Citation Nr: 1419206 Decision Date: 04/30/14 Archive Date: 05/06/14 DOCKET NO. 12-02 023 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to service connection for gastroesophageal reflux disease (GERD), claimed as acid reflux, to include as due to posttraumatic stress disorder (PTSD). 2. Entitlement to service connection for hypertension, to include as due to posttraumatic stress disorder. 3. Entitlement to service connection for sleep apnea, to include as due to posttraumatic stress disorder. 4. Entitlement to service connection for gouty arthritis causing joint pain involving hands/fingers, elbows, hips, ankle, and feet. 5. Entitlement to service connection for left and right knee disorder, claimed as knee strains. 6. Entitlement to service connection for degenerative lumbar spine, with laminectomy. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M. Prem, Counsel INTRODUCTION The Veteran served on active duty from July 1956 to October 1982. This matter comes to the Board of Veterans' Appeals (Board) on appeal from August 2010, December 2010, and July 2011 rating decisions by a Regional Office (RO) of the Department of Veterans Affairs (VA). These issues were remanded in October 2013 for further development. The Veteran presented testimony at a Board hearing in August 2013. A transcript of the hearing is associated with the Veteran's claims folder. This appeal was processed using the Virtual VA paperless claims processing system. Accordingly, any future consideration of this appellant's case should take into consideration the existence of this electronic record. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C.A. § 7107(a)(2) (West 2002). The issues of entitlement to service connection for GERD, hypertension, sleep apnea, and degenerative lumbar spine are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. A bilateral knee disorder, claimed as knee strains were not manifested during the Veteran's active duty service or for many years after service, nor are they otherwise related to service, to include as secondary to service connected PTSD. 2. Gouty arthritis was not manifested during the Veteran's active duty service or for many years after service, nor is it otherwise related to service, to include as secondary to service connected PTSD. CONCLUSIONS OF LAW 1. The criteria for an award of service connection for left and right knee disorders have not been met. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.6, 3.159, 3.303, 3.307, 3.309 (2013). 2. The criteria for an award of service connection for gouty arthritis have not been met. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.6, 3.159, 3.303, 3.307, 3.309 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 (VCAA) In an August 2010 letter, the RO satisfied its duty to notify the Veteran under 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2013) and 38 C.F.R. § 3.159(b) (2013). The RO notified the Veteran of: information and evidence necessary to substantiate the claim; information and evidence that VA would seek to provide; and information and evidence that he was expected to provide. The Veteran was informed of the process by which initial disability ratings and effective dates are assigned, as required by Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The "duty to assist" contemplates that VA will help a claimant obtain records relevant to the claim, whether or not the records are in Federal custody, and that VA will provide a medical examination when necessary to make a decision on the claim. 38 C.F.R. § 3.159 (2013). VA has done everything reasonably possible to assist the Veteran with respect to the claim for benefits in accordance with 38 U.S.C.A. § 5103A (West 2002) and 38 C.F.R. § 3.159(c) (2013). Relevant service treatment and other medical records have been associated with the claims file. The Veteran was given a VA examination in November 2013, which is fully adequate. The examiner reviewed the claims file and addressed all the relevant issues. Opinions expressed were accompanied by supporting rationales. The duties to notify and to assist have been met. Further regarding the duty to assist, the United States Court of Appeals for Veterans Claims (Court) has held that that provisions of 38 C.F.R. § 3.103(c)(2) impose two distinct duties on VA employees, including Board personnel, in conducting hearings: The duty to explain fully the issues and the duty to suggest the submission of evidence that may have been overlooked. Bryant v. Shinseki, 23 Vet. App. 488 (2010). At his hearing the undersigned identified the issue, sought information as to treatment to determine whether all relevant records had been obtained, and otherwise elicited information to help substantiate the appeal. The Board thereby met the duties imposed by 38 C.F.R. § 3.103(c)(2) as interpreted in Bryant. As noted above, the claims were remanded for VA examinations and opinions, which were provided in November 2013. Consequently, the Board finds that the RO has substantially complied with the remand directives. Service Connection Applicable law provides that service connection will be granted if it is shown that the Veteran suffers from disability resulting from an injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. That an injury occurred in service alone is not enough; there must be chronic disability resulting from that injury. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Additionally, for Veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, such as arthritis, are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. 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). Additionally, disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. 38 C.F.R. § 3.310. The Board also notes that secondary service connection on the basis of aggravation is permitted under 38 C.F.R. § 3.310, and compensation is payable for that degree of aggravation of a non-service-connected disability caused by a service-connected disability. Allen v. Brown, 7 Vet.App. 439 (1995). Left and right knees At his August 2013 Board hearing, the Veteran testified that while in the jungles of Vietnam, he was on his knees a lot of the time (Hearing Transcript, p. 8). He was not clear on when his knee disabilities began, but he noted that he had problems before doing anything about it (such as seeking treatment) (Hearing Transcript, p. 12). Service treatment records reflect complaints of right knee pain of three days duration in August 1979 (VBMS Document No. 228, p. 4). He had full range of motion. There was no joint tenderness. X-rays were negative. He was assessed with musculoskeletal knee pain. There was no follow-up or any indication of continued knee pain. The Veteran completed a Report of Medical History (VBMS Document No. 228, p. 11) upon separation from service (July 1982). He denied, by checked box, having a "trick" or locked knee, arthritis, rheumatism, or bursitis, and any bone, joint or other deformity. His separation examination (VBMS Document No. 228, p. 14) yielded normal findings. A November 2006 treatment report from Parkway Medical Group reflects off and on discomfort in his joints, especially the knees (VBMS Document No. 35, pgs. 66-67). He was assessed with arthralgia. The Veteran underwent a VA examination in December 2010 (VBMS Document No. 107). The examiner reviewed the claims file in conjunction with the examination. She noted that in April 1979, the Veteran complained of migratory aches and pains in muscles (VBMS Document No. 228, p. 6). He was assessed with a history of migratory myalgias. Two days later, he was returned to duty. She noted that in August 1979, the Veteran complained of right knee pain of three days duration (VBMS Document No. 228, p. 4). X-rays were negative. He was assessed with musculoskeletal knee pain. Finally, she remarked that no history of knee problems was noted on the Veteran's July 1982 Report of Medical History, and the separation examination yielded normal findings. The examiner opined that the Veteran's current knee disabilities were not incurred in or caused by service. She reasoned that the Veteran only complained of right knee pain on one occasion during service (August 1979), and that there was no mention of any knee condition in his discharge medical records dated July 1982. Additionally, there was no further mention of knee pain in any of the Veteran's medical records until 2006 (27 years after the complaint of right knee pain in the military). She also stated that the Veteran's myalgia complaints relate to muscle pain and are therefore not relevant to joint complaints. The Veteran submitted a September 2011 correspondence from Dr. J.G. (VBMS Document No. 30). He stated that the Veteran had been his patient since January 2003. Dr. J.G. stated that the Veteran "has multiple other medical complaints and conditions with an uncertain relationship to PTSD including gout, osteoarthritis..." The Veteran submitted a second correspondence from Dr. J.G. (dated July 2013). In it, Dr. J.G. stated that "these conditions [including osteoarthritis and gout] may be related to or at least exacerbated by [the Veteran's] history of posttraumatic stress disorder." The Veteran underwent a VA examination in November 2013 (VBMS Document No. 15). The same examiner reviewed the claims file in conjunction with the examination. The examiner noted that the Veteran was in Vietnam from 1969 to 1970 and had been discharged from active duty in 1982 with no complaints of or diagnosis of knee disabilities. She once again noted that the Veteran complained of right knee pain only on one occasion (August 1979), and that myalgia complaints relate to muscle pain and are not relevant to joint complaints. She pointed out that there is no evidence in the medical literature that links soft tissue injuries to the development of arthritis. The examiner again noted that there was no mention of any knee condition in the Veteran's discharge medical records, and there was no further mention of knee pain in any of the medical records until 2006. She again opined that the current bilateral degenerative joint disease is not caused by military service, but is most likely due to the effects of aging. The examiner further backed up her rationale with the results of a National Health and Nutrition Examination Survey, which found the prevalence of this disease to be less than 0.1 percent in those aged 25 to 34 years old versus a rate of over 80 percent in people over age 55. It found that obesity is perhaps the strongest modifiable risk factor for the development of osteoarthritis. Although multiple studies have demonstrated a relationship between obesity and osteoarthritis, newer studies better define this association and its implications on the prevention of disease. In regard to whether service connection should be warranted as secondary to PTSD, the examiner noted that while a connection has been made between PTSD and autoimmune disorders such as rheumatoid arthritis or thyroid disease, PTSD has not been shown to cause the osteoarthritic/degenerative changes in the joints and spine associated with the process of aging. She opined that it is less likely as not that the Veteran's current bilateral knee degenerative joint disease is due to or aggravated by his PTSD. The Court has held that the Board must determine how much weight is to be attached to each medical opinion of record. See Guerrieri v. Brown, 4 Vet. App. 467 (1993). Greater weight may be placed on one medical professional's opinion over another, depending on factors such as reasoning employed by the medical professionals and whether or not, and the extent to which, they reviewed prior clinical records and other evidence. Gabrielson v. Brown, 7 Vet. App. 36 (1994). Adequate reasons and bases, in short, must be presented if the Board adopts one medical opinion over another. In assessing evidence such as medical opinions, the failure of the physician to provide a basis for his opinion goes to the weight or credibility of the evidence in the adjudication of the merits. See Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998). Other factors for assessing the probative value of a medical opinion are the physician's access to the claims file and the thoroughness and detail of the opinion. See Prejean v. West, 13 Vet. 444, 448-9 (2000). In some cases, the physician's special qualifications or expertise in the relevant medical specialty or lack thereof may be a factor. In every case, the Board must support its conclusion with an adequate statement of its reasoning of why it found one medical opinion more persuasive than the other. In determining the probative value to be assigned to a medical opinion, the Board must consider three factors. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The initial inquiry in determining probative value is to assess whether a medical expert was fully informed of the pertinent factual premises (i.e., medical history) of the case. A review of the claims file is not required, since a medical professional can also become aware of the relevant medical history by having treated a Veteran for a long period of time or through a factually accurate medical history reported by a Veteran. Nieves-Rodriguez, 22 Vet. App. at 303-04. The second inquiry involves consideration of whether the medical expert provided a fully articulated opinion. See Id. A medical opinion that is equivocal in nature or expressed in speculative language does not provide the degree of certainty required for medical nexus evidence. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The third and final factor in determining the probative value of an opinion involves consideration of whether the opinion is supported by a reasoned analysis. The most probative value of a medical opinion comes from its reasoning. Therefore, a medical opinion containing only data and conclusions is not entitled to any weight. In fact, a review of the claims file does not substitute for a lack of a reasoned analysis. See Nieves-Rodriguez, 22 Vet. App. at 304; see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A] medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions"). There are substantial and significant factors which favor the valuation of the VA medical opinion over the opinion of the private physicians in this case. While the Board finds that both Dr. J.G. and the VA examiner were aware of the pertinent factual premises, the Board notes that Dr. J.G. did not provide a fully articulated opinion. Instead, he merely stated that osteoarthritis has an "uncertain relationship to PTSD" and that osteoarthritis "may be related to or at least exacerbated" by PTSD. A medical opinion that is equivocal in nature or expressed in speculative language does not provide the degree of certainty required for medical nexus evidence. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The Board notes that the VA examiner was unequivocal in her opinion. The Board further notes that Dr. J.G. provided no reasoned analysis for his speculative opinion that osteoarthritis was related to PTSD. The VA examiner, on the other hand, explained that while there has been made a connection between PTSD and autoimmune disorders such as rheumatoid arthritis or thyroid disease, PTSD has not been shown to cause the osteoarthritic/degenerative changes in the joints. Additionally, she backed up her opinion with findings from a National Health and Nutrition Examination Survey. For the forgoing reasons, the Board finds the opinions of the VA examiner to be more probative than that of Dr. J.G. Finally, while the Veteran himself may believe the his knee disorders are related to service or to his service-connected PTSD, such determination requires knowledge extending beyond mere lay observation and, as such, he is not competent to opine as to nexus in this case. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) With no findings of a chronic knee disability in service or for many years after service, and with the more probative evidence weighing against a relationship between gouty arthritis and PTSD, the preponderance of the evidence weighs against the claim. As the preponderance of the evidence is against this claim, the benefit-of-the-doubt doctrine does not apply, and the claim for service connection for left and right knee disabilities, to include as secondary to service connected PTSD must be denied. See Gilbert v. Derwinski, 1 Vet. App 49 (1990). Gouty arthritis At his August 2013 Board hearing, the Veteran testified that he believed studies have shown that stress and gout are related (Hearing Transcript, p. 8). Consequently, he appeared to be arguing that gouty arthritis should be service connected as secondary to service connected PTSD. Service treatment records reflect various aches and pains over the course of the Veteran's 26 year military career. In February 1971, he complained of vague arthralgias (VBMS Document No. 227, p. 23). The impression was to rule out malaria, amebic abscess or tuberculosis (VBMS Document No. 227, p. 24). In October 1972, he complained of sore throat, headaches, arthralgias, and myalgias (VBMS Document No. 227, p. 33). In March 1973 he was noted to have recurrent viral syndrome with fever and myalgias (VBMS Document No. 227, pgs. 35-37). In October 1973 he complained of intermittent periods of fever, headaches, and body aches (VBMS Document No. 227, p. 38). The impression was that the symptoms were due to influenza. In April 1979, he reported a two to three month history of intermittent body aches (VBMS Document No. 227, p. 5). He denied any trauma. He was assessed with a history of migratory myalgias. The service treatment records reflected no findings attributed to gouty arthritis. The Veteran completed a Report of Medical History (VBMS Document No. 228, p. 11) upon separation from service (July 1982). He denied, by checked box, having arthritis, rheumatism, or bursitis, and any bone, joint or other deformity. His separation examination yielded normal findings (VBMS Document No. 228, p. 14). Post service treatment records reflect that in November 1998, the Veteran complained of fatigue and polyarthralgias/myalgias (VBMS Document No. 31, p. 7). In January 1999, he complained of a painful and swollen right ankle of 2 days duration (VBMS Document No. 31, p. 6). He was assessed with gout. In December 1999, he was once again assessed with mild gout flare in his right ankle (VBMS Document No. 228, p. 1). The Veteran submitted a September 2011 correspondence from Dr. J.G. (VBMS Document No. 30). He stated that the Veteran has been his patient since January 2003. Dr. J.G. stated that the Veteran "has multiple other medical complaints and conditions with an uncertain relationship to PTSD including gout, osteoarthritis..." The Veteran submitted a second correspondence from Dr. J.G. (dated July 2013). In it, Dr. J.G. stated that "these conditions [including osteoarthritis and gout] may be related to or at least exacerbated by [the Veteran's] history of posttraumatic stress disorder." The Veteran underwent a VA examination in November 2013. The examiner reviewed the claims file in conjunction with the examination. The examiner noted that the Veteran had been in Vietnam from 1969 to 1970 and was discharged from active duty in 1982 with no complaints of or diagnosis of gout. He was not diagnosed with gout until 2009 (though the Board notes she was diagnosed in 1999). She noted that gout is caused by high uric acid levels. Since the Veteran was discharged 20+ years prior to being diagnosed with gout, she found that the Veteran's gout was not caused by military service. Moreover, she opined that it is not secondary to or aggravated by PTSD. Once again, there are substantial and significant factors that favor the valuation of the VA medical opinion over the opinion of the private physicians in this case. While the Board finds that both Dr. J.G. and the VA examiner were aware of the pertinent factual premises, the Board notes that Dr. J.G. did not provide a fully articulated opinion. Instead, he merely stated that gout has an "uncertain relationship to PTSD" and that gout "may be related to or at least exacerbated" by PTSD. A medical opinion that is equivocal in nature or expressed in speculative language does not provide the degree of certainty required for medical nexus evidence. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The Board notes that the VA examiner was unequivocal in her opinion. The Board further notes that Dr. J.G. provided no reasoned analysis for his speculative opinion that gout was related to PTSD. Although the Veteran testified that studies have shown a relationship between PTSD and gout, Dr. J.G. failed to cite any such studies. The VA examiner's reasoned analysis was that gout is caused by uric acid levels. She simply found no reason that uric acid levels would be impacted by PTSD. In the absence of any positive evidence of such a relationship, no further reasoned analysis could be made. With respect to the VA examiner's opinion on direct service connection, she stated that the Veteran was diagnosed with gout in 2009 (20+ years after service). The Board acknowledges that he was assessed with gout in 1999 (17 years after service). The Board finds that the examiner's rationale (that no findings of gout in service or for many years after service makes it less likely than not that gout is related to service) remains sound and that the factual discrepancy is not significant enough to impact her rationale. For the forgoing reasons, the Board finds the opinions of the VA examiner to be more probative than that of Dr. J.G. Finally, while the Veteran himself may believe the his gout is related to service or to his service-connected PTSD, such determination requires knowledge extending beyond mere lay observation and, as such, he is not competent to opine as to nexus in this case. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) With no findings of gouty arthritis in service or for many years after service, and with the more probative evidence weighing against a relationship between gouty arthritis and PTSD, the preponderance of the evidence weighs against the claim. As the preponderance of the evidence is against this claim, the benefit-of-the-doubt doctrine does not apply, and the claim for service connection for gouty arthritis, to include as secondary to service connected PTSD must be denied. See Gilbert v. Derwinski, 1 Vet. App 49 (1990). ORDER Entitlement to service connection for gouty arthritis is denied. Entitlement to service connection for left and right knee strains REMAND In October 2013, the Board remanded the issues so that the Veteran could undergo VA examinations to obtain competent opinions regarding the etiology of the claimed disabilities. Specifically, the Board needs to know whether the disabilities began during or are causally related to service, to include whether they were caused, or aggravated by, his service connected PTSD. The Veteran underwent a VA examination in November 2013. The examiner rendered negative nexus opinions regarding all of the claimed disabilities. The Board finds the opinions regarding GERD, hypertension, sleep apnea, and degenerative lumbar spine to be inadequate because the rationales were, in large part, based on the fact that the Veteran (who served in Vietnam in from 1969-1970) continued to serve on active duty until 1982 without any evidence of the claimed disabilities, and in some cases, the disabilities arose many years after service. Regarding hypertension, the examiner acknowledged studies showing that stress "can have an effect on its development." However, the examiner concluded that in this case the Veteran's PTSD did not aggravate his hypertension; a clear rationale in support of this conclusion was not provided. In other words, the examiner failed to reconcile her comment that PTSD can affect the development of hypertension with her ultimate conclusion that such did not happen in this case. Additionally, the Veteran testified that he experienced continuous symptoms of GERD, a back disability, and sleep trouble since service (Hearing Transcript pgs. 7, 10, 13). The November 2013 examiner noted the Veteran's lack of treatment during service, but did not adequately consider his contentions of continuous symptomatology since service. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. The Veteran should be afforded a VA examination (or examinations, as necessary) for the purpose of determining the nature, etiology and severity of the Veteran's hypertension, sleep disability, and GERD. The claims file must be made available to the examiner for review in connection with the examination. Following a review of the relevant medical evidence in the claims file, to include the service treatment records and post-service treatment records; the medical history obtained from the Veteran; the clinical evaluation; and any tests that are deemed necessary, the examiner should opine: (a) whether it is at least as likely as not (a 50 percent or greater probability) that hypertension began during or is causally related to service, to include whether it was caused, or aggravated by, his service connected PTSD, (b) whether it is at least as likely as not (a 50 percent or greater probability) that a sleep disability (to include sleep apnea) began during or is causally related to service, to include whether any disability was caused, or aggravated by, his service connected PTSD, (c) whether it is at least as likely as not (a 50 percent or greater probability) that a sleep disability (to include sleep apnea) began during or is causally related to service, to include the February 1976 and August 1976 complaints of nausea, vomiting, and diarrhea, and to include whether any disability was caused, or aggravated by, his service connected PTSD. The examiner is advised that the Veteran is competent to report injuries and symptoms (including report of continuous symptomatology) and that his reports must be considered in formulating the requested opinion. "Aggravation" means a permanent worsening of a disability beyond its natural progression. 2. The Veteran should be afforded a VA orthopedic examination for the purpose of determining the nature, etiology and severity of the Veteran's lumbar spine disability. The claims file must be made available to the examiner for review in connection with the examination. Following a review of the relevant medical evidence in the claims file, to include the service treatment records and post-service treatment records; the medical history obtained from the Veteran; the clinical evaluation; and any tests that are deemed necessary, the examiner should opine whether the disability began during or is causally related to service, to include whether any disability was caused, or aggravated by, his service connected PTSD. The examiner is advised that the Veteran is competent to report injuries and symptoms (including report of continuous symptomatology) and that his reports must be considered in formulating the requested opinion. "Aggravation" means a permanent worsening of a disability beyond its natural progression. 3. After completion of the above, the AMC should review the expanded record and determine if the benefits sought can be granted. If the claims remain denied, then the AMC should furnish the Veteran and his representative with a supplemental statement of the case, and afford a reasonable opportunity for response before returning the record to the Board for further review. The appellant has the right to submit additional evidence and argument on the matter or matters 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 of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2013). ______________________________________________ ERIC S. LEBOFF Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs