Citation Nr: 1753076	
Decision Date: 11/17/17    Archive Date: 11/22/17

DOCKET NO.  14-04 912	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina


THE ISSUES

1. Entitlement to service connection for traumatic brain injury (TBI).

2. Entitlement to service connection for vision loss, claimed as secondary to TBI.

3. Entitlement to a disability rating in excess of 30 percent for gastroesophageal reflux disease (GERD) prior to September 11, 2017.


REPRESENTATION

Veteran represented by:	Texas Veterans Commission


ATTORNEY FOR THE BOARD

A. Keninger, Associate Counsel


INTRODUCTION

The Veteran served on active duty from January 2008 to March 2012.

These matters come before the Board of Veterans' Appeals (Board) from a May 2013 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. Jurisdiction was subsequently transferred to the RO in Winston-Salem, North Carolina.

A Board Central Office hearing was scheduled in September 2015. The Veteran did not appear at the hearing. Thus, the hearing request is deemed withdrawn. 38 C.F.R. § 20.704(d).

In December 2015, the Board remanded the Veteran's TBI and vision loss claims. The Board also awarded a 30 percent evaluation for his GERD. The Veteran appealed the Board's award of the 30 percent evaluation for his GERD to the United States Court of Appeals for Veterans Claims (Court). In October 2016, counsel for the Veteran and the Secretary of VA filed a Joint Motion for Remand (JMR). An Order of the Court, dated October 6, 2016, granted the motion, vacated in part the Board's December 2015 decision, and remanded the case to the Board.

The Board again remanded these matters in July 2017 for additional development. In consideration of the appeal, the Board is satisfied there was substantial compliance with the remand directives and will proceed with review. Stegall v. West, 11 Vet. App. 268 (1998).

A September 2017 Rating Decision granted a 60 percent rating for the Veteran's GERD from September 11, 2017. As this is the highest available rating for this disability, the Board will only consider whether a rating in excess of 30 percent is warranted for the Veteran's GERD prior to September 11, 2017.

A Supplemental Statement of the Case (SSOC), issued by the RO in September 2017, continued to deny service connection for the Veteran's TBI and vision loss and a rating in excess of 30 percent for the Veteran's GERD prior to September 11, 2017.


FINDINGS OF FACT

1. The Veteran does not have a diagnosis of TBI.

2. The Veteran's vision loss disability is not shown to have had its onset in service, and the Veteran's TBI is not service connected.

3. Prior to September 11, 2017, the Veteran's GERD symptoms did not include pain, vomiting, material weight loss, and hematemesis or melena with moderate anemia, nor did his symptoms rise to the level of severe impairment of health.


CONCLUSIONS OF LAW

1. The requirements for service connection for TBI have not been met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2017).

2. The Veteran's vision loss disability was not incurred in or aggravated by the Veteran's active duty service and is not proximately due to, the result of, or aggravated by a service-connected disease or injury. 38 U.S.C. §§ 1101, 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2017).

3. The criteria for a disability rating in excess of 30 percent prior to September 11, 2017 for GERD have not been met.  38 U.S.C. §§ 1155, 5103, 5103A, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.10, 4.114, Diagnostic Code 7346 (2017).




REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I. Duties to Notify and Assist

Neither the Veteran nor the representative has raised any issues with the duty to notify or duty to assist.  See Scott v McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the Veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to duty to assist argument).

Additionally, the Board finds there has been substantial compliance with its July 2017 remand directives. Updated VA records, including hospital records from April 30, 2017 to May 2, 2017 have been associated with the Veteran's claims file. A VA examination for the Veteran's GERD was conducted in September 2017, and in August 2017 the Veteran was provided a VA examination for TBI. A September 2017 Rating Decision granted the highest available rating of 60 percent for the Veteran's GERD from September 11, 2017, and a September 2017 SSOC continued to deny service connection for the Veteran's TBI and vision loss and a rating in excess of 30 percent for the Veteran's GERD prior to September 11, 2017.

Based on the foregoing, the Board finds the RO substantially complied with the mandates of the remand, and no further remand is necessary. Stegall, 11 Vet. App. at 268. Therefore, the Board will proceed to review and decide the claim based on the evidence of record.

II. Service Connection

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 service. 38 U.S.C. § 1110; 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 claimed in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d, 1362, 1366 (Fed. Cir. 2009).

The Board must analyze the credibility and probative value of the evidence, account for the evidence it finds persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the Veteran. Kahana v. Shinseki, 24 Vet. App. 428, 433 (2011). This includes weighing the credibility and probative value of lay evidence against the remaining evidence of record. See King v. Shinseki, 700 F.3d 1339 (Fed. Cir. 2012); Kahana, 24 Vet. App. at 433-34. A lay person is competent to report to the onset and continuity of his symptomatology. Id. at 438. Moreover, lay evidence may be competent and sufficient evidence of a diagnosis or nexus if (1) the particular condition at issue is the type of condition that is within the competence or common knowledge of a lay person, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). The Board must determine on a case-by-case basis whether a particular condition is the type of condition that is within the competence of a lay person. See Kahana, 24 Vet. App. at 433, n. 4.

A Veteran bears the evidentiary burden to establish all elements of a service connection claim, including the nexus requirement. Fagan v. Shinseki, 573 F.3d 1282, 1287 (Fed. Cir. 2009); see also Walker v. Shinseki, 708 F.3d 1331, 1334 (Fed. Cir. 2013). In making its ultimate determination, the Board must give a Veteran the benefit of the doubt on any issue material to the claim when there is an approximate balance of positive and negative evidence. Fagan, 573 F.3d at 1287 (quoting 38 U.S.C. § 5107(b)).

(a) TBI

As noted above, the first element of service connection is a current disability. The Board finds the most probative evidence indicates the Veteran does not have a diagnosis of TBI.

VA examiners at VA examinations in January 2013, February 2016, and July 2017 all found the Veteran did not have TBI. While acknowledging the Veteran's symptoms of TBI, including frequent migraine headaches, memory impairment, difficulty sleeping, and eye strain, and a potential concussive event in 2010 when the Veteran was near a mortar round explosion while serving in Iraq, the examiners opined that the Veteran did not have TBI based on his service treatment records (STRs), which indicated that the Veteran did not lose consciousness or suffer from altered consciousness as a result of this incident, nor did he have any retrograde or posttraumatic amnesia. Additionally, the Veteran did not indicate any external force to the head or any other post-concussive symptoms. The July 2017 examiner also based this opinion on a 2014 CT scan and a follow-up MRI to confirm, which showed the Veteran did not have any abnormalities consistent with TBI.

As a result, the July 2017 VA examiner opined that it was less likely than not that the Veteran sustained a TBI during service. The examiner further opined that a diagnosis of mild TBI requires alteration or loss of consciousness or amnesia following a concussive event, and, despite the Veteran's more recent reports, the Veteran's STRs indicate that he did not report a concussion or symptoms of a concussion at the time of the 2010 mortar explosion or at two subsequent post-deployment health assessments (PDHAs). The examiner also noted that the symptoms of TBI are commonly associated with other medical conditions and that the concussive event is the important factor in diagnosing TBI. As such, the VA examiner opined that the Veteran's symptoms, which other treatment providers had diagnosed as TBI based solely on the Veteran's self-reported history, are more likely than not related to the Veteran's mental health disabilities as the Veteran's STRs do not indicate he experienced a concussive event.

The Board acknowledges the Veteran's VA treatment records include a positive TBI screen in June 2013, a reported history of blast trauma, symptoms consistent with TBI, and indications that primary care providers diagnosed the Veteran with TBI associated with the 2010 mortar explosion. Additionally, TBI is included in the "active problems list" in VA treatment records. However, the Board finds the opinions of the VA examiners, specifically the July 2017 VA examiners opinion that the Veteran did not have TBI, to be more probative. The July 2017 VA examiner conducted a thorough review of the Veteran's records, including STRs and treatment records, including those indicating TBI as an active problem and reviewed a CT scan and an MRI in making his conclusion that the Veteran did not have a TBI.

Additionally, the documentation of TBI in the Veteran's treatment records noted above are less probative as they were made years after service and were based on the Veteran's self-reported history, which is inconsistent with STRs and PDHAs conducted immediately following the 2010 mortar explosion and the completion of the Veteran's deployment to Iraq.  The Veteran's STRs are more probative of the Veteran's symptoms at the time of the 2010 mortar explosion, as they indicate the Veteran's symptoms as he reported them at the time of the mortar explosion rather than as he recalled his symptoms many years later. Additionally, the Veteran PDHAs, which are consistent with each other, despite being conducted at two, separate times in January and February 2010, do not indicate any TBI symptoms or reports of concussions, though the Veteran does report injury to his right side as a result of the mortar explosion and other mental health symptoms he began experiencing as a result of his deployment. The Board reiterates that it finds that the in-service reports of what happened in service are more probative than the reports the Veteran has made years after this event.  

In reaching the above conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, that doctrine is not applicable where, as here, there is not an approximate balance of positive and negative evidence on any aforementioned theory of entitlement. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Thus, the claim must be denied.

(b) Vision Loss

The Veteran contends that his vision loss is caused by his TBI.

Service connection is warranted for a disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Such secondary service connection is warranted for any increase in severity of a nonservice-connected disability that is proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.310(b).

The Veteran does have a current vision loss disability, diagnosed as photophobia associated with ocular migraines, meeting the first requirement of service connection. However, as noted above, the Veteran is not service connected for TBI. Therefore, service connection for vision loss as secondary to TBI is not warranted.

Despite not being entitled to service connection on a secondary basis. The Board will still review the claim on a theory of direct entitlement to service connection.

As noted above, the Veteran does have a current vision loss disability. However, the preponderance of the evidence is against a finding that the Veteran's vision loss has its onset in service. The Veteran's STRs are silent for any diagnosis or symptoms of vision loss in service. The Veteran has not alleged in-service vision loss. Absent an in-service incurrence, service connection must be denied.

In reaching the above conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, that doctrine is not applicable where, as here, there is not an approximate balance of positive and negative evidence on any aforementioned theory of entitlement. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Thus, the claim must be denied.

III. Increased Rating - GERD

Disability evaluations are determined by the application of the facts presented to VA's Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1.

Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Reasonable doubt as to the degree of the disability will be resolved in the Veteran's favor. 38 C.F.R. § 4.3.

The Court has held that, in determining the present level of a disability for an increased evaluation claim, the Board must consider the application of staged ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). In other words, where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings would be necessary.

GERD is appropriately rated under Diagnostic Code 7346, which covers ratings for hiatal hernia. 38 C.F.R. § 4.114, Diagnostic Code 7346.  Under this formula, a 30 percent rating is assigned for persistently recurrent epigastric distress, with dysphagia, pyrosis, and regurgitation, accompanied by substernal or arm or shoulder pain, productive of considerable impairment of health.  A 60 percent evaluation is assigned for symptoms of pain, vomiting, material weight loss and hematemesis or melena with moderate anemia; or other symptom combinations productive of severe impairment of health.  A minimum 10 percent rating is warranted where the evidence demonstrates the presence of two or more of the symptoms identified in the criteria for the 30 percent rating, but of less severity.  38 C.F.R. § 4.114, Diagnostic Code 7346.

Prior to September 11, 2017, the evidence fails to demonstrate that the Veteran exhibited symptoms of pain, vomiting, material weight loss, and hematemesis or melena with moderate anemia, or other symptoms combining to rise to the level of severe health impairment. For example, private medical records from July 2011 show the Veteran was hospitalized for abdominal pain, nausea, and vomiting related to a June 2011 hernia repair. The treatment provider described his symptoms and pain as mild and mild to moderate. VA medical records from November 2012 show the Veteran continued to experience nausea, vomiting, and diarrhea associated with the hernia repair. A January 2013 VA examination indicates the Veteran was taking daily medication to treat his GERD, but he continued to experience reflux two times per week, typically in the morning or after eating.

Buddy statements submitted by J.B., in January 2013, and S.P., in April 2013, indicated that that the Veteran would often vomit after eating, becoming pale and sweaty. S.P. indicated that the Veteran's medication did not help treat the symptoms because he was unable to keep the medication down. S.B. submitted a buddy statement in February 2014, indicating that the Veteran's symptoms make it hard for him to eat and exercise, and, occasionally, the Veteran is unable to get out of bed due to his GERD.

In February 2015, the Veteran was admitted to the emergency room after a severe episode of a vomiting. At a subsequent April 2015 VA examination, the Veteran continued to report daily reflux, regurgitation, sleep disturbance, and pain, and he indicated he would vomit after meals two to three times per week. The Veteran also reported being unable to go to school or work two to three days per month due to vomiting and pain. Other symptoms noted by the VA examiner included hematemesis once per year with episodes lasting one to nine days. No material weight loss was reported by the Veteran or the examiner at this time.

The Veteran was hospitalized in May 2017 after being admitted for intoxication. The Veteran had vomited after eating, which he attributed to his GERD. At this time, he noted that his GERD caused him to have a decreased appetite and lethargy. The Veteran at this time reported that he vomited two times per day since his June 2011 surgery, which is inconsistent with his other statements about the frequency of vomiting. 

A 60 percent rating requires symptoms of pain, vomiting, material weight loss, and hematemesis or melena with moderate anemia to be present at the same time. While the Veteran consistently reports daily pain and regurgitation and vomiting two to three times per week along with the February 2015 hospitalization and April 2015 VA examination indicating hematemesis, the preponderance of the evidence does not indicate the Veteran's symptoms include material weight loss. 

A 60 percent rating can also be awarded if the symptoms rise to the level of severe impairment of health. The Veteran's symptoms of daily pain and regurgitation are often described as mild, and the Veteran reports, and his buddy statements support, episodes of vomiting typically occur two to three times a week. The Board finds the Veteran's one report in May 2017 that he vomited approximately two times per day to be inconsistent with the preponderance of the Veteran's reports and the reports in the buddy statements on this matter. Thus, this report of symptoms is not credible. Additionally, the Veteran is unable to go to school or work two to three days per month, which is not indicative of a severe health impairment.  

In conclusion, the evidence demonstrates that the Veteran's GERD symptoms are fully and appropriately addressed by the criteria for a 30 percent rating, and that the preponderance of the evidence is against a finding that the Veteran suffered from a combination of symptoms productive of severe health impairment.  Therefore, a 60 percent rating for GERD prior to September 11, 2017, is not warranted.  38 C.F.R. § 4.114, Diagnostic Code 7346. 


ORDER

Entitlement to service connection for TBI is denied.

Entitlement to service connection for vision loss, to include as secondary to TBI, is denied.

Entitlement to a disability rating in excess of 30 percent for GERD prior to September 11, 2017, is denied.




____________________________________________
A. P. SIMPSON
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs