Citation Nr: 1500557 Decision Date: 01/07/15 Archive Date: 01/13/15 DOCKET NO. 12-05 583 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUES 1. Entitlement to an initial rating in excess of 10 percent for degenerative joint disease (DJD) of the thoracic spine with L5 spondylolysis with spondylolisthesis (low back disability) prior to October 12, 2012, and 20 percent thereafter. 2. Entitlement to service connection for gastroesophageal reflux disease (GERD). 3. Entitlement to service connection for a bilateral foot condition. 4. Entitlement to service connection for a right knee condition, including as secondary to low back disability. 5. Entitlement to service connection for headaches, including as secondary to low back and/or cervical spine disability. 6. Entitlement to service connection for a left arm condition, including as secondary to a cervical spine disability. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Laura E. Collins, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1976 to October 1981. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions issued in February 2011 and April 2011 by the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska. In September 2012 the Veteran testified before a Decision Review Officer and in January 2014, he testified before the undersigned Veterans Law Judge (VLJ) via videoconference. Transcripts are associated with the claims file. Subsequent to the Board hearing, the Veteran submitted additional evidence with a waiver of RO consideration. 38 C.F.R. § 20.1304 (2014). Therefore, the Board may properly consider such newly received evidence In addition to the paper claims file, there is a paperless, electronic claims file associated with the Veteran's claims. Thus, any future consideration of this case should take into account the existence of this electronic record. The issues of entitlement to service connection for a right knee condition and a higher initial rating for low back disability are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction. FINDINGS OF FACT 1. The preponderance of the evidence shows that the Veteran's GERD was not present in service or until many years thereafter and is not related to service or to an incident of service origin. 2. The preponderance of the evidence weighs against a finding that the Veteran is currently diagnosed to have a bilateral foot condition. 3. The preponderance of the evidence shows that the Veteran's headaches were not present in service or until many years thereafter and are not related to service, to an incident of service origin, or to a service-connected disability. 4. The preponderance of the evidence shows that the Veteran's left arm condition was not present in service or until many years thereafter and is not related to service or to an incident of service origin. CONCLUSIONS OF LAW 1. The criteria for service connection for GERD have not been met. 38 U.S.C.A. §§ 1131, 5107(b) (West 2014); 38 C.F.R. §§ 3.102, 3.303 (2014). 2. The criteria for service connection for a bilateral foot condition have not been met. 38 U.S.C.A. §§ 1131, 5107(b) (West 2014); 38 C.F.R. §§ 3.102, 3.303 (2014). 3. The criteria for service connection for headaches have not been met. 38 U.S.C.A. §§ 1131, 5107(b) (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2014). 4. The criteria for service connection for a left arm condition have not been met. 38 U.S.C.A. §§ 1131, 5107(b) (West 2014); 38 C.F.R. §§ 3.102, 3.303 (2014). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist VA has a duty to provide notification to the Veteran with respect to establishing entitlement to benefits, and a duty to assist with development of evidence under 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159(b). The duty to notify was satisfied prior to the initial RO decision by way of letters sent to the Veteran in November 2010 and March 2011 that informed him of his duty and the VA's duty for obtaining evidence, and of the evidence and information necessary to substantiate his service connection claims, including on a secondary basis. In addition, the letter met the notification requirements set out for service connection in Dingess v. Nicholson, 19 Vet. App. 473 (2006). Relevant to the duty to assist, the Veteran's lay evidence, service treatment records (STRs), Social Security Administration (SSA) records, and identified relevant post-service treatment records from VA and private providers have been obtained. The Veteran was afforded VA examinations of the stomach and bilateral feet in December 2010. He was provided with a VA headaches examination in February 2011 and an addendum opinion in April 2011. In January 2013 he was provided with another examination of the gastrointestinal system. The Board finds that these examinations are adequate in order to evaluate the claimed disabilities, as they include clinical evaluations and/or reviews of the claims file, and medical opinions are supported by adequate rationale. Stefl v. Nicholson, 21 Vet. App. 120, 124-25 (2007); Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The Board acknowledges that the Veteran has not been provided with a VA examination in conjunction with his service connection claim for a left arm condition. However, as his service and post-service treatment records fail to suggest that he developed a left arm condition during or soon after service, and the probative evidence of record fails to suggest a nexus between service and any current left arm condition, VA's duty to provide an examination has not been triggered. See McLendon v. Nicholson, 20 Vet. App. 79 (2006) (holding that a VA examination is only warranted when the medical evidence suggests a nexus but is too equivocal or lacking in specificity to support a decision on the merits). The Veteran has been afforded a hearing before a VLJ in which he presented oral argument in support of his claims. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims held that 38 C.F.R. § 3.103(c)(2) requires that the VLJ who chairs a hearing fully explain the issues and suggest the submission of evidence that may have been overlooked. Here, the VLJ sought to identify any pertinent evidence not currently associated with the claims file, and asked questions directed at identifying whether the Veteran meets the criteria for service connection and a higher rating. Accordingly, the Veteran is not shown to be prejudiced on this basis. Finally, neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), nor has he identified any prejudice in the conduct of the Board hearing. As such, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2). The Board finds that all relevant facts have been properly developed, and all reasonable efforts were made by VA to obtain evidence necessary to substantiate the Veteran's claims, and no further assistance to develop evidence is required. Therefore, the Veteran will not be prejudiced as a result of the Board proceeding to the merits of his claims. II. Analysis Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. This means that the facts establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Direct service connection may not be granted without evidence of a current disability, in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.304; Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Service connection also may be established on a secondary basis for a disability that is proximately due to or aggravated by an already service-connected disorder. 38 C.F.R. § 3.310. In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and recurrence of his symptoms. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. See Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau; Layno. As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing. Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498 (1995). When there is an approximate balance of evidence for and against the issue, reasonable doubt will be resolved in the Veteran's favor. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). At his hearing, the Veteran asserted the theory that his headaches and left arm condition are secondary to a cervical spine condition. Service connection is not in effect for a cervical spine condition; thus any discussion of secondary service connection for that condition is moot. (See August 2014 rating decision issued by the RO.) A. GERD The Veteran contends that his currently diagnosed GERD began in service and has continued to the present. Service connection is already in effect for irritable bowel syndrome (IBS). The Veteran's STRs contain multiple complaints of diarrhea and abdominal cramps. He was granted service connection for IBS in connection with these symptoms. At his hearing, the Veteran testified that his GERD was diagnosed as "nervous stomach" in service and that he was given antacids to treat it. The Veteran refers to a June 1977 STR showing that the Veteran was prescribed Donnatal for "nervous stomach." The earliest post-service medical evidence of GERD is an October 2007 private treatment record showing the Veteran was taking Nexium, but did not tolerate it well. An August 2008 treatment record notes "GERD-type symptoms." A March 2009 treatment record shows a diagnosis of dyspepsia and related prescription. The first diagnosis of GERD is in a May 2010 treatment record. The December 2010 VA examiner reviewed the claims file, examined the Veteran, and discussed the Veteran's reported gastrointestinal symptoms and treatment in service. He stated that Donnatal is prescribed for relief of abdominal cramps and diarrhea, the same type of symptoms for which the Veteran was seen in the other STRs. The VA examiner states that "[t]he only documentation of GI symptoms have to do with epigastric pain, abdominal cramping and loose stools. There was no medical documentation of heartburn or treatment for same during military service." The VA examiner opined that the Veteran's current GERD is less likely as not caused by or the result of military service. He explained, "[a]lthough this Veteran was seen on several different occasions for abdominal upset with cramping and diarrhea there [are] no medical records documenting symptoms of heartburn or treatment for same." The examiner provided a clear conclusion with supporting data and reasoned medical explanations connecting the two. Stefl; Nieves-Rodriguez; Prejean v. West, 13 Vet. App. 444, 448-49 (2000). The Board therefore finds this opinion probative. A January 2013 VA examination provided in connection with the service connection claim for IBS that has been granted addressed the "nervous stomach" STR. The examiner stated, "[I]n 1977, symptoms consistent with IBS might be considered a nervous stomach and Donnatal would be a likely treatment for such symptomatology." The examiner went on to opine that IBS was likely connected to service because symptoms like loose stools "represents early manifestations of a GI condition which ultimately presents with his current symptomatology that would be consistent with IBS." The Veteran has contended in lay evidence that his current GERD began in and has continued since service. Lay evidence may be competent to substantiate the elements of a service connection claim. Jandreau, 492 F.3d at 1377 n.4. However, the Veteran's lay testimony is not competent to relate his current GERD to his in-service abdominal symptoms. If the witness is not testifying as an expert, his testimony in the form of opinions or inferences is limited to those opinions or inferences which are rationally based on perception of the witness and helpful to a clear understanding of his testimony or the determination of a fact in issue. FED. R. EVID. 701. Generally, this rule does not permit a lay witness to express an opinion as to matters which are beyond the realm of common experience and which require the special skill and knowledge of an expert witness. Randolph v. Collectramatic, Inc., 590 F.2d 844, 846 (10th Cir. 1979). Although the Veteran experienced gastrointestinal pain and symptoms both during and after service, the ability to diagnose GERD versus IBS is not within the ordinary knowledge of a lay person. The similarities between his current symptoms and those he experienced in service may be relevant to an expert considering potential causes of the Veteran's current condition. Indeed, the VA examiner did discuss his symptoms in service as opposed to his current symptoms and determined that his in-service symptoms were abdominal and intestinal (in keeping with his service-connected IBS) and not related to acid reflux or GERD. Lay observation of these similarities alone is not competent evidence of causation. The Board accords greater probative weight to the VA examiner's opinion, which is that no causal relationship exists between the Veteran's gastrointestinal symptoms in service and his current GERD. The Board thus finds that the preponderance of the evidence is against the claim for service connection for GERD and the benefit-of-the-doubt standard of proof does not apply. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert. B. Bilateral foot condition Service connection is already in effect for gout of the right great toe. There is no evidence that the Veteran has any other current diagnosis of the bilateral feet. The Veteran testified at his hearing that both of his feet have a burning sensation and become discolored, but he said that his doctor had not diagnosed anything other than his service-connected gout. He was not prescribed any medication for his feet. The Veteran specifically stated in his substantive appeal and at hearing that he was not seeking service connection for a skin condition of the feet. The Veteran's post-service treatment records are silent with respect to any foot diagnoses other than the service-connected gout. The December 2010 VA examiner diagnosed only the gout of the right great toe. Further, the Veteran reported to that examiner that he had never had gout of the left foot or left great toe. The February 2013 SSA letter granting partial disability noted complaints of pain and numbness in the hands and feet in a April 2012 private treatment record, but the only diagnosis was venous stasis dermatitis. The Board notes that this is a diagnosis of the lower extremities and/or ankles, but not of the feet. A December 2013 VA diabetic care treatment record notes that he has diabetic symptoms of numbness and pins and needles sensation in his toes bilaterally. Thus the evidence of record does not show a currently diagnosed foot disability, beyond the already service-connected gout. Congress has specifically limited entitlement to service-connected benefits to cases where there is a current disability. In the absence of proof of a present disability, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223 (1992). Therefore, the Board finds that the claim for service connection for a bilateral foot condition must be denied because the preponderance of the evidence of record is against a finding that the Veteran has any such current disability. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert. C. Headaches The Veteran contends that his current headaches are related to a head injury in service, or alternately to his service-connected low back disability. STRs show that in September 1977 the Veteran "hit my head with a blunt object while working." He had a small laceration on the frontal portion of his forehead approximately half an inch in length. The STR noted a "[s]mall amount of blood drainage . . . ." A small laceration was diagnosed and sutured, and he was prescribed Tylenol. Eight days later there was a well healed wound on his forehead and sutures were removed. There is no further mention of the head injury, and STRs are silent as to complaint, symptoms, diagnosis, or treatment of headaches. The earliest post-service treatment record mentioning headaches is a June 2007 private treatment record on which the Veteran indicated subjective symptoms of "severe headaches." In February 2011, a VA examiner reviewed the claims file and opined that it is less likely than not that the current headaches are directly related to service. As to direct service connection, the examiner explained that the isolated in-service head injury appeared to be a small laceration and not a very severe injury. The STRs show no residuals, including headaches. The post-service medical evidence does not include any indications or reports that his current headaches have been ongoing since service, nor do they discuss any headaches as a residual of a closed head injury. In April 2011, a different VA examiner reviewed the claims file and opined that it is less likely than not that the current headaches are caused or aggravated by the service-connected low back disability. He supported this opinion with the rationale that there is "no anatomical, physiological, or medical evidence to support that this Veteran's low thoracic and upper lumbar spine condition, to include spondylolysis with spondylolisthesis, has caused or aggravated the claimed headache condition." The examiners provided clear conclusions with supporting data and reasoned medical explanations connecting the two. Stefl; Nieves-Rodriguez; Prejean. The Board therefore finds these opinions probative. The Veteran has contended in lay evidence that the headaches are related to the head injury in service or, alternately, to the low back disability. However, a mere conclusory generalized lay statement that a service event or illness caused the claimant's current condition is insufficient to establish medical etiology or nexus. Waters v. Shinseki, 601 F.3d 1274 (2010). Lay evidence may be competent to substantiate the elements of a service connection claims. Jandreau, 492 F.3d at 1377 n.4. However, here the Veteran's lay testimony is not competent to relate his current headaches to his in-service injury. If the witness is not testifying as an expert, his testimony in the form of opinions or inferences is limited to those opinions or inferences which are rationally based on perception of the witness and helpful to a clear understanding of his testimony or the determination of a fact in issue. FED. R. EVID. 701. Generally, this rule does not permit a lay witness to express an opinion as to matters which are beyond the realm of common experience and which require the special skill and knowledge of an expert witness. Randolph, 590 F.2d at 846. Although lay persons are competent to provide opinions on some medical issues, see Kahana, 24 Vet. App. at 435, as to the specific issue in this case, the etiology of headaches falls outside the realm of common knowledge of a lay person. Jandreau, 492 F.3d at 1377 n.4. Evidence has not been submitted to show that the Veteran has the medical expertise to provide a probative opinion regarding the etiological relationships between headaches and a low back disability or a head injury sustained in 1977. Based upon the nature of the condition involved, the amount of time that elapsed after service before it manifested, and the other possible causes for headaches, the issue of whether his specific condition was caused by his specific service or low back disability is too complex to be within the common knowledge of a non-expert such as the Veteran. The Board finds that the VA examiners' opinions outweigh those of the Veteran. Thus, the preponderance of the evidence is against the Veteran's claim of entitlement to service connection for headaches and his claim must be denied. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert. D. Left arm condition The Veteran's representative contended at the Board hearing that working on vehicles for four to five years in service caused "wear and tear from 35 years ago [that] has finally caught up with him." STRs are silent as to complaint, symptoms, diagnosis, or treatment of the left arm in service. Private treatment records show that in 2001, the Veteran was diagnosed with left elbow lateral epicondylitis after a sudden onset of pain in December 2000 with heavy lifting at work. The Board notes that SSA records show a long history of post-service employment requiring lifting and use of the arms and shoulders. He underwent an arthroscopic release procedure, and there do not appear to be any currently diagnosed residuals of the epicondylitis. SSA records include a private October 2004 MRI of the left shoulder that showed fluid around the biceps tendon and resulted in a diagnosis of biceps tenosynovitis, tendonitis, and a small rotator cuff tear. An August 2011 private treatment record noted a diagnosis of left shoulder rotator cuff tendonitis. SSA records also contain December 2011 treatment records showing complaints of left shoulder pain leading to an MRI that showed fluid around the biceps tendon and a diagnosis of biceps tendinopathy of the left shoulder. In the February 2013 letter from SSA granting partial disability benefits, it was noted that the Veteran reported in pre-hearing interrogatories that he could not wash his back because of left arm pain, and he could only lift 10 pounds with the left hand. The SSA found impairments of biceps tendinopathy status post surgery, and history of bilateral carpal tunnel syndrome. SSA records show that the Veteran alleged an onset date of February 2, 2011, for these disabilities. There is no medical evidence of record suggesting a connection between the current tenosynovitis, tendonitis, rotator cuff tear, tendinopathy, or carpal tunnel syndrome and service. The Veteran has contended in lay evidence that a left arm condition is related to use of the arm in service. However, a mere conclusory generalized lay statement that a service event or illness caused the claimant's current condition is insufficient to establish medical etiology or nexus. Waters. Although lay persons are competent to provide opinions on some medical issues, see Kahana, 24 Vet. App. at 435, as to the specific issue in this case, the etiologies of left shoulder rotator cuff tendonitis, biceps tenosynovitis, biceps tendinopathy, and carpal tunnel syndrome fall outside the realm of common knowledge of a lay person. Jandreau, 492 F.3d at 1377 n.4. Evidence has not been submitted to show that the Veteran has the medical expertise to provide a probative opinion regarding the etiology of these diagnoses. Based upon the nature of the conditions involved, the amount of time that elapsed after service before they manifested, and the other possible causes for the symptoms, including a post-service history of repetitive lifting, the issue of whether his specific conditions were caused by his specific service is too complex to be within the common knowledge of a non-expert such as the Veteran. As there is neither medical evidence of record suggesting a nexus between any left arm diagnosis and service, nor evidence of any manifestations or symptoms attributable to the diagnoses during service or until many years after discharge from service, the Board finds no basis to grant service connection. The Board finds that the preponderance of the evidence is against the Veteran's claim of entitlement to service connection for a left arm condition and his claim must be denied. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert. ORDER Service connection for GERD is denied. Service connection for a bilateral foot condition is denied. Service connection for headaches is denied. Service connection for a left arm condition is denied. REMAND At the January 2014 hearing, the Veteran reported that his low back disability has worsened since the most recent examination, which was conducted in October 2012. As such, VA is required to afford him a contemporaneous VA examination to assess the current nature, extent and severity of his low back disability. See Snuffer v. Gober, 10 Vet. App. 400, 403 (1997); see also VAOPGCPREC 11-95 (1995), 60 Fed. Reg. 43186 (1995). Thus, this claim must be remanded. Additionally, at the hearing the Veteran reported that he had current treatment for his back at the Omaha VA Medical Center (VAMC), so any outstanding current treatment records from that facility should also be obtained. At the hearing the Veteran also testified that he was being treated for a right knee condition by his private provider Dr. Rapp, who had told him a knee replacement may be necessary. The claims file contains treatment records from Dr. Rapp dated from October 2007 to January 2011, and an unrelated study dated November 2012. Subsequent to the hearing the Veteran provided a release for Dr. Rapp's treatment records but they have not yet been sought. The Board finds that a remand is necessary to obtain the outstanding private treatment records and to provide a VA examination to determine if any current right knee disability is related to service. Accordingly, the case is REMANDED for the following actions: 1. After securing any necessary authorization, obtain treatment records, physically or electronically, from Dr. Rapp dated after January 2011 and relevant to the back or right knee. 2. Obtain any VA treatment records relevant to the Veteran's back or right knee from the Omaha VAMC dated after March 2014. 3. After associating any outstanding records with the claims file, schedule the Veteran for an appropriate VA examination to address the etiology of any diagnosed disability of the right knee. The examiner should review the Veteran's claims file (paper and electronic) in conjunction with his examination. After conducting any necessary tests, the examiner should: a) Identify any disability of the right knee found to be present at any time since September 2010. b) For each diagnosis, state whether it is at least as likely as not (50 percent probability or greater) that the diagnosis: i. had its onset in service, or is otherwise related to any disease or injury in service (including the April 1979 overuse injury in the service treatment records); or ii. was caused or aggravated by his service-connected low back disability. An explanation for the conclusions reached should be set forth. If the examiner determines that a medical opinion cannot be rendered without resorting to speculation, an explanation as to why that is so should be expressed, to include a recitation of any missing facts necessary to render a non-speculative opinion. 4. Provide an appropriate VA examination to determine the severity of his service-connected low back disability. The claims file (paper and electronic) should be reviewed by the examiner in conjunction with the examination and such review should be noted. Any necessary tests should be conducted. Evaluate both the thoracic and lumbar spine. All range of motion testing should indicate at what degree pain occurs and describe any increased pain, fatigue, weakness, or incoordination with repetitive motion. Functional limitations should be addressed. 5. Then, readjudicate the claims. If any benefit sought remains denied, furnish the Veteran and his representative with a supplemental statement of the case and allow an opportunity to respond before the claims file is returned to the Board for further appellate consideration. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims 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 2014). ______________________________________________ MICHAEL E. KILCOYNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs