Citation Nr: 1801495 Decision Date: 01/10/18 Archive Date: 01/23/18 DOCKET NO. 11-14 436 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to service connection for cervical spine disability. 2. Entitlement to service connection for lumbar spine disability. 3. Entitlement to service connection for digestive disorder to include gastroesophageal reflux disease (GERD) with hiatal hernia. 4. Entitlement to service connection for migraine headaches. 5. Entitlement to service connection for residuals of traumatic brain injury (TBI). REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD C.A. Skow, Counsel INTRODUCTION The Veteran served on active duty from November 2001 to August 2002, January 2004 to February 2005, and March 2005 to March 2008. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. The Veteran requested a hearing in this appeal. See VA Form 9 (May 2011). VA notified the Veteran of the hearing date and time in letters dated September 2017 and October 2017. See Correspondence (September 2017 & October 2017). The record shows that the Veteran failed to report for the scheduled hearing without good cause and has not requested another hearing date. Therefore, the hearing request is deemed withdrawn. 38 C.F.R. § 20.704(d). The issues of entitlement to service connection for cervical spine disability and lumbar spine disability are REMANDED to the Agency of Original Jurisdiction (AOJ) as explained in the remand portion of the decision below. VA will notify the Veteran if further action is required on his part. FINDINGS OF FACT 1. A digestive disorder, to inlclude GERD and hiatal hernia, is not shown in service; and GERD with hiatal hernia, shown following service discharge, is not attributable to service. 2. A chronic headache disability is not shown in service; and migraine headaches are not attributable to service. 3. STRs reflect no complaints or findings for either head injury or TBI; the more persuasive evidence shows no residuals of in-service TBI. CONCLUSIONS OF LAW 1. The criteria for service connection for digestive disorder, to include GERD with hiatal hernia, are not met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2017). 2. The criteria for service connection for migraine headaches, are not met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2017). 3. The criteria for service connection for residuals of TBI, are not met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.07, 3.309 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. VA's duties to Notify and Assist VA's duties to notify and assist claimants in substantiating a claim for VA benefits are found at 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (2012) and 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). Neither the Veteran, nor his representative, has alleged prejudice or any issues with the duty to notify or the duty to assist. The Federal Court of Appeals has held that "absent extraordinary circumstances... it is appropriate for the Board and the Veterans Court to address only those procedural arguments specifically raised by the veteran...." See 38 U.S.C. §§ 5102, 5103, 5103A (2012); 38 C.F.R. § 3.159 (2017); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). II. Service Connection The Veteran seeks service connection digestive disorder to include GERD with hiatal hernia, migraine headaches, and residuals of TBI. VA received a claim for migraine headaches, GERD with hiatal hernia, and residuals of TBI in March 2009. See VA Form 21-4138 (March 2009). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107 (2012); 38 C.F.R. § 3.102 (2017); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). 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. Legal Criteria Compensation may be awarded for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131. Service connection basically means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. 38 C.F.R. § 3.303. Service connection may 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 service. 38 C.F.R. § 3.303(d). Establishing service connection generally requires (1) evidence of a current disability; (2) evidence of in- service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table); 38 C.F.R. § 3.303. The Board is required to analyze the credibility and probative value of the evidence, account for any evidence that it finds persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Daye v. Nicholson, 20 Vet. App. 512, 516 (2006). It is noted that competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). In determining whether statements are credible, the Board may consider internal consistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498 (1995). GERD with Hiatal Hernia Having carefully reviewed the evidence of record the Board finds that the preponderance of the evidence is against service connection for digestive disorder to include GERD with hiatal hernia. A digestive disorder to include GERD and hiatal hernia are not shown during any period of active duty; also GERD and hiatal hernia, first documented after service, are not attributable to service. Service treatment records (STRs) reflect no complaints or finding for stomach or digestive problems. The Veteran denied having any medical problems on Annual Medical Certificates dated in 2005 and 2006. A February 2005 examination report shows normal clinical evaluation and the Veteran denied a history of stomach trouble. The Veteran was released from active duty in March 2008 and, in March 2009, VA received his claim for benefits based on acid reflux and hernia problems. No further details were provided. VA treatment records show that the Veteran was assessed with GERD in January 2009. Report of VA examination dated in May 2009 reflects a diagnosis for GERD with hiatal hernia. By history, the Veteran had onset of "a burning sensation and heartburn in service in 2003." The Veteran reported that he had not undergone an upper GI test or endoscopy. See VA Examination (May 2005). VA treatment records show that an upper GI testing revealed small hiatal hernia and duodenitis, but no peptic ulceration or gastric outlet obstruction. See Medical Treatment Record - Government Facility (June 2009). The medical evidence shows no documented digestive problems during any period of active duty. The Board has carefully considered the Veteran's statements and history. The Board accepts that the Veteran is competent to report his symptoms (i.e. acid reflux), the onset of those symptoms, and treatment. Layno, supra. See also Falzone v. Brown, 8 Vet.App. 398, 405 (1995). However, the Veteran is not competent to attribute any symptoms of acid reflux in service to GERD or hiatal hernia as he lacks the requisite medical expertise and training to render a medical opinion. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Also, the Board finds that the Veteran's report of chronic digestive and/or stomach problems in service is not credible in view of the STRs showing essentially normal clinical evaluations and his denial of problems during active duty, as discussed above. Therefore, his statements in this regard have diminished probative value. The Board assigns greater probative value to the STRs, which show normal clinical evaluations and the Veteran's denial of stomach problems including acid reflux. The Board finds that this evidence is more probative than the Veteran's unsubstantiated opinion that his current problems are related to service. The Board believes that the medical records associated with the STRs are more probative on the matter of whether the Veteran had a chronic digestive disorder in service to include GERD and hiatal hernia since this medical evidence is contemporaneous with the time period during which the Veteran states that his symptoms started or had their onset. . See Curry v. Brown, 7 Vet. App. 59, 68 (1994) (contemporaneous evidence has greater probative value than history as reported by the claimant). On balance, the weight of the evidence is against the claim. As the evidence of record is not roughly in equipoise, there is no doubt to resolve. See Gilbert supra; 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Migraine Headaches and Residuals of TBI to Include Migraine Headaches Having carefully reviewed the evidence of record, the Board finds that the preponderance of the evidence is against service connection for migraine headaches and residuals of TBI to include migraine headaches. Migraine headaches, head injury, and TBI are not shown in service. Migraine headaches, first documented post service, are not attributable to service. Mild TBI, diagnosed post service, is not attributable to service, to include a motor vehicle accident (MVA). STRs show no complaints or findings for headaches. STRs show no documented head injury or problems related to a MVA while on active duty. STRs reflect no diagnosis for TBI. Army National Guard examination report dated in February 2004 reflects normal clinical evaluation of the head and neurologic system. See Medical Treatment Record - Government Facility (July 2009). Report of examination dated in February 2005 reflects normal clinical evaluation of all systems to include the head and neurologic system. On the medical history part of that exam, the Veteran specifically denied dizziness, frequent or severe headaches, head injury, a period of unconsciousness, and neurological problems. Active duty health records dated in 2005, 2006, and 2007 reflect that the Veteran presented for a variety of problems, but these records show no history of past MVA, head injury, or headache problems. A September 2005 health record reflects "normal pre-employment screening examination (Armed Forces Medical Examination)." See STR - Medical (June 2015). STRs include Annual Medical Certificates dated in April 2003, July 2005, and May 2006 that show no current medical problems and a denial of any problems since the Veteran was last examined. See STR - Medical (June 2015). The Veteran filed an original claim of entitlement to VA disability compensation in October 2008. Notably, while reporting multiple disorders attributable to his military service, he reported neither headaches nor TBI. See VA form 21-526 (October 2008). On VA psychiatric examination dated in December 2008, the Veteran reported a 2004 motor vehicle accident (MVA) while in Iraq. He described having his vehicle rear-ended and injuring his right knee. There was no mention of injury to the head or other body parts due to the 2004 MVA. See VA Examination (December 2008). A February 2009 VA psychology note reflects that the Veteran had TBI screening and that the Veteran reported as follows: No diagnosed TBI during any deployment; experiencing a vehicular accident and "blow to head" during a deployment; being dazed, confused or "seeing stars" after the event; and experiencing subsequent problems with memory, balance, light sensitivity, irritability, headaches, and sleep problems. The screen was deemed positive for TBI and the Veteran was referred for a TBI consultation. A March 2009 VA treatment record reflects that a history of head injury from MVA in August 2004; he denied loss of consciousness. A September 2009 VA treatment note (TBI Clinic) reflects, by history, that the Veteran "bumped head" in Iraq in April 2005. He reported that he "may have started to have" headaches "there or soon after." Cranial MRI was normal. The impression included mild TBI and migraines. See Medical Treatment Record - Government Facility (December 2009). In March 2009, VA received a claim of entitlement service connection for "my current disability of TBI, migraines, acid reflux, and hernia." No details were provided. See VA Form 21-4138 (March 2009). On VA examination in May 2009, the Veteran reported that he had onset of headaches while in service following a head injury in August 2004. He reported that, in a 2004 MVA, he fell striking his head and has had headaches since that time. The Board accepts that the Veteran is competent to report his injuries, symptoms, and treatment (if any). See Layno, supra. However, the Board finds that his report of chronic headaches that had their onset in service and of head injury related to a 2004 MVA are not credible in view of the normal clinical evaluations in service and his denial of headaches and head injury on examination in February 2005-a date the Board notes postdates the alleged MVA in August 2004-coupled with the health records dated 2005, 2006, and 2007 included with the STRs that show no complaints of headache symptoms and no history for head injury or MVA. The Board observes that the Veteran initially reported in 2008 that he injured his right knee during a 2004 MVA, but he had no mention of any other injury from this event; however, he later reported in 2009 that he fell and struck his head during a 2004 MVA and subsequently reported during a VA psychiatric visit in October 2009 that he was "thrown out of vehicle." The evolving narrative given by the Veteran post service is entirely incongruous with his STRs. Lastly, the Veteran reported that headaches may have started in service or soon after when obtaining treatment in 2009, but he reported on 2009 VA disability examination that his headaches started immediately after the 2004 MVA. This history is inconsistent. Therefore, in view of the above, the Board finds that the Veteran's statements have little probative value. The Board has considered evidence suggesting that the Veteran had experienced IED explosions. However, the Veteran has been an inconsistent historian in this regard. At times, he generally reported exposure to IED explosions, such as during his August 2009 VA audiological examination; however, he specifically denied being close to any IED explosions during VA medical care in 2009 when discussing his 2004 MVA and head injury. See Medical Treatment Record - Government Facility (December 2009). Therefore, in view of the STRs showing no complaints or findings related to IEDs and the Veteran's denial of proximity to IED explosions during his medical care, the Board finds that there is no credible evidence of migraine headache or TBI related to IED explosions in service. The Board acknowledges that VA treatment records dated since 2009 reflect diagnoses for residuals of TBI and migraine related to the Veteran's 2004 MVA. See Medical Treatment Record - Government Facility (December 2009). Specifically, a nurse practitioner assessed the Veteran as having "findings consistent with diagnosis of TBI." However, the Board finds that this medical opinion has no probative value because it was predicated on a medical history that the Board finds is not credible, as explained above. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (A medical opinion based upon an inaccurate history is equally inaccurate). See also LeShore v. Brown, 8 Vet. App. 406 (1995) (the mere transcription of medical history does not transform the information into competent medical evidence merely because the transcriber happens to be a medical professional). The Board assigns greater probative value to the STRs, which show no complaints or findings for headaches; the Veteran's denial of headache and head injury; and normal clinical findings for the head and neurologic system, as discussed above. The Board finds that this evidence is more probative than the Veteran's statements and the VA treatment records because it was prepared near in time to the alleged injury by both medical professionals and the Veteran himself. See Curry v. Brown, 7 Vet. App. 59, 68 (1994) (contemporaneous evidence has greater probative value than history as reported by the claimant). The weight of the evidence is against the claims of entitlement to service connection for migraine headaches and residuals of TBI. The claimed conditions are not shown to have been incurred in service or otherwise attributable to service. To the extent that the medical evidence shows mild TBI, this finding is not attributable to in-service TBI because the more persuasive evidence shows that the Veteran did not experience any TBI during his active duty service. Accordingly, the claims are denied. As the evidence of record is not roughly in equipoise, there is no doubt to resolve. 38 U.S.C. §5107 (b); 38 C.F.R. § 3.102, Gilbert, supra. ORDER Service connection for GERD with hiatal hernia is denied. Service connection for migraine headaches is denied. Service connection for residuals of TBI is denied. REMAND Cervical and Lumbar Spine Disabilities In 2008, VA received claims for "back injury" and cervical spine disorder. See VA Form 21-526 (October 2008); see also VA examination (December 2008). STR includes a Post Deployment Health Reassessment (PDHRA) dated in February 2005, which reflects no complaints or findings for abnormal pathology of the cervical or lumbar spine. An examination report dated in February 2005 reflects normal clinical evaluation of all systems. On the medical history part of that exam, the Veteran denied back problems. A September 2005 health record reflects "normal pre-employment screening examination (Armed Forces Medical Examination). Annual Medical Certificates dated in July 2005 and May 2006 that show no current medical problems and a denial of any problems since the Veteran was last examined. A record dated in June 2006 reflects that the Veteran had functional capacity to carry and fire his individual assigned weapon, and perform activities of digging, filling, and lifting sandbags for construction of fighting positions. No physical defects were noted. The Veteran was released from active duty in March 2008. VA treatment records show that the Veteran presented with complaints of neck and back pain in January 2009. In April 2009, the Veteran reported heavy lifting with his job. In October 2009, the Veteran blamed his neck and back pain on wearing 100 pound back packs and walking up/down flights of stairs in the military. Imaging studies were performed in September 2009. In September 2009, the impression was "cervical spondylosis w/HNP Lumbar spondylosis." Report of VA examination dated in December 2008 reflects diagnoses for myofascial strain of the cervical and lumbar spine. X-rays were normal. The Veteran reported a history of cervical spine pain that had its onset when he served in Iraq. He denied specific injury, but noted that the pain developed with carrying heavy equipment. By history, he also reported onset of lumbar spine pain in February 2004 while serving in Kuwait. He stated that he had sudden onset on back pain with carrying heavy equipment. He also reported reinjuring the back in Iraq when the vehicle he sat in was hit from behind causing him to fall down. A medical opinion is not included with the examination report. Having carefully reviewed the evidence of record, the Board finds that remand is necessary for a medical opinion addressing the Veteran's theory that his cervical and lumbar spine disorders are attributable to service and specifically the physical demands of carrying heavy equipment (i.e. 100 pound back packs). The Board observes that, while STRs do not document abnormal spine pathology in service, the record shows complaints and findings for abnormal pathology of the cervical and lumbar spine soon after service. See McClendon v. Nicholson, 20 Vet. App. 79 (2006); Duenas v. Principi, 18 Vet. App. 512 (2004) (a VA examination and/or opinion is warranted when there is an indication in the record that a current disability is related to military service; the threshold for an indication is low). It is noted that the Veteran is competent to report onset of symptoms, circumstances surrounding the onset of symptoms, and his treatment. Layno v. Brown, 6 Vet. App. 465, 469 (1994). Accordingly, the case is REMANDED for the following action: 1. The AOJ should obtain all pertinent outstanding treatment records, to include all updated VA treatment records. 2. The Veteran should be scheduled for a VA examination of his spine to ascertain whether any cervical and/or lumbar spine disorder shown during this appeal is as likely as not (50 percent probability or greater) etiologically related to service, to include the physical demands of carrying heavy equipment (i.e. 100 pound back packs) during active duty. The claims files must be reviewed and the review noted in the report of examination. The Veteran's medical history should be accepted as truthful unless otherwise shown by the record. The examiner must address the Veteran's theory that his neck and back problems are caused by his carrying heavy equipment during his active duty. The examination reports must include a complete rationale for all opinions and conclusions reached. If an opinion cannot be expressed without resort to speculation, the examiner should so indicate and discuss why an opinion is not possible to include whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. 3. After ensuring any other necessary development has been completed, the AOJ should readjudicate the claims. If the benefits sought are not granted, the Veteran and his representative should be furnished a Supplemental Statement of the Case and given the requisite opportunity to respond before the case is returned to the Board. By this remand, the Board intimates no opinion as to any final outcome warranted. The Veteran and his representative; have the right to submit additional evidence and argument on the matter or 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 (2012). ____________________________________________ G. A. WASIK Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs