Citation Nr: 1339998 Decision Date: 12/04/13 Archive Date: 12/18/13 DOCKET NO. 09-16 115 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUES 1. Entitlement to service connection for a gastrointestinal/stomach disorder, claimed as esophageal reflux and hyperacidity. 2. Entitlement to service connection for a sleep disorder. 3. Entitlement to service connection for a right ankle disability. 4. Entitlement to service connection for a left elbow disability. 5. Entitlement to service connection for an acquired psychiatric disorder. REPRESENTATION Appellant represented by: Puerto Rico Public Advocate for Veterans Affairs ATTORNEY FOR THE BOARD Dan Brook, Counsel INTRODUCTION The Veteran had active service from June 1967 to April 1971. This appeal comes to the Board of Veterans' Appeals (Board) from a November 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, Puerto Rico, which denied the Veteran's request to reopen his claims for service connection for the residuals of a right ankle sprain, a stomach disorder, an acquired psychiatric disorder, and a residual appendectomy scar, and denied his claims for service connection for the residuals of a left elbow injury and a sleep disorder. In an October 2010 decision, the Board reopened the claims of service connection for the residuals of a right ankle sprain, a stomach disorder, and a residual scar due to an appendectomy, but remanded for further development those issues on the merits, as well as service connection for an acquired psychiatric disorder, the residuals of a left elbow injury, and a sleep disorder. Thereafter, a November 2011 rating decision granted service connection for the appendectomy issue. Consequently, this issue is no longer on appeal. In March 2012, the Board remanded the remaining issues on appeal for further development. In August 2013, the Board sought an expert medical opinion from the Veteran's Health Administration (VHA) concerning the claim for psychiatric disability. That opinion was received in October 2013. FINDINGS OF FACT 1. Chronic gastrointestinal, sleep, right ankle and left elbow disorders were not shown in service or for many years thereafter and current gastrointestinal, sleep, right ankle and left elbow disorders are not shown to be related to service. 2. The Veteran's current, acquired psychiatric disorder is reasonably shown to be related to service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for gastrointestinal disorder are not met. 38 U.S.C.A. §§ 1110, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.303 (2013). 2. The criteria for entitlement to service connection for sleep disorder are not met. 38 U.S.C.A. §§ 1110, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.303 (2013). 3. The criteria for entitlement to service connection for right ankle disability are not met. 38 U.S.C.A. §§ 1110, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2013). 4. The criteria for entitlement to service connection for a left elbow disability are not met. 38 U.S.C.A. §§ 1110, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2013). 5. The criteria for entitlement to service connection for an acquired psychiatric disability have been met. 38 U.S.C.A. §§ 1110, 1111, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.303, 3.304 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the Veteran and his representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper VCAA notice must inform the Veteran of any information and 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. See 38 C.F.R. § 3.159(b)(1). A September 2007 letter explained the evidence necessary to substantiate the claims and VA and the Veteran's responsibilities. The letter also informed the Veteran of his and VA's respective duties for obtaining evidence. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). In addition, the letter explained how a disability rating is determined and the basis for determining an effective date upon the grant of any benefit sought, in compliance with Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). This letter was provided to the Veteran prior to the initial adjudication of his claims, pursuant to Pelegrini v. Principi, 18 Vet. App. 112 (2004). With regard to the duty to assist, the claims file contains the service treatment records, VA treatment records, private treatment records, the reports of VA examinations and the assertions of the Veteran and his representative. The Board's previous remands were appropriately complied with through obtaining available service treatment records and VA treatment records, asking the Veteran to identify or submit any private treatment records pertaining to his claims, providing him with VA examinations in relation to all of the claims and also obtaining addendum opinions pertaining to the claims for right ankle, left elbow and psychiatric disability. The Board notes that the initial October 2010 remand did instruct the RO/Appeals Management Center (AMC) to obtain the service treatment records (STRs) from the National Personnel Records Center (NPRC) and to also request any relevant STRs from the USS Escape and from the US Naval Station in Mayport, Florida. The RO/AMC did obtain the STRs from the NPRC but it does not appear a separate request was made to the other two sources. However, a review of the records shows that documentation of treatment the Veteran received aboard the USS Escape and USS Mayport is already of record and does not suggest that there are any further records available. Accordingly, as the evidence indicates that the service treatment records are already complete, the RO/AMC did not have a duty to make these further requests. See e.g. Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991). The Board has found nothing to suggest that there is any outstanding available evidence with respect to the Veteran's claims. No further action is required to comply with the duty to notify and assist the Veteran in developing the facts pertinent to his claims. II. Analysis Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). 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 diagnosis including the word "chronic." Continuity of symptomatology is required where the condition noted during service is not, in fact, shown to be chronic or when the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported then a showing of continuity of symptomatology after discharge from service is required to support the claim. 38 C.F.R. § 3.303(b). But to establish entitlement to service connection based on continuity of symptomatology, the claimant must have one of the "chronic" diseases specifically enumerated in 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may also be granted for any disease 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). Establishing 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 disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Every Veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities or disorders noted at the time of examination, acceptance, and enrollment. 38 U.S.C.A. § 1111; 38 C.F.R. § 3.304(b). Therefore, where there is evidence showing that a disorder manifested or was incurred in service, and this disorder is not noted on the Veteran's entrance examination report, this presumption of soundness operates to shield the Veteran from any finding that the unnoted disease or injury preexisted service. See Gilbert v. Shinseki, 26 Vet. App. 48 (2012); Bagby v. Derwinski, 1 Vet. App. 225, 227 (1991). The presumption of soundness can be rebutted where the evidence clearly and unmistakably shows that the Veteran's disability existed before acceptance and enrollment into service and was not aggravated by service. Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). Evidence is clear and unmistakable where it "cannot be misinterpreted and misunderstood, i.e., it is undebatable.'" Quirin v. Shinseki, 22 Vet. App. 390, 396 (2009) (citing Vanerson v. West, 12 Vet. App. 254, 258-59 (1999)). The general standard of proof to be applied in decisions on claims for veterans' benefits is set forth in 38 U.S.C.A. § 5107 (West 2002). A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. See 38 C.F.R. § 3.102. When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). Gastrointestinal and sleep disabilities The evidence shows that the Veteran does have current gastrointestinal and sleep disabilities as he has been affirmatively diagnosed during the appeal period with diffuse erosive gastritis, GERD and sleep apnea. Additionally, the Veteran's service treatment records show that he did experience some gastrointestinal problems, along with at least one instance of sleep difficulty. In September 1969, he was hospitalized for acute appendicitis and an appendectomy was performed. His postoperative course was uneventful. In September 1970, the Veteran reported to medical personnel that he could not sleep at night and that he was experiencing nightmares. He also complained of an upset stomach. He was having problems at home and felt that he was under pressure. The diagnostic assessment was situational anxiety. At his March 1971 separation examination, no abdomen and viscera, lungs and chest abnormalities or sleep problems were noted. Consequently, given that the appendicitis was shown to have fully resolved after the appendectomy and given that the Veteran was not shown to have continuing sleep or stomach difficulty at the time of separation, chronic gastrointestinal and sleep disabilities were not shown in service. Post-service, the earliest medical evidence of record of stomach distress is from 1999. Subsequently, as early as 2007, with the Veteran shown to have been prescribed omeprazole, a medication used to treat gastroesophageal reflux disease (GERD). He underwent an endoscopy in September 2010 showing normal upper esophageal portion, normal esophageal mucosa, normal duodenal mucosa and diffuse non erosive gastritis over the antrum and body. In June 2011 a VA examiner, after examining the Veteran and reviewing the claims file, found that the Veteran's current stomach condition was not related to gastrointestinal problems during service. The examiner noted that basically, the Veteran's stomach condition in service was diagnosed as acute appendicitis, which resolved after he received the appendectomy. Also, the other reported stomach problems for which he was seen in consultation in 1970 were finally diagnosed as situational anxiety and no diagnosis of any stomach condition was found or diagnosed. Thus, there was no evidence that the Veteran had any stomach disorder other than acute appendicitis during service and there was no evidence to relate the Veteran's actual current gastrointestinal condition to his complaints in military service. There was evidence that the Veteran had been drinking excessively over the years, a factor that could have caused gastrointestinal disturbance. However, the examiner found that any such disturbance was not related to his military service. There is no medical opinion of record to the contrary (i.e. an opinion tending to indicate that the Veteran's current gastrointestinal disability is related to service). The Veteran has reported that he has continued to experience stomach problems since 1969 or 1970 (while still in military service). He is competent to make this report. However, the VA examiner considered this reported history when formulating his opinion concerning the etiology of the current gastrointestinal disability. Additionally, as a layperson without any demonstrated specialized knowledge concerning the etiology of gastrointestinal disorders, the Veteran is not shown to have any specific expertise in determining the etiology of diffuse non erosive gastritis or GERD. See Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). Consequently, the weight of the evidence is against a finding that the Veteran's current gastrointestinal disability is related to his gastrointestinal problems in service despite his general report of continuity of stomach symptomatology since service. The Board also notes that the Veteran has not alleged that any current gastrointestinal disability is secondary to his psychiatric disability (for which the Board is now granting service connection), nor has such a claim been raised by the record. Regarding manifestation of a discrete sleep disorder post-service, the Veteran reported during the June 2011 VA examination that his sleep apnea condition was first noticed in 2001 when his wife informed him that he was snoring too loud throughout the night and he would wake up in the morning still feeling tired. He noted that he had been receiving treatment for sleep apnea since 2002. After examining the Veteran and reviewing the claims file, the VA examiner indicated that the Veteran did not report a diagnosis of sleep apnea until 2001, 30 years after military service and that the only complaints of insomnia recorded during service were found to be related to situational anxiety, not to a respiratory condition. Thus, there was no objective link or connection between sleep apnea and complaints of sleep problems during service. The sleep apnea had a definite medical etiology and was completely unrelated to the insomnia during service caused by anxiety. Thus, it was the examiner's opinion that the Veteran's sleep apnea was not related in any manner to the complaints of insomnia reported during military service. There is no medical opinion of record to the contrary (i.e. an opinion tending to indicate that the current sleep apnea is related to the Veteran's military service, including the insomnia experienced therein). Although the Veteran may believe that such a relationship is present, as a layperson, without any demonstrated specialized knowledge concerning the etiology of sleep apnea, his opinion may be afforded only minimal probative value. See Jandreau, 492 F. 3d 1372 (Fed. Cir. 2007). Additionally, although the Veteran has been shown to have experienced some more current insomnia, this has again been shown to be a symptom of his underlying psychiatric disability (which as explained below is now subject to service connection). In sum as a chronic gastrointestinal or sleep disability is not shown to have become manifest in service or for many years thereafter, and as the Veteran's current gastrointestinal and sleep disabilities are not shown to be related to service, the preponderance of the evidence is against these claims and they must be denied. Alemany, 9 Vet. App. 518 (1996). Right ankle and left elbow disabilities The Veteran's service treatment records show that he did experience ankle and elbow symptomatology during service. He sprained his right ankle in September 1969. He was diagnosed with a tear of the lateral ligament of the ankle and it was noted that he did have decreased range of motion of the ankle. An October 1969 X-ray ankle showed normal findings. The diagnostic impression was sprain and the ankle was wrapped in an ace bandage. In November 1969, the Veteran reported that he still had to wrap his ankle with an ace wrap and that he was still experiencing pain and stiffness. At an orthopedic consultation, it was noted that the Veteran would still have difficulty with the ankle for several months. The ankle was not fractured, however. The diagnostic impression was incomplete soft tissue healing. In May 1970, it was also noted that the Veteran had sprained his right ankle two times since being in the Navy and was still experiencing pain in the morning and during the day. Physical examination showed tenderness at the left humeral epicondyle and tenderness of the right ankle below the lateral malleolus. An X-ray of the right ankle was negative. The diagnostic impression was old right ankle sprain. Also, in May 1970, it was noted that the Veteran experienced pain in the left biceps area when throwing a softball. The diagnostic impression was strain of the left brachiocordalis insertion-tennis elbow. At his March 1971 separation examination, no ankle or elbow symptomatology was noted. Also, during an August 1971 VA examination, just four months after service, examination of the right ankle was negative with a diagnosis of history of right ankle sprain with no residuals. Accordingly, neither a chronic right ankle nor left elbow disability was established during service and arthritis (i.e. degenerative joint disease) was not shown during the first post-service year. Regarding the ankle, during an April 2011 VA orthopedic examination, the Veteran reported that he had current, intermittent right ankle pain. He had not received injections or therapy for it but did take pain medications. He reported current instability during hobby activities and going down stairs. As a result of this, he had suffered a fall while at work which resulted in a knee laceration that needed 30 stitches. Examination of the right ankle showed a small bony prominence 3 cm distal and 2.5 cm anterior to the distal fibula with a diameter of 1cm that was not painful. There was increased wear on the outside edge of the heel of the right shoe. A small calcification was also noted. There was no objective evidence of pain with active motion. A right ankle X-ray produced diagnostic impressions of unfused ossification center versus old fracture of the left medial malleolus, right medial malleolus bony spur and bilateral calcaneal enthesopathy. The examiner diagnosed right ankle sprain and degenerative joint disease and opined that the right ankle condition was not at least as likely as not related to military service. The examiner noted that the Veteran had been treated during service in 1969 and 1970 for right ankle sprain with partial tear of the right lateral ligament noted. However, there was no evidence that the Veteran received or continued with any treatment within one year of discharge. Thus, the examiner found that the ankle condition was acute and transient and had responded to the proper treatment given. In a March 2012 supplemental opinion, a different VA physician opined that the currently diagnosed right ankle disability less likely than not had its clinical onset during service and was less likely than not related to any in-service disease, event or injury. The physician reasoned that X-rays done in service following the Veteran's right ankle sprain were normal and there was no evidence of fractures or arthritis. There was also no evidence of continuity of treatment for a right ankle condition, which indicated the condition in service was acute and transitory and resolved with the treatment provided during service. The April 2011 and March 2012 medical opinions are additionally buttressed by the August 1971 VA examination finding soon after separation that there were no residuals of the previous ankle sprains. Moreover, there is no medical opinion of record to the contrary (i.e. an opinion tending to indicate that the Veteran's current right ankle disability is related to service). Although the Veteran may believe his current right ankle disability is related to the right ankle pathology experienced in service, as a layperson without any demonstrated specialized knowledge concerning the etiology of orthopedic disabilities, the Veteran is not shown to have any specific expertise in determining the etiology of his current right ankle disability. See Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). Consequently, the weight of the evidence is against a finding that the Veteran's right ankle disability is related to military service. With respect to the left elbow, the post-service medical evidence includes a November 2006 VA progress note showing that the Veteran had reported left arm pain that had had its onset a long time previously but that had definitely been bothering him for the previous two weeks. A November 2006 VA X-ray of the left elbow then produced diagnostic impressions of calcific tendonosis of the triceps tendon and degenerative changes at the olecranon. Additionally, a September 2007 VA primary care assessment shows a diagnostic assessment of left elbow epicondylitis, improving after intrarticular injections. Subsequently, at an April 2011 VA orthopedic examination, the Veteran reported that he currently had elbow pain that was intermittent but when it was present, he could not move his left arm. He reported that he could not perform sports and had a noted weakness of his left arm compared to the right. He indicated that his pain had started again in 2006; that he had received pain injections in 2008 and that he had also been treated with pain medication and physical therapy. Examination of the left elbow showed tenderness and a positive Cozen's test. There was no objective evidence of pain with active motion. X-ray of the left elbow showed calcific tendonosis of the triceps tendon and degenerative changes at the olecranon. The diagnosis was left lateral epicondylitis. The examiner opined that the left elbow condition was less likely than not related to military service. The examiner noted that the Veteran was evaluated for the elbow injury in May 1970 with tenderness at the medial left humeral epicondyle and diagnosed with tennis elbow. Then, 36 years later he was evaluated in 2006 and 2007 for pain due to left lateral epicondylitis, which didn't resolve with conservative treatment. There was no evidence that the Veteran received or continued with any treatment within one year of discharge, however. Thus, the examiner found that the condition was acute and transient and had responded to the proper treatment given. In a March 2012 supplemental opinion, a different VA physician opined that the currently diagnosed left elbow disability less likely than not had its clinical onset during service and was less likely than not related to any in-service disease, event or injury. The physician reasoned that the Veteran only had one evaluation for service connection in May 1970 in which he was diagnosed with left tennis elbow. There was thus no continuity of treatment due to a left elbow condition, tending to indicate that the condition in service was acute and transitory and resolved with the treatment given at the time. Furthermore, the recent X-ray showing left calcific tendinosis pointed out that the elbow condition developed several years after service since one would not develop degenerative joint disease in such a short period of time. The physician found that the left elbow disability was more likely etiologically related to the natural process of aging. There are no medical opinions of record contrary to those of the April 2011 and March 2012 VA physicians (i.e. opinions tending to indicate that the current left elbow disability is related to service). There is also no indication or allegation that arthritis (i.e. degenerative joint disease) was manifest during the first post-service year so as to warrant presumptive service connection. 38 C.F.R. §§ 3.307, 3.309. The Board notes that during the November 2006 VA medical visit, the Veteran indicated that his elbow pain had had its onset a "long time" previously with more recent pain beginning in 2006, whereas during the April 2011 VA examination, he simply reported current pain beginning in 2006, along with the left elbow problem experienced in service. Given that he did not specify in November 2006 exactly how long the elbow pain had been bothering him or whether the pain had been continuous in nature (thus making it unclear whether he was simply referencing having had the left elbow injury in service as opposed to any pre-2006 post-service left elbow pain); given that he affirmatively reported during the April 2011 VA examination that his current pain had begun in 2006; and given that he has not otherwise alleged experiencing post-service left elbow problems prior to 2006, the weight of the evidence indicates that the reported history of post-service left elbow pain since 2006 relied upon by the April 2011 and March 2012 VA examiners was essentially accurate. Thus, the Board finds both opinions significantly probative to the question of the etiology of the current left elbow disability. Additionally, although the Veteran may believe his current left elbow disability is related to the left elbow pathology experienced in service, as a layperson without any demonstrated specialized knowledge concerning the etiology of orthopedic disabilities, he is not shown to have any specific expertise in determining the etiology of his current left elbow disability. See Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). Consequently, the weight of the evidence is against a finding that the Veteran's left elbow disability is related to military service. In sum as a chronic right ankle or left elbow disability was not shown to have become manifest in service or for many years thereafter, and as the Veteran's current right ankle and left elbow disabilities are not shown to be related to service, service connection is not warranted for either of these disabilities on a direct or presumptive basis. 38 C.F.R. § 3.303, 3.307, 3.309. The preponderance of the evidence is against these claims and they must be denied. Alemany, 9 Vet. App. 518 (1996). Psychiatric Disability At his May 1967 enlistment examination, the Veteran's psychiatric functioning was found to be normal. However, on his May 1967 report of medical history at enlistment, the Veteran indicated that he either had previously had depression or currently had depression. Because, no actual problem with psychiatric functioning was found during the examination, the Veteran must be presumed to be considered sound upon entry into service unless there is clear and unmistakable evidence that a psychiatric disorder pre-existed service and was not aggravated by service. 38 U.S.C.A. § 1111; 38 C.F.R. § 3.304(b). The record contains a clear consensus among examining practitioners that the Veteran had dysthymia prior to entering service, thus constituting clear and unmistakable evidence that this disability pre-existed service. Also, both a June 2011 VA examining psychiatrist and the October 2013 VA psychiatrist generally endorsed an opinion that the dysthymia was clearly or unmistakably not aggravated by service. However, the June 2011 VA examiner also found that the Veteran's dysthymia was aggravated by his alcohol use (beginning during his youth and present during service). Consequently, given this affirmative finding, and given that neither the June 2011 nor October 2013 psychiatrist specifically found that the Veteran's alcohol use during service did not aggravate the pre-existing dysthymia, the evidence is not undebatable that no such aggravation took place. Accordingly, despite the general conclusions of the VA psychiatrists, there is not clear and unmistakable evidence of non-aggravation and the Veteran must be considered psychiatrically sound upon entry into service. Wagner, 370 F.3d 1089, 1096 (Fed. Cir. 2004); Quirin, 22 Vet. App. 390, 396 (2009). Considering the Veteran sound upon entry, the evidence shows that he has a current chronic psychiatric disorder, which first became manifest during military service and has continued up until the present day. Thus, the dysthymic disorder must be considered as having been incurred in service and service connection for this disability is warranted. 38 C.F.R. § 3.303(a). ORDER Service connection for a gastrointestinal/stomach disorder, claimed as esophageal reflux and hyperacidity, is denied. Service connection for a sleep disorder is denied. Service connection for a right ankle disability is denied. Service connection for a left elbow disability is denied. Service connection for an acquired psychiatric disorder is granted. ______________________________________________ P. M. DILORENZO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs