Citation Nr: 1805575 Decision Date: 01/29/18 Archive Date: 02/07/18 DOCKET NO. 14-36 474 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUES 1. Entitlement to an initial rating in excess of 10 percent for gastroesophageal reflux disease (GERD). 2. Entitlement to service connection for a cervical spine disability. 3. Entitlement to service connection for a lumbar spine disability. 4. Entitlement to service connection for a right shoulder disability. 5. Entitlement to service connection for a right elbow disability. 6. Entitlement to service connection for gallbladder removal, claimed as secondary to service-connected GERD. REPRESENTATION Veteran is represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD C. Banister, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1963 to February 1984. This matter comes before the Board of Veterans' Appeals (Board) on appeal from December 2013 and December 2014 rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). In September 2017, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of that hearing is of record. 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) (2012). The issue of entitlement to service connection for gallbladder removal is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. Throughout the appeal period, the Veteran's service-connected GERD has not been manifested by symptoms productive of considerable impairment of health. 2. Arthritis of the cervical spine was not shown in service or for many years thereafter, and the most probative evidence indicates that a current cervical spine disability is not related to service. 3. Arthritis of the lumbar spine was not shown in service or for many years thereafter, and the most probative evidence indicates that a current lumbar spine disability is not related to service. 4. Arthritis of the right shoulder was not shown in service or for many years thereafter, and the most probative evidence indicates that a current right shoulder disability is not related to service. 5. The probative evidence of record does not contain a diagnosis of a right elbow disability. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent for GERD have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. § 4.114, Diagnostic Code 7346 (2017). 2. The criteria for establishing entitlement to service connection for a cervical spine disability have not been met. 38 U.S.C. §§ 1110, 1112, 1131, 1137, 5107 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2017). 3. The criteria for establishing entitlement to service connection for a lumbar spine disability have not been met. 38 U.S.C. §§ 1110, 1112, 1131, 1137, 5107 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2017). 4. The criteria for establishing entitlement to service connection for a right shoulder disability have not been met. 38 U.S.C. §§ 1110, 1112, 1131, 1137, 5107 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2017). 5. The criteria for establishing entitlement to service connection for a right elbow disability have not been met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. § 3.303 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA. VA shall consider all information and medical and lay evidence of record. Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). I. Increased Rating for GERD Disability ratings are determined by applying the criteria set forth in the VA Schedule of Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1 (2017). Separate diagnostic codes identify the various disabilities. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Other applicable general policy considerations are: interpreting reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating many accurately reflect the elements of disability; resolving any reasonable doubt regarding the degree of disability in favor of the claimant; where there is a questions as to which of two evaluations apply, assigning a higher of the two where the disability pictures more nearly approximates the criteria for the next higher rating; and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disability upon the person's ordinary activity. See 38 C.F.R. §§ 4.2, 4.3, 4.7, 4.10 (2017); see also Schafrath v. Derwinski, 1 Vet. App. 589 (1991). A claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Thus, separate ratings can be assigned for separate periods of time based on the facts found - a practice known as "staged" ratings. See Fenderson v. West, 12 Vet. App. 119, 127 (1999); Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). Disabilities of the digestive system are evaluated under 38 C.F.R. § 4.114, which provides that ratings under Diagnostic Codes 7301 to 7329, inclusive, 7331, 7342, and 7345 to 7348, inclusive, and are not to be combined with each other. Rather, a single rating will be assigned under the diagnostic code which reflects the predominant disability picture, with evaluation of the next higher rating where the severity of the overall disability warrants such rating. 38 C.F.R. § 4.114. The Veteran's service-connected GERD has been evaluated under the criteria set forth in 38 C.F.R. § 4.114, Diagnostic Code 7346. Pursuant to Diagnostic Code 7346, a 10 percent rating is assigned for two or more symptoms for the 30 percent evaluation of less severity. 38 C.F.R. § 4.114, Diagnostic Code 7346. A 30 percent rating is assigned for persistently recurrent epigastric distress with dysphagia, pyrosis, and regurgitation, accompanied by substernal or arm or shoulder pain, productive of considerable impairment of health. Id. A 60 percent rating is assigned for symptoms of pain, vomiting, material weight loss, and hematemesis or melena with moderate anemia, or other symptom combinations productive of severe impairment of health. Id. Upon review of the record, the Board finds that a rating in excess of 10 percent is not warranted at any point during the period under review. During the September 2017 Board hearing, the Veteran testified that he did not sleep well due to acid regurgitation when he coughs. The Veteran underwent a VA examination in November 2013, during which he reported occasional regurgitation and heartburn. Upper gastrointestinal (GI) radiographic studies revealed a diagnosis of mild GERD. There was no evidence of an esophageal stricture, spasm, or diverticula, and the Veteran's GERD did not affect his ability to work. The Veteran underwent another VA examination in May 2016, during which he reported nocturnal heartburn and reflux, which interrupted his sleep due to coughing and choking. There was no evidence of dysphagia, regurgitation, pain, nausea, vomiting, epigastric distress, hematemesis, melena with moderate anemia, material weight loss, or symptoms productive of considerable or severe impairment of health. The Veteran's GERD did not affect his ability to work. As the record does not demonstrate persistent recurrent epigastric distress and pain productive of considerable impairment of health; or pain, vomiting, material weight loss and hematemesis or melena with moderate anemia, or other symptom combinations productive of severe impairment of health at any point during the period on appeal, a rating in excess of 10 percent is not warranted. See 38 C.F.R. § 4.114, Diagnostic Code 7346. The Board has also considered whether the Veteran's reported sleep disturbance is contemplated by the rating criteria. However, the rating criteria for GERD includes the phrase "other symptom combinations" productive of impairment in health. As such, the Board finds that the Veteran's symptomatology caused by his GERD is contemplated by the rating criteria, and referral for extraschedular consideration is not warranted. See 38 C.F.R. § 3.321(b) (2017); see also Thun v. Peake, 22 Vet. App. 111, 115 (2008). In reaching this decision, the Board considered the doctrine of reasonable doubt; however, as the preponderance of the evidence is against assigning the Veteran's GERD a rating in excess of 10 percent, the doctrine is not for application. See Gilbert, 1 Vet. App. at 56. II. Service Connection Claims Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a chronic condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. § 3.303(b); see also Walker v. Shinseki, 708 F.3d 1331, 1340 (Fed. Cir. 2013) (holding that only conditions listed as chronic diseases in § 3.309(a) may be considered for service connection under 38 C.F.R. § 3.303(b)). Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). Moreover, where a veteran served continuously for 90 days or more during a period of war, or during peacetime service after December 31, 1946, and arthritis becomes manifest to a degree of 10 percent within one year from the date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. §§ 1101, 1112, 1113, 1137 (2012); 38 C.F.R. §§ 3.307, 3.309. The Board notes that in a July 2016 written statement, the Veteran asserted that all of his claimed disabilities are signs or symptoms of illnesses caused by exposure to Agent Orange and/or red lead paint. Service connection may be presumed for certain diseases if a veteran was exposed to certain herbicide agents, including Agent Orange, during service, and the disease manifested to a degree of 10 percent or more any time after service. 38 C.F.R. §§ 3.307(a)(6), 3.309(e). However, the Veteran did not have physical presence in an area where exposure to Agent Orange is presumed, and there is no evidence that he was exposed to herbicide agents or red lead paint during service. See 38 C.F.R. § 3.307(a)(6)(iii)-(v). Moreover, none of the Veteran's claimed disabilities are presumptively related to herbicide exposure, and there is no evidence of record suggesting a link between any of his claimed disabilities and exposure to herbicide agents or red lead paint. Accordingly, service connection is not warranted based on exposure to Agent Orange or red lead paint. Cervical Spine Disability The Veteran seeks service connection for a cervical spine disability, which he asserts was incurred during service. During the September 2017 Board hearing, the Veteran testified that he did not remember sustaining an injury to his neck, but he recalled receiving Aspirin for neck pain during service. Upon review of the record, the Board finds that the probative evidence of record is against a finding that a current cervical spine disability is related to service. As an initial matter, to the extent that the Veteran claims to have experienced continued neck pain since service, his statements are not consistent with the evidence of record. See Caluza v. Brown, 7 Vet. App. 498, 511 (1995) (holding that in weighing credibility, VA may consider inconsistent statements and consistency with other evidence of record). Service treatment records show no complaints of or treatment for neck pain during service. A 1983 report of medical examination indicates that the Veteran's spine was normal shortly before his discharge from active duty. In April 1984, the Veteran underwent a VA examination pursuant to a service connection claim for joint pain; however, he made no mention of neck pain during the examination. See AZ v. Shinseki, 731 F.3d 1303, 1315 (Fed. Cir. 2013) (recognizing the widely held view that the absence of an entry in a record may be considered evidence that the fact did not occur if it appears that the fact would have been recorded if present). Thereafter, the record shows no complaints of or treatment for neck pain for over five years. A November 1989 private treatment record shows that the Veteran reported symptoms of neck, back, right shoulder, and right chest pain ever since a motor vehicle accident about one week earlier. The Board finds the contemporaneous medical evidence to be significantly more persuasive and credible than statements made to VA for purposes of seeking compensation. See Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) (VA cannot ignore a veteran's testimony simply because the veteran is an interested party; personal interest may, however, affect the credibility of the evidence). Although the Veteran believes that a current cervical spine disability is related to service, as a lay person, he has not shown that he has specialized training sufficient to render such an opinion. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). In this regard, the diagnosis and etiology of disabilities of the spine are matters not capable of lay observation and require medical expertise to determine. Thus, the opinion of the Veteran regarding the etiology of a current cervical spine disability is not competent medical evidence. The Board notes that the Veteran has not received a VA examination pursuant to his service connection claim for a cervical spine disability. However, there is no evidence of an in-service event, injury, or disease or competent evidence suggesting a possible association between a current cervical spine disability and service. Therefore, a VA examination is not required. See 38 C.F.R. § 3.159(c); see also McLendon v. Nicholson, 20 Vet. App. 79, 84 (2006); Waters v. Shinseki, 601 F.3d 1274, 1278 (Fed. Cir. 2010) (noting that a conclusory lay statement that a current condition is related to service is insufficient to warrant a medical examination because it would "eliminate the carefully drafted statutory standards governing the provision of medical examinations and require the Secretary to provide such examinations in virtually every veteran's disability case"). As there is no competent, credible, and probative evidence demonstrating that the Veteran sustained a neck injury during service or otherwise linking a current cervical spine disability to service, service connection for a cervical spine disability is denied. In reaching this decision, the Board considered the doctrine of reasonable doubt; however, as the preponderance of the evidence is against the Veteran's service connection claim for a cervical spine disability, the doctrine is not for application. See Gilbert, 1 Vet. App. at 56. Lumbar Spine Disability The Veteran seeks service connection for a lumbar spine disability, which he asserts was incurred during service. During the September 2017 Board hearing, the Veteran testified that he slipped in a stairwell on a ship and hit his back. Upon review of the record, the Board finds that the probative evidence of record is against a finding that a current lumbar spine disability is related to service. Service treatment records show one complaint of left lower back pain in June 1982. The assessment was a muscle strain, and the Veteran was given Motrin. The record shows no additional complaints of back pain during service. As noted above, a 1983 report of medical examination indicates that the Veteran's spine was normal shortly before his discharge from active duty. To the extent that the Veteran claims to have experienced continued low back pain since service, his statements are not consistent with the evidence of record. See Caluza, 7 Vet. App. at 511. During the April 1984 VA examination conducted pursuant to the Veteran's service connection claim for joint pain, he made no mention of low back pain. See AZ, 731 F.3d at 1315. Thereafter, the record shows no complaints of or treatment for back pain until November 1989. At that time, he related the onset of his back pain to the motor vehicle accident he was involved in the week before. The Board finds the contemporaneous medical evidence to be more persuasive and credible than statements made to VA for purposes of seeking compensation. See Cartright, 2 Vet. App. at 25. Although the Veteran believes that a current lumbar spine disability is related to service, as a lay person, he has not shown that he has specialized training sufficient to render such an opinion. See Jandreau, 492 F.3d at 1377. As noted above, the diagnosis and etiology of disabilities of the spine are matters not capable of lay observation and require medical expertise to determine. Thus, the opinion of the Veteran regarding the etiology of a current lumbar spine disability is not competent medical evidence. The Board notes that the Veteran has not received a VA examination pursuant to his service connection claim for a lumbar spine disability. However, there is no competent evidence even suggesting a possible association between a current lumbar spine disability and service. Indeed, private treatment records suggest his current complaints are related to age and deconditioning. Accordingly, the Board finds, a VA examination is not required. See 38 C.F.R. § 3.159(c); see also McLendon, 20 Vet. App. at 84; Waters, 601 F.3d at 1278. As there is no competent, credible, and probative evidence linking a current lumbar spine disability to service, service connection for a lumbar spine disability is denied. In reaching this decision, the Board considered the doctrine of reasonable doubt; however, as the preponderance of the evidence is against the Veteran's service connection claim for a lumbar spine disability, the doctrine is not for application. See Gilbert, 1 Vet. App. at 56. Right Shoulder Disability The Veteran seeks service connection for a right shoulder disability, which he asserts was incurred during service. During the September 2017 Board hearing, the Veteran testified that he believed he banged his shoulder on the doors of ships while opening hatches or hurt it while lifting heavy luggage. Upon review of the record, the Board finds that the probative evidence of record is against a finding that a current right shoulder disability is related to service. Service treatment records show one complaint of soreness in the right scapula in June 1978. The record shows no additional complaints of right shoulder pain during service. A 1983 report of medical examination indicates that the Veteran's upper extremities were normal shortly before his discharge from active duty. During his August 1984 VA examination, the Veteran reported right shoulder pain with vigorous activity, such as lifting or typing, and with cold weather, which generally resolved with Aspirin or rest and had not been a problem recently. A physical examination revealed modest infrascapular tenderness, but no heat, swelling, or limitation of motion. The assessment was right supraspinatus tendinitis, stable on current regimen. To the extent that the Veteran claims to have experienced continued right shoulder pain since service, his statements are not consistent with the evidence of record. See Caluza, 7 Vet. App. at 511. As noted above, the Veteran stated during the August 1984 VA examination that his right shoulder pain had not been a problem recently. Thereafter, the record shows no complaints of or treatment for right shoulder pain for over five years. When the Veteran sought treatment for right shoulder pain in November 1989, he related the onset of his pain to the motor vehicle accident he was involved in the week before. The Board finds the contemporaneous medical evidence to be more persuasive and credible than statements made to VA for purposes of seeking compensation. See Cartright, 2 Vet. App. at 25. The Veteran underwent a VA examination in May 2016, during which he reported right shoulder pain since 1982. He denied any injury after service. X-rays revealed degenerative arthritis of the right shoulder, and internal derangement tests were positive for rotator cuff tear damage. The diagnoses were right rotator cuff tear, degenerative arthritis, and shoulder impingement syndrome. The examiner opined that a current right shoulder disability was less likely than not incurred in or caused by service. In support of this, the examiner explained that the Veteran injured his right shoulder in a motor vehicle accident more than five years after service, and there was no evidence to support the premise that the Veteran's current right shoulder condition was related to his one-time complaint of shoulder pain during service or the occasional right shoulder pain he reported with vigorous activity six months after service. There is no medical opinion to the contrary. Although the Veteran believes that a current right shoulder disability is related to service, as a lay person, he has not shown that he has specialized training sufficient to render such an opinion. See Jandreau, 492 F.3d at 1377. In this regard, the diagnosis and etiology of shoulder disabilities are matters not capable of lay observation and require medical expertise to determine. Thus, the opinion of the Veteran regarding the etiology of a current right shoulder disability is not competent medical evidence. In sum, the preponderance of the competent, credible, and probative evidence is against the claim, and service connection for a right shoulder disability is denied. See Gilbert, 1 Vet. App. at 53. Right Elbow Disability The Veteran seeks service connection for a right elbow disability, which he asserts was incurred during service. During the September 2017 Board hearing, the Veteran testified that he believes he hurt it opening hatches on ships. Upon review of the record, the Board finds that the probative evidence of record does not show a current diagnosis of a right elbow disability. Service treatment records show no complaints of or treatment for right elbow pain during service. As noted above, a 1983 report of medical examination indicates that the Veteran's upper extremities were normal shortly before his discharge from active duty. He also made no mention of right elbow pain during his April 1984 VA examination. Thereafter, the record shows no complaints of or treatment for right elbow pain until September 2002. In November 2007, the Veteran reported a history of right elbow pain. X-rays of the right elbow taken in August 2013 revealed no significant findings, and no diagnosis was rendered. Although the Veteran believes that he has a current right elbow disability which is related to service, as a lay person, he has not shown that he has specialized training sufficient to render such an opinion. See Jandreau v, 492 F.3d at 1376-77. In this regard, the diagnosis and etiology of elbow disorders are matters not capable of lay observation and require medical expertise to determine. Thus, the opinion of the Veteran regarding the diagnosis and etiology of a right elbow complaints is not competent medical evidence. Congress has specifically limited entitlement to service-connected benefits to cases where there is a current disability. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) (holding that "[i]n the absence of proof of a present disability, there can be no valid claim"); see also Sanchez-Benitez v. West, 13 Vet. App. 282, 285 (1999) (holding that 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). In this case, there is no competent medical evidence of record showing that the Veteran has a current diagnosis of a right elbow disability. As the there is no medical evidence of a current disability, there is no basis upon which service connection can be awarded. Thus, the claim for service connection for a right elbow disability is denied. The Board notes that the Veteran has not received a VA examination pursuant to his service connection claim for a right elbow disability. However, there is no evidence of an in-service event, injury, or disease, and there is no competent evidence suggesting a possible association between a current right elbow disability and service. Accordingly, a VA examination is not required. See 38 C.F.R. § 3.159(c); see also McLendon, 20 Vet. App. at 84; Waters, 601 F.3d at 1278. As there is no competent, credible, and probative evidence demonstrating that the Veteran has a current right elbow disability that is related to service, service connection for a right elbow disability is denied. In reaching this decision, the Board considered the doctrine of reasonable doubt; however, as the preponderance of the evidence is against the Veteran's service connection claim for a right elbow disability, the doctrine is not for application. See Gilbert, 1 Vet. App. at 56. ORDER A rating in excess of 10 percent for GERD is denied. Service connection for a cervical spine disability is denied. Service connection for a lumbar spine disability is denied. Service connection for a right shoulder disability is denied. Service connection for a right elbow disability is denied. REMAND The Veteran seeks service connection for gallbladder removal, which he asserts was caused by his service-connected GERD. During the September 2017 Board hearing, the Veteran testified that his gallbladder was removed about four years earlier at a medical center in Bremerton, Washington. However, records of such treatment have not been obtained, nor did the RO request that the Veteran submit those records. Accordingly, the Board finds that a remand is necessary in order to afford the Veteran the opportunity to submit or request that VA obtain private treatment records from his gallbladder removal. Accordingly, the case is REMANDED for the following action: (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. Ask the Veteran to provide the names and addresses of all medical care providers who performed his gallbladder removal. After securing any necessary releases, the AOJ should request any relevant records identified. If any records are not available, the Veteran should be notified of such. 2. After undertaking the development above and any additional development deemed necessary, the Veteran's claim should be readjudicated. If the benefit sought on appeal remains denied, the Veteran should be furnished a supplemental statement of the case and given an appropriate period to respond thereto before the case is returned to the Board, if in order. The Veteran has the right to submit additional evidence and argument on the matter 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). ______________________________________________ K. A. BANFIELD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs