Citation Nr: 18146552 Decision Date: 10/31/18 Archive Date: 10/31/18 DOCKET NO. 12-11 192 DATE: October 31, 2018 ORDER Entitlement to service connection for left Achilles heel tendonitis is granted. Entitlement to service connection for gastroesophageal reflux disease (GERD) is denied. Entitlement to service connection for ulcerative colitis is denied. FINDINGS OF FACT 1. Resolving reasonable doubt in the Veteran’s favor, left Achilles tendonitis is at least as likely as not related to the Veteran’s service. 2. The preponderance of the evidence is against finding that the Veteran’s GERD began during active duty service, or is otherwise related to an in-service injury, event, or disease. 3. The preponderance of the evidence is against finding that the Veteran’s ulcerative colitis is due to a disease or injury in service, to include his exposure to heat, stress, eating too fast, and taking high doses of Ibuprofen. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for left Achilles heel tendonitis have been met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for entitlement to service connection for GERD have not been met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303. 3. The criteria for entitlement to service connection for ulcerative colitis have not been met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the Army from August 1999 to November 1999 and from August 2002 to July 2003. He served in the Reserves at all other times between January 1999 and May 2009. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an April 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia (Agency of Original Jurisdiction (AOJ)). The Veteran and his wife testified at a Travel Board hearing before a Veterans’ Law Judge (VLJ) in December 2015. A transcript of the proceeding is of record. This matter was previously before the Board in March 2016. The Board remanded on the issues noted above (and one that has since been granted in the interim) to afford the Veteran the opportunity to present for new VA examinations, as well as to instruct the AOJ to obtain additional medical records. A review of the file reflects that new examinations were conducted in April 2018 and subsequently associated with the record; additionally, new medical records were obtained. The Board thus finds that the AOJ substantially complied with the remand directive in accordance with Stegall v. West, 11 Vet. App. 268, 271 (1998). Service Connection Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service. 38 U.S.C. §1110; 38 C.F.R. §3.303. Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. §3.303(d). The requirement that a current disability exist is satisfied if the claimant had a disability at the time the claim for VA disability compensation was filed or during the pendency of the claim. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Establishing service connection generally requires evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) 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). Active military, naval, or air service includes any period of active duty for training (ACDUTRA) during which the individual concerned was disabled from a disease or injury incurred in line of duty. 38 U.S.C. § 101 (21) and (24) (2012); 38 C.F.R. § 3.6 (a) (2017). Active military, naval, or air service also includes any period of inactive duty training (INACDUTRA) duty in which the individual concerned was disabled from injury incurred in the line of duty. Id. Accordingly, service connection may be granted for disability resulting from disease or injury incurred in, or aggravated, while performing ACDUTRA or from injury incurred or aggravated while performing INACDUTRA. 38 U.S.C. §§ 101 (24), 106, 1131 (2012). ACDUTRA includes full time duty performed by members of the National Guard of any state or the reservists. 38 C.F.R. § 3.6(c). INACDUTRA includes duty other than full time duty performed by a member of the Reserves or the National Guard of any state. 38 C.F.R. § 3.6(d). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. In evaluating a claim, the Board must determine the value of all evidence submitted, including lay and medical evidence. 38 U.S.C. §1154(a); Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006). 1. Entitlement to service connection for left Achilles heel tendonitis The Veteran contends that when he was in basic training in 1999, he tore his left Achilles tendon and sustained two pressure fractures to his left foot. His service treatment records (STRs) document complaints of Achilles tendonitis following the stress fracture; the Board will concede this in-service event. He testified at his December 2015 hearing that he has not had noticeable pain in his left Achilles heel since service, but medical records suggest he has had intermittent pain since service with activities. The Veteran stated that while treatment initially helped after the in-service left Achilles tendon injury, it began hurting more frequently after he wore dress shoes in or around August 2014. The record reflects that the Veteran has a current diagnosis of left Achilles tendonitis. Records from Orthopaedic Center in October 2014 include a note regarding an MRI of the Veteran’s left ankle; the MRI revealed “tendonitis with no evidence of a tear of the Achilles [heel].” Similarly, the April 2018 VA examination diagnosed the Veteran with left Achilles tendonitis. The Board will thus concede that the Veteran has a current diagnosis of left Achilles tendonitis to satisfy the first prong of service connection. The Veteran underwent a VA examination for his foot in May 2012; at that time, he was not diagnosed with any Achilles tendon issue. The examiner noted it was not at least as likely as not that the Veteran’s left Achilles tendonitis was incurred in or caused by an event in service, rationalizing that the Veteran’s signs and symptoms of his left ankle are not significant for tendinopathy. To be clear, she denied a nexus between the in-service event and his current condition because she indicated the Veteran did not have a diagnosis for Achilles tendonitis. While the examiner’s reasoning supported an opinion finding no relationship between left Achilles tendonitis and the Veteran’s service, the examiner contradictorily stated there was a 50 percent or greater probability that it was due to service. In a September 2012 addendum opinion, the same VA medical professional opined that the Veteran’s left Achilles tendonitis was “at least as likely as not (50 percent probability or greater)” due to his service, yet the rationale again supported a negative opinion, finding that the Veteran’s left ankle problems in service had resolved without sequelae. The Board subsequently deemed this examination inadequate, noting that newly-submitted evidence now proves the Veteran does have a current diagnosis for Achilles tendonitis. In August 2015, a review of the Veteran’s file was conducted by Dr. K.S., who opined that it was less likely than not that the Veteran’s current left Achilles tendonitis was incurred in or caused by his in-service injury. He rationalized that the Veteran had two isolated incidents while in the military where he suffered an ankle sprain (which is now service-connected) and mild Achilles tendonitis, but he was treated conservatively and recovered without residual effects. He went on to say that an “ankle sprain is anatomically separate and distinct from the Achilles tendon.” Dr. K.S. based his opinion, in part, on the May 2012 VA examination and further noted that “nothing of a subjective or objective nature at the time of examination suggested injury to the Achilles tendon.” The Board previously found that this medical opinion is also inadequate because newly-submitted evidence proves the Veteran does have a current diagnosis for Achilles tendonitis. Thereafter, the Veteran underwent another VA examination for his left Achilles tendonitis in April 2018. The examiner, Dr. M.E., confirmed a diagnosis of Achilles tendonitis and opined that the Veteran’s condition was less likely than not related to the Veteran’s active duty service. He rationalized that the Veteran injured himself in service when he stepped on someone’s foot and fell down, causing a left ankle sprain and resulting in physical therapy. However, the examiner indicated there were “no records in following years to ascribe service correlation to [the] current diagnosis devoid of speculation.” Another opinion from the same examiner, opining as to whether the Veteran’s left Achilles tendonitis is proximately due to his service-connected stress fracture or ankle sprain noted that while there is reference made to a fracture while in service, there is no documentation of limitations due to the fracture to account for ankle pathology. However, a December 2015 letter was provided by the Veteran’s orthopedic doctor, Dr. G.G., who opined that the Veteran’s Achilles tendonitis was “more likely than not” related to his boot camp injury. Because the VA opinions from May 2012 and August 2015 were deemed inadequate, the Board thus relies on the opinions of Dr. M.E. and Dr. G.G. In weighing these two opinions, the Board is most heavily persuaded by Dr. G.G.’s opinion, as he is the Veteran’s treating physician and a specialist in orthopedics. Giving the Veteran the benefit of the doubt, and noting that the evidence appears to be at least in equipoise, the Board will grant the Veteran’s claim for entitlement to service connection for left Achilles tendonitis. 38 U.S.C. §5107. 2. Entitlement to service connection for GERD The Veteran contends that he began experiencing symptoms of GERD around September 1999, despite not being formally diagnosed with the condition until 2009. He claims that during basic training, he would experience heartburn, indigestion, reflux, and nausea at night after eating. He allegedly self-treated this condition with water, as he could not see a gastroenterologist or have an endoscopy done since he was in boot camp. The record reflects that the Veteran has a current diagnosis of GERD. Private treatment records from November 2011 make note that the Veteran had esophageal reflux; similar treatment records dated April 2015 list GERD as a past medical condition. In February 2018, a VA treatment note included GERD in the physician’s assessment, and recorded that he was seeing a GI specialist for this condition. Additionally, the VA examination from April 2018 affirmed the Veteran’s diagnosis of GERD. Thus, the Board will concede that the Veteran has a current diagnosis for service-connection purposes. Service treatment records (STRs) do not reflect that the Veteran received any treatment for symptoms affiliated with GERD, nor was he diagnosed with this condition in service. However, on his enlistment Report of Medical History, he indicated that he had frequent indigestion. Nonetheless, nothing regarding this condition was listed on his entrance examination. During his April 2018 VA examination, the Veteran explained to the physician that his symptoms began in September 1999 and his condition began in 2009 during basic training. As noted above, he contends that he experienced heartburn, indigestion, reflux, and nausea at night after eating. He allegedly self-treated this condition with water, and did not go to sick call for GERD. The Veteran underwent a VA examination in April 2018. At that time, the examiner, Dr. M.E., affirmed a diagnosis of GERD. He opined that because there was no documentation found in the Veteran’s medical records to indicate GERD as a pre-existing condition, because the Veteran had normal entrance and retention examinations, and because the Veteran noted no claimed conditions on his Report of Medical History, his condition did not exist prior to either period of active duty service. He then stated that the Veteran’s GERD was at least as likely as not related to his active duty service, to include exposure to heat and stress, eating too quickly, and taking high doses of Ibuprofen. However, after VA requested clarification from Dr. M.E., he then provided an addendum opinion declaring the following: “…insufficient evidence is found to support the claim for direct service connection of [the Veteran’s] GERD condition. There is no evidence of diagnosis or treatment for GERD or GERD-related symptoms during his periods of active duty service between August 1999 to November 1999 and August 2002 to July 2003. Furthermore, information cited in his National Guard Retention exam dated November 2003, which transpired after he had completed his duties of active service, indicates no diagnosis or complaints of gastrointestinal concerns existed at that time. His GERD diagnosis is first cited in an April 2008 Gastroenterology office report, where it was cited as an actively treated medical condition.” Based on the evidence of record, the Board is unable to find that the Veteran’s GERD began during active duty service. Though he recorded frequent indigestion on his Report of Medical History dated November 1998, the Veteran’s entrance examination and subsequent STRs did not mention any diagnosis, symptoms, or treatment for GERD. Similarly, private treatment records do not discuss his condition until April 2008, well after active duty service. Notably, though Dr. M.E. initially indicated the condition began in service, his addendum opinion recanted that statement and he then found there to be insufficient evidence to support the Veteran’s claim. As such, the Board must deny the claim for entitlement to service connection for GERD. 3. Entitlement to service connection for ulcerative colitis The Veteran contends that, while taking high doses of Ibuprofen during service for his left ankle condition, he experienced bloody stools and cramping, which either caused or aggravated his ulcerative colitis condition. He states that he gets flare ups once a week, each lasting three days. He experiences nausea, as well as alternating diarrhea and constipation. The Veteran was diagnosed with ulcerative colitis in May 2007. At one point during his period of Reserve duty, the Veteran was put on temporary profile due to a flare up of this condition. Ultimately, he received a permanent profile for this condition in August 2008. Medical treatment records and the April 2018 VA examination both corroborate the Veteran’s diagnosis of ulcerative colitis, satisfying the initial prong for entitlement to service connection. STRs from the Veteran’s time in active duty service do not reflect that the Veteran received treatment for or complained of symptoms related to ulcerative colitis. As noted above, however, treatment records show his condition manifested and was subsequently diagnosed during his time in the Reserves. The Veteran contends, however, that his symptoms began in October 1999 while in basic training. He allegedly began taking 800 mg Ibuprofen and subsequently started passing blood in his stool and cramping. When he stopped taking the medicine, the symptoms subsided; the blood in his stool came and went, but the cramping became more constant. He had pain, diarrhea, constipation, and nausea; however, he “dealt with it” until 2006. The examiner who conducted the April 2018 VA examination opined that the Veteran’s ulcerative colitis was less likely than not incurred in service or caused by his Ibuprofen intake, heat, stress, or eating too quickly. He indicated “records note claimant being treated while in service for condition. First available medical records denoting diagnosis is in 2007…However, ulcerative colitis is an inflammatory bowel disorder associated with immune response, [n]ot secondary to heat, stress, eating too fast, and taking high doses of Ibuprofen.” He also opined that this condition was not aggravated by service, as it did not exist prior to enlistment, based on the lack of findings in medical records. The Veteran noted indigestion on his Report of Medical History, but no other condition. Furthermore, the Veteran’s private doctor provided the following opinion: “Heat and stress do not cause ulcerative colitis, but may be poorly tolerated in a patient with active inflammatory bowel disease. Ibuprofen can cause mucosal damage to the gastrointestinal tract which can aggravate ulcerative colitis.” (Continued on the next page)   Based on the evidence of record, the Board must deny the Veteran’s claim for entitlement to service connection for ulcerative colitis. The Veteran’s STRs are silent for complaints or treatment for symptoms related to the condition, and it is reasonable to suspect the Veteran would have likely gone to sick call for these symptoms, especially if they were as severe as they appeared to be during his Reserve service. Furthermore, though the VA examiner noted treatment while in service – which is inherently inaccurate – he later rationalized that the condition did not exist prior to service and was not aggravated by heat, stress, eating too fast, and taking high doses of Ibuprofen because it is associated with an immune response. His private physician has also indicated ulcerative colitis is not caused by heat, stress, or Ibuprofen intake. As such, the Board must deny the Veteran’s claim. N. RIPPEL Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Victoria A. Narducci, Associate Counsel