Citation Nr: 1634543 Decision Date: 09/01/16 Archive Date: 09/09/16 DOCKET NO. 07-31 346A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to service connection for high blood pressure. 2. Entitlement to service connection for a left foot condition, to include as secondary to high blood pressure. 3. Entitlement to service connection for a gastrointestinal disorder, to include as secondary to an undiagnosed illness. REPRESENTATION Veteran represented by: Alabama Department of Veterans Affairs WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD Mary E. Rude, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1977 to February 1989, and from February 2003 to May 2004, with additional dates of service with the National Guard. The Veteran served in the Southwest Theater of Operations during the Persian Gulf War between April 2003 and March 2004. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2006 rating decision of the Montgomery, Alabama, Regional Office (RO) of the Department of Veterans Affairs (VA). In April 2009, the Veteran testified before a Decision Review Officer (DRO) at the RO, and in February 2011, the Veteran testified at a Board hearing before the undersigned. Transcripts of the proceedings have been added to the record. The claims file is now entirely in VA's secure electronic processing systems, Virtual VA and the Veterans Benefits Management System (VBMS). In September 2011, the case was remanded to the Agency of Original Jurisdiction (AOJ). The issues of entitlement to service connection for tuberculosis and for left and right eye conditions were granted in a May 2013 rating decision. The Board finds that these grants constitute a full award of the benefits sought with respect to those issues. See Grantham v. Brown, 114 F.3d 1156, 1158 (Fed. Cir. 1997). The issues of entitlement to service connection for high cholesterol and to an increased rating for cystic acne were remanded for the AOJ to issue a statement of the case. See Manlincon v. West, 12 Vet. App. 238, 240-41 (1999). Statements of the case were issued in May 2013, and the Veteran has not appealed these issues. They are therefore no longer within the jurisdiction of the Board. The Board notes that the Veteran initially filed a claim for service connection for a "stomach problem." However, the November 2012 VA examiner indicated that the Veteran did not have a stomach disorder, but did have a diagnosis pertaining to the esophagus. The Board has therefore broadened the scope of the claim to entitlement to service connection for a gastrointestinal disorder. See, e.g., Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). In the September 2011 Board remand, the Board noted that the Veteran had submitted an August 2005 statement indicating his wish for compensation related to both his left and right ear and the surgeries he has had for both. This possibly raises the claim for entitlement to an increased rating for the service-connected surgical repair of labyrinthine fistula, right ear, with chronic otitis media, as well as the claim for entitlement to service connection for a left ear disability. Also, in a July 2007 statement, the Veteran requested an increased rating for his service-connected kidney stones. Further, at his February 2011 hearing, he made clear his wish to file a claim for an increased rating for the service-connected vertigo. These issues have not been adjudicated by the AOJ; therefore, the Board does not have jurisdiction over them, and they are again REFERRED to the AOJ for appropriate action. The issues of entitlement to service connection for high blood pressure and for a left foot condition are addressed in the REMAND portion of the decision below and are REMANDED to the AOJ. FINDING OF FACT The preponderance of the evidence of record weighs against finding that the Veteran has a gastrointestinal disorder which is related to his military service or due to an undiagnosed illness. CONCLUSION OF LAW The criteria for service connection for a gastrointestinal disorder are not met. 38 U.S.C.A. §§ 1110, 1117, 1131, 5103, 5103A, 5107(b) (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.317 (2015). REASONS AND BASES FOR FINDING AND CONCLUSION I. VA's Duties to Notify and Assist The Veterans Clams Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159. The requirements of the statute and regulation have been met with regard to the claims decided herein. VA notified the Veteran of the information and evidence needed to substantiate and complete his claims in correspondence sent in July 2005, March 2006, and June 2012. The case was last readjudicated in May 2013. The record also reflects that VA has made reasonable efforts to obtain relevant records adequately identified by the Veteran, including service treatment records, VA and private treatment records, written personal statements, and personal hearing testimony. The Board notes that in June 2006, the RO issued a Formal Finding on the Unavailability of Records that found that not all service records from the Veteran's National Guard service could be obtained. When a veteran's service treatment records are lost or missing, VA has a heightened duty to afford the veteran the benefit of the doubt. Cuevas v. Principi, 3 Vet. App. 542 (1992). Relating to the issue decided herein, the record does contain service treatment records pertaining to the Veteran's 2003 treatment for abdominal pain. The Veteran has not identified any additional treatment that was received in service for this disorder, and the Board therefore finds that the record is adequately complete to adjudicate this issue at this time. Pursuant to the September 2011 Board remand, all Board instructions pertaining to the issue decided at this time were completed, and the Board finds that there has been substantial compliance with the prior remand directives, fulfilling the duty to assist. See Stegall v. West, 11 Vet. App. 268 (1998). The Veteran attended a VA examination in November 2012. The examiner performed an in-person examination of the Veteran and discussed the Veteran's medical history. While she did not specifically state that the claims file was reviewed, she accurately discussed his 2003 in-service treatment for abdominal pain and stated that the claims file was silent for any stomach condition treatment, indicating that it was reviewed. The VA examination report provides adequate information regarding the Veteran's current diagnosis and its relationship to his service for the Board to evaluate the claim decided herein. See Monzingo v. Shinseki, 26 Vet. App. 97 (2012). Accordingly, the Board finds that VA's duty to assist with respect to obtaining VA examinations with regards to the issue decided herein has been met. 38 C.F.R. § 3.159(c)(4). Lastly, during the April 2009 DRO hearing and the February 2011 Board hearing, the issues on appeal were explained and suggestions made regarding the submission of evidence that may have been overlooked. These actions provided an opportunity for the Veteran and his representative to introduce material evidence and pertinent arguments, in compliance with 38 C.F.R. § 3.103(c)(2) (2015) and consistent with the duty to assist. See Bryant v. Shinseki, 23 Vet. App. 488, 492 (2010). As there is no indication that any failure on the part of VA to provide any additional notice or assistance reasonably affects the outcome of the issues decided at this time, the Board finds that any such failure is harmless. See Newhouse v. Nicholson, 497 F.3d 1298 (Fed. Cir. 2007). The Veteran has had a meaningful opportunity to participate in the adjudication of these claims such that the essential fairness of the adjudication is not affected. II. Gastrointestinal Disorder The Veteran contends that he has a chronic gastrointestinal disorder that first had its onset during his active duty service in 2003. The Veteran testified in February 2011 that while in service, he had stomach cramps and diarrhea while stationed in the Middle East and that it later progressed into vomiting. Board Hearing Transcript 16. He stated that these symptoms have continued to the present and cause bowel problems and acid reflux. Id. at 18. The Veteran provided similar testimony at his April 2009 DRO hearing. DRO Hearing Transcript 8. Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the current disability and an in-service precipitating disease, injury or event. 38 C.F.R. § 3.303(a); Fagan v. Shinseki, 573 F.3d 1282, 1287 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Because the Veteran served in the Southwest Asia Theater of operations during the Persian Gulf War, service connection may also be established under 38 C.F.R. § 3.317. Under that section, service connection may be warranted for a Persian Gulf Veteran who exhibits objective indications of (1) an undiagnosed illness; (2) a medically unexplained chronic multi symptom illness; and (3) a specific illness prescribed under 38 U.S.C.A 1117(d). 38 C.F.R. § 3.317. An undiagnosed illness is defined as a condition that by history, physical examination and laboratory tests cannot be attributed to a known clinical diagnosis. In the case of claims based on undiagnosed illness under 38 U.S.C.A. § 1117; 38 C.F.R. § 3.117, unlike those for "direct service connection," there is no requirement that there be competent evidence of a nexus between the claimed illness and service. Gutierrez v. Principi, 19 Vet. App. 1, 8-9 (2004). A medically unexplained chronic multi symptom illnesses is one defined by a cluster of signs or symptoms, and specifically includes chronic fatigue syndrome, fibromyalgia, and irritable bowel syndrome, as well as any other illness that the Secretary determines meets the criteria in paragraph (a)(2)(ii) of this section for a medically unexplained chronic multi symptom illness. 38 C.F.R. § 3.317(a)(2)(ii). In this case, the Board does not find that the evidence indicates that the Veteran has an undiagnosed illness, a medically unexplained chronic multi symptom illness, or an illness prescribed under 38 U.S.C.A 1117(d), nor does it show that he has a current gastrointestinal disorder that was incurred in or otherwise related to his active duty service. The Veteran's service treatment records show that in April 2003 he complained of abdominal cramping and difficulty having a bowel movement. He was found to have sinusitis, mild dehydration, and a possible upper respiratory infection. On an April 2004 Post-Deployment Questionnaire, the Veteran indicated that he had no vomiting, no frequent indigestion, and no diarrhea during his deployment. The Veteran's VA treatment records show that in May 2004, after returning from deployment in Kuwait and being separated from active duty, he reported acid and gas in his stomach. In June 2007, he reported occasional mid-epigastric stomach pain that most often happened at night at that he would wake up nauseated and vomited once. He was diagnosed with GERD. An August 2007 esophagogastroduodenoscopy (EGD) performed due to abdominal pain found a normal esophagus and stomach, and a biopsy showed gastritis. In January 2011, the Veteran reported increased reflux symptoms, and he was diagnosed with GERD. In February 2011, he complained of abdominal pain over the last couple of days with nausea. Abdomen imaging was within normal limits. He was diagnosed with generalized mid-epigastric pain. The Veteran continued to endorse stomach problems throughout 2011, and an EGD, colonoscopy, and biopsy were performed in June 2011. A benign poly was found. At a November 2005 VA examination, the Veteran reported having lower abdominal pain once in April of 2000 which continued to occur every three to four months and was accompanied by constipation, nausea, and cramping. He was diagnosed with intermittent abdominal cramping. The Veteran most recently attended a VA examination in November 2012. He reported that in 2003 he had abdominal cramps and vomiting. She stated that he currently has stomach growling and acid reflux. The examiner noted that the Veteran had heartburn, and that an EGD from June 2011 showed normal esophagus, stomach, and duodenum. The examiner did not find a current diagnosis of a stomach condition, but did find a current diagnosis of an esophageal condition, gastroesophageal reflux disease (GERD). He noted that the Veteran had symptoms of pyrosis (heartburn), reflux, nausea, and vomiting. The examiner opined, however, that the condition was less likely than not incurred in or caused by service. The examiner explained that the Veteran's claims file was silent for any stomach condition and that his current GERD was caused by a weak esophageal sphincter which allowed liquids in the stomach to back up into the esophagus causing symptoms which could be aggravated by large meals, supine positions, certain foods, tight fitting clothes, and obesity. He also stated that it was less likely as not that it would be aggravated by the combination of the Veteran's service-connected disabilities. The evidence of record clearly indicates that the Veteran has a current stomach disability, which has been diagnosed both by his treating medical providers and by the November 2012 VA examiner as GERD. While the Veteran's medical history lists within the VA treatment records have listed irritable bowel syndrome as a past disorder, there is no evidence that the Veteran has actually been diagnosed with this disability, and he has not reported current symptoms which any medical provider or examiner have found to be consistent with such a diagnosis. The November 2012 VA examiner specifically stated that the Veteran did not have a stomach condition, and only had a diagnosis of GERD. The Board therefore finds that the Veteran has a known diagnosis, which renders inapplicable the special service connection rules for Persian Gulf Veterans. See 38 C.F.R. § 3.317. Moreover, at no point has the Veteran's GERD been deemed a symptom of a medically unexplained chronic illness, nor has the Veteran ever been diagnosed with a qualifying chronic disability such as chronic fatigue syndrome or fibromyalgia. The overwhelming weight of the evidence shows that the claimed condition relating to "stomach problems" is diagnosable, and the presumptions afforded under 38 C.F.R. § 3.317 cannot be applied. The evidence also weighs against finding a relationship between his current diagnosis of GERD and his in-service treatment for abdominal cramping. See Shedden, 381 F.3d at 1167. While the Veteran had treatment in April 2003 for symptoms of abdominal cramping, he was found to have sinusitis, mild dehydration, and a possible upper respiratory infection. There is no evidence to indicate that he had GERD or any chronic stomach disorder at this time, and in fact he denied any having any vomiting, frequent indigestion, or diarrhea at his return from deployment in April 2004. The only probative medical evidence of record which addresses the "nexus" question of the relationship of the Veteran's GERD to his service is that of the November 2012 VA examiner, who reviewed the claims file, considered the Veteran's history and assertions, performed an in-person examination, and provided a fully adequate rationale for his findings. The examiner explained that the Veteran's GERD was not caused by service or related to any in-service disease, as GERD was instead caused by a weak esophageal sphincter and was aggravated by lifestyle factors, such as large meals and certain foods. As the examiner explained the reasons for his conclusions based on an accurate characterization of the evidence of record, his opinion is entitled to substantial probative weight. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). There are no contrary medical opinions, and no competent medical opinions of any kind that relate the Veteran's GERD to service. The Board has also considered the Veteran's lay statements indicating that he believes his symptoms are related to the abdominal pain he experienced in service. Lay witnesses are competent to opine as to some matters of diagnosis and etiology, and the Board must determine on a case by case basis whether a veteran's particular disability is the type of disability for which lay evidence is competent. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Kahana v. Shinseki, 24 Vet. App. 428, 433, n. 4 (2011). In this case, the Veteran's testimony as to the cause of his GERD or whether they share a common etiology with the stomach infection he experienced in service appears to be testimony as to an internal medical process which extends beyond an immediately observable cause-and-effect relationship that is of the type that the courts have found to be beyond the competence of lay witnesses. See, e.g., Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). The Board also notes that while the Veteran is competent to report on his own symptoms experienced in service, his assertions that experienced vomiting and diarrhea while in service which continued to the present day are not consistent with the medical evidence of record and are not found to be credible. The Veteran's service treatment records do clearly show complaints of abdominal pain, but state that the Veteran had been unable to use the toilet and do not indicate any symptoms of vomiting. In April 2004, the Veteran also specifically denied any having any vomiting, frequent indigestion, or diarrhea during his deployment. The Veteran's testimony is therefore found to be lacking in credibility, as it directly conflicts with his own statements made at the time of his deployment and immediately afterwards. See, e.g., Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (Board can consider bias in law evidence, the lack of contemporaneous medical records, and significant time delay between the observations and the date on which the statements were written in weighing credibility). Furthermore, the testimony of lay witnesses must be weighed against the other evidence of record, and the Veteran's testimony regarding his symptoms and their similarity to his symptoms in service is found to carry less probative weight than that of a medical professional. See Jandreau, 492 F.3d at 1376-77; Layno v. Brown, 6 Vet. App. 465, 470 (1994). The Board finds that the most probative medical evidence of record indicates that the Veteran does not have an undiagnosed illness, and his diagnosed GERD was not incurred in service or related to any event, injury, or disease in service. The preponderance of the evidence is therefore against the claim for service connection for a gastrointestinal disorder. In reaching this conclusion, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). ORDER Entitlement to service connection for a gastrointestinal disorder is denied. REMAND The Veteran contends that he has hypertension, which was incurred in or aggravated by his active duty service, and that he has a left foot disorder that was either incurred in service or has been caused or aggravated by his hypertension. The Veteran testified in February 2011 that he had foot swelling during his 2003 deployment and that he was told that he had a blood pressure problem which could be causing the problem. Board Hearing Transcript 14. He also stated that he sprained his foot while running when he fell in 1986, and that it began hurting more severely during his second period of active service in 2003. Id. at 19-20, 24. At the November 2012 VA examination, the examiner diagnosed the Veteran with hypertension and noted that he had been first diagnosed in 2002. The Veteran also reported that he had swelling in his feet in the 1980s and now has pain from below the ankle and is unable to stand for long periods of time. The examiner diagnosed the Veteran's left foot, and diagnosed him with foot calluses which had their onset in 2012. Imaging studies were not performed. The examiner stated that the Veteran's did not have sustained hypertension beginning during his service in 1984, but the examiner failed to address whether the Veteran's hypertension could have had its onset during or been aggravated by his service period of service in 2003-2004. The examiner found that the Veteran's hypertension had its onset in 2002, prior to that period, and therefore aggravation of a preexisting disorder should be addressed. Furthermore, it is unclear what treatment record the examiner is referring to, as it also appears that the Veteran's hypertension may, in fact, have been first diagnosed after this period of service. Regarding the left foot disorder claim, the examiner again only addressed whether the Veteran's foot disorder could have had its onset during his service injury in 1986, and did not discuss the Veteran's second period of service or his in-service treatment which occurred in 2003. The November 2012 examiner also only found that the Veteran had a diagnosis of foot calluses, which is inconsistent with the Veteran's medical treatment records. His August 2005 private treatment provider found that X-rays showed some degenerative joint disease and bone blockage, and diagnosed with Veteran with sinus tarsi syndrome and pes planus. In a September 2005 letter, the Veteran's podiatrist wrote that the Veteran had rearfoot valgus, sinus tarsi syndrome, and plantar fasciitis which required molded foot orthoses. The Board therefore finds that this examination is inadequate, as it failed to address the Veteran's other left foot diagnoses or his documented in-service treatment. Lastly, the record indicates that the Veteran has received private medical care for his foot disorders. The Veteran should be afforded an opportunity to provide authorization to obtain any more current, relevant private treatment records. The record also indicates that the Veteran receives current medical treatment at the Birmingham VA Medical Center (VAMC). The record currently contains treatment records dating up to October 2013; all outstanding, relevant VA treatment records should be acquired and associated with the claims file. Accordingly, the case is REMANDED for the following action: 1. Send to the Veteran and his representative a letter requesting that he provide sufficient information and a signed and dated authorization, via a VA Form 21-4142 (Authorization and Consent to Release Information) to enable VA to obtain any additional relevant private medical records related to the treatment of a foot disorder or hypertension. 2. Obtain all pertinent VA treatment records, to include from the Birmingham VAMC since October 2013. 3. After associating any pertinent, outstanding records with the claims folder, schedule the Veteran for a VA examination to address his hypertension. The VA examiner should review the claims file, and the examination report should reflect consideration of the Veteran's documented medical history and assertions. The examiner is asked to address the following: a) Does the Veteran have a current diagnosis of hypertension? Please note that although the Veteran may not meet the criteria for a diagnosis at the present time, diagnoses made prior to and since the date of claim filing may meet the criteria for a "current" diagnosis. For any diagnoses of record which cannot be validated or confirmed, please explain why such diagnoses cannot be confirmed. b) If high blood pressure is diagnosed, the examiner should address whether it is at least as likely as not that it initially manifested during service or is otherwise due to service. The opinion should include a determination as to whether any current high blood pressure is causally connected to the Veteran's service, including but not limited to the elevated blood pressure readings shown in his service treatment records. The examiner must consider both of the Veteran's periods of active service, from July 1977 to February 1989 and from February 2003 to May 2004. c) If hypertension is found to have preexisted the Veteran's second period of service from February 2003 to May 2004, please state what evidence of record shows that the condition clearly and unmistakably preexisted this period of service and whether there is clear and unmistakable evidence that the Veteran's hypertension did not undergo an increase in severity during this period of active service. Please discuss the evidence used to support this conclusion. d) Was the Veteran's hypertension either caused or aggravated (permanently worsened beyond the natural progression) by his service-connected iritis, anxiety disorder, vertigo, labyrinthine fistula, tinnitus, cystic acne, tuberculosis, kidney stones, or hearing loss, alone or in the aggregate? If the examiner cannot provide any requested opinion, he/she must affirm that all procurable and assembled data was fully considered and a detailed rationale must be provided for why an opinion cannot be rendered. 4. Schedule the Veteran for a VA examination to determine the nature and etiology of any left foot condition. The VA examiner should review the claims file, and the examination report should reflect consideration of the Veteran's documented medical history and assertions. After reviewing the claims file, performing a physical examination of the Veteran, and conducting any indicated tests, including an X-ray if necessary, the examiner is asked to address the following: a) Identify all disorders of the left foot and ankle, including the left ankle. In identifying all current disorders, please consider medical and lay evidence dated both prior to and since the filing of the claim. Please note that although the Veteran may not meet the criteria for a diagnosis at the present time, diagnoses made prior to and since the date of claim filing may meet the criteria for a "current" diagnosis. For any diagnoses of record which cannot be validated or confirmed, please explain why such diagnoses cannot be confirmed. It is noted to the examiner that the Veteran's private treatment provider has diagnosed him with sinus tarsi syndrome, pes planus, rearfoot valgus, and plantar fasciitis. b) For every diagnosed disorder, state whether it is at least as likely as not (i.e., there is a 50 percent or greater probability) that the disorder first manifested or is otherwise related to either of the Veteran's periods of service, from July 1977 to February 1989 and from February 2003 to May 2004. In providing this opinion, the examiner is asked to address: i) the Veteran's lay assertions that he has had continuous left foot pain since his first period of service, ii) the September 1986 treatment record for feet swelling and sprain, and iii) April 2003 treatment records for ankle swelling. c) For every diagnosed disorder, was the condition either caused or aggravated (permanently worsened beyond the natural progression) by his hypertension? Please discuss the April 2003 service treatment record which attributed the Veteran's ankle swelling to possible hypertension. If the examiner cannot provide any requested opinion, he/she must affirm that all procurable and assembled data was fully considered and a detailed rationale must be provided for why an opinion cannot be rendered. 5. Provide the Veteran with adequate notice of the date and place of any requested examination at his latest address of record. A copy of all notifications must be associated with the claims folder. He is hereby advised that failure to report for any scheduled VA examination without good cause shown may have adverse effects on his claims. 38 C.F.R. § 3.655 (2015). 6. After the above development has been completed, as well as any additionally indicated development, readjudicate the issues. If any benefit sought on appeal remains denied, furnish the Veteran and his representative with a supplemental statement of the case and return the case to the Board. 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). ______________________________________________ K. A. KENNERLY Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs