Citation Nr: 1702383 Decision Date: 01/27/17 Archive Date: 02/09/17 DOCKET NO. 12-31 348 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUES 1. Entitlement to service connection for chronic gastritis. 2. Entitlement to service connection for hiatal hernia. 3. Entitlement to service connection for right hand burn, with residual scar. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD W. R. Stephens, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1968 to April 1970. This matter is before the Board of Veterans' Appeals (Board) on appeal of a June 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in New Orleans, Louisiana. The Veteran testified before the undersigned Veterans Law Judge (VLJ) at a February 2015 videoconference hearing. A copy of the transcript is associated with the file. These issues were previously remanded by the Board in July 2015 for further evidentiary development. Subsequent to the July 2015 Remand, the issues of service connection for a low back condition, chronic seasickness, and GERD were granted in a February 2016 rating decision. As a result, these matters are no longer before the Board. The U. S. Court of Appeals for Veterans Claims (Court/CAVC) has held that the scope of a claim for service connection for disability includes any disability that reasonably may be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record. See Clemons v. Shinseki, 23 Vet. App. 1, 5-6 (2009). In accordance with Clemons, the Board has added the issue of entitlement to service connection for a hiatal hernia, as it was noted upon VA examination for the Veteran's claimed esophageal conditions. The issues of service connection for fatty tumors and dry hands have been raised by the record at the Veteran's February 2015 videoconference hearing and noted in a February 8, 2016 VA memorandum, 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 issue of entitlement to service connection for right hand burn, with residual scar is addressed in the REMAND portion of the decision below and is REMANDED to the AOJ. FINDINGS OF FACT 1. The preponderance of the evidence is against a finding that the Veteran currently has a chronic gastritis disability. 2. The competent and credible evidence supports a finding that the Veteran's hiatal hernia is related to military service. CONCLUSIONS OF LAW 1. A chronic gastritis disability was not incurred in active duty military service. 38 U.S.C.A. §§ 1110, 1111, 5107 (West 2014); 38 C.F.R. § 3.102, 3.303, 3.307 (2016). 2. The Veteran's hiatal hernia was incurred in active duty military service. 38 U.S.C.A. §§ 1110 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.385 (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Compliance with Stegall As noted in the Introduction, the Board most recently remanded these issues in July 2015. With respect to the issues decided, the Board instructed the RO to: (1) contact the Veteran requesting information on any additional VA or private treatment records; (2) schedule the Veteran for a VA examination to determine the etiology of the Veteran's claimed esophageal and gastrointestinal issues; and (3) readjudicate the claims. VA sent an October 2015 letter requesting information regarding additional treatment records. The Veteran was scheduled for and attended appropriate November 2015 VA examinations. The issues were readjudicated in a February 2016 Supplemental Statement of the Case (SSOC). As a result of these steps taken, the Board finds that there has been compliance with its previous remand instructions. Stegall v. West, 11 Vet. App. 268, 271 (1998) (noting that where remand order of the Board are not followed, the Board errs as a matter of law when failing to ensure compliance). II. VA's Duties to Notify and Assist VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. §§ 3.159, 3.326(a). VA's duty to notify was satisfied by an August 2009 letter and subsequent letters during the course of appeal. See 38 U.S.C.A. §§ 5102, 5103, 5103A; 38 C.F.R. § 3.159; see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). The duty to assist requires VA to seek relevant records and to obtain a medical opinion when required. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159 (c). In assisting the claimant in the procurement of service and other relevant records, VA will make as many requests as are necessary to obtain relevant records from a Federal department or agency, and will make "reasonable efforts" to obtain relevant records not in the custody of a Federal department or agency. VA has satisfied its duty to seek relevant records. VA has obtained and associated service treatment records and VA treatment records with the file. The duty to assist includes providing an examination when one is required by law. McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006) (provides an analysis of when an examination is required). When VA determines to provide an examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The opinion must be adequately supported and explained. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The Veteran was afforded esophageal and stomach VA examinations in November 2015. The Veteran has not argued, and the record does not reflect, that the November 2015 examinations are inadequate. 38 C.F.R. § 3.159 (c) (4), 4.2; Barr, supra. The examiner considered the Veteran's relevant medical history and lay statements, and provided well-reasoned and adequately supported opinions. Based on the foregoing, the Board finds that all relevant facts have been properly and sufficiently developed in this appeal and that no further development is required to comply with the duty to assist the Veteran in developing the facts pertinent to his claim. III. Service Connection Gastritis Generally, service connection may be granted for a disability or injury incurred in or aggravated by active service. See 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303 (a). To establish entitlement to service-connected compensation benefits, a Veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease of injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service - the so-called 'nexus' requirement." Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service establishes that the disability was incurred in service. 38 C.F.R. § 3.303 (d). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. See Baldwin v. West, 13 Vet. App. 1, 8 (1999). "Congress specifically limits entitlement to service-connected disease or injury where such cases have resulted in a disability ... in the absence of a proof of present disability there can be no claim." Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The Court has held that the requirement for service connection that a current disability be present is satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim even though the disability resolves prior to the Secretary's adjudication of the claim. See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). The Veteran filed his claim for service connection for chronic gastritis in July 2009. The Veteran simultaneously filed service connection claims for chronic seasickness and GERD, both of which are now service connected. Pursuant to the Board's July 2015 remand, Veteran was afforded an initial VA examination to determine the etiology of his claimed gastritis in November 2015. After a thorough review of the Veteran's claims file, to include relevant medical records and an in-person examination, the November 2015 VA examiner who conducted both the stomach and esophageal examinations determined that the Veteran has never had any stomach or duodenum condition. The examiner specified that the Veteran had "never been diagnosed with stomach illness or gastritis." After thoroughly reviewing the VA treatment records during the pendency of the claim, the Board finds that the competent evidence establishes that the Veteran does not have the disability for which service connection is sought. The evidence does not support a finding that the Veteran suffers from a chronic gastritis disability. The November 2015 VA examination found that the Veteran did not have a current diagnosis of gastritis. Instead, the findings of this examination and the other medical evidence of record indicate that the Veteran's reported symptoms are related to his diagnosed vestibular disorder, GERD, and hiatal hernia, all of which the Veteran is now service-connected for in accordance with this Board decision. To the extent that the medical evidence documents and the Veteran has alleged chronic gastritis, the Board notes that when determining whether there is a current disability, pain alone is not sufficient. See Sanchez-Benitez v. West, 13 Vet. App. 282, 285 (1999). For VA disability compensation purposes, pain alone is not considered to be a disability, but instead there must be another disability underlying complaints of pain. See id. A symptom without a diagnosed or identifiable underlying malady or condition does not, in and of itself, constitute a disability. Without a pathology to which the complaints of stomach pain can be attributed, there is no basis to find a chronic gastritis disability for which service connection may be granted. See id. Rather, the Veteran's reported symptoms are linked to diagnosed disabilities for which he is in receipt of service connection. In reaching this conclusion, the Board has no reason to question the Veteran's sincerity with respect to his claim. While the Veteran is competent to report lay-observable symptoms, the Veteran is not competent to diagnose himself with chronic gastritis as such a determination requires medical training and expertise. Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). As there is no competent lay evidence of record indicating the presence of a current disability, the issue will be decided based on the medical evidence of record. In light of the foregoing, the Board concludes that the preponderance of the evidence establishes that the claimed chronic gastritis disability has not been present at any time during the pendency of this claim. As a result, there can be no valid claim for service connection. See Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Brammer, supra. In the instant appeal, the claim for service connection for chronic gastritis must be denied because the first criterion for the grant of service connection-competent evidence of the disability for which service connection is sought-is not met. IV. Service Connection Hiatal Hernia As noted in the Introduction, the Board has expanded the Veteran's original service connection claims for chronic seasickness, chronic gastritis, and GERD to include service connection for hiatal hernia, due to the findings of the November 2015 VA examination. At the November 2015 VA examination, the examiner diagnosed the Veteran with hiatal hernia. The examiner concluded that it "is more likely than not that the [Veteran's] GERD and hiatal hernia are related to his epigastric discomfort while in service in 1968." The examiner based this opinion in part on the Veteran's report of a continuity of symptoms since his separation from service. The Veteran is certainly competent to report the continuity of such symptoms, and as a result, the Board finds the November 2015 VA medical opinion to be highly probative. When the November 2015 medical opinion is viewed in light of the Veteran's lay statements, which the Board has found to be both credible and competent with regard to reporting symptoms of esophageal discomfort, the Board finds that the preponderance of the evidence supports a finding that service connection for hiatal hernia is warranted. See 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to service connection for chronic gastritis is denied. Entitlement to service connection for hiatal hernia is granted. REMAND As noted in the July 2015 Remand, the Veteran has testified, to include at his February 2015 videoconference hearing, that the condition of his right hand scar was permanently worsened as the result of abnormal bending of his hand and the use of chemicals to clean the ship he was stationed on. Pursuant to the Board's July 2015 Remand, the Board requested a medical opinion that addressed the Veteran's contention that the use of cleaning chemicals during active duty permanently worsened the Veteran's right hand scar. A December 2015 VA medical opinion stated that: "the use of chemicals while in the military most likely caused his skin condition not the scar itself[,] he has the skin condition both hands exposure to chemicals can cause effects at the point of contact." The examiner did not address the Board's question as to whether the chemicals could have permanently worsened the Veteran's preexisting scar. The record is clear that the chemicals did not cause the scar. Rather, the question is whether the condition of the scar was permanently worsened. As a result, the Board finds that remand is necessary in order to obtain a medical opinion in compliance with the Board's July 2015 Remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). Accordingly, the case is REMANDED for the following action: 1. Return the claims file to an examiner of appropriate knowledge and expertise, other than the December 2015 examiner, to determine whether the Veteran's preexisting right hand scar was permanently worsened by military service. It is up to the discretion of the examiner if a new examination is necessary, or, in the alternative, an addendum opinion is sufficient. The claims file and a copy of this Remand must be made available to and be reviewed by the examiner in conjunction with the examination. The examination report must indicate that the claims file was reviewed in conjunction with the report. Based on a review of the record, the examiner should: Provide an opinion as to whether it is at least as likely as not (i.e. probability of 50 percent or greater) that the Veteran's preexisting right hand scar was permanently worsened as the result of the Veteran's period of active service. The examiner should specifically address the Veteran's contentions that his right hand scar was worsened as the result of abnormal bending required by his MOS and exposure to cleaning chemicals. The examiner is reminded that a preexisting injury or disease will be considered to have been aggravated by active service where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 C.F.R. § 3.306 (a). Temporary or intermittent flare-ups of a preexisting injury or disease are not sufficient to be considered "aggravation in service" unless the underlying condition, as contrasted with symptoms, has worsened. Davis v. Principi, 276 F.3d 1341 (Fed. Cir. 2002). A complete rationale for any opinion expressed should be provided in a legible report. In doing so, the examiner should reconcile any contrary medical evidence of record. In addition, the examiner should address the Veteran's lay statements, relevant buddy statements, relevant service treatment records, and any additional relevant medical records. 2. After the requested records review and opinion are completed, the report should be reviewed to ensure complete compliance with the directives of this remand. If the report is deficient in any manner, it should be returned to the reviewing personnel. See Stegall v. West, 11 Vet. App. 268 (1998). 3. After undertaking any other development deemed appropriate, the RO will re-adjudicate the issues on appeal. If any benefit sought is not granted, the Veteran and his representative should be furnished with a supplemental statement of the case and afforded an opportunity to respond before the record is returned 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 2014). ______________________________________________ MICHAEL LANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs