Citation Nr: 1751044 Decision Date: 11/08/17 Archive Date: 11/17/17 DOCKET NO. 13-02 520 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to service connection for a back disorder. 2. Entitlement to service connection for a gastrointestinal (GI) disorder, claimed as an ulcer disorder. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Alexander Panio, Counsel INTRODUCTION The Veteran served on active duty in the United States Air Force from August 1968 to August 1972. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. The Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge in May 2015. A transcript of this hearing is of record. The Board remanded this claim for further development in July 2015 and again in November 2015. The issue of entitlement to service connection for a back disorder is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT The Veteran's in-service ulcer resolved before the appeal period and no other GI or esophageal disorder was incurred during active duty or is otherwise related to military service. CONCLUSION OF LAW The criteria for entitlement to service connection for a gastrointestinal disability are not met. 38 U.S.C. §§ 1110, 1154, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran was noted to have been diagnosed with gastroesophogeal reflux disease (GERD) in 2010 and a hiatal hernia in 2015. The Veteran maintains that he never had any stomach or GI problems prior to service but that he has a history of GI problems including GERD and ulcer disease that started during service and have continued since that time. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.303, 3.304. Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999). July 1969 service records show the Veteran to have been assessed with a small active ulcer crater in the apex of the duodenal bulb following complaints of abdominal pain. Testing at the time showed no abnormalities of the esophagus. At a November 2009 VA examination the Veteran reported that the last time he could recall being told he was having any problems due to an ulcer was 20 years prior. The Veteran was diagnosed with a history of gastric ulcer, resolved and the examiner concluded that the ulcer appeared to have fully resolved based on reported history and current labs. At an August 2015 VA examination the Veteran reported a history of a peptic ulcer and continued symptoms of nausea, indigestion and vomiting. On examination the Veteran was found to have a tiny hiatal hernia without gastroesophageal (GE) reflux. No gastric stricture, mass, or ulceration of the thoracic esophagus was located nor any GE reflux evident during the exam. The Duodenum/proximal small bowel appeared unremarkable. The examiner again found that the in-service ulcer had resolved many years prior and that the Veteran had no current GI disability. A supplemental opinion was requested as to whether any GERD or hiatal hernia could be related to service. The addendum opinion stated that neither condition was at least as likely as not incurred in or due to service. The report explained that no gastroesophageal reflux was found at the 2015 VA examination and that the Veteran self-reported a history of GERD in 2010 for which he occasionally used over the counter medication. The report stated however that based on the findings of the previous examination there was no evidence that the Veteran does in fact have GERD. The report explained that while there may be irritating foods that cause esophagitis problems, there is no current evidence of esophagitis or a chronic condition due to service. The report also concluded that there was no hiatal hernia diagnosed during service and no evidence of a continuing ulcer or the bacteria that causes ulcers and thus it was less likely than not that the Veteran's tiny hiatal hernia was related to his in-service ulcer. The Board finds that the evidence of record does not establish a nexus between any current GI or esophageal condition and service. The Veteran's in-service ulcer resolved prior to the appeal period and has not reoccurred. There is no diagnosis of an esophageal condition in service and no medical nexus evidence linking the Veteran's current hiatal hernia or other esophageal symptoms to service. Moreover, while the Veteran, as a lay person, is competent to report observable symptomatology, he lacks the medical training and expertise necessary to provide a probative opinion on the medically complex issue such as the pathology of an ulcer or the etiology of a hiatal hernia. See Layno v. Brown, 6 Vet. App. 465 (1994), Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). Therefore, while the Veteran associates his current esophageal symptoms to service, he is not considered medically qualified to address such a question. A February 2016 letter from two retired physicians, (who apparently were not involved in treating the Veteran but have known him for over 20 years), states "We know that his problems originated from his days when he was active military. These medical conditions include ulcers, hiatal hernia, back problems and ringing in his ears." The doctors stated as well that "it has always been our understanding that his medical conditions were diagnosed during service." As noted above, there was no diagnosis of a hiatal hernia during service and there is no further rationale provided for their conclusions or any indication that they reviewed the Veteran's file. As such, their opinion is given little probative weight. See Nieves-Rodriguez, 22 Vet. App. 295 at 301 ("a medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two"); see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A] medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions.") As the preponderance of the competent medical evidence and opinion is against a finding that the any current GI or esophageal condition is related to service, service connection is denied. 38 C.F.R. § 3.303. 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 Veteran's claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C.A. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). ORDER Service connection for a gastrointestinal disorder, claimed as an ulcer disorder, is denied. REMAND The Veteran has been diagnosed with degenerative joint disease and degenerative disc disease of the lumbar spine during the appeal period. The Veteran maintains these conditions are due to lifting heavy radios over his head during service. The Veteran's pre-induction report of medical history shows a history of dizziness and back pain. A preinduction orthopedic examination noted subjective discomfort on pressure at the lumbosacral area, but x-rays showed no significant abnormalities. The Veteran was diagnosed with symptoms of chronic back strain due to a leg length discrepancy and weakness of the left lower extremity, possibly due to mild childhood poliomyelitis. Service treatment records show regular complaints of back pain, beginning in October 1968 and continuing throughout the Veteran's service. A Schmorl's node on the superior surface of the L-2 and an incomplete fusion of the right portion of the neuroarch of S-1 were shown in September 1969 x-rays. No other abnormalities were detected at that time. An October 1969 signed statement by the Veteran requests discharge from service based upon a preexisting condition. Private treatment records from February 1970 show the Veteran reported back pain originating approximately six years prior while playing high school football when he was "cleated" in the low back area, resulting in intermittent low back pain ever since but worse over the previous year or so. September 1969 x-rays were reviewed and were noted to show a fairly marked increase in lumbosacral lordosis. No other pathological changes were noted. The private doctor assessed chronic postural low back strain. In August 1970, the Veteran began wearing a back brace and was placed on a restricted duty profile. The Veteran's May 1972 separation examination stated the Veteran had worn a back brace during childhood for polio. The evidence indicates that the Veteran suffered from back pain for multiple years prior to service. However, while a leg defect due to polio was diagnosed at a preinduction orthopedic consultation (left leg shorter than right), and the Veteran's "symptoms of chronic back strain" were attributed to this defect, no back-specific infirmity, defect, or disorder was at enlistment. When no preexisting medical condition is noted upon entry into service, a veteran is presumed to have been sound and the burden then falls on the government to rebut the presumption of soundness by clear and unmistakable evidence that an injury or disease was both preexisting and not aggravated by service. 38 U.S.C.A. § 111; Wagner, 370 F.3d at 1096 (Fed. Cir. 2004); Bagby v. Derwinski, 1 Vet. App. 225, 227 (1991). Here, none of the medical opinions of record meet this onerous burden. Thus, the claim becomes one for direct service connection. See Wagner, supra (indicating that, in cases where the presumption of soundness cannot be rebutted, the effect is that claims for service connection based on aggravation are converted into claims for service connection based on service incurrence). The question of whether the Veteran's current disability is due to his in-service event or injury remains. The evidence of record does not show that the Veteran complained of, was diagnosed with or treated for degenerative joint disease during service nor is there evidence that shows the condition manifested to a compensable level within a year of separation. The Veteran has at times suggested that he has experienced chronic back pain ever since service and has been treated on occasion for such. See e.g., Board hearing transcript p. 8. There are no medical records showing chronic or continuous symptomatology in the many decades prior to the appeal period. Moreover, at the Veteran's November 2009 VA back examination he reported having had no treatment or evaluation for the lumbar spine since separation, 37 years prior. He reported experiencing no flare ups or incapacitating episodes regarding his back and reported doing no heavy lifting. He also reported using no braces or other aids and later stated that he no longer needed a brace following separation from service. See e.g. 2015 VA examination report. At an October 2009 primary care initial evaluation for all conditions the Veteran reported an infected hair follicle on his back which had bothered him for several months but made no mention of ongoing or recurrent back pain or problems. It was not until after the rating decision denying the Veteran's claim for service connection that notations begin to appear in the record of experiencing back pain since service. He reported at his Board hearing that his back would "go out" and he would not be up and walking again for five days. The Board finds that the Veteran's statements as to the nature, severity and chronicity of his back symptomatology are too inconsistent and contradictory to establish, absent any other supporting evidence or documentation, a chronic and continuous pattern existing from service until now. Thus, service connection is not warranted on a presumptive basis or on the basis of continuity of symptomatology for a chronic condition. 38 C.F.R. §§ 3.303(b), 3.307, 3.309. However, the VA examinations to date have been most focused on addressing whether or not the Veteran had a preexisting condition and if so whether that condition was clearly and unmistakably not aggravated by service. Having found that an inservice event or injury did occur, specifically that the Veteran suffered low back pain, was diagnosed with chronic lumbar sprain, and was issued a back brace, a medical opinion is now required as to whether the Veteran's current condition is related to his service. Any outstanding VA treatment records should be obtained as well. See 38 U.S.C.A. § 5103A(c). Accordingly, the case is REMANDED for the following action: 1. Obtain any existing VA treatment records. 2. Then obtain an addendum opinion from the September 2016 VA examiner, or other examiner, if unavailable. No additional examination of the Veteran is necessary, unless the examiner determines otherwise. After a full review of the file, including any newly received treatment records since the previous examination, the examiner is requested to provide a specific opinion as to whether it is at least as likely as not (50 percent probability or greater) that any currently diagnosed back disability (to include degenerative disc disease and degenerative joint disease) is related to or had its onset during service. Separate opinions for each current disability must be provided. In answering the above question, please note that the Board has found that the presumption of soundness has not been rebutted. Therefore, per the legal standard applicable to this case the Veteran did not have a back disorder that pre-existed his service, and any supporting rationale should therefore not discuss a pre-existing back disability or aggravation of the same. A comprehensive rationale must be furnished for all opinions expressed. If the examiner cannot provide the requested opinion without resorting to speculation, he or she should expressly indicate this and provide a supporting rationale as to why an opinion cannot be made without resorting to speculation. 3. Then readjudicate the issue on appeal. The Veteran has the right to submit additional evidence and argument on the matter 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 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