psychiatric disorder during and since service, without having the knowledge that she had such a disorder. Unfortunately, the law only allows for an effective date of an award to be when the claim was received by VA, not when the medical evidence indicated a causal connection. As her claim was not received within one year from her separation from service, the law does not allow for an effective date of her service connection award to be the day following that separation date from service. While the Board truly sympathizes with the Veteran regarding her hardships with her psychiatric disorder, unfortunately, based on the laws and regulations, entitlement to an effective date earlier than April 25, 2017 is not warranted and must be denied.

REASONS FOR REMAND

Initial Increased Rating  PTSD

In the December 2018 NOD, the Veteran expressed her desire to appeal the initial rating assigned to her PTSD. However, the issue was not included in the October 2019 SOC. Therefore, pursuant to Manlincon v. West, 12 Vet. App. 238 (1999), a remand is necessary to accord the AOJ an opportunity to issue a statement of the case (SOC) with regard to this issue.

Service Connection  Lung Disorder, To Include Bronchitis

The Veteran asserts that she experienced symptoms, and was treated for, bronchitis during her service. While the STRs do not specifically document an
 warranted and must be denied.

REASONS FOR REMAND

Initial Increased Rating  PTSD

In the December 2018 NOD, the Veteran expressed her desire to appeal the initial rating assigned to her PTSD. However, the issue was not included in the October 2019 SOC. Therefore, pursuant to Manlincon v. West, 12 Vet. App. 238 (1999), a remand is necessary to accord the AOJ an opportunity to issue a statement of the case (SOC) with regard to this issue.

Service Connection  Lung Disorder, To Include Bronchitis

The Veteran asserts that she experienced symptoms, and was treated for, bronchitis during her service. While the STRs do not specifically document an assessment of bronchitis, they do include notations regarding symptoms and treatment of chest wall pain and pneumonia. Further, the Veteran shared that she was hospitalized and treated for bronchitis. Her representative indicated that those records may not be part of the file. The additional service records submitted by the Veteran do not reflect hospitalization regarding bronchitis. However, they do show her reports regarding being hospitalized for pneumonia. 

Clinical records, such as inpatient hospitalization records from a military facility, are stored separately from other service treatment records, and a specific request must be made to the National Personnel Records Center (NPRC) by the AOJ. Based on the Veteran's assertions, it is possible that she received inpatient hospital treatment from a military facility. Accordingly, on remand, the AOJ should make the necessary efforts to obtain any relevant medical records from any hospital. After obtaining such records, an examination should be obtained to determine the nature and etiology of her lung condition, to include bronchitis. Accordingly, these matters are REMANDED for the following action:

1. Issue an SOC with regard to the issue of entitlement to an initial rating in excess of 50 percent for service-connected PTSD. Advise the Veteran of the procedural requirements to continue an appeal of the issue. If, and only if, she files a timely substantive appeal, the issue should be certified to the Board.

2. Attempt to obtain the Veteran's records from her reported in-service hospitalization/treatment, specifically as it pertains to bronchitis or any related lung condition. The AOJ should request from the Veteran any information deemed necessary to obtain such records. Development should include contacting the National Personnel Records Center (NPRC). All efforts to obtain such records should be associated with the claims file.

If any treatment records cannot be obtained after necessary efforts, issue a formal determination documented in the claims file that such records do not exist or that further efforts to obtain such records would be futile. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, per 38 U.S.C.§ 5103A(b)(2) and 38 C.F.R. §3.159(e).

3. Provide the Veteran an opportunity to identify any pertinent treatment records. The AOJ should secure any necessary authorizations. Copies of all available private and VA documents should be associated with the Veteran's claims folder. If the records are unavailable, inform the Veteran of such and of the efforts made to obtain them. The Veteran should also be notified that she may submit any such records herself. All efforts should be recorded in the claims folder.

4. Then, accord the Veteran an appropriate VA respiratory examination. Her claims file should be made available to the examiner in conjunction with the examination. Any testing deemed necessary should be conducted. After record review and examination, the VA examiner should offer the following opinions:

(a) Diagnose any lung disorder, include bronchitis, found to be present during the pendency of this appeal.

(b) Is it at least as likely as not (50 percent or greater probability) that any such diagnosed disorder was incurred in, caused by, or etiologically related to the Veteran's service? In rendering this opinion, the examiner must consider and address any in-service notations regarding symptoms of bronchitis or any other lung condition when rendering the opinion. 

The examiner is advised that the Veteran is competent to report her symptoms/history and that such reports must be acknowledged and considered in formulating any opinion. If the Veteran's reports are discounted, the examiner should provide a reason for doing so.

A fully articulated medical rationale for each opinion expressed must be set forth in the medical report. The examiner should discuss the particulars of this Veteran's medical history, pertinent lay evidence, and the relevant medical literature or studies as applicable to this case, which may reasonably explain the medical analysis in the study of this case.

If the examiner cannot provide an opinion without resorting to mere speculation, a complete explanation stating why this is so should be provided. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need
 competent to report her symptoms/history and that such reports must be acknowledged and considered in formulating any opinion. If the Veteran's reports are discounted, the examiner should provide a reason for doing so.

A fully articulated medical rationale for each opinion expressed must be set forth in the medical report. The examiner should discuss the particulars of this Veteran's medical history, pertinent lay evidence, and the relevant medical literature or studies as applicable to this case, which may reasonably explain the medical analysis in the study of this case.

If the examiner cannot provide an opinion without resorting to mere speculation, a complete explanation stating why this is so should be provided. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that the limits of current medical knowledge in providing an answer to that particular question have been exhausted.  

5. Then, review the record, conduct any additional development deemed necessary, and readjudicate the issue remaining on appeal. If any remaining benefit being sought remains denied, furnish to the Veteran and her representative an appropriate supplemental statement of the case (SSOC). She and her representative should be afforded the appropriate time period to respond. Then, if indicated, the case should be returned to the Board for further appellate review.

No action is required of the Veteran until she is notified by VA. However, she is advised of her obligation to cooperate in ensuring the duty to assist is satisfied. owalski v. Nicholson, 19 Vet. App. 171 (2005). Her failure to report for the scheduled VA medical examination may impact the determination made. 38 C.F.R. § 3.655. The Veteran also is advised that she has the right to submit additional evidence and argument with respect to this matter. Kutscherousky v. West, 12 Vet. App. 369 (1999). This appeal must be afforded prompt treatment.  

 

 

THERESA M. CATINO

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Middleton, Syesa T.

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.