Citation Nr: 1802028 Decision Date: 01/11/18 Archive Date: 01/23/18 DOCKET NO. 10-47 295 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. 3. Entitlement to service connection for a gastrointestinal disability. 4. Entitlement to service connection for a cardiac disability. 5. Entitlement to service connection for hypertension. 6. Entitlement to service connection for an acquired psychiatric disorder. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD M. Espinoza, Associate Counsel INTRODUCTION The Veteran had active service from June 1956 to May 1958. These matters come before the Board of Veterans' Appeals (Board) on appeal from a March 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. The Board has recharacterized the Veteran's claims for service connection for bipolar disorder, depressive disorder and anxiety disorder as a single claim for service connection for any acquired psychiatric disorder, however diagnosed. See Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009) (holding that the scope of a mental health disability claim includes any acquired psychiatric disability that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record). Similarly, the Board has recharacterized the Veteran's claims for service connection for a disability of the stomach and a disability of the esophagus as a single claim for any gastrointestinal disability, however diagnosed. See Brokowski v. Shinseki, 23 Vet. App. 79 (2009) (holding that a claimant may adequately identify the disability for which compensation benefits are sought by referring to a body part or system that is disabled, or by describing the symptoms of that disability). In his November 2010 substantive appeal, which perfected the issues currently before the Board, the Veteran requested a hearing before a Decision Review Officer (DRO) and a Travel Board hearing before a Veterans Law Judge. VA correspondence in August 2015 notified the Veteran his hearing before a DRO was rescheduled for September 30, 2015 as the initial letter notifying him of the scheduled DRO hearing was sent to an incorrect address. In addition, VA correspondence in April 2017 notified the Veteran that a Board hearing had been scheduled for May 23, 2017. However, the Veteran did not report for either scheduled hearing and no good cause was shown for his absence; therefore, his hearing requests are deemed withdrawn and the Board may proceed with appellate review. 38 U.S.C. § 20.704 (d) (2017). This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (West 2012). The issues of entitlement to service connection for bilateral hearing loss, entitlement to service connection for tinnitus, entitlement to service connection for a cardiac disability, entitlement to service connection for hypertension, and entitlement to service connection for an acquired psychiatric disorder, are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT The most probative evidence of record does not establish that it is at least as likely as not that the Veteran has a gastrointestinal disability, variously diagnosed as gastroesophageal reflux disease (GERD), hiatal hernia, and diverticulitis, which manifested in service, or which is otherwise etiologically related to service. CONCLUSION OF LAW The criteria for entitlement to service connection for a gastrointestinal disability, variously diagnosed as GERD, hiatal hernia, and diverticulitis, have not been met. 38 U.S.C. §§ 1131, 1154, 5107 (West 2012); 38 C.F.R. §§ 3.102, 3.303, (2017). REASONS AND BASES FOR FINDING AND CONCLUSION With respect to the Veteran's claim decided herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2017); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). Additionally, although, in pertinent part, the remand below directs the Veteran's updated VA treatment records be obtained, there is no indication the Veteran has sought recent VA treatment for a gastrointestinal disability, or that updated VA treatment records would potentially be relevant to this issue, or that such would impact the outcome of this particular issue. Generally, service connection may be established for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C. § 1131 (West 2012); 38 C.F.R. § 3.303 (2017). To establish service connection on a direct incurrence basis, the Veteran must show: (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 during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Turning to the first element of service connection, the existence of a present disability, the Board finds that the evidence of record confirms the Veteran has diagnoses related to a gastrointestinal disability. Specifically, VA treatment records during the pendency of the claim, including in July 2008, reflect gastrointestinal diagnoses of GERD, hiatal hernia, and diverticulitis. A February 2012 VA problem list documented abdominal pain of unspecified site, hiatal hernia, GERD, and diverticulitis. With respect to the July 2012 listed condition of abdominal pain of unspecified site, pain alone without a diagnosed or identifiable underlying malady or condition, does not in and of itself constitute a disability for which service connection may be granted. Sanchez-Benitez v. Principi, 259 F.3d 1356 (Fed. Cir. 2001). Nonetheless, as the Veteran is acknowledged to have a gastrointestinal disability, variously diagnosed as GERD, hiatal hernia, and diverticulitis, the issue before the Board becomes whether such disabilities are as a result of his active service. The second element of a claim for service connection is medical evidence, or in certain circumstances lay testimony, of in-service incurrence or aggravation of an injury or disease. The Veteran has not identified a specific incident or event during service as a link as to his claim for service connection for any gastrointestinal disability. In this regard, review of the Veteran's service treatment records reveal no diagnoses related to a gastrointestinal disability or symptoms thereof. Furthermore, an April 1958 in-service examination, conducted in conjunction with separation from service, found in pertinent part, the Veteran's abdomen and viscera (include hernia), as relevant to as his gastrointestinal system, were clinically normal upon examination, which weighs against a finding of an in-service injury or event for this claim. Moreover, in an April 1958, Report of Medical History, also completed in conjunction with separation from service, the Veteran checked "no" to the existence of stomach liver or intestinal trouble. He also checked "no" to the existence of frequent indigestion. Thus, the April 1958 Report of Medical History also weighs against a finding of an in-service injury or event for this claim. In reviewing the Veteran's claim for service connection for a gastrointestinal disability, the Board has reviewed the statements of the Veteran. The Veteran is certainly competent to describe the extent of symptoms in service, and his current symptomatology for a gastrointestinal disability; however, the Veteran has not identified a basis for service connection for this disability for the Board to consider. See Layno v. Brown, 6 Vet. App. 465 (1994). Nonetheless, the Board recognizes that by virtue of the Veteran filing a claim for service connection for a gastrointestinal disability, he believes such is connected to his active service. The Board notes, however, that there is no evidence that the Veteran possesses the requisite medical training or expertise necessary to render him competent to offer evidence on the causal question of whether a gastrointestinal disability can be attributed to a specific injury or event during active service. See Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). Lay persons may be competent to provide opinions as to some medical issues. However, the specific questions in this case pertaining to the actual diagnosis, etiology, time of onset, and degree of severity at time of onset of any gastrointestinal disability, variously diagnosed as GERD, hiatal hernia and diverticulitis, fall outside the realm of common knowledge of a lay person. The Veteran has not been shown to have the requisite knowledge and/or expertise to be deemed competent to provide a probative medical opinion as to the existence of a gastrointestinal disability during his military service, or etiologically linking a gastrointestinal disability to his military service. Jandreau, 492 F.3d 1372. Thus, for the reasons discussed above, the element of in-service disease or injury is not met for the claim for service connection for a gastrointestinal disability. As the second element for claim for service connection for a gastrointestinal disability is not met, the third requirement for service connection, competent evidence of a nexus between a gastrointestinal disability, and an in-service disease or injury, need not be further discussed. Additionally, while VA has not provided a medical examination to the Veteran for his claim of service connection for a gastrointestinal disability, the standard for VA to provide an examination for this claim was not satisfied. In this instance, as discussed above, there is no evidence that a gastrointestinal disability is related to service, nor has the Veteran articulated a specific incident or injury during service or link to service for this disability. Indeed, the record is devoid of any assertion from the Veteran or his representative identifying a basis for linking any gastrointestinal disability to the Veteran's active service. Thus, a VA examination or a medical opinion for this claim is not warranted. 38 U.S.C. § 5103A (d); 38 C.F.R. § 3.159 (c)(4)(i); McLendon v. Nicholson, 20 Vet. App. 79, 81-82 (2006). Based on the foregoing, the Board finds that the preponderance of the evidence is against a grant of service connection for a gastrointestinal disability. In reaching the above conclusion, the Board has considered the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim for service connection for a gastrointestinal disability, that doctrine is not applicable, and service connection must be denied. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). ORDER Entitlement to service connection for a gastrointestinal disability, variously diagnosed as GERD, hiatal hernia, and diverticulitis, is denied. REMAND While the Board regrets the delay, pursuant to the duty to assist, additional development is needed with respect to the Veteran's remaining claims. The Veteran has yet to be afforded VA examinations for his claims for service connection for bilateral hearing loss, tinnitus, a cardiac disability, hypertension and an acquired psychiatric disorder. With respect to service connection for bilateral hearing loss and tinnitus, the record does not reflect a diagnosis as to either disability; however, diminished hearing (although not hearing loss disability for VA purposes under 38 C.F.R. § 3.385) and tinnitus are symptoms a lay person may identify. Layno, 6 Vet. App. at 469; Charles v. Principi, 16 Vet. App. 370 (2002). Furthermore, while the Veteran did not explicitly identify noise exposure as a basis for these claims, his service records do reflect participation in basic training, thus, when resolving reasonable doubt in his favor, the Board recognizes that such may have resulted in noise exposure and could potentially provide a nexus to active service. Similarly, the Veteran's VA treatment records, including in July 2008, reflect diagnoses of coronary artery disease, hypertension, depressive disorder, not otherwise specified (NOS), and manic depressive disorder, and the Veteran's April 1958 in-service examination, conducted in conjunction with separation from service, documented, in pertinent part, that the Veteran reported vague pain described as overlying the heart, of transient nature, and he also complained of excess worries, associated with feelings concerning discharge from the service. Correspondingly, in an April 1958, Report of Medical History, also conducted in conjunction with the separation from service, the Veteran checked yes to the existence of pain or pressure in the chest and yes to the existence of depression or excessive worry. Thus, as there is at least an indication of current disabilities of bilateral hearing loss, tinnitus, a cardiac disability, hypertension and an acquired psychiatric disorder and an indication of a possible link between each disability and the Veteran's active service, the Board finds that VA examinations are warranted for these claims. See 38 U.S.C. § 5103A (d)(2); 38 C.F.R. § 3.159 (c)(4)(i); McLendon, 20 Vet. App. at 81. Finally, in light of the remand for other matters, updated VA treatment records should be obtained. The record reflects the Veteran's most recent VA treatment records, from the Beaumont VA Outpatient Clinic, part of the Michael E. DeBakey VA Medical Center (VAMC), are dated in November 2008, with the exception of the February 2012 problem list. Thus, on remand, updated VA treatment records from the Michael E. DeBakey VAMC, to include all associated outpatient clinics, since November 2008, should be obtained and associated with the claims file. 38 U.S.C. § 5103A (c); 38 C.F.R. § 3.159 (c)(2); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). Accordingly, the case is REMANDED for the following actions: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. Obtain the Veteran's updated VA treatment records from the Michael E. DeBakey VAMC, to include all associated outpatient clinics, since November 2008, and associate these records with the claims folder. All attempts to obtain these records must be documented in the claims file. The Veteran and his representative must be notified of any inability to obtain the requested documents. 2. Thereafter, schedule the Veteran for a VA examination for the purpose of ascertaining the nature and etiology any bilateral hearing loss and/or tinnitus. The complete record, to include a copy of this remand and the claims folder, must be made available to and reviewed by the examiner in conjunction with the examination. Any medically indicated tests should be accomplished, and all pertinent symptomatology and findings must be reported in detail, to include consideration of the effect of any bilateral hearing loss on occupational and daily functioning of the Veteran. Martinak v. Nicholson, 21 Vet. App. 447, 455-56 (2007). The examiner is requested to opine as to the following: * Whether it is at least as likely as not (50 percent probability or more) that any diagnosed bilateral hearing loss had its onset in active service or is otherwise causally or etiologically related to the Veteran's active service. * Whether it is at least as likely as not (50 percent probability or more) that any tinnitus had its onset in active service or is otherwise causally or etiologically related to the Veteran's active service. The term "at least as likely as not" does not mean within the realm of possibility, but rather that the evidence both for and against a conclusion is so evenly divided that it is as sound to find in favor of a certain conclusion as it is to find against it. A complete rationale for all opinions expressed must be provided. 3. Schedule the Veteran for a VA examination for the purpose of ascertaining the nature and etiology of any and all cardiac disabilities and/or hypertension diagnosed proximate to, or during the pendency of, the appeal. The complete record, to include a copy of this remand, and the claims folder, must be made available to and reviewed by the examiner in conjunction with the examination. Any medically indicated tests should be accomplished, and all pertinent symptomatology and findings must be reported in detail. The examiner is requested to provide the following: * Whether it is at least as likely as not (50 percent probability or more) that any identified cardiac disability diagnosed proximate to, or during the pendency of, the appeal, had its onset in active service or is otherwise causally or etiologically related to the Veteran's active service. * Whether it is at least as likely as not (50 percent probability or more) that any hypertension diagnosed proximate to, or during the pendency of, the appeal, had its onset in active service or is otherwise causally or etiologically related to the Veteran's active service. In providing the above opinions regarding whether any cardiac disability and/or hypertension are/is related to active service, the examiner should consider the Veteran's April 1958 in-service examination, conducted in conjunction with separation from service, which documented, in pertinent part, vague pain described as overlying the heart, of transient nature, and the April 1958, Report of Medical History, also conducted in conjunction with the separation from service, in which the Veteran checked yes to the existence of pain or pressure in the chest. The term "at least as likely as not" does not mean within the realm of possibility, but rather that the evidence both for and against a conclusion is so evenly divided that it is as sound to find in favor of a certain conclusion as it is to find against it. A complete rationale for all opinions expressed must be provided. 4. Schedule the Veteran for a VA psychiatric examination for the purpose of ascertaining the nature and etiology of any and all acquired psychiatric disorders diagnosed proximate to, or during the pendency of, the appeal. The complete record, to include a copy of this remand, and the claims folder, must be made available to and reviewed by the examiner in conjunction with the examination. Any medically indicated tests should be accomplished, and all pertinent symptomatology and findings must be reported in detail. The examiner is requested to provide the following: * Whether it is at least as likely as not (50 percent probability or more) that any acquired psychiatric disorder, diagnosed proximate to, or during the pendency of, the appeal, (to include, but not limited to, to depressive disorder, NOS, and manic depressive disorder) had its onset in active service or is otherwise causally or etiologically related to the Veteran's active service. The term "at least as likely as not" does not mean within the realm of possibility, but rather that the evidence both for and against a conclusion is so evenly divided that it is as sound to find in favor of a certain conclusion as it is to find against it. In providing the above opinion regarding whether any acquired psychiatric disorder is related to active service, the examiner should consider the Veteran's April 1958 in-service examination, conducted in conjunction with separation from service, which documented, in pertinent part, the Veteran complained of excess worries, associated with feelings concerning discharge from the service, and the April 1958, Report of Medical History, also conducted in conjunction with the separation from service, in which the Veteran checked yes to the existence of existence of depression or excessive worry. A complete rationale for all opinions expressed must be provided. 5. Notify the Veteran that it is his responsibility to report for any scheduled examination and to cooperate in the development of the claims. The consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2017). 6. Finally, after undertaking any other development deemed appropriate, readjudicate the issues on appeal. If any benefit sought is not granted, furnish the Veteran and his representative with a supplemental statement of the case and afford them an opportunity to respond before the record is returned to the Board for further review. 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). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board 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 2012). ______________________________________________ U. R. POWELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs