Citation Nr: 1800501	
Decision Date: 01/05/18    Archive Date: 01/19/18

DOCKET NO.  15-04 112A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Baltimore, Maryland


THE ISSUES

1.  Entitlement to service connection for a chronic lumbar radiculopathy/degenerative spine condition (back condition).

2.  Entitlement to service connection for hiatal hernia with gastroesophageal reflux disease (GERD).

3.  Entitlement to service connection for a bilateral shoulder condition, with tendonitis and possible arthritis.


REPRESENTATION

The Veteran represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

V-N. Pratt, Associate Counsel 


INTRODUCTION

The Veteran served on active duty from March 1970 to November 1971 and from December 1990 to May 1991.

These matters come before the Board of Veterans' Appeals (Board) on appeal from a January 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Baltimore, MD.

In March 2012, the Veteran testified at a personal hearing before a Decision Review Officer at the Baltimore, MD RO.  A transcript of this hearing is of record.

In November 2016, the Veteran testified before the undersigned Veterans Law Judge at a Board hearing in the Central Office in Washington, D.C.  A transcript of this hearing is of record.

The issues of service connection for GERD and a bilateral shoulder condition are 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 back disability is related to his active service.


CONCLUSION OF LAW

The criteria for service connection for a back disability are met.  38 U.S.C. § 1110 (West 2014); 38 C.F.R. § 3.303 (2017).


REASONS AND BASES FOR FINDING AND CONCLUSION

I.  Service Connection for a Back Disability

Service connection may be granted for disability resulting from disease or injury incurred in or aggravated during service.  38 U.S.C. § 1110 (West 2014); 38 C.F.R. § 3.303 (2017).  That determination requires a finding of a current disability that is related to an injury or disease in service.  Service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury that was incurred or aggravated in service.  38 C.F.R. § 3.303(d) (2017).

The Veteran asserts that his back disability is a result of his active service.  Specifically, the Veteran indicates that he did a lot of heavy lifting, while in service; and that he reported having back pains running down his legs while he was in service.  See November 2016 Board Hearing Transcript.

A December 2015 VA examination and opinion reflect a current diagnosis of a back condition, namely degenerative arthritis of the lumbar spine.  The VA examiner opined that this back disability was at least as likely as not (50 percent or greater) incurred in or caused by the claimed in-service injury, event or illness.  As the basis and rationale for this opinion, the VA examiner explained that there is clear evidence of leg pain and questions about the Veteran's back in this separation examination in April 1991, with a follow up the following year, and documentation of back and leg conditions continuing to the present.

The Board finds this medical opinion to be the most probative evidence of record, which is dispositive of this issue.  This opinion provides a clear rationale, which is based on his review of the Veteran's in-service and post service medical records.  Therefore, the Board finds that service connection for a back disability is warranted.


ORDER

Entitlement to service connection for a back condition is granted.


REMAND

The Board regrets further delay, but finds that additional development is necessary before a decision may be rendered on the remaining issue on appeal.

Hiatal Hernia with GERD

Although the Veteran was afforded a VA examination for his esophageal conditions in April 2012, that VA examination lacks an adequate nexus opinion.  Specifically, the April 2012 VA examination failed to address the issue of whether the Veteran's GERD is related to his service.  Rather, the VA examiner opined that there was no connection between the Veteran's in-take of Motrin and his GERD.  

Additionally, the Veteran's service records show that the Veteran served in Southwest Asia and is a Persian Gulf War veteran within the meaning of the pertinent, applicable statute and regulation for Gulf War Veterans.  38 C.F.R. § 3.317 (e) (1).  See e.g. July 1997 Correspondence; see also DD-215: Corrected DD Form 214 Certification.  

Accordingly, he may be entitled to presumptive service connection if the evidence of record shows that he manifests objective indications of a chronic disability resulting from an undiagnosed illness that became manifest either during active service in the Southwest Asia theater of operations during the Persian Gulf War, or to a degree of 10 percent or more and which by history, physical examination, and laboratory tests cannot be attributed to any known clinical diagnosis.  38 U.S.C. § 1117; 38 C.F.R. § 3.317(a)(1).  Given the Veteran's complaints of diarrhea during the entire time he was in active service; weight loss resulting from diarrhea; feeling bloated; and other similar gastrointestinal symptoms, which continue to persist, see November 2016 Board Hearing Transcript, a remand is required for a new VA examination and opinion on chronicity, as well as the nature and etiology of his GERD.

Bilateral Shoulder Condition

At his Board hearing, the Veteran indicated that he injured his should while he was in active service.  See November 2016 Board Hearing Transcript (stating that he injured his shoulders during rugged training, in which he had pains in his shoulders from ruck packs.).

In an April 2012 VA examination, a VA examiner concluded that there was no pathology detected in the Veteran's shoulder and thus there was no medical opinion warranted for this.  However, the VA examination is inadequate because the VA examiner failed to provide an adequate rationale for the basis of his opinion.  Specifically, there were no x-rays or MRI of the Veteran's shoulder to support a conclusion that there was no medical pathology for the Veteran's shoulders.  Thus a remand is warranted for a new VA examination to assess the presence, and if any, etiology of his shoulder condition.

Accordingly, the case is REMANDED for the following action:

1.  Obtain any outstanding private and VA treatment records and associate them with the claims file.

2.  After obtaining all outstanding private and/or VA treatment records, if applicable, schedule the Veteran for a VA examination with a VA examiner to determine the nature and etiology of the Veteran's diagnosed GERD.  The VA examiner must be provided with a copy of this remand, review the claims file and must note that review in the report.  All necessary tests and studies should be accomplished and all clinical findings reported in detail.  The VA examiner must undertake the following:

a.  Opine as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran's GERD is related to any incident during active service, to include the Veteran's service in the Persian Gulf.

b.  Opine as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran's GERD is a qualifying chronic disability.

A "qualifying chronic disability" is a chronic disability resulting from (A) an undiagnosed illness, (B) a medically unexplained chronic multi-symptom illness (such as chronic fatigue syndrome, fibromyalgia, irritable bowel syndrome, functional dyspepsia, functional bloating, functional abdominal pain syndrome, ) that is defined by a cluster of signs or symptoms, or (C), any diagnosed illness that the Secretary determines in regulation prescribed under 38 U.S.C. § 1117(d) warrants a presumption of service connection.  38 U.S.C. § 1117(a)(2); 38 C.F.R. § 3.317(a)(2)(i) (B).

c.  Laypersons are competent to report objective signs of illness.  Gutierrez v. Principi, 19 Vet. App. 1, 8 - 9 (2004).  Therefore, the Veteran's report of the onset of his symptoms in-service is competent and conceded, and accordingly, the VA examiner must consider all lay statements from the Veteran about the onset and symptomatology of his GERD in-service, in determining chronicity.

If it is determined that there is another likely etiology for the Veteran's GERD, please indicate and provide a clear, detailed explanation.

A detailed explanation is requested for all opinions provided.  If an opinion cannot be provided without resort to speculation, provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be rendered.  

3.  Also, schedule the Veteran for a VA examination with a VA examiner to determine the presence and etiology of any bilateral shoulder disability.  The VA examiner must be provided with a copy of this remand, review the claims file and must note that review in the report.  All necessary tests and studies should be accomplished and all clinical findings reported in detail.  The VA examiner must undertake the following:

a.  Undertake an x-ray or magnetic resonance imaging of the Veteran's shoulders to determine the presence of any bilateral right shoulder disability.

b.  If the Veteran has a bilateral right shoulder disability, opine as to whether it is at least as likely as not (50 percent probability or more) that the Veteran's bilateral right shoulder disability is related to his active service.

c.  Construe all disclosures and statements from the Veteran as competent lay statements, unless the VA examiner has good reason to believe that the information being provided by the Veteran cannot be reliable.

If it is determined that there is another likely etiology for the Veteran's bilateral shoulder disability, please indicate and provide a clear, detailed explanation.

A detailed explanation is requested for all opinions provided.  If an opinion cannot be provided without resort to speculation, the VA examiner should provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be rendered.  

4.  After ensuring that the above-mentioned actions have been undertaken, readjudicate the claims.  If any decision remains adverse to the Veteran, issue a supplemental statement of the case and allow the appropriate time for response from the Veteran or his representative.  Then, return the case to the Board for further development.

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 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. §§ 5109B, 7112 (West 2014).



______________________________________________
BRADLEY W. HENNINGS 
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs