Citation Nr: 18152694 Decision Date: 11/23/18 Archive Date: 11/23/18 DOCKET NO. 16-23 491 DATE: November 23, 2018 ORDER The claim for entitlement to service connection for acid reflux, to include as secondary to service-connected posttraumatic stress disorder (PTSD) is denied. The claim for entitlement to an increased rating in excess of 10 percent for residuals of right distal tibial stress fracture is denied. REMANDED Entitlement to service connection for diabetes mellitus type 2 as secondary to PTSD is remanded. Entitlement to service connection for erectile dysfunction is remanded. Entitlement to an increased rating in excess of 10 percent for left knee chondromalacia is remanded. FINDINGS OF FACT 1. The Veteran does not have a current diagnosis of acid reflux, nor does he have persistent and recurrent symptoms of acid reflux. 2. The Veteran’s healed right distal tibia fracture manifests in only mild residual subjective tenderness of the distal tibia. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for acid reflux, to include as secondary to service-connected posttraumatic stress disorder (PTSD) have not been met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310 (2017). 2. The criteria for entitlement to an increased rating in excess of 10 percent for residuals of right distal tibial stress fracture have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.20, 4.71a, Diagnostic Code 5262 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served honorably in the United States Army from March 1988 through May 1994. Service Connection To establish direct service connection, there must be competent evidence showing: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the in-service injury incurred or aggravated during service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303; Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for disabilities that are proximately due to, or aggravated by, service-connected disease or injury. 38 C.F.R. § 3.310. Generally, a claimant has the responsibility to present and support a claim for benefits. All information, lay evidence and medical evidence in a case is to be considered by the Board in deciding the claim. When there is an approximate balance of positive and negative evidence regarding any material issue, the claimant is to be given the benefit of the doubt. 38 U.S.C. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Lay evidence, if competent and credible, may serve to establish a nexus in certain circumstances. See Davidson v. Shinseki, 581 F.3d 1313 (2009) (noting that lay evidence is not incompetent merely for lack of contemporaneous medical evidence). When considering whether lay evidence may be competent, the Board must determine, on a case by case basis, whether the Veteran’s particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (holding that “[w]hether lay evidence is competent and sufficient in a particular case is a factual issue.”). The Board has an obligation to provide reasons and bases supporting its decision, but there is no need to discuss, in detail, every piece of evidence of record. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). The Board’s analysis is to focus specifically on what the evidence shows, or fails to show, on the claim. See Timberlake v. Gober, 14 Vet. App. 122, 129 (2000) (noting that the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant). Entitlement to service connection for acid reflux, to include as secondary to service-connected posttraumatic stress disorder (PTSD) is denied. The Veteran seeks service connection for acid reflux, and contends it is secondary to his service-connected PTSD. He reported “some acid reflux, especially when I am sleeping. I have just lived with this condition.” See September 2015 Claim for Compensation. The Veteran’s service treatment records are silent for any treatment or complaints of acid reflux. There is no medical evidence establishing a current diagnosis of acid reflux. The Board acknowledges that the Veteran has complained of acid reflux when filing a claim for such. However, the record does not reflect that the Veteran possesses the requisite expertise to provide any medical diagnosis, and his lay assertions, insofar as they are intended as such, are given no weight. See Jandreau v. Nicholson, 492 F.3d at 1374 (affirming that lay evidence is generally not competent to establish medical diagnosis or etiology). The Veteran’s counsel cited to various articles in the April 2016 Correspondence entitled Notice of Disagreement. The Board notes that a medical article or treatise “can provide important support when combined with an opinion of a medical professional” if the medical article or treatise evidence discusses generic relationships with a degree of certainty such that, under the facts of a specific case, there is at least “plausible causality” based upon objective facts rather than on an unsubstantiated lay medical opinion. Mattern v. West, 12 Vet. App. 222, 228 (1999); see also Sacks v. West, 11 Vet. App. 314 (1998) and Wallin v. West, 11 Vet. App. 509 (1998). However, there is no such opinion accompanying the cited article indicating that the Veteran has the claimed disability, or that it is related to his service-connected PTSD. These citations and pleadings carry no evidentiary weight. The Board acknowledges that there is a duty to assist and to provide a medical examination under certain circumstances, but the threshold question is whether there is competent evidence of a current disability or persistent and recurrent symptoms of disability. 38 U.S.C. § 5104(d)(1). The Board does not find this low threshold was met in this case by the Veteran’s sole report of acid reflux upon filing a claim. Even if such is considered a report of symptoms rather than a diagnosis, it is not sufficient evidence to conclude that there is a persistent or recurrent condition which causes functional impairment. The Board notes that there is evidence to suggest the reported symptoms are not persistent or recurrent—there are no reported over-the-counter medications reported for acid reflux in the treatment records, and in August 2012, he denied abdominal pain, nausea/vomiting, indigestion/heartburn, diarrhea and constipation. See August 2012 Private treatment record. Moreover, assuming arguendo that the Veteran has a disability of acid reflux, there is not a clinical opinion indicating it may be due to, or aggravated by, his service or a service-connected disability. Under these circumstances, the Board does not find a remand for a VA examination to be warranted. The Veteran’s claim for service connection for acid reflux, to include as secondary to PTSD fails due to competent evidence of a current disability or a medical nexus to any in-service incurrence or any service-connected disability. As the evidence preponderates against the claim, the benefit of the doubt rule is inapplicable. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.310; Gilbert v. Derwinski, 1 Vet. App. at 53. Increased Rating Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities. The percentage ratings are based on the average impairment of earning capacity and individual disabilities are assigned separate diagnostic codes (DCs). 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.1 (2017). The Veteran’s entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1 (2017); Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Staged ratings are appropriate for any rating claim when the factual findings show distinct time periods during the appeal period where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). Staged ratings are appropriate for any initial rating claim when the factual findings show distinct time periods during the appeal period where the service-connected disability exhibits symptoms that would warrant different ratings. Fenderson v. West, 12 Vet. App. 119, 126 (1999). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2017). Any reasonable doubt regarding a degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3 (2017). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994). When considering whether lay evidence is competent, the Board must determine, on a case-by-case basis, whether a veteran’s particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). A veteran is competent to report symptoms because this requires only personal knowledge, not medical expertise, as it comes to her through her senses. See Layno, 6 Vet. App. 465, 469. Lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303 (2007). Lay evidence may establish a diagnosis of a simple medical condition, a contemporaneous medical diagnosis, or symptoms that later support a diagnosis by a medical professional. Jandreau, 492 F.3d 1372, 1377. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C. § 5107(b) (2012); 38 C.F.R. § 3.102 (2017). Hyphenated codes are intended to show that the Veteran’s service-connected disability is rated by analogy. See 38 C.F.R. § 4.20 (an unlisted condition may be rated under a closely related disease or injury in which the functions affected, anatomical localization, and symptomatology are closely analogous). Entitlement to an increased rating in excess of 10 percent for residuals of right distal tibial stress fracture is denied. The Veteran seeks an increased rating for the residuals of his right distal tibia stress fracture. He has been granted a 10 percent evaluation for the period on appeal under 38 C.F.R. § 4.71a, DC 5262. Under Diagnostic Code 5262, tibia and fibula impairment with malunion with a slight knee disability warrants a 10 percent evaluation; a moderate knee disability warrants a 20 percent evaluation; a marked knee disability warrants a 30 percent evaluation. A 40 percent evaluation is warranted for nonunion of the tibia and fibula with loose motion, requiring a brace. 38 C.F.R. § 4.71a, DC 5262. A January 2015 VA examination noted the Veteran had incurred a stress fracture of his right distal tibia while participating in airborne maneuvers. He had pain with a November 1993 onset in the right tibia and medial malleolus. Although initial x-rays were negative, his right distal stress fracture was confirmed by bone scan in January 1994. The VA examiner noted subjective, mild residual tenderness to palpation of the right distal tibia. The VA examiner noted that the right knee condition and the symptoms or range of motion limitation would not be attributable to the healed right distal tibia stress fracture. The healed right distal tibia fracture was noted to cause symptoms of mild residual subjective tenderness of the distal tibia. The December 2014 diagnostic imaging was noted to show no fracture or osseous lesion, no appreciable tibial deformity, but subtle asymmetry at the anterior and posterior aspect of distal tibial metaphyseal epiphyseal junction area on the lateral image, which was consistent with but not necessarily diagnostic for a prior fracture. The Veteran reported developing pain in his quadriceps with prolonged standing and an inability to squat due to his bilateral knee condition, which the examiner noted were not attributable to the healed right distal tibia stress fracture. Likewise, the VA examiner noted that the reported use of a cane for the left knee, right knee, and right ankle conditions were not attributable to the condition at hand. The 1/4-inch shorter left leg and crepitus of the right knee were noted not to be attributable to the right distal tibia stress fracture, healed. The Board finds the VA examination of record listed all symptoms attributable to the condition at hand, and was performed by a qualified clinician. The Veteran’s claim that other symptoms are residuals of his healed right distal tibia stress fracture are afforded little weight, as the record does not reflect that the Veteran possesses the requisite expertise to provide any medical diagnosis or etiology of any symptoms; his lay assertions, insofar as they are intended as such, are given no weight. See Jandreau v. Nicholson, 492 F.3d at 1374 (affirming that lay evidence is generally not competent to establish medical diagnosis or etiology). Moreover, the record reflects that the Veteran has other medical conditions that render the symptomatology related to his leg a question clearly for a medical professional, such as deep vein thrombosis and bilateral pulmonary embolisms. The symptom that is attributable to the service-connected condition at hand—mild residual subjective tenderness of the right distal tibia—is adequately compensated with the grant of the 10 percent evaluation below, under 38 C.F.R. § 4.71a, DC 5262. A higher evaluation thereunder is not warranted as the Veteran does not have any knee disability attributable to the condition at hand, nor does he have nonunion of the tibia and fibula with loose motion, requiring a brace. The Veteran’s disability does not present an exceptional or unusual disability picture as to render impractical the application of the regular schedular standards such that referral to the appropriate officials for consideration of extraschedular ratings is warranted. See 38 C.F.R. § 3.321(b)(1) (2017); Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996). Here, the rating criteria is adequate for the Veteran’s disability level and symptomatology, which is limited to mild residual subjective tenderness of the right distal tibia which does not cause any further functional loss. The Board is cognizant that there may be ankle and or knee disabilities at hand which relate to the complained of functional loss. However, the competent medical evidence at hand indicates these other disabilities are not attributable to the claimed condition. It appears, based on review of the record, that service connection for a right knee disability has been denied previously, as was entitlement to service connection for an ankle condition. If the Veteran wishes to seek reopening of these matters, the Veteran may file a claim for such. The evidence preponderates against the claim for an increased evaluation for residuals of right distal tibial stress fracture, and the benefit of the doubt rule is inapplicable. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102; Gilbert v. Derwinski, 1 Vet. App. at 53. REASONS FOR REMAND Entitlement to service connection for diabetes mellitus type 2 as secondary to PTSD is remanded. The Veteran seeks service connection for diabetes mellitus type 2, and contends such is secondary to his service-connected PTSD. The claims file includes a March 2016 private medical opinion in which the clinician noted that recent studies in medical literature supported a correlation between PTSD and obesity, due to over-eating, lack of motivation, low energy levels, social isolation, and medications such as benzodiazepines. The weight gain was then noted to predispose and aggravate the glucose metabolic processes in a cyclical fashion, with glucose control issues related to the weight gain and the weight gain causing glucose control issues. The clinician noted that diabetes was a result of and/or aggravated by both of these factors. The clinician opined that the Veteran’s diabetes mellitus type II was at least as likely as not caused or aggravated by his service-connected PTSD. The Board finds that the opinion is insufficient upon which to base service connection because it fails to reflect that the clinician considered this specific Veteran’s medical history to an adequate degree. The private clinician stated that the Veteran was diagnosed with diabetes in 2014. However, the record reflects that the Veteran was diagnosed with diabetes type 1 in 2004, diabetes type 2 in 2012, and that he had a significant family history of diabetes (mother, father, brother, and sister). In addition, the clinician did not support adequately support the opinion that the Veteran’s weight gain was due to his PTSD symptoms because clinical records at the time of diagnosis in 2012 reflect that the Veteran did not have depression or anxiety. Nor was he on benzodiazepines or other medication for PTSD at that time. Moreover, even though he weighed 238 pounds in November 2004, he did not have diabetes type 2 at that time; and yet, he had lower weights subsequently and did have diabetes type 2. The evidence of record indicates that the Veteran’s mental health deteriorated in 2014 and the private clinician incorrectly cites 2014 as the date of diagnosis of diabetes; however, and again importantly, the Veteran was diagnosed with diabetes type 2 two years prior to medication for PTSD. While the private opinion lacks sufficient probative value upon which to base service connection at this time, it does warrant further development. The Board finds that VA records, if any, prior to the Veteran’s diagnosis which reflect his mental status and his weight, as well as a clinical opinion may be useful to the Board. Entitlement to service connection for erectile dysfunction, to include as secondary to diabetes mellitus type II is remanded. The Veteran has a current diagnosis of erectile dysfunction in the medical evidence of record, which he contends is secondary to his PTSD or medication for a service-connected disability. However, the evidence or record provided by the Veteran includes literature that diabetes is a factor in developing erectile dysfunction. Thus, the Board finds that adjudication is premature at this time.   Entitlement to an increased rating in excess of 10 percent for left knee chondromalacia is remanded. On appeal is the Veteran’s May 2014 request for an increase to the 10 percent evaluation assigned to his service-connected disability of chondromalacia of the left knee. He is evaluated under 38 C.F.R. § 4.71a, DC 5003-5260. The Veteran was afforded a VA examination in August 2014. At that time, he denied instability of the knee. He had range of motion from 0 to 120 degrees with painful motion at 120 degrees. The Veteran did not have physical therapy for his knee. In a January 2015 VA examination addendum, the examiner clarified that pain, weakness, fatigability, or incoordination does not significantly limit functional ability either during flare-ups or when the left knee is used repeatedly over a period of time. Subsequent records reflect that the Veteran reported to a private physical therapy provider that the Veteran reported that it is “very painful to bend his knees even a little.” The Veteran’s counsel, in October 2015 correspondence, contended that the Veteran’s left knee has worsened. The Veteran is competent to report difficulty with his knee and that he perceives that it has worsened. Thus, the Board finds that another examination is warranted. See Snuffer v. Gober, 10 Vet. App. 400 (1997); The Board also finds that it may be useful to the Board for the VA examiner to differentiate, if reasonably possible, the Veteran’s symptoms which are due to his service-connected left knee disability from those symptoms, if any, which are unrelated. Accordingly, the matters are remanded for the following action: 1. Associate with the claims file, the Veteran’s VA clinical records, if any, from 2004 through August 2012 (when the Veteran was diagnosed with diabetes mellitus type 2). 2. Thereafter, obtain a clinical opinion as to whether it is as likely as not (50 percent or greater) that the Veteran has diabetes which is casually related to, or aggravated beyond its natural progression, his service-connected PTSD. The clinician should consider the pertinent evidence of record to include: a.) the Veteran’s family history of diabetes (i.e. mother, father, brother, and sister all had diabetes); b.) the Veteran’s diagnosis of Type 1 diabetes in 2004 and Type 2 diabetes in 2012; c.) the severity, or lack thereof, of the Veteran’s PTSD symptoms prior to diagnosis as may or may not be supported by the clinical records; d.) the lack of medication for PTSD prior to 2014; and e.) the March 2016 private medical opinion. A complete rationale must be provided for all opinions. If the clinician opines that the Veteran’s diabetes is as likely as not aggravated beyond its natural progression by his PTSD, the clinician should the baseline prior to aggravation and the degree of aggravation. 3. Schedule the Veteran for an examination to determine the current severity of his service-connected left knee disability. The examiner must test the Veteran’s active motion, passive motion, and pain with weight-bearing and without weight-bearing. The examiner must also attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. To the extent possible, the examiner should identify any symptoms and functional impairments due solely to the Veteran’s left knee disability (the Veteran has also been diagnosed with a leg length discrepancy, and bilateral leg disabilities which are not for consideration) on his occupational functioning and activities of daily living. If it is not possible to provide a specific measurement, or an opinion regarding flare-ups, symptoms, or functional impairment without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). T. WISHARD Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD T. C. King, Associate Counsel