Citation Nr: 18155769 Decision Date: 12/06/18 Archive Date: 12/06/18 DOCKET NO. 16-40 532 DATE: December 6, 2018 ORDER Entitlement to service connection for tinnitus is granted. Entitlement to service connection for gastroesophageal reflux disease (GERD)/acid reflux is denied. REMANDED Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), is remanded. Entitlement to service connection for an acquired psychiatric disorder other than PTSD is remanded. Entitlement to a rating in excess of 10 percent for lumbar degenerative disc disease is remanded. Entitlement to a rating in excess of 10 percent for left lumbar radiculopathy associated with lumbar degenerative disc disease Entitlement to a rating in excess of 10 percent for plantar fasciitis with moderate metatarsalgia, right foot, is remanded. Entitlement to a rating in excess of 10 percent for plantar fasciitis with moderate metatarsalgia, left foot, is remanded. FINDINGS OF FACT 1. Tinnitus was incurred during active service. 2. A gastrointestinal disability did not manifest in service, is not otherwise attributable to service, and is not caused or permanently worsened by a service-connected disease or injury. CONCLUSIONS OF LAW 1. The criteria for service connection for tinnitus have been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1154 (2012); 38 C.F.R. §§ 3.159, 3.303, 3.304, 3.307, 3.309 (2017). 2. The criteria for service connection for GERD/acid reflux disease have not been met. 38 U.S.C. § 1110; (2012) 38 C.F.R. §§ 3.102, 3.303, 3.310 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1999 to September 2002, and from June 2004 to January 2006. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a rating decision of February 2016. SERVICE CONNECTION Service connection will be granted for a current disability that resulted from an injury or disease incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Generally, service connection requires a present disability, an in-service incurrence or aggravation of a disease or injury, and a nexus between the present disability and the disease or injury incurred or aggravated during service. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). For a veteran who served 90 days or more of active service after December 31, 1946, there is a presumption of service connection for certain chronic diseases if the chronic disease is shown as such during service or within one year of discharge from service. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.303(b), 3.307, 3.309. When the fact of chronicity in service is not adequately supported, a continuity of symptomatology since service is an alternative means of establishing service connection. 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331. Service connection may be granted on a secondary basis for disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). 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). Secondary service connection generally requires a current disability, a service-connected disability, a nexus between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509 (1998). The claimant will be given the benefit of the doubt as to any issue material to the determination of a matter when there is an approximate balance of positive and negative evidence. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 1. Entitlement to service connection for tinnitus. The Veteran alleges that his tinnitus is caused by in-service noise exposure. He reports that during service he was exposed to noise from mortars, tank cannons, .50 caliber guns, and various weapons fire. See Veteran’s claim of October 2015. The Veteran’s DD Form 214 indicates a specialty of 19K10 M1 Armor Crewman. An undated service treatment record notes that he was “routinely noise exposed.” The Veteran reported to the VA examiner that he sometimes did not use his headset when firing weapons in service. Upon VA examination in January 2016, the Veteran was found to have normal hearing bilaterally. The examiner offered a negative nexus opinion, stating that the Veteran’s tinnitus is less likely than not caused by, or a result of, military noise exposure. The entire rationale was that there is no report of tinnitus in the service records and that the Veteran’s hearing is currently within normal limits bilaterally. VA must give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability or death benefits. 38 U.S.C. 1154(a); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Generally, lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). VA cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). Tinnitus, a ringing of the ears, is capable of lay observation. See Charles v. Principi, 16 Vet. App. 370, 374 (2002). The Veteran is thus competent to report his tinnitus, and the Board finds him to be credible in his assertion that tinnitus had its onset in service and has continued to the present. The Board finds that the circumstances of the Veteran’s service are consistent with exposure to loud noise as described by the Veteran. 38 U.S.C. § 1154(a). For certain chronic disorders, service connection may be presumed if the disease becomes manifest to a compensable degree within one year following separation from service. 38 U.S.C. §§ 1101, 1110, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). Tinnitus is an “organic disease of the nervous system” within the meaning of § 3.309(a), at a minimum where there is evidence of acoustic trauma. See Fountain v. McDonald, 27 Vet. App. 258 (2015). The Board does not find the unfavorable nexus opinion of the VA examiner to be more probative than the favorable evidence of record. The VA examination report does not show that consideration was given to whether, despite the lack of documented in-service tinnitus, there is a medically sound basis to attribute the Veteran’s current symptoms to acoustic trauma due to significant noise exposure in service. See Hensley v. Brown, 5 Vet. App. 155, 159 (1993). The Board also notes that, because there is no separation examination report of record for the Veteran’s second period of service, it cannot be said that the Veteran denied tinnitus symptoms upon leaving service or was found not to have tinnitus at that time. With the establishment of a current, listed chronic disease and the onset of that disease during service, the presumption of § 3.303(b) applies. Accordingly, the Board finds that the Veteran's tinnitus is a result of noise exposure during his active service. 38 C.F.R. § 3.303(a) (2014). Service connection is warranted. 2. Entitlement to service connection for gastroesophageal reflux disease (GERD), acid reflux, to include as due to an acquired psychiatric disability. The Veteran seeks service connection for acid reflux disease on both a direct and secondary basis. He specifically attributes his symptoms to a psychiatric disability, to include PTSD. He states that he has acid reflux, takes over-the-counter medication for it, and has “just lived with this condition.” See Veteran’s claim of October 2015. The scope of the claim includes any disability that may reasonably be encompassed by the description of the claim, reported symptoms, and the other information of record. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). As a layperson, the Veteran is not competent to diagnose a disability such as GERD or acid reflux disease, but he is competent to report heartburn and other symptoms he experiences. See Layno v. Brown, 6 Vet. App. 465, 470 (1994); Kahana v. Shinseki, 24 Vet. App. 428 (2011). The Veteran does not state that he had manifestations of gastrointestinal disability during service, and none are noted in the service treatment records of record. Furthermore, no gastrointestinal symptoms were noted in a VA report of general medical examination in March 2007. While lay evidence cannot be determined to be not credible merely because it is unaccompanied by contemporaneous medical evidence, the lack of contemporaneous medical evidence, such as during service and in the March 2007 examination report, can be considered and weighed against a veteran’s lay statements. See Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006). No competent evidence of record indicates that the Veteran’s current gastrointestinal symptoms may be associated with a disease or injury incurred in service or with a service-connected disability. As a layperson, the Veteran is not competent to make such an association, and no Jandreau exception applies in this case. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Veteran is not competent to report the etiology of a gastrointestinal disability (as opposed to the observable symptoms) as he does not have medical training and did not state upon what information such a conclusion could be based. He did not indicate that he was told of this relationship by any of his attending clinicians. Because the etiology of a gastrointestinal disability is not capable of observation by a non-expert, the Veteran’s statements on this point are not probative. 38 C.F.R. § 3.159 (a). The Veteran alleges a secondary relationship between his gastrointestinal symptoms and psychiatric disability. Even if the Veteran is ultimately granted service connection for an acquired psychiatric disability, to include PTSD, he is not competent, as a layperson, to associate his gastrointestinal symptoms to psychiatric disability. No competent opinion of record makes that association or indicates its possibility. For the foregoing reasons, the preponderance of the evidence is against the claim of entitlement to service connection for gastrointestinal disability. The benefit-of-the-doubt doctrine is therefore not for application, and the claim must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND 1. Entitlement to service connection for an acquired psychiatric disorder, to include PTSD. 2. Entitlement to service connection for an acquired psychiatric disorder other than PTSD. The Veteran seeks service connection for PTSD and an acquired psychiatric disability. In accordance with Clemons v. Shinseki, 23 Vet. App. 1 (2009), the claim has been characterized broadly as one relating to an acquired psychiatric disability, to include PTSD. The Veteran alleges numerous psychiatric symptoms, including anger, anxiety, nightmares, social isolation, and memory loss. He attributes these symptoms to three in-service events he experienced: 1) moving a tank off of a girl who was crushed during a training exercise in Korea in the fall of 2002; 2) witnessing a tank commander being crushed by a flipped tank during training in Washington; and 3) experiencing an accidental explosion of a mortar round in the center of the area where the Veteran was sleeping during training in Washington. See Veteran’s claim of October 2015; VA 21-0781, November 2015 statement in support of claim of PTSD; NOD of July 2016. No psychiatric symptoms are noted in the service treatment records. They do confirm service in Washington in 2000 and Korea in 2001. There is no separation examination report of record for the Veteran’s second period of service from June 2004 to January 2006. To date, VA has not made a finding that complete service treatment records do not exist, or that further attempts to obtain them would be futile, as required by 38 C.F.R. § 3.159(e). If service treatment records are missing, VA has a heightened obligation to explain its findings and conclusions and to consider carefully the benefit-of-the-doubt rule. See O’Hare v. Derwinski, 1 Vet. App. 365, 367 (1991); Russo v. Brown, 9 Vet. App. 46 (1996). No presumption arises from missing records. See Cromer v. Nicholson, 19 Vet. App. 215, 217-18 (2005). Upon VA general medical examination in March 2007, the Veteran was found to have no psychiatric symptoms and no psychiatric history. Upon review of the current record, the Board determines that a remand is needed for further development of the claim. 38 U.S.C. § 5103A(b). The Veteran has offered a competent report of possible in-service stressors. Upon remand, the agency of original jurisdiction (AOJ) should attempt to verify the claimed stressors. This should include requesting from appropriate sources the reports or muster rolls (or any equivalent documents) for any incident in the relevant months/years already identified by the Veteran in the record or upon further submissions by the Veteran. The request(s) should inquire as to whether there is any mention of the incidents in question (the tank incidents in Korea and Washington, and the mortar incident in Washington), regardless of whether a document in question specifically mentions the Veteran by name. Finally, there has not been a VA examination to determine whether the Veteran’s reported psychiatric symptoms are related to service. Once the records development is completed, a VA medical examination and accompanying medical opinion is needed to ascertain whether a psychiatric disability is present and to ascertain the etiology. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159 McLendon v. Nicholson, 20 Vet. App. 79, 86 (2006). 3. Entitlement to a rating in excess of 10 percent for lumbar degenerative disc disease. A rating decision of May 2007 granted service connection for lumbar degenerative disc disease. An evaluation of 10 percent and an effective date of February1, 2006 were assigned. In June 2014, the Veteran filed a claim for rating increase, which was denied by a rating decision of September 2014. The Veteran underwent VA examinations of his back in August 2014 and January 2016. The range-of-motion testing in both reports does not specify whether the measurements were taken on active motion, passive motion, weight-bearing, or non-weight-bearing. These measurements, provided in degrees, are necessary for the examination to be adequate for rating purposes. See Correia v. McDonald, 28 Vet. App. 158 (2016). In light of the Correia requirements, a new VA examination of the Veteran’s spine is needed for adjudication of the increased-rating claim. 38 C.F.R. §§ 4.2, 19.9(a); Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). 4. Entitlement to a rating in excess of 10 percent for left lumbar radiculopathy associated with lumbar degenerative disc disease. A rating decision of September 2014 granted service connection for left lumbar radiculopathy. A 10-percent evaluation and an effective date of June 26, 2014 were assigned. The Veteran appealed as to the assigned rating. See NOD of July 2016; VA Form 9 of August 2016. As explained above, entitlement to an increased rating for low back disability is being remanded for a new VA examination. The issue of entitlement to an increased rating for left lumbar radiculopathy associated with lumbar degenerative disc disease will also be remanded as being inextricably intertwined with the low back issue. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). 5. Entitlement to a rating in excess of 10 percent for plantar fasciitis with moderate metatarsalgia, right foot. 6. Entitlement to a rating in excess of 10 percent for plantar fasciitis with moderate metatarsalgia, left foot. A rating decision of May 2007 granted service connection for right-foot and left- foot plantar fasciitis with moderate metatarsalgia. For each foot, a 10-percent evaluation and an effective date of February 1, 2006 were assigned. In June 2014, the Veteran filed a claim for rating increase. A rating decision of September 2014 continued the 10-percent evaluation for plantar fasciitis with moderate metatarsalgia, left foot. The 10-percent evaluation for plantar fasciitis with moderate metatarsalgia, right foot, was decreased to 0 percent, effective December 1, 2014. The Veteran did not appeal the rating reduction. In December 2015, the Veteran filed a claim for rating increase as to plantar fasciitis of the right foot and left foot. A rating decision of February 2016 increased the evaluation of plantar fasciitis with moderate metatarsalgia, right foot, from 0 percent to 10 percent, effective December 18, 2015. The 10-percent evaluation of plantar fasciitis with moderate metatarsalgia, left foot, was continued. The Veteran appealed. See NOD of July 2016; VA Form 9 of August 2016. The Veteran underwent a VA examination of the feet in January 2016. He reported pain and swelling in the bottom of his feet in the morning. He also stated that he felt a tight, achy pain under his left foot when walking long distances. He believed that his right foot was “okay.” He further reported that, about two years previously, his second, fourth, and fifth toes of the left foot felt numb, and there was a sensation going up his leg. The Veteran required no arch supports, inserts, or shoe modification. The examiner found “mild” plantar fasciitis of both feet. No metatarsalgia or malunion or nonunion of the metatarsal bones was found. No metatarsalgia pain was noted bilaterally. The Veteran’s bilateral foot disability has been rated pursuant to Disability Code (DC) 5276, which relates to acquired flatfoot. Plantar fasciitis, in general, is inflammation of a thick band of tissue that runs across the bottom of the foot and connects the heel bone to the toes. See https://www.mayoclinic.org/diseases-conditions/plantar-fasciitis/symptoms-causes/syc-20354846. Diagnostic Code 5276 covers swelling, pain, and tenderness of the plantar surfaces of the feet. Under DC 5276, a noncompensable rating is assigned for mild flatfoot where symptoms are relieved by built-up shoe or arch support. A 10-percent rating is assigned for moderate flatfoot with the weight-bearing line over or medial to the great toe, inward bowing of the tendo achilles, and pain on manipulation and use of the feet. The noncompensable and 10 percent ratings apply whether the flatfoot affects one or both feet. Severe flatfoot with objective evidence of marked deformity (pronation, abduction, etc.), pain on manipulation and use accentuated, indication of swelling on use, and characteristic callosities is assigned a 20-percent rating if unilateral and a 30-percent rating if bilateral. Pronounced flatfoot with marked pronation, extreme tenderness of plantar surfaces of the feet, marked inward displacement and severe spasm of the tendo achilles on manipulation, not improved by orthopedic shoes or appliances, is assigned a 30-percent rating if unilateral and a 50-percent rating if bilateral. 38 C.F.R. § 4.71a, DC 5276. The Board determines that a remand for an additional VA examination is required in this case, because the January 2016 VA examination report does not provide sufficient information as to all criteria that apply to rating the Veteran’s disability under DC 5276. Specifically, it is not clear from the Veteran’s report of swelling of his feet in the morning that such swelling may be considered “swelling on use,” as used to described severe flatfoot under DC 5276. The examiner also failed to provide findings as to objective evidence of marked deformity (pronation, abduction, etc.), pain on manipulation and use accentuated, or characteristic callosities, which are relevant under DC 5276. Further, while the VA examination report acknowledged the Veteran’s report of flare-ups, no estimate was made as to any additional functional loss during a flare-up. A VA examiner is expected to offer such an estimate based on information procured from relevant sources, including lay (non-expert) statements. An examiner must do all that reasonably should be done to become informed before concluding that a requested opinion cannot be provided without resort to speculation. See Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017); DeLuca v. Brown, 8 Vet. App. 202 (1995). While the record contains a contemporaneous VA examination for the Veteran’s feet, it does not comply with the requirements of Sharp. The matters are REMANDED for the following action: 1. Undertake appropriate development to obtain, and associate with the record to the extent possible, any outstanding service treatment records, including a separation examination report for the Veteran’s service ending in January 2006, and any outstanding service personnel records. All records/responses received must be associated with the electronic claims file. 2. Undertake appropriate development to obtain, and associate with the record to the extent possible, any outstanding private or VA treatment records relating to the remanded issues. All records/responses received must be associated with the electronic claims file. 3. Ask the proper Federal custodian of the records for muster rolls, morning reports, sick reports, unit rosters, incident reports, investigation reports, unit history, Lessons Learned/Operating Reports (LL/OR), or equivalent documents that reference or discuss the stressors alleged by the Veteran in the record, specifically: a) the fatal tank incident in Korea; b) the fatal tank incident involving a tank commander; and c) the incident in which a mortar round hit the area where the Veteran was sleeping. A positive response need not specifically name the Veteran. 4. Document all above requests for information, as well as all responses, in the claims file. If the records do not exist or additional efforts to obtain the any sought information would be futile, notify the Veteran in accordance with 38 C.F.R. § 3.159(e). 5. Then, schedule the Veteran for a VA mental health examination to determine the nature of any acquired psychiatric disorder, to include PTSD, and to obtain an opinion as to whether any psychiatric disorder is related to service. The examiner should elicit a full history from the Veteran. Following review of the claims file and examination of the Veteran, the examiner should provide answers to the following questions: a. Provide diagnoses for all acquired psychiatric disorders. b. If the Veteran is diagnosed with PTSD, the examiner must explain how the diagnostic criteria are met and whether the disability is at least as likely as not related to a verified in-service stressor. c. For any acquired psychiatric disorder other than PTSD, the examiner must discuss whether each diagnosed disorder is at least as likely as not related to an in-service injury, event, or disease, to include the in-service stressors described by the Veteran. In providing the above opinions, the examiner should be advised that, for claims of service connection for all acquired psychiatric disorders other than PTSD, a verified in-service stressor is not required to grant the claim. A rationale should be provided for all opinions in the report. 4. Schedule the Veteran for an examination to determine the current severity of his lumbar degenerative disc disease and associated left lumbar radiculopathy. The examiner should fully describe the disabilities and report all signs and symptoms necessary for evaluation of the disabilities under the rating criteria. The examiner must test the Veteran’s range of motion with pain on active motion, passive motion, with weight-bearing, and without weight-bearing. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should explain, with a supporting rationale, why that is so. The examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups and with repeated use over time. Then, the examiner must estimate the effect of any functional losses during flare-ups or with repetitive use over time, including due to pain, incoordination, lack of endurance, weakness, and fatigability, by equating the disability experienced due to all such losses to loss of motion (stated in degrees) beyond what is shown clinically. The additional functional impairment should be expressed in terms of the degree of additional loss of range of motion. The examiner should be notified that VA regulations anticipate that examiners, in providing an opinion as to any additional functional loss during flare-ups or with repetitive use over time will make estimates based on information procured from relevant sources, including lay statements from a veteran. An examiner must do all that reasonably should be done to become informed before concluding that an opinion cannot be provided without resorting to speculation. This includes ascertaining by alternative means such information as the frequency, duration, characteristics, severity, or functional loss during flare-ups and with repetitive use over time. If it is not possible to provide a specific measurement or an opinion regarding flare-ups, repetitive use over time, functional impairment, or other symptoms 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). The fact that the examination is not occurring during a flare-up or after repeated use over time is an insufficient reason for not providing an estimate of the degree of any additional loss of range of motion. It is also not sufficient to state merely that any information provided by the Veteran would be subjective and therefore of no value. To the extent possible, the examiner should identify any symptoms and functional impairments due to back disability and associated left lumbar radiculopathy alone and discuss the effect of the Veteran’s back disability and associated radiculopathy on any occupational functioning and activities of daily living. 6. Schedule the Veteran for an examination of the current severity of his bilateral foot disability. The examiner should fully describe the disability and report all signs and symptoms necessary for evaluation of the disability under the rating criteria. The examiner must 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 to plantar fasciitis alone and discuss the effect of the Veteran’s plantar fasciitis on any 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). 7. After completing any additional development deemed necessary, readjudicate the claims. If any benefits requested on appeal are not granted to the Veteran’s satisfaction, the Veteran and his attorney should be furnished a supplemental statement of the case (SSOC), and provided an opportunity to respond. The case should then be returned to the Board for further appellate consideration, if in order. KRISTI L. GUNN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Steven D. Najarian, Counsel