Citation Nr: 18143474 Decision Date: 10/23/18 Archive Date: 10/19/18 DOCKET NO. 16-07 425 DATE: October 23, 2018 ORDER Entitlement to service connection for gastritis is denied. Entitlement to service connection for insomnia is denied. REMANDED Entitlement to service connection for a left hand/wrist disability, as secondary to a peripheral vestibular disorder, is remanded. Entitlement to service connection for a right hand/wrist disability, as secondary to a peripheral vestibular disorder, is remanded. Entitlement to service connection for a traumatic head injury, as secondary to a peripheral vestibular disorder, is remanded. Entitlement to service connection for a scar on the left side of the head, as secondary to a peripheral vestibular disorder, is remanded. Entitlement to service connection for memory loss, as secondary to a traumatic head injury, is remanded. FINDINGS OF FACT 1. The competent and probative evidence of record does not demonstrate that the Veteran’s gastritis began during or is etiologically related to his active duty service or to any service-connected disability. 2. The competent and probative evidence of record does not demonstrate that the Veteran’s insomnia began during or is etiologically related to his active duty service or to any service-connected disability. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for gastritis have not been met. 38 U.S.C. § 1110 (2012); 38 C.F.R. §§ 3.303, 3.310 (2017). 2. The criteria for entitlement to service connection for insomnia have not been met. 38 U.S.C. § 1110 (2012); 38 C.F.R. §§ 3.303, 3.310 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1970 to February 1972. Service Connection Service connection may be established for disability due to a disease or injury that was incurred in or aggravated by active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may also be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In general, in order to prevail on the issue of service connection, the evidence 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). Additionally, a disability that is proximately due to or results from another disease or injury for which service connection has been granted, will be considered part of the original disorder. 38 C.F.R. § 3.310(a). Moreover, any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease, will be service connected. 38 C.F.R. § 3.310(b). 1. Entitlement to service connection for gastritis Service treatment records do not contain any complaints of or treatment for stomach or digestive disorders. VA treatment records dated May 2011 reflect the Veteran experienced abdominal pain and bloating feelings in his epigastrium. October 2011 VA treatment records note that the Veteran was seen for abdominal pain, epigastric, and records dated June 2012 reflect treatment for unspecified gastritis and gastroduodenitis without mention of hemorrhage, gastritis. The Veteran testified at his July 2017 hearing before the Board that he felt his gastritis was related to medication he takes for nasal problems and a back condition, and that the medication was “very hard on [his] stomach.” Notably, the Veteran’s nasal condition and back condition are not service-connected and there are no pending claims for these disabilities. Based on the foregoing, the Board finds that service connection for gastritis must be denied. First, the Veteran’s service treatment records do not contain any complaints of or treatment for stomach or digestive disorders. Moreover, the Veteran has not claimed that he experienced any stomach or digestive difficulty during service. Additionally, the Veteran’s gastritis did not manifest until many years after his separation from active duty service, which weighs heavily against his claim. See Mense v. Derwinski, 1 Vet. App. 354, 356 (1991). Further, there is no evidence that the Veteran’s gastritis may be related to medication for any of his service-connected disabilities. Based on the foregoing, the Board concludes that the Veteran’s claim for service connection for gastritis must be denied. Given that there is no evidence that the Veteran’s gastritis may be related to service or any service-connected disabilities, an examination is not required. See McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). In reaching this decision, the Board acknowledges that the Veteran may sincerely believe his current diagnosis of gastritis warrants service connection. However, without the appropriate medical training and expertise, which he has not demonstrated, he is not competent to provide an opinion regarding the etiology of his gastritis. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir 2007); see also Jones v. West, 12 Vet. App. 383, 385 (1999) (holding that where the determinative issue is one of medical causation or diagnosis, only those with specialized medical knowledge, training, or experience are competent to provide evidence on the issue). The Board has considered the benefit of the doubt doctrine; however, as the evidence weighs against his claim, it is not applicable. 38 U.S.C. § 5107(b) (2012); see also Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). 2. Entitlement to service connection for insomnia On his February 1972 report of medical history for separation purposes, the Veteran acknowledged frequent trouble sleeping. Service treatment records do not document any other reports of sleep trouble. There are no medical records demonstrating that the Veteran continued to experience difficulty sleeping since separating from service and the Veteran has not claimed such. VA treatment records dated February 2013 reflect a diagnosis of insomnia, due to difficulty coping with the diagnosis of Parkinson’s disease and degenerative symptoms of Parkinson’s disease. Based on the foregoing, the Board finds that service connection for insomnia must be denied. The Veteran’s service treatment records contain one single reference to difficulty sleeping; he has not claimed that he experienced difficulty sleeping since service. Additionally, the Veteran’s current insomnia did not manifest until many years after his separation from active duty service, which weighs heavily against his claim. See Mense, 1 Vet. App. at 356. Based on the foregoing, the Board finds that service connection for insomnia must be denied. Given that there is no evidence that the Veteran’s insomnia may be related to service, an examination is not required. See McLendon, 20 Vet. App. at 81. At his July 2017 hearing before the Board, the Veteran testified he believed that his peripheral vestibular disorder (with symptoms of vertigo) contributed to his insomnia; however, this statement is not substantiated by any medical evidence, and the Veteran’s bare statements alone do not suffice to trigger the duty for an examination. See Waters v. Shinseki, 601 F.3d 1274, 1278 (Fed. Cir. 2010); cf. McLendon, 20 Vet. App. at 81. At his July 2017 hearing before the Board, the Veteran also testified that he believed that his insomnia may be related to his Parkinson’s disease. The Board recognizes that the Veteran’s claim for entitlement to service connection for Parkinson’s was remanded by the Board in August 2016 and remains pending. In that regard, the denial of service connection for insomnia in the instant decision does not prejudice the Veteran’s pending claim for Parkinson’s in any way. This is so because if service connection is found to be warranted for Parkinson’s, then the Veteran’s symptoms (to include insomnia, if it is found to be related) will be contemplated by the assigned disability rating. In reaching this decision, the Board acknowledges that the Veteran may sincerely believe his current diagnosis of insomnia warrants service connection. However, without the appropriate medical training and expertise, which he has not demonstrated, he is not competent to provide an opinion regarding the etiology of his insomnia. See Jandreau, 492 F.3d at 1376-77; see also Jones, 12 Vet. App. at 385). (CONTINUED ON NEXT PAGE) VA’s Duties to Notify and Assist With respect to the Veteran’s claims, 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 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2017). VA’s duty to notify was satisfied by a letter dated August 2014. See 38 U.S.C. §§ 5103, 5103A; 38 C.F.R. § 3.159; see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). The duty to assist the Veteran has also been satisfied in this case. The Agency of Original Jurisdiction has obtained the Veteran’s available service treatment records and VA treatment records. See 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. As discussed above, he has not been afforded VA examinations in connection with his claims. The only evidence of a link between these claimed disabilities and the Veteran’s active service or any service-connected disability have been his own assertions; under current case law, such bare assertions standing alone do not suffice to trigger the duty to obtain an examination. See Waters, 601 F.3d at 1278; cf. McLendon, 20 Vet. App. at 81. The Board recognizes that since the Veteran’s claims were last adjudicated in a December 2016 Statement of the Case that additional VA treatment records have been associated with the evidence of record, and which have not been reviewed by the Agency of Original Jurisdiction (AOJ) in the first instance. However, these records merely continue to document the Veteran’s current diagnoses, which were already known to exist when the claims were last adjudicated by the AOJ. Therefore, there is no prejudice to the Veteran in adjudicating his service connection claims because these records do not support a finding that his insomnia or gastritis manifested at any time earlier. (CONTINUED ON NEXT PAGE) As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess v. Nicholson, 19 Vet. App. 473, 486 (2006). REASONS FOR REMAND 1. Entitlement to service connection for a left hand/wrist disability, as secondary to a peripheral vestibular disorder, is remanded. 2. Entitlement to service connection for a right hand/wrist disability, as secondary to a peripheral vestibular disorder, is remanded. 3. Entitlement to service connection for a traumatic head injury, as secondary to a peripheral vestibular disorder, is remanded. 4. Entitlement to service connection for a scar on the left side of the head, as secondary to a peripheral vestibular disorder, is remanded. 5. Entitlement to service connection for memory loss, to include as secondary to a traumatic head injury, is remanded. At a June 2016 VA examination, the examiner was unable to provide a diagnosis of a traumatic brain injury “due to insufficient objective evidence,” and found that the Veteran’s current complaints were more likely than not due to another etiology. However, the examiner did not provide a rationale for this conclusion, despite acknowledging that the Veteran hit his head when he fell in December 2015. The same examiner determined that the Veteran’s other claimed disabilities (bilateral hand/wrist disabilities and scar on the left side of the head) were not medically related to the Veteran’s service-connected peripheral vestibular disorder per medical literature. The examiner failed to consider and discuss the Veteran’s contentions that his peripheral vestibular disorder caused him to fall, resulting in bilateral hand/wrist disabilities and a scar on the left side of the head. Accordingly, the Board finds new examinations and opinions are required. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate); Given that the Veteran has claimed his memory loss is due to a traumatic head injury, this issue must also be remanded. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two issues are “inextricably intertwined” when they are so closely tied together that a final Board decision cannot be rendered unless both issues have been considered). The matters are REMANDED for the following action: 1. Afford the Veteran the appropriate VA examination(s) to determine the etiology of any diagnosed traumatic head injury, left hand/wrist disabilities, right hand/wrist disabilities, a scar on the left side of the head, and memory loss. The examiner must obtain from the Veteran and document in the examination report a full history regarding the onset and symptoms of his service-connected peripheral vestibular disorder as well as onset and symptoms regarding his claimed traumatic head injury, left hand/wrist disabilities, right hand/wrist disabilities, a scar on the left side of the head, and memory loss. (CONTINUED ON NEXT PAGE) Following a complete review of the evidence of record, and with consideration of the Veteran’s statements, the examiner is requested to provide the following opinions: (a) Does the Veteran have a diagnosis of a traumatic head injury at any time during the period on appeal? Why or why not? (b) If the answer to (a) is in the affirmative, the examiner is requested to provide the following additional information: (i) Discuss all symptoms and impairment of occupational functioning due to the traumatic head injury. (ii) Determine whether it is at least as likely as not (50 percent probability or higher) that the traumatic head injury was caused by the Veteran’s service-connected peripheral vestibular disorder, to include as due to falls resulting from that disorder. (iii) Determine whether it is at least as likely as not (50 percent probability or higher) that the traumatic head injury was aggravated by the Veteran’s service-connected peripheral vestibular disorder, to include as due to falls resulting from that disorder. (iv) If the answer to (ii) or (iii) is in the affirmative, determine whether it is at least as likely as not (50 percent probability or higher) that the Veteran has memory loss which was caused by his traumatic head injury. (v) If the answer to (ii) or (iii) is in the affirmative, determine whether it is at least as likely as not (50 percent probability or higher) that the Veteran has memory loss which was aggravated by his traumatic head injury. (c) With regard to all diagnosed left hand/wrist disabilities, determine whether it is at least as likely as not (50 percent probability or higher) that the disability was caused by the Veteran’s service-connected peripheral vestibular disorder, to include as due to falls resulting from that disorder. (d) With regard to all diagnosed left hand/wrist disabilities, determine whether it is at least as likely as not (50 percent probability or higher) that the disability was aggravated by the Veteran’s service-connected peripheral vestibular disorder, to include as due to falls resulting from that disorder. (e) With regard to all diagnosed right hand/wrist disabilities, determine whether it is at least as likely as not (50 percent probability or higher) that the disability was caused by the Veteran’s service-connected peripheral vestibular disorder, to include as due to falls resulting from that disorder. (f) With regard to all diagnosed right hand/wrist disabilities, determine whether it is at least as likely as not (50 percent probability or higher) that the disability was aggravated by the Veteran’s service-connected peripheral vestibular disorder, to include as due to falls resulting from that disorder. (g) With regard to all diagnosed scars of the left side of the head, determine whether it is at least as likely as not (50 percent probability or higher) that the scars were caused by the Veteran’s service-connected peripheral vestibular disorder, to include as due to falls resulting from that disorder. (h) With regard to all diagnosed scars of the left side of the head, determine whether it is at least as likely as not (50 percent probability or higher) that the scars were aggravated by the Veteran’s service-connected peripheral vestibular disorder, to include as due to falls resulting from that disorder. A complete rationale for all opinions MUST be provided. If the examiner is unable to provide any opinion without resorting to speculation, he or she should indicate why this is so. 2. The Veteran is informed that it is his responsibility to report for any scheduled examinations and to cooperate in the development of the claims and that the consequences for failure to report for any VA examination without good cause may include denial of a claim. See 38 C.F.R. §§ 3.158, 3.655 (2017). In the event that the Veteran does not report for any scheduled examination, documentation showing that he was properly notified of the examination must be associated with the record 3. The Agency of Original Jurisdiction must review the examination reports and opinions to ensure that they are adequate and comply with the Board’s specific remand instructions. If deficient in any manner, corrective action must be taken at once. 4. Then, the Veteran’s claims must be readjudicated. If any benefit sought on appeal is not granted to the Veteran’s satisfaction, the Veteran and his representative must be provided a Supplemental Statement of the Case and be given an adequate opportunity to respond. Thereafter, the case should be returned to the Board for further appellate action. MICHAEL MARTIN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Jessica O'Connell, Associate Counsel