Citation Nr: 1752397	
Decision Date: 11/15/17    Archive Date: 11/22/17

DOCKET NO.  12-27 336	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Huntington, West Virginia


THE ISSUES

1. Entitlement to service connection for irritable bowel syndrome (IBS).

2. Entitlement to service connection for residuals of a left foot injury.

3. Entitlement to service connection for gastroesophageal reflux disease (GERD).

4. Entitlement to service connection for a right eye retinal tear.


REPRESENTATION

Appellant represented by:	West Virginia Department of Veterans Assistance


WITNESSES AT HEARING ON APPEAL

The Veteran and his friend 

ATTORNEY FOR THE BOARD

B. N. Quarles, Associate Counsel


INTRODUCTION

The Veteran served on active duty from March 1996 to March 2000.

These matters come before the Board of Veterans' Appeals (Board) on appeal from a December 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia.  In March 2014, the Veteran testified before the undersigned Veterans Law Judge at a videoconference Board hearing at the RO.  In February 2015, the Board remanded the matters for further development.

The issues of entitlement to service connection for GERD and residuals of a retinal tear are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ).


FINDINGS OF FACT

1. The Veteran does not have a diagnosis for IBS.

2. The Veteran does not have a diagnosed left foot condition.


CONCLUSIONS OF LAW

1. The criteria for service connection for IBS have not been met.  38 U.S.C.A. §§ 1110, 5103, 5103(A), 5107 (West 2014); 38 C.F.R. §§ 3.159, 3.303 (2017).

2. The criteria for service connection for a left foot condition have not been met.  38 U.S.C.A. §§ 1110, 5103, 5103(A), 5107 (West 2014); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

I. Duties to Notify and Assist

As a preliminary matter, the Board has reviewed the claims file and finds that there exist no deficiencies in VA's duties to notify and assist that would be prejudicial and require corrective action prior to a final Board determination.  See 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159; see also Bryant v. Shinseki, 23 Vet. App. 488 (2010) (regarding the duties of a hearing officer); Mayfield v. Nicholson, 20 Vet. App. 537 (2006) (corrective action to cure a 38 C.F.R. § 3.159(b) notice deficiency); Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004) (timing of notification).

The Board also notes that, to the full extent possible, VA complied with all prior remand instruction requests, and there exist no deficiencies in VA's duties to notify and assist in that regard.  See Stegall v. West, 11 Vet. App. 268 (1998) (a remand by the Board confers upon the claimant, as a matter of law, the right to compliance with the remand order); but see D'Aries v. Peake, 22 Vet. App. 97, 104 (2008) (it is only substantial compliance, rather than strict compliance, with the terms of a remand that is required).  

II. Applicable Laws and Regulations

Service connection may be granted for disability resulting from disease or injury incurred or aggravated during active military service.  38 U.S.C.A. § 1110.  Generally, service connection requires (1) the existence of a present disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service.  Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004).  Certain disabilities, including arthritis, organic neurological disorders, and peptic ulcers, are presumed to be service-connected if manifested to a compensable degree within one year following service.  38 C.F.R. §§ 3.303, 3.307, 3.309.

III. Service Connection Analysis

A. IBS

The Board has reviewed the Veteran's service treatment records (STR) and post-service medical records but finds no evidence of a diagnosed gastric reflux disability.  The Veteran's entrance and separation examinations are silent for any indications of IBS symptoms or an IBS diagnosis.  The Veteran was afforded a VA intestinal examination in June 2017.  The examination report indicates negative findings for IBS, as the examiner found no current or chronic diagnosis.

The Board does acknowledge the Veteran's lay reports of diarrhea symptoms in service reported during his March 2014 Board hearing.  The Veteran is competent to describe current gastrointestinal symptoms but does not have the training or credentials to provide a competent opinion as to a clinical diagnosis or the onset date of IBS.  Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007).  Accordingly his lay opinion lacks probative value and is substantially outweighed by the June 2017 examiner's opinion, the preponderance of the evidence is against the claim, and the claim must be denied.  38 U.S.C.A. § 5107(b).

B. Left Foot

The Veteran contends he injured his left foot in service and has had continuous left foot problems since service.  The Veteran's STRs noted left foot pain in May 1996, and an addition notation without an accompanying date stamp.  The Veteran's entrance and separation examinations are silent for a left foot condition.  The Veteran was afforded a VA orthopedic examination in June 2017.  The examination report indicates negative findings for a foot condition, as the examiner found no current or chronic diagnosis.  

In light of the above, the Board finds that service connection must be denied for a left foot condition, as no present disability exist for which to grant service connection.  The Board has carefully reviewed all of the evidence of record and finds no evidence of a present disability.  The Board acknowledges the Veteran's complaints of foot pain, but pain itself does not constitute a disability for VA purposes.  Sanchez-Benitez v. West, 13 Vet. App. at 285 (1999).  The Veteran has not provided any additional medical evidence of an actual left foot disability.  Again, the Veteran is competent to observe left foot symptoms but lacks the training or credentials to ascertain that such symptoms constitute a clinical diagnosis, or to describe the date of onset of such diagnosis.  Accordingly, absent any evidence that would contradict the June 2017 VA examiner's opinion, the Board must deny service connection because a present diagnosis does not exist.  38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.303, 3.304.


ORDER

Entitlement to service connection for IBS is denied.

Entitlement to service connection for residuals of a left foot injury is denied.


REMAND

I. GERD

The Veteran contends that he suffered from GERD symptoms since service.  The Veteran has a current diagnosis for GERD.  The Veteran was afforded a VA examination in June 2017.  In the "Medical History" section the examiner noted the Date of onset of GERD as 1996 and the examiner noted "stayed the same" when asked to describe the course of the condition since onset.  In the "Remarks" section the examiner stated "GERD was not an ongoing medical issue once treated per the records."  The examiner provided a negative nexus opinion stating that the Veteran did not have recurrent issues with GERD in service.  The Veteran was diagnosed with GERD in July 1998, and failed to return for a follow-up appointment in August 1998.  Due to the Veteran's failure to return for the follow-up appointment in August 1998 and medical evidence of record negative for continued occurrences of GERD, the examiner provided a negative opinion.  

The Board finds the examiner's rationale inadequate.  The Veteran has a diagnosis for GERD in his STRs.  The Veteran is currently diagnosed with GERD, as evidenced by the June 2017 examination report, and private records from Dr. C.  The examiner mentions the Veteran's GERD resolving; however, the Veteran has several years of medical records positive for GERD diagnosis.  Therefore, an addendum opinion is needed to adequately explain the examiner's negative nexus opinion, explaining why the Veteran's previous GERD diagnosis in service is etiologically separate from the Veteran's current GERD diagnosis.  

II. Residuals of Retinal Tear

During the March 2014 Board hearing, the Veteran contended he jabbed his eye on a fence during active service.  He submitted a photograph of himself standing in the barracks with his eye bandaged.  He contended to currently had eye problems, including issues with his sight.  The Board has reviewed the Veteran's service treatment records (STR) and post-service medical records but finds no evidence suggesting an eye disability.  The Veteran is competent to report symptoms of an eye disability, and he has submitted competent evidence to support an in service injury to his eye.  Therefore, the Board finds that a VA examination would be helpful in resolving this issue.  See 38 C.F.R. § 3.159(c)(4).  

Accordingly, the case is REMANDED for the following action:

1. Obtain any outstanding VA treatment records and request treatment records from any private medical providers the Veteran identifies in relation to his GERD and retinal tear claims.

2. Forward the Veteran's claim file to the June 2017 examiner, and if that individual is unavailable, forward the Veteran's claim file to a different qualified medical professional in order to obtain a new VA esophageal medical opinion.

The examiner must provide an opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran's GERD manifested in or is otherwise related to the Veteran's active service.  In providing such opinion, the examiner must discuss the diagnosis of GERD in the Veteran's STRs.

A complete rationale for all opinions expressed should be provided.  In doing so, the examiner should reconcile any contrary medical evidence of record.  The examiner should identify and explain the relevance or significance, as appropriate, of any history, clinical findings, medical knowledge or literature, etc., relied upon in reaching his or her conclusions.  If the examiner determines the Veteran's current diagnosis of GERD is not related to the Veteran's in service diagnosis of GERD, the rationale must explain the difference between the two diagnosis with adequate facts and medical principles as to be of considerable assistance to the Board.

3. Forward the Veteran's claim file to a qualified medical professional in order to obtain a VA ophthalmologic examination.

The examiner must address the current nature and etiology of any right eye condition.  All necessary tests and studies should be accomplished and all clinical findings should be reported in detail.  For any right eye diagnosis, the examiner must provide an opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran's right eye condition is related to the Veteran's active service.  In providing such opinion, the examiner must discuss the Veteran's lay testimony.  

4. After the requested actions 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.

5. After the development has been completed, readjudicate the claim for service connection.  If the benefit sought remains denied, furnish the Veteran 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 appeal 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. §§ 5109B, 7112 (West 2014).



______________________________________________
A. C. MACKENZIE
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs