Citation Nr: 18157437 Decision Date: 12/13/18 Archive Date: 12/12/18 DOCKET NO. 10-38 584 DATE: December 13, 2018 ORDER Service connection for rheumatoid arthritis is denied. Service connection for a gallbladder disorder is denied. Service connection for an ulcer disorder is denied. REMANDED Service connection for Haglund’s deformity of the bilateral feet, to include as secondary to nerve damage of the bilateral feet. Service connection for degenerative joint disease of the feet, to include as secondary to Haglund’s deformity and/or nerve damage of the bilateral feet. Service connection for a thoracolumbar spine disorder, to include as secondary to Haglund’s deformity and/or nerve damage of the bilateral feet. Service connection for a psychiatric disorder, to include as secondary to Haglund’s deformity and/or nerve damage of the bilateral feet. Service connection for a sleep disorder, to include as secondary to a psychiatric disorder and/or a joint disorder. Service connection for headaches, to include as secondary to a psychiatric disorder and/or as secondary to nerve damage of the bilateral feet. FINDINGS OF FACT 1. The Veteran does not have a current diagnosis of rheumatoid arthritis. 2. An ulcer and gallbladder disorder did not have onset during active service or within one year thereafter, and was not caused by active service. CONCLUSIONS OF LAW 1. The criteria for service connection for rheumatoid arthritis have not been met. 38 U.S.C. §§ 1110, 1131, 5107(b) (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2018). 2. The criteria for service connection for a gallbladder disorder have not been met. 38 U.S.C. §§ 1110, 1131, 5107(b) (2012); 38 C.F.R. § 3.303 (2018). 3. The criteria for service connection for an ulcer disorder have not been met. 38 U.S.C. §§ 1110, 1131, 5107(b) (2012); 38 C.F.R. § 3.303 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service from January 1970 to May 1971. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a May 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. The Veteran testified at an October 2013 Travel Board hearing before the undersigned. A transcript of those proceedings is associated with the Virtual VA record. This case was most previously before the Board in April 2014. The Board's April 2014 Board decision, in pertinent part, granted service connection (compensation) under 38 U.S.C. § 1151 for muscle and nerve damage of the bilateral feet. This disability will be referred to as service-connected. Duties to Notify and Assist Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). The Veteran also offered testimony before the undersigned Veterans Law Judge at a Board hearing in October 2013. The Board finds that all requirements for hearing officers have been met. 38 C.F.R. § 3.103 (c)(2) (2018); Bryant v. Shinseki, 23 Vet. App. 488 (2010). To the extent that any evidentiary deficiency was noted, the Board finds that it has been cured on remand. The Board also finds that there has been compliance with the prior remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). 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. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303(a) (2018). To establish a right to compensation for a present disability, a Veteran 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- the so-called “nexus” requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may be granted for any disease initially diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2018). In addition, service connection for certain chronic diseases may be established on a presumptive basis by showing that the condition manifested to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C. §§ 1101, 1112, 1113, 1131, 1137 (2012); 38 C.F.R. §§ 3.307, 3.309(a) (2018); Fountain v. McDonald, 27 Vet. App. 258, 271-72 (2015). Although the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. If chronicity in service is not established, a showing of continuity of symptoms after discharge may support the claim. 38 C.F.R. §§ 3.303(b), 3.309 (2018); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Analysis At the October 2013 Board hearing the Veteran indicated that during basic training a towel had been placed around his abdomen and then he and others were hit with two-by-fours. He attributed his current stomach problems, abdominal problems, and colon problems to such incidents during service. The medical evidence of record does not reveal a diagnosis of rheumatoid arthritis. The July 2016 VA examiner also determined there was no diagnosis of rheumatoid arthritis, based upon an examination of the Veteran and review of the claims file. The existence of a current disability is the cornerstone of a claim for VA disability compensation. In the absence of proof of a present disability there is no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Accordingly, service connection for rheumatoid arthritis is not warranted. The Board also finds that service connection for an ulcer disorder and a gallbladder disorder is not warranted. First, there is a current diagnosis of an ulcer disorder, as the Veteran's VA active problems list includes peptic ulcer disease and GERD. See Holton, 557 F.3d at 1366; 38 C.F.R. § 3.303(d). Additionally, VA treatment records indicate that the Veteran was status-post gallbladder removal in 2005. The first element of service connection is met. Second, the Board finds that there was not an in-service injury or disease for an ulcer or gallbladder disorder. The available STRs are silent for any complaints, treatment, or diagnoses of ulcer (gastrointestinal) disability or gallbladder during service. The other medical evidence of record does not show onset therein or within one year. Thus, there are no findings of a chronic condition during service, and there is no diagnosis within one year of service. Accordingly, service connection cannot be presumed on either basis. See 38 C.F.R. §§ 3.307, 3.309. Third, the Board finds that the evidence of record does not support a finding that an ulcer disorder or gallbladder disorder is related to service. The July 2016 VA examiner provided negative nexus opinions regarding the ulcer and gallbladder disorder, noting the Veteran's assertions that he had been struck in the abdomen with a board during boot camp. The examiner indicated, however, that there was no evidence in the literature that described ulcers in the gastrointestinal tract being caused by "external non-penetrating blows to the abdomen." The examiner went on to note that the Veteran did not have a documented mention of gastrointestinal symptoms until 1996. The examiner also noted that there was a normal gallbladder ultrasound in 1994 and that the Veteran’s cholystectomy was not conducted until 2005, over 30 years after service discharge. See Mense v. Derwinski, 1 Vet. App. 354, 356 (1991) (holding that VA did not err in denying service connection when the veteran failed to provide evidence which demonstrated continuity of symptomatology, and failed to account for the lengthy time period for which there is no clinical documentation of disorder). The Board assigns probative value to these opinions as they are based upon a review of the claims file and an examination of the Veteran, and supporting explanations were provided. The Veteran’s assertion that his ulcers and gallbladder disorder are related to service has been considered. The Board finds, however, that such etiological opinions are not capable of lay observation and are thus not competent. Ulcers and gallbladder disorders are complex internal conditions, as opposed to disorders that is capable of lay observation such as ringing in the ears or varicose veins. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Barr v. Nicholson, 21 Vet. App. 303, 310 (2007) (holding that varicose veins are capable of lay observation and thus lay testimony may serve to establish a diagnosis); Charles v. Principi, 16 Vet. App. 370, 374 (2002) (lay testimony may establish the presence of tinnitus because ringing in the ears is capable of lay observation). Moreover, any such opinion is outweighed by the probative July 2016 VA opinion. The Veteran's reports of ulcer and gallbladder symptoms that began during service and continued over the years is not credible as they are not consistent with the evidence of record. At discharge, the Veteran denied and the examiner found normal abdomen and viscera. Additionally, in a February 1998 general medical examination, the Veteran did not report any gastrointestinal or gallbladder complaints. See Caluza v. Brown, 7 Vet. App. 498, 511 (1995) (noting that the credibility of a witness may be impeached by a showing of interest, bias, inconsistent statements, consistency with other evidence), aff’d, 78 F.3d 604 (Fed. Cir. 1996). Generally, an absence of evidence of a disorder, such as this, may not be considered substantive negative evidence. Buczynski v. Shinseki, 24 Vet. App. 221, 224 (2011). The exception is the fact would have normally been recorded. Kahana v. Shinseki, 24 Vet. App. 428 (2011) (Lance, J., concurring). Accordingly, the most probative evidence of record indicates that an ulcer and gallbladder disorder is not related to service. REASONS FOR REMAND Regarding the claim of service connection for Haglund’s deformity of the bilateral feet, remand is required for a VA examination. One of the Veteran's primary assertions regarding this disability has been that his Haglund's deformity is related to (essentially aggravated by) his nerve damage of the feet disability compensated under 38 U.S.C. § 1151. Due to the circumstances and chronology of this claim, this aspect of the issue of service connection for Haglund's deformity has not been sufficiently addressed (including in the July 2016 VA examination), and the Veteran should be afforded a VA examination. Regarding the claims for service connection for degenerative joint disease of the feet, thoracolumbar spine disability, an acquired psychiatric disability, a sleep disorder, and headaches, these claims are impacted by the claim of service connection for Haglund's deformity as they are claimed secondary and are thus inextricably intertwined. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (holding that issues are inextricably intertwined and must be considered together when a decision concerning one could have a significant impact on the other). The matters are REMANDED for the following action: 1. Contact the appropriate VA Medical Center and obtain and associate with the claims file all outstanding records of treatment on and after April 7, 2017. If any requested records are not available, or the search for any such records otherwise yields negative results, that fact must clearly be documented in the claims file. Efforts to obtain these records must continue until it is determined that they do not exist or that further attempts to obtain them would be futile. The non-existence or unavailability of such records must be verified and this should be documented for the record. Required notice must be provided to the Veteran and the representative. 2. Contact the Veteran and afford him the opportunity to identify by name, address and dates of treatment or examination any relevant medical records. Subsequently, and after securing the proper authorizations where necessary, make arrangements to obtain all the records of treatment or examination from all the sources listed by the Veteran which are not already on file. All information obtained must be made part of the file. All attempts to secure this evidence must be documented in the claims file, and if, after making reasonable efforts to obtain named records, they are not able to be secured, provide the required notice and opportunity to respond to the Veteran and the representative. 3. After any additional records are associated with the claims file, provide the Veteran with the appropriate examination to determine the etiology of the claimed Haglund’s deformity of the bilateral feet. The claims file must be made available to and reviewed by the examiner. Any indicated tests and studies must be accomplished and all clinical findings must be reported in detail and correlated to a specific diagnosis. An explanation for all opinions expressed must be provided. The examiner must provide an opinion as to whether it is at least as likely as not (50 percent or greater) that Haglund's deformity of the feet (a) had its onset in service or within one year thereafter, (b) is etiologically related to his active service, (c) is proximately due to or the result of the nerve damage of the feet disability compensated under 38 U.S.C. § 1151, or (d) was aggravated (made worse) by the nerve damage of the feet disability compensated under 38 U.S.C. § 1151. If the examiner determines that Haglund’s deformity of the feet is related to service or to the nerve damage of the bilateral feet compensated under 38 U.S.C. § 1151, the examiner must provide an opinion as to whether it is at least as likely as not (50 percent or greater) that any currently diagnosed degenerative joint disease of the feet or thoracolumbar spine disability is caused or aggravated by the Haglund's deformity or the nerve damage of the feet disability compensated under 38 U.S.C. § 1151. 4. If the examiner determines that Haglund’s deformity of the feet is related to service or to the nerve damage of the feet disability compensated under 38 U.S.C. § 1151, the Veteran should be provided a VA mental disorders examination. The claims file must be made available to and reviewed by the examiner. Any indicated tests and studies must be accomplished and all clinical findings must be reported in detail and correlated to a specific diagnosis. The examiner must provide an opinion as to whether it is at least as likely as not (50 percent or greater) that each currently diagnosed psychiatric disorder is caused or aggravated by the Haglund’s deformity or the nerve damage of the bilateral feet compensated under 38 U.S.C. § 1151. If the examiner determines that a psychiatric disorder is caused or aggravated by the Haglund’s deformity or any other service-connected disability, the examiner must provide an opinion as to whether it is at least as likely as not (50 percent or greater) that each currently diagnosed sleep disorder or headaches disability is caused or aggravated by the psychiatric disability. 5. Notify the Veteran that it is his responsibility to report for any scheduled examination and to cooperate in the development of the claims, and that the consequences for failure to report for a VA examination without good cause may include denial of the claims. 38 C.F.R. §§ 3.158, 3.655 (2018). In the event that the Veteran does not report for any scheduled examination, documentation must be obtained which shows that notice scheduling the examination was sent to the last known address. It must also be indicated whether any notice that was sent was returned as undeliverable. K. MILLIKAN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD David Nelson