Citation Nr: 1801486 Decision Date: 01/09/18 Archive Date: 01/19/18 DOCKET NO. 12-32 564 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to service connection for residuals of unknown tropical disease, to include malaria or hepatitis. 2. Entitlement to service connection for an esophageal disorder, to include hiatal hernia and gastroesophageal reflux disease (GERD). REPRESENTATION Veteran represented by: Georgia Department of Veterans Services ATTORNEY FOR THE BOARD K. K. Buckley, Counsel INTRODUCTION The Veteran served on active duty from May 1970 to November 1971. Service in the Republic of Vietnam is indicated by the record. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2011 rating decision of the Department of Veterans Appeals (VA) Regional Office (RO) in Atlanta, Georgia. Although the Veteran initially requested a Travel Board hearing, he contacted the RO in October 2015 and withdrew this request. In December 2015 and January 2017 Board decisions, the claims were remanded for further evidentiary development. As will be discussed below, a review of the record reflects substantial compliance with the Board's Remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The VA Appeals Management Center (AMC) continued the previous denials in an October 2017 supplemental statement of the case (SSOC). The Veteran's VA claims file has been returned to the Board for further appellate proceedings. FINDINGS OF FACT 1. The Veteran does not have residuals of an unknown tropical disease, to include malaria and hepatitis, that had their onset during active service, or are otherwise causally related to active service or any incident therein. 2. The Veteran does not have an esophageal disorder, to include hiatal hernia and GERD, that had its onset during active service, or is otherwise causally related to active service or any incident therein. CONCLUSIONS OF LAW 1. Residuals of an unknown tropical disease, to include malaria and hepatitis, were not incurred in active service. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. § 3.303 (2017). 2. An esophageal disorder, to include hiatal hernia and GERD, was not incurred in active service. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. § 3.303 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist The Veteran and his representative have raised no 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 a duty to assist argument). Pursuant to the January 2017 Board Remand, the Veteran was afforded VA examinations in April 2017 and VA medical opinions in April 2017, July 2017, and October 2017 as to the pending claims. The reports and opinions provided by the VA examiner reflects that he thoroughly reviewed the Veteran's past medical history and rendered findings that are responsive to the rating criteria. The Board therefore concludes that the April 2017 VA examination reports and April 2017, July 2017, and October 2017 VA medical opinions are sufficient for evaluation purposes. See 38 C.F.R. § 4.2 (2017); see also Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate); Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (holding there was no Stegall violation when the examiner made the ultimate determination required by the Board's remand, because such determination "more than substantially complied with the Board's remand order"). II. Service connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in active service. 38 C.F.R. § 3.303(d). To establish entitlement to service connection on a direct basis, the record must contain competent evidence of (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated in service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and recurrence of observable symptoms that are in his or her personal knowledge. Jandreau v. Nicholson, 492 F.3d 1372, 1376-77. When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Id. The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. See Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. a. Residuals of an unknown tropical disease Here, the Veteran contends that he suffered from a tropical disease during his military service, which caused chronic residuals including malaria and/or hepatitis. See, e.g., the Veteran's notice of disagreement (NOD) dated March 2012. For the reasons set forth below, the Board concludes that service connection is not warranted. With respect to his assertions of in-service injury, the Veteran's service treatment records (STRs), including his November 1971 separation examination, are absent any documentation of a tropical disease including fever or other symptoms. To this end, the Veteran has indicated that he became sick while in Vietnam and, due to his location and the threat to helicopters, was not able to be evacuated for treatment. See, e.g., the Veteran's claim dated July 2010. He contends that since that time he has suffered from residuals of an illness to include blisters, which accompany fevers, and elevated liver enzymes. Id. Post-service treatment records indicate that a hepatitis B antibody test, conducted in July 1999, was reactive. In addition, treatment records dated in July 1999 noted the Veteran's history of malaria. A contemporaneous computerized tomography (CT) scan of his abdomen revealed a liver with low attenuation consistent with fatty or fibrous replacement. Elevated liver enzymes were indicated in August 1999 and April 2002. A hepatitis panel performed in April 2002 was negative for hepatitis A, B, and C. In an April 2002 letter, Dr. W.L. indicated that the Veteran gave a "rather complicated history of possible hepatitis many years ago in Vietnam. Hepatitis profile shows a possible chronic problem." Dr. W.L. stated that the Veteran drank heavily for ten years after his Vietnam service and now complains of mild right upper quadrant pain. Dr. W.L. stated that the Veteran "may have a calculus gallbladder disease, chronic on-going hepatitis problem, or cirrhosis." Private treatment records dated in August 2006 noted the Veteran's report of jungle fever in Vietnam with residuals that affect his liver. The Veteran was afforded a VA examination in April 2016 as to his claimed residuals of tropical disease. The examiner determined that the Veteran had no current diagnosis, to include hepatitis and malaria. In a separate April 2016 VA medical opinion, the examiner stated, "[a]s per STR, there was no febrile condition diagnosed or treated in service. It is difficult to say what type of fever the Veteran had. It could be viral or malaria, but there are no current residuals." He continued, "[a]lso, there is no liver disorder. Current liver enzymes are normal. Also, as per CT scan done on July 15, 1999, there was no hepatic mass and hepatitis profile done on April 3, 2002 was negative for any type of hepatitis." Pursuant to the January 2017 Board Remand, the Veteran was afforded another VA examination in April 2017, at which time the examiner reported a diagnosis of steatosis. As to the question of nexus, the examiner stated that the Veteran's claimed disability "was less likely than not (less than 50% probability) incurred in or caused by the claimed in-service injury, event, or illness." The examiner explained, "the Veteran denies any known liver problems during or related to service, and states during the times of his GERD work-up testing, he had elevated liver function tests and liver scan showed he had a fatty liver." The examiner continued, "[h]e relates this possibly to his 'jungle fever' in service; however, the common medical diagnosis of that disorder being malaria, he denies any symptoms or signs that point to liver damage by his disorder." The examiner clarified that the Veteran "had no jaundice, he received no institutional medical care that would provide laboratory data, he had no medical problems associated with his liver, he states at the time of discovery of elevated liver test and being diagnose[d] with fatty liver, he also was taking a statin cholesterol medicine." The examiner noted that when the decision was made to discontinue the statin cholesterol medicine, the Veteran's liver enzymes returned to normal and he has had no signs or symptoms of liver disorder since, which was not consistent with liver damage such as steatosis. In an October 2017 addendum opinion, the VA examiner addressed the Veteran's March 2012 statement that he suffers from a liver condition due to malaria. Specifically, the examiner stated, "this is speculation on the part of the Veteran, there is no found record of a medical diagnosis being made." As to the Veteran's statement of symptoms including mouth blisters and violent chills, the examiner indicated that this symptom complex is associated with the Veteran's claims of GERD and hiatal hernia, which do not cause said symptoms. The examiner continued, "he has no history of a medical diagnosis of hepatitis, which makes the Veteran's symptoms re: a claim for hepatitis, a moot issue, non-applicable." The examiner further stated that the Veteran's STRs do not reveal a reactive test to hepatitis as stated, and it is not felt likely such occurred. The reason is further review of the Veteran's medical records in VBMS yields a complete hepatitis profile . . . dated April 7, 2002 that was completely normal, revealing the Veteran has not had" hepatitis A, B, or C, as all tests indicated 'not detected.' The examiner opined, "a hepatitis profile indicates not only current presence of hepatitis, but the presence of past infection with hepatitis, specifically a, b, and c. The Veteran's health events pre-date the hepatitis profile in 2002 and, if any were positive for hepatitis, it would have been reflected in the complete hepatitis profile referenced." When assessing the probative value of a medical opinion, the access to claims files and the thoroughness and detail of the opinion must be considered. The opinion is considered probative if it is definitive and supported by detailed rationale. See Prejean v. West, 13 Vet. App. 444, 448-49 (2000). The United States Court of Appeals for Veterans Claims (Court) has held that claims file review, as it pertains to obtaining an overview of a claimant's medical history, is not a requirement for private medical opinions. A medical opinion that contains only data and conclusions is not entitled to any weight. Further a review of the claims file cannot compensate for lack of the reasoned analysis required in a medical opinion, which is where most of the probative value of a medical opinion comes from. "It is the factually accurate, fully articulated, sound reasoning for the conclusion, not the mere fact that the claims file was reviewed, that contributes probative value to a medical opinion." See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Significantly, the findings of the April 2017 and October 2017 VA examiner were thoroughly explained and fully supported by the evidence of record. To this end, the Board notes that the VA examiner's nexus opinions were based on a thorough review of the record, including the lay statements and medical evidence submitted by the Veteran, and the examiner explained the reasons for his conclusions based on an accurate characterization of the evidence of record. His conclusions were also based on the character of the Veteran's current liver pathology, which did not document any on-going liver disease. The Board therefore places significant weight on the findings of the April 2017 and October 2017 VA examiner. See Nieves-Rodriguez, supra; see also Bloom v. West, 12 Vet. App. 185, 187 (1999) (the probative value of a physician's statement is dependent, in part, upon the extent to which it reflects "clinical data or other rationale to support his opinion"). Accordingly, the Board finds that the competent medical evidence demonstrating the absence of nexus between the claimed disability and the Veteran's active duty service outweighs any medical evidence suggestive of a nexus. The Board has carefully considered the contentions of the Veteran that he suffers from residuals of a tropical disease, which were incurred during his military service. To this end, the Board recognizes that lay witnesses are competent to opine as to some matters of diagnosis and etiology, and the Board must determine on a case by case basis whether a veteran's particular disability is the type of disability for which lay evidence is competent. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Kahana, 24 Vet. App. at 433, n. 4. In this case, the Veteran's assertions as to etiology concern an internal medical process, which extends beyond an immediately observable cause-and-effect relationship that is of the type that the courts have found to be beyond the competence of lay witnesses. Cf. Jandreau, 492 F.3d at 1376 (lay witness capable of diagnosing dislocated shoulder); Barr v. Nicholson, 21 Vet. App. 303, 308-9 (2007); Falzone v. Brown, 8 Vet. App. 398, 403 (1995) (lay person competent to testify to pain and visible flatness of his feet); with Clemons v. Shinseki, 23 Vet. App. 1, 6 (2009) ("It is generally the province of medical professionals to diagnose or label a mental condition, not the claimant"); Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (unlike varicose veins or a dislocated shoulder, rheumatic fever is not a condition capable of lay diagnosis); Jandreau, 492 F.3d at 1377, n. 4 ("sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer"). See also Colantonio v. Shinseki, 606 F.3d 1378, 1382 (Fed. Cir.2010) (recognizing that in some cases lay testimony "falls short" in proving an issue that requires expert medical knowledge). Questions of competency notwithstanding, the Veteran's lay theory regarding the diagnosis and etiology of his disability are contradicted by the conclusion of the April 2017 and October 2017 VA examiner who specifically considered the Veteran's lay statements in rendering his negative opinions. The Board finds the specific, reasoned opinion of the trained health care provider who conducted the April 2017 VA examination and provided the April 2017 and October 2017 VA medical opinions to be of greater probative weight than the more general lay assertions of the Veteran. The Board has considered that lay evidence concerning continuity of symptoms after service, if credible, is ultimately competent, regardless of the lack of contemporaneous medical evidence. Buchanan, supra. Crucially, however, the Veteran's contentions in support of service connection, including continuing post-service symptomatology of the claimed residuals of a tropical disease to include malaria and hepatitis, are contradicted by the findings of the April 2017 and October 2017 VA examiner who specifically considered the lay assertions and any such inferences contained in the record in rendering the negative nexus opinions. Considering the overall evidence, including the post-service medical evidence, the VA medical opinions, and the lay evidence presented by the Veteran, the Board finds that the negative evidence is more persuasive and of greater probative value. In conclusion, the preponderance of the evidence is against the Veteran's claim that he suffers from residuals of an unknown tropical disease, to include malaria and hepatitis, which are related to his military service. Thus, the benefit-of-the-doubt rule is not applicable to the claim. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 54-56. b. Esophageal disorder Here, the Veteran contends that he developed an esophageal disorder, to include hiatal hernia and GERD, which was incurred during his military service. For the reasons set forth below, the Board concludes that service connection is not warranted. The Veteran's STRs, including his November 1971 separation examination, are pertinently absent any documentation of gastrointestinal or esophageal complaints. Private treatment records dated in July 2002 document a diagnosis of hiatal hernia. A diagnosis of GERD was indicated in October 2007. Continuing diagnoses of GERD and hiatal hernia were noted in VA treatment records dated November 2011 and July 2015. The Veteran was afforded a VA examination in April 2016 at which time the examiner reported a diagnoses of GERD. As to the question of nexus, the examiner determined that the claimed condition was less likely than not incurred in or caused by the claimed in-service injury, event or illness. The examiner explained, "[a]s per STRs, there has been no diagnosed reflux or hiatal hernia. Hiatal hernia diagnosis was made it in 1990's. His current diagnosis per [primary care physician] is heartburn." Pursuant to the January 2017 Board Remand, the Veteran was afforded a VA examination in April 2017 at which time the examiner confirmed continuing diagnoses of hiatal hernia and GERD. The examiner indicated that the diagnosed hiatal hernia and GERD were less likely than not incurred in or caused by the claimed in-service injury, event, or illness. He explained, "the Veteran states he had no GERD until his bout of 'jungle fever' for which he stated he received medical care during service. He states his symptoms of GERD began after that condition but he did not seek medical care for it, resulting in no documentation of symptoms during service." The examiner explained that "the etiology of GERD is excessive retrograde movement of acid-containing gastric secretions or bile and acid-containing secretions from the duodenum and stomach into the esophagus, and its documented the known mechanism of action is physiologic, and 'jungle fever' is not a known causative factor." An addendum opinion was obtained in July 2017, at which time the examiner stated, The Veteran also states his symptoms of GERD began in the 1970s after that condition but he did not seek medical care for it, resulting in no documentation of symptoms during service, but after service his symptoms caused him to go for medical care and he was diagnosed with his disorder, hiatal hernia, via imaging. According to current medical discussion in publication, reviewed here by the Mayo Clinic Staff, hiatal hernias occur when weakened muscle tissue allows one's stomach to bulge up through their diaphragm which is the dome-shaped muscle that separates the chest cavity from the abdomen. The esophagus passes into the stomach through an opening in the diaphragm called the hiatus. In listing the possible causes of hiatal hernias . . . the condition of 'jungle fever' is not one of the possible causes presented. Considering the condition of 'jungle fever' is not a possible cause of hiatal hernia according to current medical etiologies, it is less likely as not, the disability pattern or diagnosed disease of hiatal hernia incurred in or was caused during service. A second VA addendum opinion was obtained in October 2017, at which time the examiner stated, "re: hiatal hernia - the Veteran stated 'I have been treated for many years for this condition' and discusses his problems of frequently having to 'sleep sitting up rather [than] lying down' and 'if I eat or drink near bedtime, whatever I eat or drink comes upon in my throat' and 'at times I place a block of wood under the head of my bed to elevate my head.'" The examiner explained, "these complaints are commonly and typically associated with individuals who have GERD and/or hiatal hernias, and is only remarkable for the fact the Veteran is one of those individuals who has the diagnoses and experiences the symptoms associated with the diagnoses." In this matter, the medical evidence of record shows that the currently diagnosed gastroesophageal disabilities are less likely than not due to the Veteran's military service. The Board finds the April 2017, July 2017, and October 2017 VA examiner's opinions particularly probative as to the question of etiology, as the opinions were based upon a thorough review of the record and thoughtful analysis of the Veteran's entire history. See Bloom, 12 Vet. App. at 187 (the probative value of a physician's statement is dependent, in part, upon the extent to which it reflects "clinical data or other rationale to support his opinion"). Significantly, after reviewing the Veteran's medical history, the April 2017, July 2017, and October 2017 examiner concluded that the Veteran's diagnosed hiatal hernia and GERD are not etiologically related to his military service. The Board has carefully considered the contentions of the Veteran that the currently diagnosed gastroesophageal disabilities were incurred during his military service. To this end, the Board recognizes that lay witnesses are competent to opine as to some matters of diagnosis and etiology, and the Board must determine on a case by case basis whether a veteran's particular disability is the type of disability for which lay evidence is competent. See Davidson v, 581 F.3d at 1316; Kahana, 24 Vet. App. at 433, n. 4. In this case, the Veteran's assertions as to etiology concern an internal medical process, which extends beyond an immediately observable cause-and-effect relationship that is of the type that the courts have found to be beyond the competence of lay witnesses. Cf. Jandreau, 492 F.3d at 1376 (lay witness capable of diagnosing dislocated shoulder); Barr, 21 Vet. App. at 308-9; Falzone, 8 Vet. App. at 403 (lay person competent to testify to pain and visible flatness of his feet); with Clemons, 23 Vet. App. at 6 ("It is generally the province of medical professionals to diagnose or label a mental condition, not the claimant"); Woehlaert, 21 Vet. App. at 462 (unlike varicose veins or a dislocated shoulder, rheumatic fever is not a condition capable of lay diagnosis); Jandreau, 492 F.3d at 1377, n. 4 ("sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer"). See also Colantonio, 606 F.3d at 1382 (recognizing that in some cases lay testimony "falls short" in proving an issue that requires expert medical knowledge). Questions of competency notwithstanding, the Veteran's lay theory regarding the etiology of his gastroesophageal symptoms is contradicted by the conclusion of the April 2017, July 2017, and October 2017 VA examiner who considered the Veteran's lay statements and in-service symptoms in rendering his negative opinions. The Board finds the specific, reasoned opinion of the trained health care provider who conducted the April 2017, July 2017, and October 2017 VA examiner's opinions to be of greater probative weight than the more general lay assertions of the Veteran. The Board is charged with weighing the positive and negative evidence; resolving reasonable doubt in the Veteran's favor when the evidence is in equipoise. Considering the record, including the post-service medical evidence, the April 2017, July 2017, and October 2017 VA examiner's opinions, and the lay evidence presented by the Veteran, the Board finds that the negative evidence is more persuasive and of greater evidentiary weight. In conclusion, the preponderance of the evidence is against the claim. Thus, the benefit-of-the-doubt rule does not avail the Veteran. See 38 U.S.C. § 5107(b); Gilbert, 1 Vet. App. at 54-56. ORDER Entitlement to service connection for residuals of an unknown tropical disease, to include malaria or hepatitis, is denied. Entitlement to service connection for an esophageal disorder, to include hiatal hernia and GERD, is denied. ____________________________________________ K. CONNER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs