Citation Nr: 1322356 Decision Date: 07/12/13 Archive Date: 07/18/13 DOCKET NO. 08-33 541 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to service connection for a stomach disability, claimed as secondary to the service-connected low back disability. 2. Entitlement to a rating in excess of 20 percent for a low back disability. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL The Veteran and his spouse ATTORNEY FOR THE BOARD K. Curameng, Counsel INTRODUCTION The appellant is a Veteran who served on active duty from December 1993 to December 1997. These matters are before the Board of Veterans' Appeals (Board) on appeal from an April 2007 rating decision of the Roanoke, Virginia Department of Veterans Affairs (VA) Regional Office (RO). In May 2010, a Travel Board hearing was held before the undersigned. A transcript of the hearing is associated with the claims file. In July 2010, the case was remanded for additional development. In an October 2011 form addressed to a local congressman, the Veteran raised claims of service connection for bursitis and a total disability rating based upon individual unemployability due to service-connected disabilities (TDIU). These matters have not been addressed by the Agency of Original Jurisdiction (AOJ) and the Board does not have jurisdiction in the matters; they are referred to the AOJ for appropriate action. The matter of the rating for a low back disability is being REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action on his part is required. FINDING OF FACT A stomach disability was not manifested in service, and the preponderance of the evidence is against a finding that the Veteran's stomach disability (Barrett's esophagus) is related to his active service or was caused or aggravated by his service-connected low back disability. CONCLUSION OF LAW Service connection for a stomach disability, to include as secondary to a service-connected low back disability, is not warranted. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.304, 3.310 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 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(a). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative of any information, and any medical or lay evidence, not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). VCAA notice requirements apply to all five elements of a service connection claim: 1) veteran status; 2) existence of a disability; 3) a connection between the Veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 484-86 (2006), aff'd, 483 F.3d 1311 (Fed. Cir. 2007). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The Veteran was advised of VA's duties to notify and assist in the development of his claim prior to its adjudication. An August 2006 letter explained the evidence necessary to substantiate his claim, the evidence VA was responsible for providing, the evidence he was responsible for providing, and also informed him of disability rating and effective date criteria. The Veteran has had ample opportunity to respond/supplement the record, and has not alleged that notice in this case was less than adequate. The Veteran's service treatment records (STRs) and pertinent post-service treatment records have been secured. The RO arranged for VA examinations in February 2007 and October 2010. See Barr v. Nicholson, 21 Vet. App. 303 (2007) (VA must provide an examination that is adequate for rating purposes). The Board finds that the record as it stands includes adequate competent evidence to allow the Board to decide these matters, and that no further development of the evidentiary record is necessary. See generally 38 C.F.R. § 3.159(c)(4). The Veteran has not identified any evidence that remains outstanding. VA's duty to assist is met. Accordingly, the Board will address the merits of the claim. Legal Criteria, Factual Background and Analysis The Board notes that it has reviewed all of the evidence in the Veteran's claims file and Virtual VA (VA's electronic data storage system) (no pertinent evidence was found in Virtual VA) with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Hence, the Board will summarize the relevant evidence as appropriate and the Board's analysis will focus specifically on what the evidence shows, or fails to show, as to the claim. Service connection may be granted for disability due to disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Service connection also may be granted for any disease initially diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). To substantiate a claim of service connection, there must be evidence of a current disability; evidence of incurrence or aggravation of a disease or injury in service; and evidence of a nexus between the claimed disability and the disease or injury in service. See Shedden v. Principi, 381 F.3d 1163, 1166-1167 (Fed. Cir. 2004). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and an evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a). Service connection on a secondary basis may be established for a disability that is proximately due to, or the result of, or aggravated by a service-connected disease or injury. Establishing service connection on a secondary basis requires: (1) Competent evidence (a medical diagnosis) of a current disability (for which secondary service connection is sought); (2) evidence of an already service connected disability; and (3) competent evidence that the current disability was either caused or aggravated by the service connected disability. 38 C.F.R. § 3.310(a); see also Allen v. Brown, 7 Vet. App. 439 (1995)(en banc). [Effective October 10, 2006, 38 C.F.R. § 3.310 was revised to implement the Allen decision. The revised 38 C.F.R. § 3.310 institutes additional evidentiary requirements that must be satisfied before aggravation may be conceded and service connection granted. In essence, it provides that in an aggravation secondary service connection scenario, there must be medical evidence establishing a baseline level of severity of disability prior to when aggravation occurred, as well as medical evidence showing the level of increased disability after aggravation occurred.] As the Veteran's claim was pending prior to the effective date of the revised 38 C.F.R. § 3.310, the Board will consider the version in effect prior to October 10, 2006, as it is more favorable to the claimant. See Kuzma v. Principi, 341 F. 3d 1327 (Fed. Cir. 2003); VAOPGCPREC 7-2003. When there is an approximate balance of positive and negative 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(b); 38 C.F.R. § 3.102. When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). The Veteran has expressly asserted a secondary service connection claim, i.e., that his stomach is caused or aggravated by his service-connected low back disability. The Board is required to consider all theories of entitlement either raised by the claimant or by the evidence as part of the non-adversarial adjudication process. See Robinson v. Shinseki, 557 F.3d 1355 (Fed. Cir. 2009). Thus, the Board will also address a direct service connection theory of entitlement. A May 1997 STR shows complaints of vomiting in the morning and the diagnosis was viral syndrome. On September 1997 service separation examination, the Veteran's abdomen was normal on clinical evaluation. In his medical history, he denied frequent indigestion and stomach/intestinal trouble. The Veteran submitted various claims for VA benefits based on other disabilities between 1998 and 2004; his initial claim of service connection for stomach disability was received in July 2006. To support his claim, the Veteran submitted a May 2000 treatment record from Dr. Burton, who notes that when the Veteran was hospitalized for a lumbar laminectomy in December 1999, he developed post-operative nausea and vomiting; and has continued having such symptoms intermittently since that time. On May 2007 VA examination, the Veteran stated that his stomach problems started after his back surgery in 1999 and are also from medication he takes for his back problems. The diagnosis was erosive esophagitis; the examiner indicated that the Veteran does not have GERD or hiatal hernia. He stated that erosive esophagitis is not in any way due to the back disability or due to the medications for the lower back, but is due to other causes. On October 2010 VA examination, the examiner opined that the stomach disability is not related to (was not caused or aggravated by) his service-connected low back disability. The VA examiner stated that Barrett's esophagus and erosive esophagitis are not caused by medications the Veteran has taken for his back. The nausea and vomiting the Veteran experienced at the time of his back surgery was a reaction to morphine which is not the cause of Barrett's esophagus or erosive esophagitis. He stated that these disabilities are not related pathophysiologically to the service-connected lumbar condition. He stated in essence that the etiology of Barrett's esophagus is unknown. It can be due to congenital factors or be associated with chronic GERD; however, a review of medical literature found that GERD does not cause Barrett's esophagus and not everyone with Barrett's esophagus has GERD. The GERD symptoms the Veteran had were unrelated to his service-connected back condition and not likely the direct cause of Barrett's esophagus. He stated that most likely the condition was present earlier, but for an unknown amount of time. He noted that review of the Veteran's STRs does not reveal Barrett's esophagus or GERD. He stated that Barrett's is unrelated to the back disability or the medications to treat it. He noted that the natural course of Barrett's esophagus is unchanged by and unrelated to the Veteran's low back disability and its treatment. A chronic stomach disability was not manifested in service or for many years thereafter and there is no medical evidence that relates the Veteran's stomach disability directly to his service. Consequently, service connection for a stomach disability on a direct basis, i.e., that it was incurred or aggravated in service, is not warranted. The Veteran has not alleged otherwise. The Veteran's theory of entitlement is essentially one of secondary service connection. Two of the requirements to establish secondary service connection are met in that the Veteran has Barrett's esophagus and also has a service connected low back disability. Regarding the third requirement (evidence that the service-connected back disability caused or aggravated the Veteran's stomach disability), the Board finds that the preponderance of the evidence is against the Veteran's claim. Both the May 2007 and the October 2010 VA examiners indicated that the Veteran's esophagus was unrelated to his back disability or its treatment. The Board finds particularly probative and persuasive the opinion of the October 2010 VA examiner, who reviewed the entire record, and provided an opinion that cited to factual data and medical literature. The examiner specifically addressed the Veteran's theory that a May 2000 treatment record noting that he had complaints of nausea and vomiting since his back surgery was evidence of a nexus. The examiner opined that the Veteran's gastrointestinal complaints following his back surgery were due to his use of narcotic medications to relieve pain and that there was no support in medical literature that such medication is an etiological factor for Barrett's esophagus. There is no competent (medical) evidence to the contrary. The Veteran's own lay opinion in this matter is not probative evidence. He is a layperson, and lacks the training to offer an opinion regarding the etiology of a disability as Barrett's esophagus. That is a complex medical question that requires medical expertise. See Jandreau v. Nicholson, 492 F3d. 1372, 1377 (Fed. Cir. 2007). Based on the foregoing, the Board concludes that the preponderance of the evidence is against the Veteran's claim of service connection for a stomach disability on both direct and secondary service connection theories of entitlement. Hence, the benefit of the doubt doctrine does not apply. The appeal in this matter must be denied. ORDER Service connection for a stomach disability, including as secondary to a service-connected low back disability, is denied. REMAND Regarding the rating for the Veteran's low back disability, while the notice provisions of the VCAA appear to be satisfied, a review of the record found that further development is necessary for VA to satisfy its duty to assist the Veteran in the development of his claim. Specifically, the Board finds that the October 2010 VA examination report is inadequate for rating purposes; it is not responsive to the Board's remand instructions. The Board asked the examiner to indicate whether any current low back disability is due to intercurrent postservice injuries, and if so, to disassociate (to the extent possible) symptoms due to the postservice injuries from those due to the service connected disability. The VA examiner (a nurse practitioner) instead provided a [negative] nexus opinion regarding whether the low back which is already service connected is related to service. Further, the records pertaining to the Veteran's Workman's Compensation Claim have not been secured. Such records are critical evidence in this matter. Treatment records in the claims file shows that copies of records of the Veteran's treatment following a February 2010 injury were being sent to Workman's Compensation. Consequently, a Workmans Compensation Claim has been identified. Additionally, various treatment records from Comprehensive Pain Management Centers and from the Carilion Clinic of Roanoke Memorial Hospital show that copies of treatment records were provided to the Veteran's Primary Care Provider, Dr. Timothy Beirne, who apparently was coordinating his care. Treatment records from Dr. Beirne are not associated with the record. They are pertinent evidence that must be secured. [The Veteran is reminded that under 38 C.F.R. § 3.158(a), where evidence requested in conjunction with a claim for increase is not furnished within one year after the date of request, the claim will be considered abandoned.] Accordingly, the case is REMANDED for the following: 1. The Veteran should be asked to provide any further identifying information and releases needed to secure records of treatment pertaining to the Veteran's Workman's Compensation claim as well as those from Dr. Beirne. The RO should secure for the record complete copies of such records. If a private provider or Workman's Compensation does not respond to the RO's request for record. The Veteran should be reminded that ultimately, it is his responsibility to ensure such records are received. 2. The RO should thereafter (if the Veteran complies with the requests for identifying information and releases sought above; if not, the claim should be further processed under 38 C.F.R. § 3.158(a)) arrange for an orthopedic examination of the Veteran to determine the current severity of his service connected low back disability. The Veteran's claims folder (to specifically include the records received pursuant to the request above) must be reviewed by the examiner in conjunction with the examination, and any indicated tests or studies (including range of motion studies with reports of any additional limitations due to factors such as pain, use, etc. should be completed). The examiner should note whether or not there have been incapacitating episodes of disc disease (and it so, their frequency and duration); neurological symptoms other than those previously noted (and service-connected); and whether the spine is ankylosed. The examiner must specifically indicate whether any current low back pathology, symptoms, and/or impairment of function are solely attributable to intercurrent postservice injury. The examiner must explain the rationale for all opinions, citing to supporting factual data. 3. The RO should then review the record and readjudicate the matter of the rating for the low back disability. If the benefit sought remains denied, the RO should issue an appropriate supplemental statement of the case and afford the Veteran and his representative the opportunity to respond. The case should then be returned to the Board, if in order, for further review. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board for additional development or other appropriate action must be handled in an expeditious manner. _________________________________________________ George R. Senyk Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs