Citation Nr: 1753672 Decision Date: 11/22/17 Archive Date: 12/01/17 DOCKET NO. 12-14 591 ) DATE On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to service connection for acid reflux. 2. Entitlement to service connection for a right shoulder disability. 3. Entitlement to service connection for a chest injury including broken ribs and a broken collarbone (claimed as a crushing blow). 4. Entitlement to An effective date earlier than August 28, 2015 for the assignment of a 100 percent rating for a bipolar disorder. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD S. Freeman, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1976 to June 1977. This case comes before the Board of Veterans' Appeals (Board) on appeal from a June 2011 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. The record before the Board consists of the Veteran's electronic records located within the Veterans Benefits Management System (VBMS) and Virtual VA. In July 2014, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. In a November 2014 decision, the Board denied the Veteran's claim for entitlement to service connection for acid reflux, and the Veteran appealed that decision to the United States Court of Appeals for Veterans Claims (Court). The Court remanded this issue back to the Board pursuant to a May 2016 Memorandum Decision but did not disturb any other issues denied in its November 2014 decision. The Board in a March 2017 decision remanded the claim for entitlement to service connection for acid reflux and requested that the RO administer a new examination. The Board notes that in December 2015 the Veteran filed a Notice of Disagreement with regard to the effective date for a 100 percent rating for bipolar II disorder. FINDINGS OF FACT 1. The evidence does not demonstrate that acid reflux is due to his active military, to include as due to injection or medication. 2. The evidence does not demonstrate that a right shoulder disability was caused or aggravated during active military service. 3. The evidence does not demonstrate that a chest injury was caused or aggravated by his active military service. 4. In an August 2015 rating decision, the RO granted service connection for a bipolar disorder, rated as 70 percent disabling effective March 29, 2011. 5. On August 28, 2015, the Veteran submitted a claim for a total disability rating. 6. Totally disabling symptoms were first demonstrated on a VA examination conducted in October 2015. 7. In a December 2015 rating decision, the RO increased the Veteran's evaluation for bipolar II to 100 percent disabling, effective August 28, 2015; it is not factually ascertainable that the increase in disability occurred prior to that date. CONCLUSIONS OF LAW 1. The criteria for service connection for acid reflux are not met.38 U.S.C.A. § 1110, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.303, 3.310 (2017). 2. The criteria for service connection of a right shoulder disability, including arthritis are not met. 38 U.S.C.A. §§ 1110, 1112, 1113, 5107 (West 2014); 338 C.F.R. §§ 3.303, 3.304, 3.307, 3.309, 3.311 (2017). 3. A chest injury including broken ribs and broken collarbone was not incurred or aggravated by service, and is not proximately due to or aggravated by a service-connected disability. 38 U.S.C.A. § 1131 (West 2014); 38 C.F.R. §§ 3.303, 3.304, 3.310 (2017). 4. The criteria for an effective date earlier than August 28, 2015 for assignment of a 100 percent for bipolar II have not been met. 38 U.S.C.A. § 5110 (a), 38 C.F.R. §§ 3.156, 3.400 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duty to Notify and Assist VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2016). See also Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Dingess v. Nicholson, 19 Vet. App. 473 (2006). VA has a duty to assist the Veteran in the development of the claim. The claims file includes service treatment records (STRs), VA medical records, private treatment records, VA examinations, lay statements, and the statements of the Veteran in support of his claim. The Board has considered the statements and perused the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the Veteran's claim for which VA has a duty to obtain. The Board also notes that actions requested in the prior remand have been undertaken. Indeed, additional private and VA medical records were provided and development required under 38 C.F.R. § 3.311, to include obtaining all available records pertaining to the Veteran's hospitalization at Norfolk in May 1977. Accordingly, the Board finds that there has been substantial compliance with the prior remand instructions and no further action is necessary. See D'Aries v. Peake, 22 Vet. App. 97 (2008) (holding that only substantial, and not strict, compliance with the terms of a Board remand is required pursuant to Stegall v. West, 11 Vet. App. 268 (1998)). VA examinations were administered, which are adequate and were based on a review of the history and were supported by sound medical opinions. Service Connection Establishing service connection generally requires medical evidence or, in certain circumstances, lay evidence of the following: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) nexus between the claimed in-service disease and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Hickson v. West, 12 Vet. App. 247 (1999); Caluza v. Brown, 7 Vet. App. 498 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table). Service connection may also be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). Certain diseases, to include arthritis, may be presumed to have been incurred in service when manifest to a compensable degree within one year of discharge from active duty. 38 U.S.C.A. § 1112; 38 C.F.R. §§ 3.307; 3.309. As arthritis of the right shoulder was not manifest to a compensable degree within one year of discharge from service, the above provision is not applicable. In addition, any disability that is proximately due to or the result of a service-connected disease or injury shall be service connected. See 38 C.F.R. § 3.310 (2016). Establishing service connection on a secondary basis requires evidence sufficient to show: (1) that a current disability exists and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. 38 C.F.R. § 3.310 (a); Allen v. Brown, 7 Vet. App. 439 (1995). In adjudicating a claim, the Board must assess the competence and credibility of the Veteran. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Washington v. Nicholson, 19 Vet. App. 362, 368-69 (2005). The Board also has a duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). The Veteran is competent to provide facts about what he experienced; for example, he is competent to report that he engaged in certain activities in service and currently experiences certain symptomatology. See, e.g., Layno v. Brown, 6 Vet. App. 465 (1994). Competency, however, must be distinguished from weight and credibility, which are factual determinations going to the probative value of the evidence. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); see also Cartwright v. Derwinski, 2 Vet. App. 24, 2 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). The Board acknowledges that it cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. See Buchanan, 451 F.3d at 1337. However, such lack of contemporaneous evidence is for consideration in determining credibility. Once the evidence is assembled, the Board is responsible for determining whether the preponderance of the evidence is against the claim. If so, the claim is denied; if the evidence is in support of the claim or is in equal balance, the claim is allowed. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). It is the policy of VA to administer the law under a broad interpretation, consistent with the facts in each case with all reasonable doubt to be resolved in favor of the claimant; however, the reasonable doubt rule is not a means for reconciling actual conflict or a contradiction in the evidence. 38 C.F.R. § 3.102. To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Acid Reflux Service treatment records do not show treatment or complaint for acid reflux during military service. A record dated in December 1976 notes treatment for vomiting for two days, with a diagnosis of probably gastritis. There were no subsequent similar complaints during the remainder of his period of service. Private treatment records show ongoing treatment of reflux since April 2010. The Veteran was evaluated for Barrett's esophagus and subsequently diagnosed with esophageal cancer and underwent esophageal gastrectomy in April 2010, several years after his active military service. In VA Form 21-4138, statement in support of claim, received in November 2014, the Veteran contended that he is "convinced" that an experimental drug injected into him by military doctors to slow the progression of arthritis caused digestion problems within a year of discharge from service, which according to him caused stomach related problems and eventually resulted in stomach cancer. VA examination was administered in June 2017. The VA examiner reported that the Veteran possesses signs and symptoms of an esophageal condition, including dysphagia, pyrosis, reflux, regurgitation and pain. The Veteran does not have esophageal stricture, spasm of esophagus or an acquired diverticulum of the esophagus. The examiner acknowledged that the Veteran had Lewis esophagogastrectomy for cancer of the esophagus in 2010. The VA examiner further reported that there was no objective medical evidence that the Veteran had symptoms of reflux in service. In addition, the examiner opined that there is no medical or scientific evidence to support that steroid and or local anesthetic injection can or do cause acid reflux. The VA examiner opined that it is less likely than not (50 percent probability or higher) that the Veteran's acid reflux began in or is etiologically related to his active military service, to include as due to injection. Based on a review of the evidence, the Board finds the preponderance of the lay and medical evidence to be against the award of service connection for acid reflux. The record indicates that the Veteran did not complain of acid reflux symptoms until April 2008. See treatment report from Dr. M. F, received November 2014. Furthermore, no competent expert has opined that the current claimed disorder was incurred in service or manifested to a compensable degree within a year of service separation. With regard to the Veteran's assertion that the current claimed disorder began a year after service, the Veteran is competent to report such lay incidents as in-service injury, treatment, and symptoms he experienced at any time, including in service and during the years after service to the present. See Jandreau, 492 F.3d 1372; see also Buchanan, 451 F.3d 1331. The Board recognizes that the Veteran is competent to testify regarding certain observable symptomatology such as pain and to report the observable symptoms of acid reflux. See Jandreau, 492 F.3d at 1372. The Veteran, however, is not competent to establish a matter that requires medical knowledge, such as providing a diagnosis or etiology of acid reflux, as such is a complex disorder which requires specialized medical knowledge. Id. The Veteran is also not competent to establish an etiological link between any current disorder, and any disease, injury, and other incident of service. Id. In conclusion, the Board concludes that the preponderance of the evidence is against the claim for service connection for an acid reflux disorder. The Board also concludes that there is no doubt to be otherwise resolved, and this claim must be denied. See 38 U.S.C.A. §5107 (b); 38 C.F.R. §3.102 Right Shoulder and chest injury The Veteran has claimed that his right shoulder disorder, including arthritis, and chest injury including broken ribs and a broken collarbone are related to his active military service. Specifically, the Veteran contended that he was declared healthy in September 1976 on his military entrance examination, but was medically discharged due to a right shoulder injury and painful surrounding areas of the chest. The Veteran reported that his April 1977 STRs recorded painful sterno-clavicular joint. The Veteran reported having an injury aboard a ship when a cable hit him in the chest. As the analyses for both claimed conditions are substantially the same, they are discussed together. A private pre-service treatment record showed a diagnosis of acromioclavicular joint separation in 1975 due to a motor vehicle accident in May 1975, where the Veteran sustained "significant" injuries to his right shoulder. STRs shows he begun to have pain gradually worsening soon after entering service, without trauma noted in service. Service treatment records from Norfolk, dated in May 1977, are of record. X-ray showed no evidence of separation or fracture. Physical examination was unremarkable, except for examination of the sternoclavicular joint on the right, indicating moderate size mass. Tenderness was elicited to palpation. He was diagnosed with chronic right sided sternoclavicular pain, secondary to old separation. A January 2015 VA examination confirmed a diagnosis of acromioclavicular joint separation, dated in 1975. No flare up was reported. No functional loss or functional impairment was noted. The Veteran exhibited no evidence of pain with weight bearing and no evidence of localized tenderness or pain on palpation of the joint or associated soft tissue. Forward flexion of the right shoulder was normal, with no reduction in muscle strength. No muscle atrophy was reported. There was no evidence of degenerative or traumatic arthritis documented. The 2015 VA examiner opined that the claimed conditions, which "clearly and unmistakably" existed prior to service, were not aggravated beyond their natural progression by an in-service event, injury or illness. The examiner further opined that the Veteran did not sustain any trauma to his right shoulder or right chest in service that would be anticipated to permanently aggravate his pre-existing condition. The examiner stated that the fact that the Veteran had a callus formation noted over the right shoulder and chest joint on an x-ray in service without trauma in the service would indicate he had sustained a significant injury prior to service and it would be expected that he would have future problems or pain with his shoulder and right chest. VA examination was conducted for his right shoulder as well as his chest in June 2017. The examiner noted that there was no objective evidence of an in-service injury in any of the service medical records. It was noted that the Veteran has had surgery on the right chest wall in 2010 for esophageal cancer which the examiner opined contributes to pain with the use of the right arm or shoulder. The Veteran reported flare ups of the right arm and shoulder. As functional loss or impairment, the Veteran reported "pushing and pulling." Pain was noted with weight bearing. Objective evidence of localized tenderness or pain on palpation of the joint was noted on examination. Forward flexion of the right shoulder was normal, with no reduction in muscle strength recorded. No ankylosis was reported. No shoulder instability, dislocation or labral pathology was suspected. Clavicle, scapula, acromioclavicular joint or sternoclavicular joint condition was suspected. The Veteran does not use any assistive devices. The examiner opined that the 2010 esophageal cancer surgery is at least as likely as not the cause of the right chest wall pain with range of motion (ROM) of the shoulder. While the examiner reported that "clearly and unmistakably" are not medical terms, and it is not feasible to make such a determination without resorting to speculations, nonetheless, the examiner opined that on review of the available medical evidence, the residuals of right acromioclavicular separation or right sternoclavicular joint separation were not aggravated by the Veteran's active duty service, to include as due to experiencing a blow to the chest during his military service. After a thorough review of the evidence of record, the Board concludes that service connection for a right shoulder disability, a chest injury including broken rib and broken collarbone is not warranted. The evidence clearly and unmistakably demonstrates significant injuries to the right shoulder as well as 1st through 3rd coastal chondral joint in a pre-service 1975 motor vehicle accident. Degmetich v. Brown, 104 F.3d 1328, 1333 (Fed. Cir. 1997) (holding that the existence of a current disability is the cornerstone of a claim for VA disability compensation). In addition, the 2015 VA examiner opined that the Veteran did not undergo trauma in service. The Board finds that the pre-existing disabilities clearly and unmistakably were not aggravated by service. Importantly, the probative evidence of record does not show that the Veteran's right shoulder and chest injury were incurred in or caused by his active duty service. The Veteran has offered his own opinion on etiology, stating that he currently has a right shoulder and chest injury that is causally related to his active service. The Board acknowledges that the Veteran is competent to describe his symptoms without any specialized knowledge or training. Layno, 6 Vet. App. 465. However, as a layperson, the Veteran is not competent to diagnose his symptoms as a specific disease, nor is he competent to render a nexus opinion regarding the etiology of any current disorder; both of these determinations require medical expertise. Jandreau, 492 F.3d at 1372. Therefore, the Board affords more probative weight to the VA examiners' opinions than the Veteran's own contentions. The Board has considered the doctrine of giving the benefit of the doubt to the Veteran, under 38 U.S.C.A. § 5107, and 38 C.F.R. § 3.102, but does not find that the evidence is of such approximate balance as to warrant its application. Gilbert, 1 Vet. App. at 54-56. Therefore, the preponderance of the evidence is against the claim for service connection; there is no doubt to be resolved. Service connection for a right shoulder and chest injury including a broken rib and broken collarbone is not warranted. Bipolar II Disorder Entitlement to service connection for bipolar II was granted in an August 2015 rating decision. An initial 70 percent evaluation was assigned for a bipolar II disorder effective March 29, 2011. Subsequently, in a December 2015 rating decision, the Veteran's service-connected bipolar II disorder was assigned a 100 percent evaluation effective August 28, 2015. The Veteran contends an earlier effective date of April 1, 2011 is warranted for the grant of a total disability rating for the service-connected bipolar disorder. In the case of a claim for an increased rating, if an increase in disability occurred within one year prior to the date of claim, the increase is effective as of the date the increase was "factually ascertainable." If the increase occurred more than one year prior to the claim, the increase is effective the date of claim. If the increase occurred after the date of claim, the effective date is the date of increase. 38 U.S.C.A. § 5110 (b)(2); Harper v. Brown, 10 Vet. App. 125 (1997); 38 C.F.R. § 3.400 (o); VAOPGCPREC 12-98 (1998). In making this determination the Board must consider all of the evidence, including that received prior to previous final decisions. Hazan v. Gober, 10 Vet. App. 511 (1997). As noted above, the effective date for an award of an increased rating is based on the date of receipt of the claim and when the increase in disability occurred. The record establishes that the Veteran's claim for an increased rating was received on August 29, 2015. Following the Veteran application for an increase, VA examination was administered in October 2015 and the RO developed evidence pertinent to the disability and issued the December 2015 rating decision granting a higher rating in response to the August 28, 2015 claim. The December 2015 rating decision identifies August 29, 2015 as the date of receipt of the increase rating claim. The claims file does not contain any correspondence or submission from the Veteran prior to August 29, 2015 that could be considered an increased rating claim in accordance with 38 C.F.R. §§ 3.151 and 3.155. The Veteran seeks entitlement to an effective date for a 100 percent evaluation earlier than August 28, 2015 for the grant of service connection. He asserts than an effective date of April 1, 2011, is appropriate. The Veteran contends that his disorder should have been evaluated at 100 percent disabling because of the short gap between his June 2017 VA examination and the December 2017 VA examination, which shows total occupational and social impairment. See December 2015 Correspondence. Disability evaluations are determined by comparing a Veteran's present symptomatology with criteria set forth in VA's Schedule for Rating Disabilities (Rating Schedule), which is based on average impairment in earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran's psychiatric disorder is evaluated under Diagnostic Code 9432, pertaining to bipolar disorder, in accordance with the General Rating Formula for Mental Disorders. See 38 C.F.R. § 4.130. A maximum 100 percent evaluation is warranted for total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. Id. A 100 percent rating is warranted if the disability causes total occupational and social impairment, regardless of whether the veteran has some, all, or none of the symptoms listed in the rating formula, and regardless of whether the symptoms are listed in the Rating Schedule. See Mauerhan v. Principi, 16 Vet App 436, 442-3 (2002); see also Sellers v. Principi, 372 F.3d 1318, 1326 (Fed. Cir. 2. After review of the evidence, the Board finds that the Veteran's disability did not worsen to the level contemplated by a total schedular rating under the General Rating Formula prior to August 28, 2015. A Private treatment record from C. L, PsyD LCSW, received in February 2015, reported that the Veteran had difficulty sleeping, hyper vigilance and exaggerated startle response. The physician also reported that the Veteran talked about intrusive and disturbing recollection of events. The Veteran was provided a VA examination in June 2017. The examiner subjective symptoms included depressed mood, anxiety, panic attack, chronic sleep impairment mild memory loss, such as forgetting names, directions or recent events, flattened effect, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances, inability to establish and maintain effective relationships, suicidal ideation and obsessional rituals which interfere with routine activities. The examiner opined that the Veteran is anxious and depressed. GAF score was reported as 50. Although there is evidence of severe impairment specifically pertaining to the claim prior to August 28, 2015, the Board notes that total occupational and social impairment due to bipolar II disorder was actually first demonstrated on the October 2015 examination. The October 2015 examiner reported that the Veteran has depressed and hypomanic episodes. He has panic attack and drinks daily in order to be able to eat. He hates to be alone and texts his wife all day when she is at work. He gets angry if she does not get back to him right away. He has impaired sleep and typically only sleeps a few hours at night. He has impaired memory and difficulty sustaining focus and attention. He is very rigid in his thinking and regimented in his behaviors. He and his wife have separate sides of the refrigerator and things must be totally in line. All things must be done in his way or he is easily angered. He gets lost when driving as he does not pay attention due to his anxiety and has also run red lights for the same reason. He is easily agitated and will have to take some space when acting as chaplain if he gets upset so that he does not cross that line. He has suicidal thoughts, with no plan, or intent due to his faith. The examiner opined that the Veteran exhibited total occupational and social impairment, due to symptoms such as depressed mood, anxiety, panic attack more than once a week, near-continuous panic or depression affecting the ability to function independently, appropriately and effectively, chronic sleep impairment, mild memory loss, such as forgetting names, directions or recent events, flattened affect, disturbances of motivation and mood, difficulty in adapting to stressful circumstances, including work or a work like setting, inability to establish and maintain effective relationships, suicidal ideation, obsessional rituals which interfere with routine activities, intermittent inability to perform activities of daily living, including maintenance or minimal personal hygiene. In consideration of the above, the Board finds that the Veteran did not manifest total impairment due to the service-connected psychiatric disorder prior to receipt of the filing of the claim for increase evaluation on August 28, 2015. The Board acknowledges that the Veteran experienced severe psychiatric impairment at the filing of his original claim in 2011, but the Board cannot conclude that such impairment was total in light of his strong family relationships, normal thought processes, and the regulation of his condition through medication. Accordingly, it is not factually ascertainable that the Veteran's service-connected bipolar disorder increased to the severity contemplated by a 100 percent rating until October 2, 2015 the date a VA examiner found that the Veteran manifested total occupational and social impairment due to a service-connected bipolar II disorder. To the extent the Veteran contends that an effective date of April 1, 2011 is appropriate, the Board observes that it cannot award a disability evaluation for bipolar disorder earlier than the date total occupational and social impairment was shown, i.e., earlier than August 28, 2015. The regulations pertaining to effective dates provide that if the service-connected disability increased in severity after the date of claim, the effective date is the date of increase. 38 C.F.R. § 3.400 (o). Thus, the appropriate effective date for the award of a 100 percent rating for the service-connected bipolar disorder is August 28, 2016. Since the competent persuasive evidence shows worsening on the October 2015 examination and the preponderance of the evidence is against the claim, the benefit-of-the-doubt rule does not apply, and the claim is denied. 38 U.S.C.A. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to service connection for acid reflux is denied. Entitlement to service connection for a right shoulder disability is denied. Entitlement to service connection for a chest injury including broken ribs and a broken collarbone (claimed as a crushing blow) is denied. Entitlement to an effective date earlier than August 28, 2015 for the award of a 100 percent evaluation for a bipolar disorder is denied. ____________________________________________ MICHAEL MARTIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs