Citation Nr: 18149181 Decision Date: 11/09/18 Archive Date: 11/08/18 DOCKET NO. 16-34 003 DATE: November 9, 2018 ORDER Entitlement to service connection for epicondylitis, left elbow, to include as due to radiation exposure, is denied. Entitlement to service connection for right shoulder tendonitis, to include as due to radiation exposure, is denied. Entitlement to service connection for degenerative disc disease, lumbar spine, to include as due to radiation exposure, is denied. Entitlement to service connection for a left Achilles tendon rupture, to include as due to radiation exposure, is denied. Entitlement to service connection for mild fibrosis of the lung, to include as due to radiation exposure, is denied. Entitlement to service connection for the residuals of cholecystectomy, gall bladder removal, to include as due to radiation exposure, is denied. Entitlement to service connection for Crohn's disease, irritable bowel syndrome, to include as due to radiation exposure, is denied. Entitlement to service connection for the residuals of an emergency internal hemorrhoidectomy, to include as due to radiation exposure, is denied. Entitlement to service connection for colon cancer with polyp, to include as due to radiation exposure, is denied. Entitlement to service connection for the residuals of bile duct surgery, to include as due to radiation exposure, is denied. Entitlement to service connection for migraine headaches, to include as due to radiation exposure, is denied. FINDINGS OF FACT 1. Epicondylitis, left elbow, disability was not manifest during active service; and, the evidence fails to establish that it developed as a result of service or radiation exposure during service. 2. Right shoulder tendonitis was not manifest during active service; and, the evidence fails to establish that it developed as a result of service or radiation exposure during service. 3. A chronic low back disability, including degenerative disc disease of the lumbar spine, was not manifest during active service nor was it manifest within a year of discharge; and, the evidence fails to establish that it developed as a result of service or radiation exposure during service. 4. A left Achilles tendon rupture was not manifest during active service; and, the evidence fails to establish that it developed as a result of service or ionizing radiation exposure during service. 5. Mild fibrosis of the lung was not manifest during active service; and, the evidence fails to establish that it developed as a result of service or radiation exposure during service. 6. Residuals of cholecystectomy, gall bladder removal, was not manifest during active service; and, the evidence fails to establish that an underlying disorder developed as a result of service or radiation exposure during service. 7. Crohn's disease, irritable bowel syndrome, was not manifest during active service; and, the evidence fails to establish that it developed as a result of service or radiation exposure during service. 8. The residuals of an emergency internal hemorrhoidectomy were not manifest during active service; and, the evidence fails to establish that an underlying disorder developed as a result of service or radiation exposure during service. 9. Colon cancer is not shown by the persuasive evidence and a disability manifested by polyps was not manifest during active service; and, the evidence fails to establish that a colon disorder developed as a result of service or radiation exposure during service. 10. The residuals of bile duct surgery were not manifest during active service; and, the evidence fails to establish that an underlying disorder developed as a result of service or radiation exposure during service. 11. A migraine headache disorder was not manifest during active service nor was it manifest within a year of discharge; and, the evidence fails to establish that it developed as a result of service or radiation exposure during service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for epicondylitis, left elbow, to include as due to radiation exposure, have not been met. 38 U.S.C. § 1131 (2012); 38 C.F.R. § 3.303 (2018). 2. The criteria for entitlement to service connection for right shoulder tendonitis, to include as due to radiation exposure, have not been met. 38 U.S.C. § 1131 (2012); 38 C.F.R. § 3.303 (2018). 3. The criteria for entitlement to service connection for degenerative disc disease, lumbar spine, to include as due to radiation exposure, have not been met. 38 U.S.C. § 1131 (2012); 38 C.F.R. § 3.303 (2018). 4. The criteria for entitlement to service connection for a left Achilles tendon rupture, to include as due to radiation exposure, have not been met. 38 U.S.C. § 1131 (2012); 38 C.F.R. § 3.303 (2018). 5. The criteria for entitlement to service connection for mild fibrosis of the lung, to include as due to radiation exposure, have not been met. 38 U.S.C. § 1131 (2012); 38 C.F.R. § 3.303 (2018). 6. The criteria for entitlement to service connection for the residuals of cholecystectomy, gall bladder removal, to include as due to radiation exposure, have not been met. 38 U.S.C. § 1131 (2012); 38 C.F.R. § 3.303 (2018). 7. The criteria for entitlement to service connection for Crohn's disease, irritable bowel syndrome, to include as due to radiation exposure, have not been met. 38 U.S.C. § 1131 (2012); 38 C.F.R. § 3.303 (2018). 8. The criteria for entitlement to service connection for the residuals of an emergency internal hemorrhoidectomy, to include as due to radiation exposure have not been met. 38 U.S.C. § 1131 (2012); 38 C.F.R. § 3.303 (2018). 9. The criteria for entitlement to service connection for colon cancer with polyp, to include as due to radiation exposure, have not been met. 38 U.S.C. § 1131 (2012); 38 C.F.R. § 3.303 (2018). 10. The criteria for entitlement to service connection for the residuals of bile duct surgery, to include as due to radiation exposure, have not been met. 38 U.S.C. § 1131 (2012); 38 C.F.R. § 3.303 (2018). 11. The criteria for entitlement to service connection for migraine headaches, to include as due to radiation exposure, have not been met. 38 U.S.C. § 1131 (2012); 38 C.F.R. § 3.303 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant is a Veteran who served on active duty from June 1981 to June 1984. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a January 2015 rating decision by the Winston-Salem, North Carolina, Regional Office (RO) of the Department of Veterans Affairs (VA). Service Connection Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1131 (2012). Service connection for a disability that is claimed to be due to exposure to ionizing radiation during service can be established by one of three possible methods. First, there are certain types of cancer that may be service-connected on a presumptive basis as specific to radiation-exposed veterans. 38 U.S.C. § 1112(c) (2012); 38 C.F.R. § 3.309(d) (2018). Second, a “radiogenic disease” may be service-connected pursuant to 38 C.F.R. § 3.311 (2018). Third, direct service connection may be granted under 38 C.F.R. § 3.303(d) when it is otherwise established that a presumptive disease under 38 C.F.R. § 3.309(a) diagnosed after discharge was incurred as a result of active service. See Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). The facts in this case do not include a competent diagnosis of cancer nor of a “radiogenic disease.” Therefore, the provisions of 38 C.F.R. §§ 3.309(d) and 3.311 are not applicable. As such, the present decision will only address the direct service connection claims and additional presumptive service connection claims for any applicable diagnosis of arthritis or an organic disease of the neurological system. Generally, 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, 1166-67 (Fed. Cir. 2004). Certain chronic diseases, including arthritis and organic diseases of the nervous system, are also subject to presumptive service connection if manifest to a compensable degree within one year from separation from 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. §§ 1112, 1113 (2012); 38 C.F.R. §§ 3.307(a)(3), 3.309(a) (2018). Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden element is through a demonstration of continuity of symptomatology if the disability claimed qualifies as a chronic disease listed in 38 C.F.R. § 3.309(a). Arthritis and organic diseases of the nervous system are qualifying chronic diseases. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The existence of a current disability is the cornerstone of a claim for VA disability compensation. See Degmetich v. Brown, 104 F.3d 1328 (1997). Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability. In the absence of proof of a present disability there can be no valid claim. Brammer v. Brown, 3 Vet. App. 223 (1992). The Board has the authority to discount the weight and probity of evidence in light of its own inherent characteristics and its relationship to other evidence. Madden v. Gober, 125 F.3d 1477 (Fed. Cir. 1997). VA may favor one medical opinion over another, provided an adequate basis is provided. Owens v. Brown, 7 Vet. App. 429 (1995). It is the policy of VA to administer the law under a broad interpretation, consistent with the facts in each case, with all reasonable doubt to be resolved in favor of the claimant. 38 C.F.R. § 3.102 (2018). 1. Entitlement to service connection for epicondylitis, left elbow, to include as due to radiation exposure. 2. Entitlement to service connection for right shoulder tendonitis, to include as due to radiation exposure. 3. Entitlement to service connection for degenerative disc disease, lumbar spine, to include as due to radiation exposure. 4. Entitlement to service connection for a left Achilles tendon rupture, to include as due to radiation exposure. 5. Entitlement to service connection for mild fibrosis of the lung, to include as due to radiation exposure. 6. Entitlement to service connection for the residuals of cholecystectomy, gall bladder removal, to include as due to radiation exposure. 7. Entitlement to service connection for Crohn's disease, irritable bowel syndrome, to include as due to radiation exposure. 8. Entitlement to service connection for the residuals of an emergency internal hemorrhoidectomy, to include as due to radiation exposure. 9. Entitlement to service connection for colon cancer with polyp, to include as due to radiation exposure. 10. Entitlement to service connection for the residuals of bile duct surgery, to include as due to radiation exposure. 11. Entitlement to service connection for migraine headaches, to include as due to radiation exposure. The Veteran contends that he has epicondylitis of the left elbow, right shoulder tendonitis, degenerative disc disease of the lumbar spine, a left Achilles tendon rupture, mild fibrosis of the lung, residuals of cholecystectomy (gall bladder removal), Crohn's disease (irritable bowel syndrome), residuals of an emergency internal hemorrhoidectomy, colon cancer with polyp, residuals of bile duct surgery, migraine headaches as a result of service. In statements in support of his claims he asserted that these disorders developed due to radiation exposure while on guard duty at White Sands Missile Range in March 1982. He described an incident when the red warning lights at a testing facility blinked which he had been told in training indicated an emission of radiation. He stated he had been ordered to shut down his security gate and move his vehicle five miles away, but that he was subsequently informed that everything was okay and told not to ask any questions. Service treatment records show the Veteran was treated for gastritis in October 1982, left lower leg pain in May 1983, ankle pain in July 1983, and low back pain following a motor vehicle accident (MVA) in December 1983. In his May 1984 report of medical history associated with his separation examination he reported he was in good health except for minor back pain due to an MVA in December 1983. He also noted having had a head injury; broken bones; tumor, growth, cyst, or cancer; painful or “trick” shoulder or elbow; and recurrent back pain. The examiner, however, commented that he denied service-connected injuries, disabilities, or significant medical diseases. He denied having had frequent or severe headaches; frequent indigestion; stomach, liver, or intestinal trouble; and piles or rectal disease. A May 1984 separation examination revealed a normal clinical evaluation including to the head, lungs, abdomen and viscera, anus and rectum, upper extremities, lower extremities, spine, and neurological system. The Veteran also provided a signed statement noting that there had been no significant change in his health since his last physical examination on or about April 4, 1982, except for minor back pain due to a vehicle accident in December 1983. Records show the Veteran had service at White Sands Missile Range in support of a space shuttle “Columbia” landing. Private treatment records dated in June 2005 report noted a history of hematochezia and a three years history of bilateral lower abdominal pain. Computerized tomography (CT) studies revealed a tiny punctate one to two-millimeter nodular opacity adjacent to the pleural surface which could represent an area of pleural thickening or tiny punctate nodule, diffuse fatty infiltration of the liver, status post cholecystectomy, and several small diverticula of the distal colon without pericolonic inflammatory changes. A nuclear medicine Meckel scan in June 2005 noted an indication for the study of bright red rectal blood with no abnormal positive activity to suggest a Meckel’s or abnormal bleed site. A July 2005 study was negative for active gastrointestinal bleeding. Records show the Veteran underwent a hemilaminectomy to a lumbar intervertebral disc in September 2010. VA treatment records dated in November 2013 noted colonoscopies thought to have revealed cancer were found to be normal after repeat studies and that Crohn’s disease had been ruled out. Records also noted that the Veteran underwent private bile duct surgery in 2001 and cholecystectomy in 2000. A February 2014 report noted the Veteran complained of a one-year history of right shoulder and left elbow pain. Subsequent records included diagnoses of right shoulder tendonitis and left elbow epicondylitis. Records dated in March 2014 show the Veteran underwent a left Achilles tendon repair and that he reported having sustained a left ankle injury one and a half years earlier stepping off a handicap ramp. An October 2017 report noted the Veteran reported headaches following an MVA two months earlier. VA ankle examination in December 2014 included a diagnosis of Achilles tendon rupture. Although the examiner checked a box indicating right-sided involvement, the overall examination pertains to a left Achilles tendon rupture. The examiner found it was less likely that the Veteran’s present ankle disorder was caused by his claimed radiation exposure during service or to have been incurred in or caused by any in-service injury, event, or illness. As rationale for the opinion it was noted that there was no medical documentation stating the Veteran was exposed to any type of radiation that would place him in danger of any acute or chronic medical problems of the Achilles tendon. The examiner noted there was no evidence of an acute or chronic Achilles tendon condition during service and that the evidence demonstrated the Veteran’s complaints of Achilles problems began about 18 years after service discharge. VA back conditions examination in December 2014 included a diagnosis of lumbar spine degenerative disc disease and disc herniation at L5-S1, status post hemilaminectomy, diskectomy, and foraminotomy. It was noted that the Veteran reported his low back pain began in service and progressively worsened. He stated he began seeing a private back specialist approximately five to six years earlier. The examiner found it was less likely that the Veteran’s present back disorder was caused by his claimed radiation exposure during service or to have been incurred in or caused by any in-service injury, event, or illness. As rationale for the opinion it was noted that there was no medical documentation stating the Veteran was exposed to any type of radiation that would place him in danger of any acute or chronic medical problems of the spine. His lumbar spine pathology was found to be degenerative and most likely the result of the aging process and post-military activities. The examiner noted he had been seen in service for low back pain after a December 1983 MVA and was discharged from the emergency room in excellent condition. His back pain was found to have resolved well before his service discharge and was not chronic. The lumbar spine findings 25 years later were found to be less likely due to service and more likely due to activities after service combined with the natural degenerative changes of the spine. Based upon the available record, the Board finds epicondylitis of the left elbow, right shoulder tendonitis, degenerative disc disease of the lumbar spine, a left Achilles tendon rupture, mild fibrosis of the lung, residuals of cholecystectomy (gall bladder removal), Crohn's disease (irritable bowel syndrome), residuals of an emergency internal hemorrhoidectomy, colon cancer with polyp, residuals of bile duct surgery, migraine headaches were not manifest during active service and that the evidence fails to establish that any such disorders developed as a result of service or radiation exposure during service. There is no evidence that arthritis or an organic disease of the nervous system were manifest to any extent within one year of active service. The Board also finds there is no competent evidence of a diagnosis of colon cancer nor of any “radiogenic disease” for VA compensation purposes. In the absence of competent evidence of a disease or disability associated with ionizing radiation exposure or competent evidence that a present disability is actually the result of radiation exposure no further development is warranted as to the Veteran’s claims as to having been exposed to radiation at White Sands Missile Range. The Board further finds that the Veteran does not assert and that the evidence does not show that he sustained an in-service injury or illness associated with his claims for epicondylitis of the left elbow, right shoulder tendonitis, mild fibrosis of the lung, residuals of cholecystectomy (gall bladder removal), Crohn's disease (irritable bowel syndrome), residuals of an emergency internal hemorrhoidectomy, colon cancer with polyp, residuals of bile duct surgery, and migraine headaches. While the Veteran’s reports as to a radiation alarm event during service are consistent with the circumstances of his service at White Sands Missile Range, there is no competent and credible evidence of an actual radiation release or exposure incident. No additional development as to these matters is warranted. Although the Veteran is shown to have been treated for low back and ankle pain during service, chronic back and ankle disorder were not shown upon separation examination in May 1984. The opinions of the December 2014 VA examiner are found to be persuasive that there is no evidence the Veteran had any actual radiation exposure and that his present lumbar spine and left ankle disabilities were not likely incurred in or caused by an in-service injury, event, or illness. The examiner is shown to have reviewed the evidence of record and to have adequately considered the lay statements and reported symptom manifestations history of record. See Dalton v. Nicholson, 21 Vet. App. 23 (2007). There is no competent medical to the contrary. Consideration must be given to the Veteran’s personal assertion that he has present disabilities. Lay persons are competent to provide opinions on some medical issues. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). The specific issues in this case, however, fall outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). The claimed disabilities at issue are not conditions that are readily amenable to lay diagnosis or probative comment regarding etiology. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The Board acknowledges that the Veteran is competent to report observable symptoms, but there is no indication that he is competent to etiologically link any such symptoms to a current diagnosis. He is not shown to possess the requisite medical training, expertise, or credentials needed to render a diagnosis or a competent opinion as to medical causation. Nothing in the record demonstrates that he received any special training or acquired any medical expertise in as to such disorders. See King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2012). Accordingly, the lay evidence does not constitute competent medical evidence and lacks probative value. When all the evidence is assembled VA is then responsible for determining whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a preponderance of the evidence is against the claim in which case the claim is denied. Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). The preponderance of the evidence in this case is against the Veteran’s claims. KELLI A. KORDICH Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD T. Douglas, Counsel