Citation Nr: 1553014 Decision Date: 12/18/15 Archive Date: 12/23/15 DOCKET NO. 03-05 646A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUES 1. Entitlement to service connection for gastroesophageal reflux disorder (GERD). 2. Entitlement to service connection for traumatic brain injury (TBI). 3. Entitlement to an initial compensable rating for sinusitis with chronic headaches. 4. Whether the Veteran is competent to handle disbursement of VA funds. 5. Entitlement to specially adapted housing or a special home adaptation grant. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD C. Eckart, Counsel INTRODUCTION The Veteran had active service from February 1980 to May 1983. These claims come before the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California. These include a July 2003 rating decision that denied service connection for GERD, chronic headaches, deviated septum and a nasal condition manifested by chronic nose bleeds; a December 2005 rating decision that denied entitlement to specially adapted housing or a special home adaptation grant; and a July 2011 rating decision that denied service connection for TBI. The Board disposed of other issues previously on appeal in decisions issued in June 2009 and March 2011, and remanded the remaining appellate issues. The Board notes that among the issues remanded by the Board was a claim for service connection for chronic headaches, which the Board classified as migraine headaches. Following the most recent remand of March 2011, the RO, in a March 2015 rating decision, granted service connection for sinusitis with chronic headaches at noncompensably disabling and deviated septum with deformity and epistaxis at 30 percent disabling. Thus the issue of entitlement of service connection for chronic headaches (previously classified as migraines by the Board) was subsumed by this grant of service connection of sinusitis. As will be discussed in a portion of the Remand section of this decision, in a February 2015 rating action, the RO formally adjudicated the Veteran as incompetent to handle disbursement of VA funds. Later in May 2015 the Veteran filed a Notice of Disagreement (NOD) with this decision. Also in May 2015, the Veteran filed a NOD as to the ratings assigned to sinusitis with chronic headaches in the March 2015 rating decision. A Statement of the Case has not been provided as to these issues following receipt of the notices of disagreement and, therefore, a remand is required. See Manlincon v. West, 12 Vet. App. 238 (1998). In a June 2015 VA 21-4138 Statement in Support of Claim, the Veteran expressed his desire to appeal the RO's grant of an initial 30 percent rating for deviated septum in the February 2015 rating. However, effective March 24, 2015, a NOD must be submitted via a specific form provided by the VA (VA Form 21-0958). 38 C.F.R. § 20.201 (2015); 79 Fed. Reg. 57660-57698 (Sept. 25, 2014). As the Veteran has not submitted a NOD Form 21-0958 regarding this issue, it will not be included among the issues remanded above. Issues of entitlement to service connection for hearing loss, tinnitus, liver condition, heart condition, kidney condition, facial scar have again been raised by the record in statements dated on June 5, 2015 and July 24, 2015, but have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2015). The issues of entitlement service connection for TBI, entitlement to an increased initial rating for sinusitis with chronic headaches, competency to handle funds, and entitlement to specially adapted housing or a special home adaptation grant are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT The Veteran's GERD developed many years after service and is not shown by the evidence to be related to service or any incident therein. CONCLUSION OF LAW The criteria for entitlement to service connection for GERD are not met. 38 U.S.C.A. §§ 1110, 5107(b) (West 2014); 38 C.F.R. §§ 3.102, 3.303 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100 , 5102, 5103, 5103A, 5106, 5107, 5126; Honoring America's Veterans and Caring for Camp Lejeune Families Act of 2012, Pub. L. No. 112-154, §§ 504, 505, 126 Stat. 1165, 1191-93; 38 C.F.R. §§ 3.102 , 3.156(a), 3.159, 3.326(a). Notice requirements under the VCAA essentially require VA to notify a claimant of any evidence that is necessary to substantiate the claim(s), as well as the evidence that VA will attempt to obtain and which evidence he or she is responsible for providing. See, e.g., Quartuccio v. Principi, 16 Vet. App. 183 (2002). As delineated in Pelegrini v. Principi, 18 Vet. App. 112 (2004), after a substantially complete application for benefits is received, proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim(s); (2) that VA will seek to provide; and (3) that the claimant is expected to provide, in accordance with 38 C.F.R. § 3.159(b)(1). VA's notice requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between the veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA-compliant notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the AOJ. Id.; Pelegrini, 18 Vet. App. at 112. See also Disabled American Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003). However, the VCAA notice requirements may, nonetheless, be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Id. Following remand in March 2011, the RO provided notice in June 2011 to the Veteran explaining what information and evidence was needed to substantiate the claim for service connection, as well as what information and evidence must be submitted by the Veteran, and what information and evidence would be obtained by VA. The June 2011 letter also provided general notice to the Veteran regarding VA's assignment of disability ratings and effective dates. Although a document fully meeting the VCAA's notice requirements was not provided to the Veteran before the rating decision on appeal for GERD, the claim were fully developed and then readjudicated most recently in a March 2015 Supplemental Statement of the Case (SSOC), which was issued after all required notice was provided. Accordingly, the timing defect was appropriately cured and no further development is required with respect to the duty to notify. The record also reflects that VA has made reasonable efforts to obtain or to assist in obtaining all relevant records pertinent to the matter on appeal. Medical evidence associated with the claims file consists of VA and private treatment records, service treatment records, and service personnel records as well as the report of the October 2012 VA examination. Also of record and considered in connection with the appeal are various written statements provided by the Veteran, and by his representative, on his behalf. The Veteran was afforded VA examinations to assess his esophageal conditions in November 2009 and October 2012. The reports of these examination are adequate for rating purposes, as they reflect that the examiner interviewed and examined the Veteran, reviewed the claims file, and reported the clinical findings in detail. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (finding that VA must provide an examination that is adequate for rating purposes). The Board notes that the case was remanded in June 2009 and in March 2011 in part to provide the Veteran with a VA examination and to provide sufficient VCAA notice. As noted above, a June 2012 VCAA notice letter was furnished to the Veteran. Additionally, the Veteran was provided with a VA examination in October 2012, where the examiner provided a detailed opinion, with clear rationale, about the etiology of the Veteran's GERD. Accordingly, the Board finds there has been substantial compliance with the prior remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). Neither the Veteran nor his representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claims that has not been obtained. Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist under the VCAA. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). All necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). II. Analysis Service connection may be granted for disability due to disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. In order to establish service connection for an acquired psychiatric disorder, generally 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). The Veteran alleges that he has a current diagnosis of GERD that is related to his in-service electrical shock injury, and has repeatedly described the shock injury as an "electrocution" that he alleges injured his gastrointestinal tract, with statements describing the shock as having "fried" his internal organs. See the December 2011 VA Form I-9 and most recent statement dated July 24, 2015. His substantive appeal described the electric shock injury as causing multiple injuries to his body, describing it as having blown his right eye out his socket, blew out fillings in his teeth, and "fried my brain and internal organs." He suggested that medications he had to take following this incident caused his GERD. See December 2011VA Form I-9. Service treatment records are silent for any findings or diagnosis of GERD, with normal throat, abdomen and viscera on the August 1979 entrance examination, and no complaints of frequent indigestion, stomach, liver or intestinal trouble in the accompanying report of medical history. The findings were unchanged on Air Crew medical examination of October 1980. In June 1981, the Veteran was treated after receiving an electrical shock while connecting electric power to a plane. On examination his respiration and pulse was normal and his pupils were checked, with no other remarkable findings noted. He was advised to return to care if he had any further complications. He was seen for symptoms that included nausea and vomiting in December 1980, when he was assessed with possible gastritis. He was again treated for vomiting, in addition to cough and chills in February 1981, and again was assessed with viral gastritis. None of the service records indicated he had a diagnosis of GERD. His May 1983 separation examination was normal on examination of throat, abdomen and viscera, with no gastrointestinal problems noted on the summary of defects. Post service records do not reflect a diagnosis of GERD until several years after service. Of note, a January 2000 private hospital record revealed the Veteran to have been admitted for symptoms including loose bowel movements and vomiting for two days in April 1999 with an admitting diagnosis of gastroenteritis. Thereafter he was scheduled to be evaluated for GERD in July 2000, and in December 2000 he was seen for complaints of stomach pain and acid rising into his throat. A formal diagnosis of GERD was rendered in 2001, with notes from October 2001 mental health treatment noting the GERD, and a problem list noting a diagnosis of GERD treated with ranitidine on December 3, 2001. Thereafter, GERD is noted repeatedly among problem lists and diagnoses in the VA and other treatment records from 2002 through 2013. None of the records documenting the GERD or the treatment therein provide any opinion as to the etiology of this condition. The Veteran underwent a VA examination in November 2009 that diagnosed GERD, with a date of onset reported to be 1980. He was noted to have initially gotten pains in his stomach and green phlegm and he was told he had stomach acid. Currently, he experienced nausea and stomach cramping with regurgitation on a daily basis. He had no medical history of trauma to the esophagus or hospitalization for esophageal problems. His overall health was good, with no signs of anemia on physical examination. The examiner gave an opinion that it is not likely that the Veterans GERD is related to his active military service or documented electrical shock, as a review of the c-file did not reveal treatment for GERD in the military. The examiner noted that: the Veteran had what could be viewed as a mild electrical shock, the physical assessment at the time was normal, and he was returned to full duty; there were no other complaints reported by the Veteran at that time or later date related to the electrocution; and a review of medical literature did not reveal a relationship between GERD and electric shock/ electrocution. The report of an October 2012 VA examination included review of the claims file and examination of the Veteran. The diagnosis of GERD was confirmed by medical history. He was noted to report having been "electrocuted" in 1981 in the service, and having experienced GERD symptoms following this injury on an aircraft carrier. He described having been hospitalized with injuries to his eye, neck, back, fingertips and nose and that the GERD began with medication use. His symptoms included infrequent episodes of epigastric distress, dysphagia, pyrosis, reflux, regurgitation and sleep disturbance. He had no esophageal stricture or other gastrointestinal symptoms. Following examination of the Veteran and review of the evidence in the claims file, the examiner rendered an opinion that his claimed condition of GERD was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. In providing the rationale to support this opinion, the examiner pointed out that the Veteran's reported history of the electrocution event does not correspond well with the Veteran's records. The records indicated a mild electrical shock in 1981 with no anticipated disabilities, no treatment noted, and Veteran being returned to duty. The examiner noted that there is no documentation of hospitalization for a head injury, blown nose or fingertips. The examiner also stated that there is no indication that the Veteran developed symptoms consistent with a chronic GERD condition during his active duty military service. Thus, the examiner stated that it is less likely as not that the Veteran's GERD condition is related to any incident or injury during his active duty military service, including electrical shock. The examiner also stated Veteran's current GERD condition is less likely as not caused by or aggravated by or a consequence of any service connected disability. The examiner noted the Veteran's contention that his current symptoms were due to medication use while on active duty in the service due to treatment for his mild electric shock, but emphasized that there was no indication the Veteran was treated with medications for the incident and no indication of chronic medications being used upon discharge. There is no competent evidence of record that suggests a positive link between the Veteran's GERD and his service, and neither the Veteran nor his representative has alluded to the existence of any such evidence. There is evidence of a current disability, evidence of an inservice injury by electric shock and some evidence of acute GI illnesses treated in service, but with no residuals shown on discharge, and no evidence that a diagnosis of GERD was made for almost two decades following service. The third Hickson element, medical evidence of a nexus between the claimed in-service injury and the current disability, is the remaining issue for this claim. In this instance the Board adopts the opinion from the VA medical examiners in the November 2009 and October 2012 examinations, who determined that there is no nexus between the current GERD and any incident in service, with adequate rationale provided. There is no medical evidence submitted to contradict these opinions. To the extent that the Veteran is alleging causation of his GERD from his service, he does not possess the requisite medical expertise to address the etiology of his gastrointestinal disability. Hence, the lay assertions in this regard have no probative value. For the foregoing reasons, the preponderance of the evidence is against the Veteran's claim. The benefit-of-the-doubt doctrine is therefore not helpful in this instance, and the claim of service connection for GERD must be denied. See 38 U.S.C.A. §§ 1110; 5107; Gilbert, 1 Vet. App. at 55-57; 38 C.F.R. § 3.303. ORDER Service connection for GERD is denied. REMAND As noted in the introduction section of this decision, Statements of the Case are required for the competency and sinusitis issues. Thus, a remand is required. See Manlincon v. West, 12 Vet. App. 238 (1998). In regards to the TBI claim, the Veteran filed a claim for service connection for TBI in November 2008, with a NOD filed in response to the August 2011 rating within the same month. After a SOC was issued in July 2014, the Veteran submitted a substantive appeal (VA Form I-9) later the same month, which contained a request for a hearing on this issue before a member of the Board at the RO. Subsequently his representative sent a written statement on July 15, 2014 confirming that the Veteran elected a Travel Board hearing in conjunction with this issue. Thus, on remand, the Veteran should be scheduled for a Travel Board hearing on the issue of entitlement to service connection for TBI. The Board finally finds that the claim of entitlement to specially adapted housing or a special home adaptation grant remains intertwined with the remanded claims. Accordingly, it must also be remanded. See Henderson v. West, 12 Vet. App. 11, 20 (1998) (citing Harris v. Derwinski, 1 Vet. App. 180 (1991) (where a decision on one issue would have a "significant impact" upon another, and that impact in turn could render any review of the decision on the other claim meaningless and a waste of appellate resources , the two claims are inextricably intertwined); Parker v. Brown, 7 Vet. App. 116, 118 (1994). Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for a Travel Board hearing concerning the claim for service connection for TBI. 2. Separately, issue a SOC addressing the claims of entitlement to increased initial compensable rating for sinusitis with chronic headaches and competency to handle disbursement of funds. 3. Following completion of the above development, readjudicate the claim for specially adapted housing or a special home adaptation grant, issuing a supplemental statement of the case, as appropriate. 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). 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 2014). ______________________________________________ S. BUSH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs