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Previous Cases


Cavman

Question

Does anyone know of previous cases granting disability for gerd, barrets esophagus, hiatal hernia or insomnia as secondary disabilities to PTSD? Also, does anyone know of a case where a combat vet won a tinnitus case? I have read and read and can`t find cases to send with my claims.

Cavman

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Does anyone know of previous cases granting disability for gerd, barrets esophagus, hiatal hernia or insomnia as secondary disabilities to PTSD? Also, does anyone know of a case where a combat vet won a tinnitus case? I have read and read and can`t find cases to send with my claims.

Cavman

Caveman:

I don't know about your conditions of Secondary PTSD, But my husband was awarded 10% for tinnitus for combat in Vietnam.

Jessie

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Cavman -I am sure I posted a GERD claim here granted as secondary to PTSD but I cannot find it-

One thing about sending BVA cases to VA to support a claim- it usually doesn't help---

a BVA decision only rgards the evidence in the claim they decided and the VA wants clear medical evidence to associate the two disabilties in your claim.

CAVC cases are different-if the CAVC renders a precedent setting opinion-sometimes they can be of help in support for a SC claim.

Still- the VA wants specific evidence to the veteran's specific disabilities.

There are plenty of tinnitus claims at the CAVC because these vets were awarded tinnitus at 10% for one ear but they are claiming bilateral tinnitus- and these claims are in stay proceedings.

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Does anyone know of previous cases granting disability for gerd, barrets esophagus, hiatal hernia or insomnia as secondary disabilities to PTSD? Also, does anyone know of a case where a combat vet won a tinnitus case? I have read and read and can`t find cases to send with my claims.

Cavman

I won a case for tinnitus. Lost for hearing loss - not severe enuf but won for tinnitus. 11b4p, 2yrs VN

pr

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Hello to all,

This is a great case that grants Gerd & IBS as

SC secondary to PTSD.

The main thing I notice in the award is that the

doctor states, " When PTSD symptoms become worse the Gerd and IBS become worse." This is the medical nexus needed.

Iposted this Dec. 2005

carlie

Citation Nr: 0303462

Decision Date: 02/27/03 Archive Date: 03/05/03

DOCKET NO. 02-21 272 ) DATE

On appeal from the

Department of Veterans Affairs Regional Office in Lincoln,

Nebraska

THE ISSUES

1. Entitlement to service connection for gastroesophageal

reflux disease (GERD), claimed as secondary to service-

connected post-traumatic stress disorder (PTSD).

2. Entitlement to service connection for irritable bowel

syndrome (IBS), claimed as secondary to service-connected

PTSD.

(The issues of entitlement to service connection for drug and

alcohol dependence and hepatitis C will be the subject of a

later decision.)

REPRESENTATION

Appellant represented by: Robert Stevens Berry, Attorney

at Law

ATTORNEY FOR THE BOARD

Bernard T. DoMinh, Counsel

INTRODUCTION

The veteran served on active duty from May 1967 to December

1968.

This matter comes to the Board of Veterans' Appeals (Board)

on appeal from a June 2002 rating decision by the Lincoln,

Nebraska, Regional Office (RO) of the Department of Veterans

Affairs (VA) which, inter alia, denied the veteran's claims

for service connection for GERD, IBS, drug and alcohol

dependence and hepatitis C. This decision only addresses the

issues of service connection for GERD and IBS. Further

development will be conducted on the issues of entitlement to

service connection for drug and alcohol dependence and

hepatitis C pursuant to authority granted by 67 Fed. Reg.

3,099, 3,104 (Jan. 23, 2002) (codified at 38 C.F.R. §

19.9(a)(2)). When it is completed, the Board will provide

notice of the development as required by Rule of Practice

903. See 38 C.F.R. § 20.903 (2002). After giving the notice

to the veteran and reviewing any response to the notice, the

Board will prepare a separate decision addressing the latter

issues.

The veteran is service-connected for PTSD which is currently

rated as 70 percent disabling. He presently has a total

rating for individual unemployability due to his service-

connected psychiatric disorder.

FINDINGS OF FACT

1. The veteran's chronic GERD did not have its onset during

active service.

2. The veteran's chronic GERD has increased in severity as a

result of episodic elevations of psychiatric symptomatology

associated with his service-connected PTSD.

3. The veteran's chronic IBS did not have its onset during

active service.

4. The veteran's chronic IBS has increased in severity as a

result of episodic elevations of psychiatric symptomatology

associated with his service-connected PTSD.

CONCLUSIONS OF LAW

1. The grant of service connection is warranted for

gastroesophageal reflux disese. 38 C.F.R. § 3.310(a) (2002);

Allen v. Brown, 7 Vet. App. 439 (1995).

2. The grant of service connection is warranted for

irritable bowel syndrome. 38 C.F.R. § 3.310(a) (2002);

Allen v. Brown, 7 Vet. App. 439 (1995).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Preliminary Matters

The Veterans Claims Assistance Act of 2000, implemented in

38 U.S.C.A. §§ 5103, 5103A (West Supp. 2002), now requires VA

to assist a claimant in developing all facts pertinent to a

claim for VA benefits, including a medical opinion and notice

to the claimant and the claimant's representative, if any, of

any information, and any medical or lay evidence, not

previously provided to the VA Secretary, that is necessary to

substantiate the claim. VA has issued regulations to

implement the Veterans Claims Assistance Act of 2000. 66

Fed. Reg. 45,620 (Aug. 29, 2001) (codified as amended at

38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2002)).

The VCAA is applicable to all claims filed on or after the

date of enactment, November 9, 2000, or filed before the date

of enactment and not yet final as of that date. The

provisions of the VCAA and the implementing regulations are

accordingly applicable. See Holliday v. Principi, 14 Vet.

App. 280 (2001) (the Board must make a determination as to

the applicability of the various provisions of the VCAA to a

particular claim).

We note that the RO has provided the veteran with notice of

the VCAA in a Statement of the Case dated in October 2002, in

which the VCAA-compliant duty to assist provisions of the

revised version of 38 C.F.R. § 3.159 were discussed. The RO

has provided the veteran with an explanation of how VA would

assist him in obtaining necessary information and evidence.

The appellant has been made aware of the information and

evidence necessary to substantiate his claims and has been

provided opportunities to submit such evidence. A review of

the claims file also shows that VA has conducted reasonable

efforts to assist him in obtaining evidence necessary to

substantiate his claims of entitlement to service connection

for GERD and IBS during the course of this appeal. Medical

nexus opinions addressing the issues of entitlement to

service connection for GERD and IBS have also been obtained

and associated with the evidence. See Charles v. Principi,

No. 01-1536 (U.S. Vet. App. Oct. 3, 2002). Finally, the

veteran has not identified any additional, relevant evidence

that has not otherwise been requested or obtained. He has

been notified of the evidence and information necessary to

substantiate his claims with respect to the issues of service

connection for GERD and IBS, and he has been notified of VA's

efforts to assist him. (See Quartuccio v. Principi, 16 Vet.

App. 183 (2002).) As a result of the development that has

been undertaken, there is no reasonable possibility that

further assistance will aid in substantiating the

aforementioned claims. For these reasons, further

development of the claims of entitlement to service

connection for GERD and IBS is not necessary to meet the

requirements of 38 U.S.C.A. §§ 5103 and 5103A.

After the evidence has been assembled, it is the Board's

responsibility to evaluate the entire record. See 38

U.S.C.A. § 7104(a) (West 1991 & Supp. 2002). The standard of

review for cases before the Board is as follows: when there

is an approximate balance of evidence regarding the merits of

an issue material to the determination of the matter, the

benefit of the doubt in resolving each such issue shall be

given to the claimant. 38 U.S.C.A. § 5107 (West 1991 & Supp.

2002); 38 C.F.R. §§ 3.102, 4.3 (2002). In Gilbert v.

Derwinski, 1 Vet. App. 49, 53 (1990), the United States Court

of Appeals for Veterans Claims (Court) stated that "a

(claimant) need only demonstrate that there is an

'approximate balance of positive and negative evidence' in

order to prevail." To deny a claim on its merits, the

preponderance of the evidence must be against the claim.

Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert

v. Derwinski, 1 Vet. App. At 54.

Factual Background and Analysis: Entitlement to service

connection GERD and IBS, claimed as secondary to service-

connected PTSD.

Service connection involves many factors, but basically means

that the facts, shown by the evidence, establish that a

particular injury or disease resulting in disability was

incurred coincident with service, or if pre-existing such

service, was aggravated therein. This may be accomplished by

affirmatively showing inception or aggravation during service

or through the application of statutory presumptions.

38 C.F.R. § 3.303(a) (2002).

Clear and unmistakable evidence (obvious and manifest) is

required to rebut the presumption of aggravation where the

pre-service disability underwent an increase in severity

during service. This includes medical facts and principles

which may be considered to determine whether the increase is

due to the natural progress of the condition. 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 U.S.C.A. § 1153 (West 1991); 38 C.F.R. § 3.306(B) (2002).

With chronic disability or disease shown as such in service

(or within the presumptive period under 38 C.F.R. § 3.307

(2002)) so as to permit a finding of service connection,

subsequent manifestations of the same chronic disease at any

later date, however remote, are service connected, unless

clearly attributable to intercurrent causes. This rule does

not mean that any manifestation of gastrointestinal symptoms

in service will permit service connection for a chronic

digestive system disorder, first shown as a clear-cut

clinical entity, at some later date. For the showing of

chronic disease in service there is required a combination

of manifestations sufficient to identify the disease entity,

and sufficient observation to establish chronicity at the

time, as distinguished from merely isolated findings or a

diagnosis including the word "chronic." When the disease

identity is established, there is no requirement of

evidentiary showing of continuity. Continuity of

symptomatology is required only where the condition noted

during service (or in the presumptive period) is not, in

fact, shown to be chronic, or where the diagnosis of

chronicity may be legitimately questioned. When the fact of

chronicity in service is not adequately supported, then a

showing of continuity after discharge is required to support

the claim. 38 C.F.R. § 3.303(B) (2002). Service connection

may be granted for any disease diagnosed after discharge

from active duty when all the evidence, including that

pertinent to service, establishes that the disease was

incurred in service. 38 C.F.R. § 3.303(d) (2002). Service

connection may also be granted for disability which is

proximately due to or the result of a service-connected

disease or injury. 38 C.F.R. § 3.310(a) (2002).

The veteran's service medical records show normal

gastrointestinal findings on entrance examination in May

1967 and on separation examination in November 1968. His

records show no treatment or diagnosis for a chronic

gastrointestinal disorder during his period of active duty.

VA examination in March 2002 shows that the veteran's

medical history was reviewed and following examination he

was diagnosed with gastroesophageal reflux disease and

irritable bowel syndrome. The examining physician expressed

the following medical opinion:

"The veteran's (claims)-file was reviewed in its

entirety. Questions being asked today. 'Are the

veteran's acid reflux and irritable bowel

syndrome secondary to the veteran's service

connected PTSD?' It seems more likely than not

when this veteran's PTSD symptomatology worsens,

then his reflux will worsen along with his

irritable bowel syndrome. He still gets daily

constipation and diarrhea, which is on a constant

basis and constantly revolving. When his mental

symptoms worsen then his bowels will act up.

These (symptoms) are most likely secondary to his

PTSD."

The medical evidence clearly shows that the onset of the

veteran's chronic IBS or GERD did not begin prior to or

during his period of active service which ended over three

decades ago. IBS and GERD are not diseases which are

recognized in the regulation 38 C.F.R. § 3.309 as being

entitled to presumptive service connection if manifested to a

compensable degree within one year after separation from

active duty. Therefore, an award of service connection for a

chronic gastrointestinal disability on a direct basis or on

the basis of aggravation of pre-existing condition cannot be

granted.

The evidence also does not establish that service connection

for the veteran's IBS and GERD may be granted on a secondary

basis as the March 2002 nexus opinion provided by the VA

examiner specifically states that it is the veteran's PTSD

causes his gastrointestinal symptoms to worsen, but not that

the psychiatric disability is the actual cause of the IBS and

GERD. However, in the case of Allen v. Brown, 7 Vet. App.

439 (1995), the United States Court of Appeals for Veterans

Claims (hereinafter referred to as the Court) presented an

opinion in which it extrapolated that the term

"disability," as used in 38 U.S.C.A. § 1110, refers to

impairment of earning capacity and that such definition

mandates that any additional impairment of earning capacity

resulting from a disability which is already service-

connected, regardless of whether or not the additional

impairment is itself a separate disease or injury caused by

the service-connected disability, shall be service-connected.

Thus, pursuant to 38 U.S.C.A. § 1110 and 38 C.F.R. §

3.310(a), when aggravation of a nonservice-connected

disability is proximately due to or the result of a service-

connected disability, an award of compensation may be allowed

for the degree of disability, but only that degree over and

above the degree of disability existing prior to the

aggravation. The circumstances of the present case meet the

conditions contemplated by the Court in the Allen case.

The medical evidence governing the outcome of this case is

clear. The question of whether the episodes of PTSD cause an

increase in the severity of the veteran's gastrointestinal

disorders is a medical question that must be resolved by

weighing the competent medical evidence. It is not a

question for either the RO or the Board to resolve based on

independent analysis of the record. For a dozen years, the

law has been clear as to the significance of competent

medical evidence in matters requiring medical judgment.

Colvin v. Derwinski, 1 Vet. App. 171 (1991). In this case a

competent physician reviewed the record and conlcuded that

the symptoms of PTSD caused an increase in the severity of

the gastrointestinal disorders. Therefore, service

connection must granted for IBS and GERD.

ORDER

Service connection for gastroesophageal reflux disease is

granted.

Service connection for irritable bowel syndrome is granted.

G. H. SHUFELT

Veterans Law Judge

IMPORTANT NOTICE: We have attached a VA Form 4597 that tells

you what steps you can take if you disagree with our

decision. We are in the process of updating the form to

reflect changes in the law effective on December 27, 2001.

See the Veterans Education and Benefits Expansion Act of

2001, Pub. L. No. 107-103, 115 Stat. 976 (2001). In the

meanwhile, please note these important corrections to the

advice in the form:

? These changes apply to the section entitled "Appeal to

the United States Court of Appeals for Veterans

Claims." (1) A "Notice of Disagreement filed on or

after November 18, 1988" is no longer required to

appeal to the Court. (2) You are no longer required to

file a copy of your Notice of Appeal with VA's General

Counsel.

? In the section entitled "Representation before VA,"

filing a "Notice of Disagreement with respect to the

claim on or after November 18, 1988" is no longer a

condition for an attorney-at-law or a VA accredited

agent to charge you a fee for representing you.

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Hello to all,

This is a great case that grants Gerd & IBS as

SC secondary to PTSD.

The main thing I notice in the award is that the

doctor states, " When PTSD symptoms become worse the Gerd and IBS become worse." This is the medical nexus needed.

Iposted this Dec. 2005

carlie

Citation Nr: 0303462

Decision Date: 02/27/03 Archive Date: 03/05/03

DOCKET NO. 02-21 272 ) DATE

On appeal from the

Department of Veterans Affairs Regional Office in Lincoln,

Nebraska

THE ISSUES

1. Entitlement to service connection for gastroesophageal

reflux disease (GERD), claimed as secondary to service-

connected post-traumatic stress disorder (PTSD).

2. Entitlement to service connection for irritable bowel

syndrome (IBS), claimed as secondary to service-connected

PTSD.

(The issues of entitlement to service connection for drug and

alcohol dependence and hepatitis C will be the subject of a

later decision.)

REPRESENTATION

Appellant represented by: Robert Stevens Berry, Attorney

at Law

ATTORNEY FOR THE BOARD

Bernard T. DoMinh, Counsel

INTRODUCTION

The veteran served on active duty from May 1967 to December

1968.

This matter comes to the Board of Veterans' Appeals (Board)

on appeal from a June 2002 rating decision by the Lincoln,

Nebraska, Regional Office (RO) of the Department of Veterans

Affairs (VA) which, inter alia, denied the veteran's claims

for service connection for GERD, IBS, drug and alcohol

dependence and hepatitis C. This decision only addresses the

issues of service connection for GERD and IBS. Further

development will be conducted on the issues of entitlement to

service connection for drug and alcohol dependence and

hepatitis C pursuant to authority granted by 67 Fed. Reg.

3,099, 3,104 (Jan. 23, 2002) (codified at 38 C.F.R. §

19.9(a)(2)). When it is completed, the Board will provide

notice of the development as required by Rule of Practice

903. See 38 C.F.R. § 20.903 (2002). After giving the notice

to the veteran and reviewing any response to the notice, the

Board will prepare a separate decision addressing the latter

issues.

The veteran is service-connected for PTSD which is currently

rated as 70 percent disabling. He presently has a total

rating for individual unemployability due to his service-

connected psychiatric disorder.

FINDINGS OF FACT

1. The veteran's chronic GERD did not have its onset during

active service.

2. The veteran's chronic GERD has increased in severity as a

result of episodic elevations of psychiatric symptomatology

associated with his service-connected PTSD.

3. The veteran's chronic IBS did not have its onset during

active service.

4. The veteran's chronic IBS has increased in severity as a

result of episodic elevations of psychiatric symptomatology

associated with his service-connected PTSD.

CONCLUSIONS OF LAW

1. The grant of service connection is warranted for

gastroesophageal reflux disese. 38 C.F.R. § 3.310(a) (2002);

Allen v. Brown, 7 Vet. App. 439 (1995).

2. The grant of service connection is warranted for

irritable bowel syndrome. 38 C.F.R. § 3.310(a) (2002);

Allen v. Brown, 7 Vet. App. 439 (1995).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Preliminary Matters

The Veterans Claims Assistance Act of 2000, implemented in

38 U.S.C.A. §§ 5103, 5103A (West Supp. 2002), now requires VA

to assist a claimant in developing all facts pertinent to a

claim for VA benefits, including a medical opinion and notice

to the claimant and the claimant's representative, if any, of

any information, and any medical or lay evidence, not

previously provided to the VA Secretary, that is necessary to

substantiate the claim. VA has issued regulations to

implement the Veterans Claims Assistance Act of 2000. 66

Fed. Reg. 45,620 (Aug. 29, 2001) (codified as amended at

38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2002)).

The VCAA is applicable to all claims filed on or after the

date of enactment, November 9, 2000, or filed before the date

of enactment and not yet final as of that date. The

provisions of the VCAA and the implementing regulations are

accordingly applicable. See Holliday v. Principi, 14 Vet.

App. 280 (2001) (the Board must make a determination as to

the applicability of the various provisions of the VCAA to a

particular claim).

We note that the RO has provided the veteran with notice of

the VCAA in a Statement of the Case dated in October 2002, in

which the VCAA-compliant duty to assist provisions of the

revised version of 38 C.F.R. § 3.159 were discussed. The RO

has provided the veteran with an explanation of how VA would

assist him in obtaining necessary information and evidence.

The appellant has been made aware of the information and

evidence necessary to substantiate his claims and has been

provided opportunities to submit such evidence. A review of

the claims file also shows that VA has conducted reasonable

efforts to assist him in obtaining evidence necessary to

substantiate his claims of entitlement to service connection

for GERD and IBS during the course of this appeal. Medical

nexus opinions addressing the issues of entitlement to

service connection for GERD and IBS have also been obtained

and associated with the evidence. See Charles v. Principi,

No. 01-1536 (U.S. Vet. App. Oct. 3, 2002). Finally, the

veteran has not identified any additional, relevant evidence

that has not otherwise been requested or obtained. He has

been notified of the evidence and information necessary to

substantiate his claims with respect to the issues of service

connection for GERD and IBS, and he has been notified of VA's

efforts to assist him. (See Quartuccio v. Principi, 16 Vet.

App. 183 (2002).) As a result of the development that has

been undertaken, there is no reasonable possibility that

further assistance will aid in substantiating the

aforementioned claims. For these reasons, further

development of the claims of entitlement to service

connection for GERD and IBS is not necessary to meet the

requirements of 38 U.S.C.A. §§ 5103 and 5103A.

After the evidence has been assembled, it is the Board's

responsibility to evaluate the entire record. See 38

U.S.C.A. § 7104(a) (West 1991 & Supp. 2002). The standard of

review for cases before the Board is as follows: when there

is an approximate balance of evidence regarding the merits of

an issue material to the determination of the matter, the

benefit of the doubt in resolving each such issue shall be

given to the claimant. 38 U.S.C.A. § 5107 (West 1991 & Supp.

2002); 38 C.F.R. §§ 3.102, 4.3 (2002). In Gilbert v.

Derwinski, 1 Vet. App. 49, 53 (1990), the United States Court

of Appeals for Veterans Claims (Court) stated that "a

(claimant) need only demonstrate that there is an

'approximate balance of positive and negative evidence' in

order to prevail." To deny a claim on its merits, the

preponderance of the evidence must be against the claim.

Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert

v. Derwinski, 1 Vet. App. At 54.

Factual Background and Analysis: Entitlement to service

connection GERD and IBS, claimed as secondary to service-

connected PTSD.

Service connection involves many factors, but basically means

that the facts, shown by the evidence, establish that a

particular injury or disease resulting in disability was

incurred coincident with service, or if pre-existing such

service, was aggravated therein. This may be accomplished by

affirmatively showing inception or aggravation during service

or through the application of statutory presumptions.

38 C.F.R. § 3.303(a) (2002).

Clear and unmistakable evidence (obvious and manifest) is

required to rebut the presumption of aggravation where the

pre-service disability underwent an increase in severity

during service. This includes medical facts and principles

which may be considered to determine whether the increase is

due to the natural progress of the condition. 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 U.S.C.A. § 1153 (West 1991); 38 C.F.R. § 3.306(b) (2002).

With chronic disability or disease shown as such in service

(or within the presumptive period under 38 C.F.R. § 3.307

(2002)) so as to permit a finding of service connection,

subsequent manifestations of the same chronic disease at any

later date, however remote, are service connected, unless

clearly attributable to intercurrent causes. This rule does

not mean that any manifestation of gastrointestinal symptoms

in service will permit service connection for a chronic

digestive system disorder, first shown as a clear-cut

clinical entity, at some later date. For the showing of

chronic disease in service there is required a combination

of manifestations sufficient to identify the disease entity,

and sufficient observation to establish chronicity at the

time, as distinguished from merely isolated findings or a

diagnosis including the word "chronic." When the disease

identity is established, there is no requirement of

evidentiary showing of continuity. Continuity of

symptomatology is required only where the condition noted

during service (or in the presumptive period) is not, in

fact, shown to be chronic, or where the diagnosis of

chronicity may be legitimately questioned. When the fact of

chronicity in service is not adequately supported, then a

showing of continuity after discharge is required to support

the claim. 38 C.F.R. § 3.303(b) (2002). Service connection

may be granted for any disease diagnosed after discharge

from active duty when all the evidence, including that

pertinent to service, establishes that the disease was

incurred in service. 38 C.F.R. § 3.303(d) (2002). Service

connection may also be granted for disability which is

proximately due to or the result of a service-connected

disease or injury. 38 C.F.R. § 3.310(a) (2002).

The veteran's service medical records show normal

gastrointestinal findings on entrance examination in May

1967 and on separation examination in November 1968. His

records show no treatment or diagnosis for a chronic

gastrointestinal disorder during his period of active duty.

VA examination in March 2002 shows that the veteran's

medical history was reviewed and following examination he

was diagnosed with gastroesophageal reflux disease and

irritable bowel syndrome. The examining physician expressed

the following medical opinion:

"The veteran's (claims)-file was reviewed in its

entirety. Questions being asked today. 'Are the

veteran's acid reflux and irritable bowel

syndrome secondary to the veteran's service

connected PTSD?' It seems more likely than not

when this veteran's PTSD symptomatology worsens,

then his reflux will worsen along with his

irritable bowel syndrome. He still gets daily

constipation and diarrhea, which is on a constant

basis and constantly revolving. When his mental

symptoms worsen then his bowels will act up.

These (symptoms) are most likely secondary to his

PTSD."

The medical evidence clearly shows that the onset of the

veteran's chronic IBS or GERD did not begin prior to or

during his period of active service which ended over three

decades ago. IBS and GERD are not diseases which are

recognized in the regulation 38 C.F.R. § 3.309 as being

entitled to presumptive service connection if manifested to a

compensable degree within one year after separation from

active duty. Therefore, an award of service connection for a

chronic gastrointestinal disability on a direct basis or on

the basis of aggravation of pre-existing condition cannot be

granted.

The evidence also does not establish that service connection

for the veteran's IBS and GERD may be granted on a secondary

basis as the March 2002 nexus opinion provided by the VA

examiner specifically states that it is the veteran's PTSD

causes his gastrointestinal symptoms to worsen, but not that

the psychiatric disability is the actual cause of the IBS and

GERD. However, in the case of Allen v. Brown, 7 Vet. App.

439 (1995), the United States Court of Appeals for Veterans

Claims (hereinafter referred to as the Court) presented an

opinion in which it extrapolated that the term

"disability," as used in 38 U.S.C.A. § 1110, refers to

impairment of earning capacity and that such definition

mandates that any additional impairment of earning capacity

resulting from a disability which is already service-

connected, regardless of whether or not the additional

impairment is itself a separate disease or injury caused by

the service-connected disability, shall be service-connected.

Thus, pursuant to 38 U.S.C.A. § 1110 and 38 C.F.R. §

3.310(a), when aggravation of a nonservice-connected

disability is proximately due to or the result of a service-

connected disability, an award of compensation may be allowed

for the degree of disability, but only that degree over and

above the degree of disability existing prior to the

aggravation. The circumstances of the present case meet the

conditions contemplated by the Court in the Allen case.

The medical evidence governing the outcome of this case is

clear. The question of whether the episodes of PTSD cause an

increase in the severity of the veteran's gastrointestinal

disorders is a medical question that must be resolved by

weighing the competent medical evidence. It is not a

question for either the RO or the Board to resolve based on

independent analysis of the record. For a dozen years, the

law has been clear as to the significance of competent

medical evidence in matters requiring medical judgment.

Colvin v. Derwinski, 1 Vet. App. 171 (1991). In this case a

competent physician reviewed the record and conlcuded that

the symptoms of PTSD caused an increase in the severity of

the gastrointestinal disorders. Therefore, service

connection must granted for IBS and GERD.

ORDER

Service connection for gastroesophageal reflux disease is

granted.

Service connection for irritable bowel syndrome is granted.

G. H. SHUFELT

Veterans Law Judge

IMPORTANT NOTICE: We have attached a VA Form 4597 that tells

you what steps you can take if you disagree with our

decision. We are in the process of updating the form to

reflect changes in the law effective on December 27, 2001.

See the Veterans Education and Benefits Expansion Act of

2001, Pub. L. No. 107-103, 115 Stat. 976 (2001). In the

meanwhile, please note these important corrections to the

advice in the form:

? These changes apply to the section entitled "Appeal to

the United States Court of Appeals for Veterans

Claims." (1) A "Notice of Disagreement filed on or

after November 18, 1988" is no longer required to

appeal to the Court. (2) You are no longer required to

file a copy of your Notice of Appeal with VA's General

Counsel.

? In the section entitled "Representation before VA,"

filing a "Notice of Disagreement with respect to the

claim on or after November 18, 1988" is no longer a

condition for an attorney-at-law or a VA accredited

agent to charge you a fee for representing you.

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This is a VA Study from March 12, 2003

Great Info - make the VA eat and pay for their own words. lol

carlie

http://www.pbm.va.gov/archive/gerdguidelinesfinal.pdf

Another Gerd Case

http://www.va.gov/vetapp01/files01/0101137.txt

Edited by carlie (see edit history)
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Hello to all,

This is a great case that grants Gerd & IBS as

SC secondary to PTSD.

The main thing I notice in the award is that the

doctor states, " When PTSD symptoms become worse the Gerd and IBS become worse." This is the medical nexus needed.

Iposted this Dec. 2005

carlie

Citation Nr: 0303462

Decision Date: 02/27/03 Archive Date: 03/05/03

DOCKET NO. 02-21 272 ) DATE

On appeal from the

Department of Veterans Affairs Regional Office in Lincoln,

Nebraska

THE ISSUES

1. Entitlement to service connection for gastroesophageal

reflux disease (GERD), claimed as secondary to service-

connected post-traumatic stress disorder (PTSD).

2. Entitlement to service connection for irritable bowel

syndrome (IBS), claimed as secondary to service-connected

PTSD.

(The issues of entitlement to service connection for drug and

alcohol dependence and hepatitis C will be the subject of a

later decision.)

REPRESENTATION

Appellant represented by: Robert Stevens Berry, Attorney

at Law

ATTORNEY FOR THE BOARD

Bernard T. DoMinh, Counsel

INTRODUCTION

The veteran served on active duty from May 1967 to December

1968.

This matter comes to the Board of Veterans' Appeals (Board)

on appeal from a June 2002 rating decision by the Lincoln,

Nebraska, Regional Office (RO) of the Department of Veterans

Affairs (VA) which, inter alia, denied the veteran's claims

for service connection for GERD, IBS, drug and alcohol

dependence and hepatitis C. This decision only addresses the

issues of service connection for GERD and IBS. Further

development will be conducted on the issues of entitlement to

service connection for drug and alcohol dependence and

hepatitis C pursuant to authority granted by 67 Fed. Reg.

3,099, 3,104 (Jan. 23, 2002) (codified at 38 C.F.R. §

19.9(a)(2)). When it is completed, the Board will provide

notice of the development as required by Rule of Practice

903. See 38 C.F.R. § 20.903 (2002). After giving the notice

to the veteran and reviewing any response to the notice, the

Board will prepare a separate decision addressing the latter

issues.

The veteran is service-connected for PTSD which is currently

rated as 70 percent disabling. He presently has a total

rating for individual unemployability due to his service-

connected psychiatric disorder.

FINDINGS OF FACT

1. The veteran's chronic GERD did not have its onset during

active service.

2. The veteran's chronic GERD has increased in severity as a

result of episodic elevations of psychiatric symptomatology

associated with his service-connected PTSD.

3. The veteran's chronic IBS did not have its onset during

active service.

4. The veteran's chronic IBS has increased in severity as a

result of episodic elevations of psychiatric symptomatology

associated with his service-connected PTSD.

CONCLUSIONS OF LAW

1. The grant of service connection is warranted for

gastroesophageal reflux disese. 38 C.F.R. § 3.310(a) (2002);

Allen v. Brown, 7 Vet. App. 439 (1995).

2. The grant of service connection is warranted for

irritable bowel syndrome. 38 C.F.R. § 3.310(a) (2002);

Allen v. Brown, 7 Vet. App. 439 (1995).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Preliminary Matters

The Veterans Claims Assistance Act of 2000, implemented in

38 U.S.C.A. §§ 5103, 5103A (West Supp. 2002), now requires VA

to assist a claimant in developing all facts pertinent to a

claim for VA benefits, including a medical opinion and notice

to the claimant and the claimant's representative, if any, of

any information, and any medical or lay evidence, not

previously provided to the VA Secretary, that is necessary to

substantiate the claim. VA has issued regulations to

implement the Veterans Claims Assistance Act of 2000. 66

Fed. Reg. 45,620 (Aug. 29, 2001) (codified as amended at

38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2002)).

The VCAA is applicable to all claims filed on or after the

date of enactment, November 9, 2000, or filed before the date

of enactment and not yet final as of that date. The

provisions of the VCAA and the implementing regulations are

accordingly applicable. See Holliday v. Principi, 14 Vet.

App. 280 (2001) (the Board must make a determination as to

the applicability of the various provisions of the VCAA to a

particular claim).

We note that the RO has provided the veteran with notice of

the VCAA in a Statement of the Case dated in October 2002, in

which the VCAA-compliant duty to assist provisions of the

revised version of 38 C.F.R. § 3.159 were discussed. The RO

has provided the veteran with an explanation of how VA would

assist him in obtaining necessary information and evidence.

The appellant has been made aware of the information and

evidence necessary to substantiate his claims and has been

provided opportunities to submit such evidence. A review of

the claims file also shows that VA has conducted reasonable

efforts to assist him in obtaining evidence necessary to

substantiate his claims of entitlement to service connection

for GERD and IBS during the course of this appeal. Medical

nexus opinions addressing the issues of entitlement to

service connection for GERD and IBS have also been obtained

and associated with the evidence. See Charles v. Principi,

No. 01-1536 (U.S. Vet. App. Oct. 3, 2002). Finally, the

veteran has not identified any additional, relevant evidence

that has not otherwise been requested or obtained. He has

been notified of the evidence and information necessary to

substantiate his claims with respect to the issues of service

connection for GERD and IBS, and he has been notified of VA's

efforts to assist him. (See Quartuccio v. Principi, 16 Vet.

App. 183 (2002).) As a result of the development that has

been undertaken, there is no reasonable possibility that

further assistance will aid in substantiating the

aforementioned claims. For these reasons, further

development of the claims of entitlement to service

connection for GERD and IBS is not necessary to meet the

requirements of 38 U.S.C.A. §§ 5103 and 5103A.

After the evidence has been assembled, it is the Board's

responsibility to evaluate the entire record. See 38

U.S.C.A. § 7104(a) (West 1991 & Supp. 2002). The standard of

review for cases before the Board is as follows: when there

is an approximate balance of evidence regarding the merits of

an issue material to the determination of the matter, the

benefit of the doubt in resolving each such issue shall be

given to the claimant. 38 U.S.C.A. § 5107 (West 1991 & Supp.

2002); 38 C.F.R. §§ 3.102, 4.3 (2002). In Gilbert v.

Derwinski, 1 Vet. App. 49, 53 (1990), the United States Court

of Appeals for Veterans Claims (Court) stated that "a

(claimant) need only demonstrate that there is an

'approximate balance of positive and negative evidence' in

order to prevail." To deny a claim on its merits, the

preponderance of the evidence must be against the claim.

Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert

v. Derwinski, 1 Vet. App. At 54.

Factual Background and Analysis: Entitlement to service

connection GERD and IBS, claimed as secondary to service-

connected PTSD.

Service connection involves many factors, but basically means

that the facts, shown by the evidence, establish that a

particular injury or disease resulting in disability was

incurred coincident with service, or if pre-existing such

service, was aggravated therein. This may be accomplished by

affirmatively showing inception or aggravation during service

or through the application of statutory presumptions.

38 C.F.R. § 3.303(a) (2002).

Clear and unmistakable evidence (obvious and manifest) is

required to rebut the presumption of aggravation where the

pre-service disability underwent an increase in severity

during service. This includes medical facts and principles

which may be considered to determine whether the increase is

due to the natural progress of the condition. 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 U.S.C.A. § 1153 (West 1991); 38 C.F.R. § 3.306(B) (2002).

With chronic disability or disease shown as such in service

(or within the presumptive period under 38 C.F.R. § 3.307

(2002)) so as to permit a finding of service connection,

subsequent manifestations of the same chronic disease at any

later date, however remote, are service connected, unless

clearly attributable to intercurrent causes. This rule does

not mean that any manifestation of gastrointestinal symptoms

in service will permit service connection for a chronic

digestive system disorder, first shown as a clear-cut

clinical entity, at some later date. For the showing of

chronic disease in service there is required a combination

of manifestations sufficient to identify the disease entity,

and sufficient observation to establish chronicity at the

time, as distinguished from merely isolated findings or a

diagnosis including the word "chronic." When the disease

identity is established, there is no requirement of

evidentiary showing of continuity. Continuity of

symptomatology is required only where the condition noted

during service (or in the presumptive period) is not, in

fact, shown to be chronic, or where the diagnosis of

chronicity may be legitimately questioned. When the fact of

chronicity in service is not adequately supported, then a

showing of continuity after discharge is required to support

the claim. 38 C.F.R. § 3.303(B) (2002). Service connection

may be granted for any disease diagnosed after discharge

from active duty when all the evidence, including that

pertinent to service, establishes that the disease was

incurred in service. 38 C.F.R. § 3.303(d) (2002). Service

connection may also be granted for disability which is

proximately due to or the result of a service-connected

disease or injury. 38 C.F.R. § 3.310(a) (2002).

The veteran's service medical records show normal

gastrointestinal findings on entrance examination in May

1967 and on separation examination in November 1968. His

records show no treatment or diagnosis for a chronic

gastrointestinal disorder during his period of active duty.

VA examination in March 2002 shows that the veteran's

medical history was reviewed and following examination he

was diagnosed with gastroesophageal reflux disease and

irritable bowel syndrome. The examining physician expressed

the following medical opinion:

"The veteran's (claims)-file was reviewed in its

entirety. Questions being asked today. 'Are the

veteran's acid reflux and irritable bowel

syndrome secondary to the veteran's service

connected PTSD?' It seems more likely than not

when this veteran's PTSD symptomatology worsens,

then his reflux will worsen along with his

irritable bowel syndrome. He still gets daily

constipation and diarrhea, which is on a constant

basis and constantly revolving. When his mental

symptoms worsen then his bowels will act up.

These (symptoms) are most likely secondary to his

PTSD."

The medical evidence clearly shows that the onset of the

veteran's chronic IBS or GERD did not begin prior to or

during his period of active service which ended over three

decades ago. IBS and GERD are not diseases which are

recognized in the regulation 38 C.F.R. § 3.309 as being

entitled to presumptive service connection if manifested to a

compensable degree within one year after separation from

active duty. Therefore, an award of service connection for a

chronic gastrointestinal disability on a direct basis or on

the basis of aggravation of pre-existing condition cannot be

granted.

The evidence also does not establish that service connection

for the veteran's IBS and GERD may be granted on a secondary

basis as the March 2002 nexus opinion provided by the VA

examiner specifically states that it is the veteran's PTSD

causes his gastrointestinal symptoms to worsen, but not that

the psychiatric disability is the actual cause of the IBS and

GERD. However, in the case of Allen v. Brown, 7 Vet. App.

439 (1995), the United States Court of Appeals for Veterans

Claims (hereinafter referred to as the Court) presented an

opinion in which it extrapolated that the term

"disability," as used in 38 U.S.C.A. § 1110, refers to

impairment of earning capacity and that such definition

mandates that any additional impairment of earning capacity

resulting from a disability which is already service-

connected, regardless of whether or not the additional

impairment is itself a separate disease or injury caused by

the service-connected disability, shall be service-connected.

Thus, pursuant to 38 U.S.C.A. § 1110 and 38 C.F.R. §

3.310(a), when aggravation of a nonservice-connected

disability is proximately due to or the result of a service-

connected disability, an award of compensation may be allowed

for the degree of disability, but only that degree over and

above the degree of disability existing prior to the

aggravation. The circumstances of the present case meet the

conditions contemplated by the Court in the Allen case.

The medical evidence governing the outcome of this case is

clear. The question of whether the episodes of PTSD cause an

increase in the severity of the veteran's gastrointestinal

disorders is a medical question that must be resolved by

weighing the competent medical evidence. It is not a

question for either the RO or the Board to resolve based on

independent analysis of the record. For a dozen years, the

law has been clear as to the significance of competent

medical evidence in matters requiring medical judgment.

Colvin v. Derwinski, 1 Vet. App. 171 (1991). In this case a

competent physician reviewed the record and conlcuded that

the symptoms of PTSD caused an increase in the severity of

the gastrointestinal disorders. Therefore, service

connection must granted for IBS and GERD.

ORDER

Service connection for gastroesophageal reflux disease is

granted.

Service connection for irritable bowel syndrome is granted.

G. H. SHUFELT

Veterans Law Judge

IMPORTANT NOTICE: We have attached a VA Form 4597 that tells

you what steps you can take if you disagree with our

decision. We are in the process of updating the form to

reflect changes in the law effective on December 27, 2001.

See the Veterans Education and Benefits Expansion Act of

2001, Pub. L. No. 107-103, 115 Stat. 976 (2001). In the

meanwhile, please note these important corrections to the

advice in the form:

? These changes apply to the section entitled "Appeal to

the United States Court of Appeals for Veterans

Claims." (1) A "Notice of Disagreement filed on or

after November 18, 1988" is no longer required to

appeal to the Court. (2) You are no longer required to

file a copy of your Notice of Appeal with VA's General

Counsel.

? In the section entitled "Representation before VA,"

filing a "Notice of Disagreement with respect to the

claim on or after November 18, 1988" is no longer a

condition for an attorney-at-law or a VA accredited

agent to charge you a fee for representing you.

Thank you so much.....I`m using this.

Cavman

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