Citation Nr: 1327740 Decision Date: 08/29/13 Archive Date: 09/05/13 DOCKET NO. 10-21 408 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Entitlement to service connection for gastroesophageal reflux disease (GERD), to include as secondary to service-connected bilateral knee disability. 2. Entitlement to service connection for hypertension, to include as secondary to service-connected bilateral knee disability. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD J. W. Loeb INTRODUCTION The Veteran served on active duty from November 1981 to February 1985. This case originally came before the Board of Veterans' Appeals (Board) on appeal of an October 2008 rating decision of the Department of Veterans Affairs (VA) regional office in Cleveland, Ohio (RO). In November 2012, the Board granted entitlement to service connection for insomnia; denied entitlement to service connection for disability of each ankle; denied entitlement to evaluations in excess of 10 percent for left patellar hypermobility, right patellar hypermobility, left chondromalacia osteochondritis desiccans with arthritis, right chondromalacia osteochondritis desiccans with arthritis; and remanded the issues of entitlement to service connection for depression with alcohol depression and substance abuse, to include as secondary to service-connected bilateral knee disability, entitlement to service connection for tinnitus, to include as secondary to service-connected bilateral knee disability, entitlement to service connection for GERD, to include as secondary to service-connected bilateral knee disability, and entitlement to service connection for hypertension, to include as secondary to service-connected bilateral knee disability back to the RO for nexus opinions on whether the disabilities at issue are causally related to service or to service-connected disability. Appropriate VA evaluations, with nexus opinions, were obtained in December 2012. Consequently, there has been substantial compliance with the November 2012 remand instructions. Stegall v. West, 11 Vet. App. 268 (1998) (Holding that a remand by the Court or the Board confers on the Veteran or other claimant, as a matter of law, the right to compliance with the remand orders). A March 2013 rating decision granted entitlement to service connection for a depressive disorder, with a 30 percent rating assigned effective September 13, 2007, and for tinnitus, with a 10 percent rating assigned effective September 13, 2007. Consequently, the remanded issues of entitlement to service connection for depression, with alcohol depression and substance abuse, and entitlement to service connection for tinnitus, have been granted in full and are no longer part of the current appeal. FINDINGS OF FACT 1. The Veteran does not have GERD that is either related to his military service or caused or aggravated by a service-connected disability. 2. The Veteran does not have hypertension that is either related to his military service or caused or aggravated by a service-connected disability. CONCLUSIONS OF LAW 1. The criteria for service connection for GERD are not met. 38 U.S.C.A. §§ 1131, 5103A, 5107 (West 2002); 38 C.F.R. § 3.303, 3.310 (2012). 2. The criteria for service connection for hypertension are not met. 38 U.S.C.A. §§ 1101, 1112, 1113, 1131, 5103A, 5107 (West 2002); 38 C.F.R. § 3.303, 3.307, 3.309, 3.310 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duty to Assist and Notify The Board has considered the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 and Supp. 2012). The regulations implementing VCAA have been enacted. See 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). VA has a duty to notify the claimant of any information and evidence needed to substantiate and complete a claim. 38 U.S.C.A. §§ 5102, 5103. See also Quartuccio v. Principi, 16 Vet. App. 183 (2002). After having carefully reviewed the record on appeal, the Board has concluded that the notice requirements of VCAA have been satisfied. The notice and assistance provisions of VCAA should be provided to a claimant prior to any adjudication of the claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). In this case, the RO sent the Veteran a letter in October 2007, prior to adjudication, which informed him of the requirements needed to establish entitlement to service connection. In compliance with the duty to notify, the Veteran was informed in the October 2007 letter about disability ratings and effective dates. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). In accordance with the requirements of VCAA, the letter informed the Veteran what evidence and information he was responsible for and the evidence that was considered VA's responsibility. No additional relevant private evidence was subsequently added to the case after the letter. VA has a duty to assist the claimant in obtaining evidence necessary to substantiate a claim. VCAA also requires VA to provide a medical examination when such an examination is necessary to make a decision on the claim. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159. Relevant VA evaluations, with nexus opinions, are of record, with the most recent opinions dated in December 2012. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds that the VA opinions obtained in this case are adequate, as they involve review of the claims files, relevant examination of the Veteran, and an opinion on whether the Veteran has GERD and hypertension due to service or to service-connected disability. Accordingly, the Board finds that VA's duty to assist in obtaining a VA examination or opinion with respect to the service connection issues on appeal has been met. 38 C.F.R. § 3.159(c)(4). The Board concludes that all available evidence has been obtained and that there is sufficient medical evidence on file on which to make a decision on the issues decided herein. The Veteran has been given ample opportunity to present evidence and argument in support of his claims. The Board additionally finds that general due process considerations have been complied with by VA, and the Veteran has had a meaningful opportunity to participate in the development of the claims. Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006); 38 C.F.R. § 3.103 (2007). Analysis of the Claims The Veteran seeks service connection for GERD and for hypertension. He contends that GERD and hypertension are causally related either to service or to medication prescribed for his service-connected bilateral knee disability. The Veteran was initially assigned separate compensable ratings for chondromalacia patella and osteochondritis dissecans, postoperative, by rating decision in August 1985. Service connection may be granted for disability or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may also be granted for disability shown after service, when all of the evidence, including that pertinent to service, shows that it was incurred in service. 38 C.F.R. § 3.303(d); Cosman v. Principi, 3 Vet. App. 303, 305 (1992). Moreover, in the case of hypertension, service connection may be granted if the disorder is manifested to a compensable degree within one year following separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. In order to establish service connection for a disorder, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999); Pond v. West, 12 Vet. App. 341, 346 (1999). . Service connection may be granted for disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a) (2011). Additional disability resulting from the aggravation of a nonservice-connected condition by a service-connected condition is also compensable under 38 C.F.R. § 3.310(a). Allen v. Brown, 7 Vet. App. 439 (1995). In order to prevail on the issue of entitlement to secondary service connection there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical nexus evidence establishing a connection between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). Under Diagnostic Code 7101 for hypertensive vascular diseases (hypertension and isolated systolic hypertension), a 10 percent rating is warranted for diastolic pressure predominantly 100 or more, or: systolic pressure predominantly 160 or more, or; minimum evaluation for an individual with a history of diastolic pressure predominantly 100 or more who requires continuous medication for control. A 20 percent rating is warranted for diastolic pressure predominantly 110 or more, or; systolic pressure predominantly 200 or more. A 40 percent rating is warranted for diastolic pressure predominantly 120 or more. A maximum rating of 60 percent is warranted for diastolic pressure predominantly 130 or more. NOTE (1): Hypertension or isolated systolic hypertension must be confirmed by readings taken two more times on at least three different days. For purposes of this section, the term hypertension means that the diastolic pressure is predominately 90mm or greater, and isolated systolic hypertension means that the systolic blood pressure is predominantly 160mm. or greater with a diastolic blood pressure of less than 90mm. NOTE (2): Evaluate hypertension due to aortic insufficiency or hyperthyroidism, which is usually the isolated systolic type, as part of the condition causing it rather than by a separate evaluation. NOTE (3): Evaluate hypertension separately from hypertensive heart disease and other types of heart disease. 38 C.F.R. § 4.104, Diagnostic Code 7101 (2012). The Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The evaluation of evidence generally involves a 3-step inquiry. First, the Board must determine whether the evidence comes from a "competent" source. The Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303 at 308 (2007) (Observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible). The third step of this inquiry requires the Board to weigh the probative value of the proffered evidence in light of the entirety of the record. Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159. Lay evidence may be competent and sufficient to establish a diagnosis of a condition when: (1) a layperson is competent to identify the medical condition (i.e., when the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer); (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); see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009) (where widow seeking service connection for cause of death of her husband, the Veteran, the Court holding that medical opinion not required to prove nexus between service connected mental disorder and drowning which caused Veteran's death). In ascertaining the competency of lay evidence, the Courts have generally held that a layperson is not capable of opining on matters requiring medical knowledge. Routen v. Brown, 10 Vet. App. 183 (1997). In certain instances, however, lay evidence has been found to be competent with regard to a disease with "unique and readily identifiable features" that is "capable of lay observation." See, e.g., Barr v. Nicholson, 21 Vet. App. 303 (2007) (concerning varicose veins); see also Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007) (a dislocated shoulder); Charles v. Principi, 16 Vet. App. 370 (2002) (tinnitus); Falzone v. Brown, 8 Vet. App. 398 (1995) (flatfeet). Laypersons have also been found to not be competent to provide evidence in more complex medical situations. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (concerning rheumatic fever). Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also include statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). After determining the competency and credibility of evidence, the Board must then weigh its probative value. In this function, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498, 511-512 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (per curiam) (table); see Madden v. Brown, 125 F.3d 1447 (Fed Cir. 1997) (holding that the Board has the "authority to discount the weight and probative value of evidence in light of its inherent characteristics in its relationship to other items of evidence"). GERD The Veteran's service treatment records do not reveal any complaints or findings indicative of GERD on enlistment medical history and physical examination in October 1981. The Veteran noted on his October 1984 discharge medical history report that he did not have any stomach, liver, or intestinal trouble. His abdomen and viscera were normal. A VA disability evaluation was conducted in April 1985. There were no gastrointestinal complaints or abnormal clinical findings. An upper gastrointestinal X-ray series in September 1986 did not show any acute ulcer disease. It was noted in January 2001 that the Veteran had diverticulosis, rectal bleeding secondary to hemorrhoids. The impressions on upper gastrointestinal endoscopies in November 2007 and January 2010 included reflux esophagitis and gastritis. A VA gastrointestinal evaluation was conducted in May 2008. The Veteran said that his reflux disease began in 1999 and that it was confirmed by an esophagogastroduodenoscopy in November 2007. After review of the claims file and examination of the Veteran, the VA examiner concluded that it was less than likely that the Veteran's reflux esophagitis is secondary to the medications he was taking for his service-connected bilateral knee disability because there were no findings indicative of pill-induced ulcerations or esophagitis; the examiner opined that the Veteran's gastrointestinal disability was more likely due to his long history of alcohol use. VA treatment reports dated from December 2009 through August 2010 show continued treatment for gastrointestinal disability. VA evaluations were obtained in December 2012, in response to the November 2012 Board remand. After reviewing the claims files and examining the Veteran, the examiner concluded that the Veteran's GERD was less likely as not incurred in service or was related to service or was caused or aggravated by the medication he took for his service-connected bilateral knee disability. The examiner concluded that there was no evidence of esophageal reflux in service and that there was no anatomic or physiologic basis to connect the Veteran's GERD to his use of medication for his bilateral knee disability. The examiner noted the Veteran's history of alcohol and drug abuse and noted that alcohol is a known irritant to smooth muscle, to include the esophagus, which can lead to erosion and ulceration, and that smoking freebase cocaine can cause thermal damage to the mucosa of the esophagus. The Veteran's service treatment records do not reveal any complaints or abnormal clinical findings of a gastrointestinal disability, including on separation evaluation in October 1984. There were also no complaints or abnormal findings on VA disability evaluation in April 1985. The initial post-service diagnosis of a gastrointestinal disability was not until January 2001. Moreover, the VA opinions on file dated in May 2008 and December 2012, which are based on a review of the record and examination of the Veteran and which each contain a rationale, are against the claim for service connection for GERD on either a direct or a secondary basis. There is no nexus opinion in favor of the claim. The evidence does not relate the Veteran's current GERD to service or as secondary to the medication prescribed for his service-connected bilateral knee disability. Although the Veteran is competent to report his subjective symptoms, such as gastrointestinal pain, he is not competent to report that he has a gastrointestinal disability such as GERD due to service or to service-connected disability. The diagnosis of a specific gastrointestinal disability, as well as the determination of the etiology of the disability, are medical questions and requires medical expertise. A layperson is generally not competent to provide a diagnosis or opine on the etiology of a disability. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Circ. 2007). Because the preponderance of the objective and probative medical evidence of record is against the Veteran's claim for service connection for GERD, the claim must be denied. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). Hypertension The Veteran's service treatment records do not reveal any complaints or findings indicative of hypertension on enlistment medical history and physical examination in October 1981. The Veteran's blood pressure was 120/70. Blood pressure readings on April 21, 1983 were 144/106, 150/98, and 148/96. Subsequent readings in April were 120/80 on April 22nd, 130/90 on April 25th, 120/70 on April 26th, and 116/82 on April 28th. The Veteran's blood pressure on discharge examination in October 1984 was 120/78. A VA disability evaluation was conducted in April 1985. The Veteran's blood pressure was 120/80. Hypertension was not diagnosed. VA treatment reports for July 1986 reveal a blood pressure reading of 118/80. The Veteran's blood pressure was 124/84 in August 1990. Blood pressure readings in March 1997 were 199/101, 165/93, and 172/98. The Veteran's blood pressure was 136/98 in May 2003. A VA evaluation was conducted in May 2008. After review of the claims file and examination of the Veteran, the VA examiner concluded that the Veteran's hypertension was not secondary to his bilateral knee disability because he was not diagnosed with hypertension until 2007. VA treatment reports dated from December 2009 through August 2010 include a blood pressure reading of 159/94 in May 2010. VA evaluations were obtained in December 2012 in response to the November 2012 Board remand. Blood pressure readings on VA evaluation in December 2012 were 178/101, 173/97, and 170/97. After reviewing the claims files and examining the Veteran, the examiner concluded that the Veteran's hypertension was less likely as not incurred in was related to service or was caused or aggravated by his service-connected bilateral knee disability, to include the medication prescribed for this condition. The reasons for this opinion were that the elevated blood pressure readings in service in April 1983 were "extremely skewed" and were not credible, that hypertension was not diagnosed until 2007, and that the medications prescribed for the Veteran's bilateral knee disability were not pharmacologically linked to hypertension. The Board notes that although there were elevated blood pressure readings in service in April 1983, these readings were not consistently elevated; and the Veteran's blood pressure was not elevated on separation medical evaluation. Moreover, hypertension was not diagnosed until 2007, many years after service discharge. The VA opinions on file, which are based on a review of the record and examination of the Veteran and contain a rationale for each opinion, are against the claim for service connection for hypertension on either a direct or a secondary basis. The evidence does not relate the Veteran's current hypertension to service or as secondary to the medication prescribed for his bilateral knee disability. Although the Veteran is competent to report his subjective symptoms, he is not competent to report that he has hypertension due to service or to service-connected disability. The diagnosis of hypertension and the determination of the etiology of the disability are medical questions and requires medical expertise. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Circ. 2007). Because the preponderance of the objective and probative medical evidence of record is against the Veteran's claim for service connection for hypertension, the claim must be denied. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). ORDER Entitlement to service connection for GERD is denied. Entitlement to service connection for hypertension is denied. ____________________________________________ ROBERT C. SCHARNBERGER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs