Citation Nr: 1127309 Decision Date: 07/21/11 Archive Date: 07/29/11 DOCKET NO. 06-26 249 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Albuquerque, New Mexico THE ISSUES 1. Entitlement to service connection for a gastroesophageal reflux disorder (GERD). 2. Entitlement to service connection for migraine headaches. 3. Entitlement to service connection for a left shoulder disorder. ATTORNEY FOR THE BOARD Douglas E. Massey, Counsel INTRODUCTION The Veteran had active service from February 1986 to March 1989 and from February 2003 to September 2004. He also had additional service with the Army National Guard. These matters are before the Board of Veterans' Appeals (BVA or Board) on appeal from rating decisions dated in August 2005 and December 2005 by the Albuquerque, New Mexico, Department of Veterans Affairs (VA) Regional Office (RO). In those decisions, the RO, inter alia, denied service connection for a gastroesophageal reflux disorder, headaches, and a left shoulder disorder. In September 2009 the Board remanded the claims and requested that the Veteran be afforded a VA examination to determine whether the disabilities on appeal are related to service. That examination was conducted in February 2010, and the case was readjudicated by the RO in an April 2011 Supplemental Statement of the Case. Unfortunately, the Board finds that another medical opinion is needed concerning the etiology of the Veteran's left shoulder disorder. This issue is therefore addressed in the REMAND portion of the decision below. FINDINGS OF FACT 1. A gastroesophageal reflux disorder is causally or etiologically related to service. 2. A migraine headache disorder is causally or etiologically related to service. CONCLUSIONS OF LAW 1. A gastroesophageal reflux disorder was incurred during active service. 38 U.S.C.A. §§ 1110, 1131, 1154, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2010). 2. A migraine headache disorder was incurred during active service. 38 U.S.C.A. §§ 1110, 1131, 1154, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Before addressing the underlying merits of a claim, the Board is required to ensure that VA's duties to notify and assist have been satisfied. See 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2010). This is unnecessary here, however, because the Board is fully granting the claims for service connection for a gastroesophageal reflux disorder and migraine headaches. So even if these preliminary obligations have not been met, this would amount to no more than harmless error. 38 C.F.R. § 20.1102. See also Shinseki v. Sanders, 129 S. Ct. 1696 (2009). I. Legal Criteria Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service in the line of duty. See 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Stated somewhat differently, service connection generally requires: (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a relevant disease or an injury; and (3) medical evidence of a nexus or link between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004), citing Hansen v. Principi, 16 Vet. App. 110, 111 (2002). A disorder may be service connected if the evidence of record reveals the Veteran currently has a disorder that was chronic in service or, if not chronic, that was seen in service with continuity of symptomatology demonstrated subsequent to service. 38 C.F.R. § 3.303(b); Savage v. Gober, 10 Vet. App. 488, 494-97 (1997). Establishing continuity of symptomatology under 38 C.F.R. § 3.303(b) is an alternative method of satisfying the second and third Shedden requirements to show chronicity (permanency) of disease or injury in service and in turn link current disability to service. See also Clyburn v. West, 12 Vet. App. 296, 302 (1999). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303(d). Where the determinative issue involves causation or diagnosis, there generally must be competent medical evidence supporting the claim; unsubstantiated lay assertions usually are insufficient. Grottveit v. Brown, 5 Vet. App. 91, 93 (1993); Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). A layperson is generally incapable of opining on matters requiring medical knowledge. Routen v. Brown, 10 Vet. App. 183, 186 (1997). See also Bostain v. West, 11 Vet. App. 124, 127 (1998). That is to say, evidence relating a current disorder to service generally must be medical unless it concerns a disorder that may be competently demonstrated by lay observation. Savage, 10 Vet. App. at 494-97. Lay testimony is competent, however, to establish the presence of observable symptomatology and "may provide sufficient support for a claim of service connection." Layno v. Brown, 6 Vet. App. 465, 469 (1994). When, for example, a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). In such cases, the Board is within its province to weigh that testimony and to make a credibility determination as to whether that evidence supports a finding of service incurrence and continuity of symptomatology sufficient to establish service connection. See Barr v. Nicholson, 21 Vet. App. 303 (2007). But even if competent and credible, the Board must weight such lay statements in light of the other evidence of record. See Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (holding that the Board retains the discretion to make credibility determinations and otherwise weigh the evidence submitted, including lay evidence). II. Gastroesophageal Reflux Disorder The Veteran filed his application for service connection for a gastroesophageal reflux disorder ("reflux") in November 2004, approximately three months after his separation from active duty in September 2004. The Veteran alleged that he suffered from reflux that began while on active duty, in April 2003. For the following reasons, the Board finds that the evidence supports his claim. The Veteran's service treatment records (STRs) make no reference to reflux or any other symptoms associated with GERD. Nevertheless, the Veteran explained to a VA examiner in March 2005 that he began experiencing reflux in May 2003, which he treated with over-the-counter medications, including Pepcid AC and Tums, and therefore never sought treatment while in service. The examiner diagnosed the Veteran with GERD, but offered no opinion as to the etiology or date of onset. The Board therefore remanded the case and requested that the Veteran be afforded another VA examination to determine whether his GERD had its onset in service. That examination was conducted in February 2010 and included a review of the claims file. The examiner recorded the Veteran's history of reflux since 2003 and diagnosed GERD following a physical examination. The examiner then stated, "diagnosis of GERD represents a chronic disorder and this is related to gastrointestinal symptomatology [the Veteran] experienced while in the military." The examiner also noted the following rationale: "Based on C-file review, NMVAHCS clinical notes review, and veteran's declarative medical history and Intel Occupational Health Center memo 2/1/10 by Occupational Health Nurse." It thus appears that the primary rationale for the examiner's favorable opinion is his acceptance of the Veteran's history of having experience reflux since service. In other words, the examiner believed the Veteran to be a credible historian concerning his reflux. In light of these findings, the Board finds that service connection for GERD is warranted. Although the STRs make no reference to reflux, the Board finds the Veteran's statements concerning his history of reflux since 2003 to be credible, as did the VA examiner, which the Veteran first reported only three months after his separation from active duty. This is significant because the Veteran is competent to report symptoms involving reflux, since this capable of lay observation. Compare Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (unlike varicose veins or a dislocated shoulder, rheumatic fever is not a condition capable of lay diagnosis) with Jandreau, 492 F.3d at 1376 (lay witness capable of diagnosing dislocated shoulder); Barr, 21 Vet. App. at 308-309 (lay testimony is competent to establish the presence of varicose veins); Falzone v. Brown, 8 Vet. App. 398, 405 (1995) (lay person competent to testify to pain and visible flatness of his feet). The VA examiner also accepted the Veteran's history and determined that his GERD had its onset in service. Although the examiner did not offer a thorough rationale for his opinion - with no explanation as to the absence of documented symptoms in the STRs - there is no other evidence which clearly contradicts the conclusion that his GERD had its onset in service. See Wray v. Brown, 7 Vet. App. 488, 493 (1995) (holding that the adoption of an expert medical opinion may satisfy the Board's statutory requirement of an adequate statement of reasons and bases if the expert fairly considered the material evidence seemingly supporting the Veteran's position.) Service connection for GERD is therefore granted. III. Migraine Headache Disorder In his November 2004 application for VA benefits, the Veteran also reported that he began experiencing headaches while on active duty, in April 2003. Since the Veteran's statements are both competent and credible, which have been accepted by the above VA examiner, the Board will also grant this claim. None of the STRs mentions headaches. But the fact that the Veteran first reported headaches in November 2004, just a few months after his separation from active duty, tends to support his claim that they initially began in service. The Veteran also began receiving VA treatment for his migraines headaches in January 2005, which is still only four months after his separation from active duty. But the most compelling evidence in support of the claim is the February 2010 VA examination report in which the examiner opined that the Veteran's "migraine headaches represents a chronic disorder and this condition is related to the headaches symptomatology he experienced in the service." The examiner indicated that he based his opinion primarily on the Veteran's "declarative statements." Since the Veteran is indeed competent to report experiencing headaches since service, with no indication that his statements concerning this disability lack credibility, especially since he first reported headaches only a few months after service, the Board finds that his statements support his claim. Jandreau, Barr, Falzone, all supra. His claim is further supported by the favorable February 2010 VA medical opinion which has not been contradicted by any medical evidence. See Wray, 7 Vet. App. 493. Accordingly, service connection for migraine headaches is granted. ORDER Service connection for a gastroesophageal reflux disorder is granted. Service connection for migraine headaches is granted. REMAND The Board finds that additional evidentiary development is needed before it can adjudicate the claim for service connection for a left shoulder disorder. The Board regrets the delay caused by this remand, but another medical opinion is needed to properly adjudicate this claim. An MRI of the left shoulder performed in July 2005 revealed a tear of the supraspinatous tendon, less than one year after his separation from active duty in September 2004. Therefore, the central issue to be determined is whether this disability is related to service. See Watson v. Brown, 4 Vet. App. 309, 314 (1993) ("A determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or disease incurred in service."). There appears to be inconsistencies in the record which undermine the Veteran's credibility and limit the probative value of a favorable medical opinion. With respect to the Veteran's lack of credibility, he alleges that he injured his left shoulder while on active duty, but his STRs make no reference to any kind of shoulder injury. What is particularly troubling, however, is that he specifically denied any history of a shoulder injury during VA treatment in January 2005 and, instead, stated that his left shoulder "just started hurting on me." In other words, in pursuing his claim the Veteran reported injuring his left shoulder in service, but during post-service treatment he presented a very different story in which he denied any kind of injury to his left shoulder and explained that the pain just suddenly appeared. These inconsistencies seriously call into question the Veteran's credibility concerning the etiology of his left shoulder disorder. See Macarubbo v. Gober, 10 Vet. App. 388 (1997) (holding that the credibility of lay evidence can be affected and even impeached by inconsistent statements, internal inconsistency of statements, inconsistency with other evidence of record, facial implausibility, bad character, interest, bias, self-interest, malingering, desire for monetary gain, and witness demeanor). The VA examiner in February 2010 apparently accepted the Veteran's questionable statements when he concluded that the Veteran's "left shoulder disorder represents a chronic disorder that is related to symptomatology the veteran reports he experienced during the service." The VA examiner did not comment on the Veteran's denial of a left shoulder injury during treatment in January 2005, and also failed to mention the relevance, if any, that the Veteran had been working at a job which required heavy lifting after he left service. Since the VA examiner did not consider these facts, his nexus opinion is of limited probative value. See Nieves-Rodriguez v. Peake, 22 Vet App 295, 304 (2008) (the commenting medical expert must be informed of sufficient facts upon which to base an opinion relevant to the problem at hand); Kowalski v. Nicholson, 19 Vet. App. 171 (2005) (indicating the Board may rely on a private medical opinion that is based on an accurate medical history offered by the Veteran). The examiner should therefore be asked to review the claims file and offer additional comment. Therefore, in order to give the Veteran every consideration with respect to the present appeal, it is the Board's opinion that further development of the case is necessary. This case is being returned to the RO via the Appeals Management Center (AMC) in Washington, D.C., and the Veteran will be notified when further action on his part is required. Accordingly, this case is REMANDED for the following action: The RO/AMC should refer the claims file to the VA examiner that evaluated the Veteran in February 2010 for an addendum to that examination report. If, for whatever reason, this VA examiner is unavailable to provide this further comment, then have someone else who is equally qualified make the necessary determinations. In the event of this latter situation, the Veteran may need to be reexamined. The examiner is again requested to provide an opinion as to the likelihood (very likely, as likely as not, or unlikely) that the Veteran's left shoulder disorder is related to his active service. In doing so the examiner is asked to consider (i) the Veteran's service treatment records, (ii) the fact that the Veteran first reported left shoulder pain shortly after his military service had ended, (iii) the January 2005 VA outpatient treatment record which notes that the Veteran had specifically denied sustaining any kind of injury to his left shoulder, and (iv) that immediately after service he began a job that required heavy lifting. In other words, the examiner should indicate whether the Veteran's left shoulder disorder is related to an in-service injury as opposed to heaving lifting at his job following service. If the examiner determines that he cannot provide this requested medical nexus opinion without resorting to speculation, he must discuss why this is not possible or feasible. In particular, he must specify whether an opinion cannot be rendered because the limits of medical knowledge have been exhausted or whether additional testing, information, or other procurable data could be obtained that would lead to a conclusive or more definitive opinion. The term "as likely as not" does not mean merely within the realm of medical possibility, rather that the weight of medical evidence both for and against a conclusion such as causation is so evenly divided that it is as medically sound to find in favor of that conclusion as it is to find against it. The examiner must discuss the rationale of any opinion offered, whether favorable or unfavorable, based on the findings on examination and information obtained from review of the record. When the development requested has been completed, the case should again be reviewed by the RO on the basis of the additional evidence. If the benefit sought is not granted, the Veteran and his representative should be furnished a Supplemental Statement of the Case, and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. The purpose of this REMAND is to obtain additional development, and the Board does not intimate any opinion as to the merits of the case, either favorable or unfavorable, at this time. The Veteran is free to submit any additional evidence and/or argument he desires to have considered in connection with his current appeal. Kutscherousky v. West, 12 Vet. App. 369 (1999). No action is required of the Veteran until he is notified. ______________________________________________ RAYMOND F. FERNER Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs