Citation Nr: 18157613 Decision Date: 12/13/18 Archive Date: 12/12/18 DOCKET NO. 16-19 744A DATE: December 13, 2018 ORDER Service connection for hypertension is granted. Service connection for gastritis is granted. Service connection for gastroesophageal reflux disease (GERD) is granted. REMANDED Entitlement to service connection for a lumbar spine disability, including lumbar myositis and muscle spasm, is remanded. Entitlement to service connection for a right thigh and knee disability, including Osgood-Schlatter disease (OSD), is remanded. FINDINGS OF FACT 1. The evidence is at least in equipoise as to whether the Veteran’s hypertension is related to his active service. 2. The evidence is at least in equipoise as to whether the Veteran’s gastritis is related to his active service. 3. The evidence is at least in equipoise as to whether the Veteran’s GERD is related to his active service. CONCLUSIONS OF LAW 1. The criteria for service connection for hypertension have been met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for gastritis have been met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.303. 3. The criteria for service connection for GERD have been met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty for training (ADT) service from November 2005 to February 2006 and from August 2007 to November 2007 and he had active duty service from August 2008 to November 2008 (collectively “active service”). His characterization of discharge for the final period was under honorable conditions. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a September 2014 rating decision, which, in pertinent part, denied service connection for lumbar myositis and muscle spasm (lumbago), hypertension, gastritis (also claimed as reflux) and right leg Osgood-Schlatter disease (OSD). The Board notes that the Veteran filed a claim for gastritis and reflux and has been diagnosed with gastritis and GERD. Accordingly, the Board has recharacterized entitlement to service connection for gastritis (also claimed as reflux) into two separate issues. The Board further notes that the issues of entitlement to service connection for left leg Osgood-Schlatter disease (OSD) and thrombophlebitis were remanded in a June 2018 Board decision and are currently in remand status awaiting evidentiary development. Accordingly, these issues will not be addressed in this decision. Service Connection Service connection will be granted for a disability resulting from an injury or disease contracted in the line of duty, or for aggravation of a pre-existing 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(a). In the context of Reserve or National Guard service, the term “active military, naval, or air service” includes any period of active duty for training in which the individual was disabled or died from a disease or injury incurred or aggravated in the line of duty or from an acute myocardial infarction, cardiac arrest, or cerebrovascular accident occurring during such training. 38 U.S.C. § 101(24); 38 C.F.R. § 3.6. Active duty for training (ADT) includes full-time duty with the Army National Guard or Air National Guard of any State under sections 316, 502, 503, 504, or 505 of title 32, or the prior corresponding provisions of law. See 38 U.S.C. § 101(22) (C); 38 C.F.R. § 3.6(c). Service connection requires evidence of (1) a current disability; (2) 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). Consistent with this framework, service connection is warranted for a disease first 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). Furthermore, hypertension is a chronic disease listed under 38 C.F.R. § 3.309(a). Therefore, the provisions of 38 C.F.R. § 3.303(b) apply. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Where the evidence shows a chronic disease in service or continuity of symptoms after service, the disease shall be presumed to have been incurred in service. In adjudicating these claims, the Board must assess the competence and credibility of the Veteran. Washington v. Nicholson, 19 Vet. App. 362 (2005). Lay testimony is competent to establish the presence of observable symptomatology and “may provide sufficient support for a claim of service connection.” Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Falzone v. Brown, 8 Vet. App. 398, 405 (1995) (lay person competent to testify to pain and visible flatness of his feet). VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded to the claimant. 1. Entitlement to service connection for hypertension The Veteran asserts that his hypertension was incurred during active service. The record reflects a current diagnosis of hypertension. See e.g., 04/29/2015, Medical Treatment Record- Non-Government Facility. Thus, a present disability has been established by the evidence. The Veteran’s service treatment records reveal that he was diagnosed with hypertension in September 2007. Thus, an in-service incurrence has been shown by the evidence. Having established a current disability and in-service incurrence, the remaining question is whether the Veteran’s current hypertension is the result of active service. The Veteran was afforded a VA examination in May 2014, at which time the examiner assessed hypertension and listed the year of diagnosis as 2007. The Veteran relayed that he was assessed with hypertension in September 2007 and his high blood pressure has persisted since that date. The examiner concluded that based on his examination, review of the claims file, and findings, it was at least as likely as not that the Veteran’s hypertension, or hypertensive vascular disease, was incurred in service and has continued since 2007. A subsequent records review was performed and a medical opinion was provided in July 2014. The examiner opined that the Veteran’s hypertension clearly and unmistakably existed prior to service and was not aggravated beyond its natural progression by an in-service event, injury, or illness and only noted the Veteran’s period of active service from August 2008 to November 2008. After a review of the record, the Board finds that the evidence is at least in equipoise as to whether the Veteran’s current hypertension is related to service. In this regard, the Veteran was diagnosed with hypertension in September 2007. Post-service treatment records confirm a current diagnosis of hypertension and prescription for Lisinopril. Lastly, the May 2014 VA examiner opined that it was at least as likely as not that the Veteran’s hypertension was incurred in service and continued since 2007. The Board acknowledges the negative opinion provided by the July 2014 examiner. However, the Board gives no weight to this opinion. In this regard, the examiner failed to discuss the periods of active service from November 2005 to February 2006 and from August 2007 to November 2007. Furthermore, the examiner failed to acknowledge or discuss the fact that the Veteran was diagnosed with hypertension in September 2007, which was within a period of his active service, and the May 2014 VA examiner’s opinion indicating his hypertension continued since 2007. In view of the foregoing, and in consideration of the credible medical evidence, the Board finds that the evidence is at least in equipoise as to whether the Veteran’s hypertension is the result of military service. In cases where the evidence is in relative equipoise, the claimant prevails. See Gilbert v. Derwinski, 1 Vet. App. 49, 53-54 (1990). 2. Entitlement to service connection for gastritis The Veteran asserts that his gastritis was incurred during active service. The record reflects a current diagnosis of gastritis. See e.g., 05/30/2014, C&P Exam, p. 6. Thus, a present disability has been established by the evidence. The Veteran’s service-treatment records reveal that he was assessed with gastritis in November 2007 and October 2008. His October 2008 separation examination noted that he was taking Nexium for gastritis. Thus, an in-service incurrence has been shown by the evidence. Having established a current disability and in-service incurrence, the remaining question is whether the Veteran’s current gastritis is the result of service. The Veteran was afforded a VA examination in May 2014, at which time he was assessed with gastritis. The year of diagnosis was listed as 2007. He continued to have symptoms of gastritis and was taking Gaviscon, Nexium, and Zantac. The examiner concluded that based on his examination, review of the claims file, and findings, it was at least as likely as not that the Veteran’s gastritis was incurred in service and continued since 2008. A subsequent records review was performed and a medical opinion was provided in July 2014. The examiner opined that the Veteran’s gastritis clearly and unmistakably existed prior to service and was not aggravated beyond its natural progression by an in-service event, injury, or illness and only noted the Veteran’s period of active service from August 2008 to November 2008. Furthermore, the examiner indicated that the Veteran had no complaints of gastritis for the period from August 2008 to November 2008. After a review of the record, the Board finds that the evidence is at least in equipoise as to whether the Veteran’s current gastritis is related to service. In this regard, the Veteran was diagnosed with gastritis in November 2007 and October 2008. Post-service treatment records confirm a current diagnosis of gastritis. Moreover, the Veteran was taking Nexium for gastritis during the October 2008 separation examination and during the May 2014 examination. Lastly, the May 2014 VA examiner opined that it was at least as likely as not that the Veteran’s gastritis was incurred in service and continued since 2008. The Board acknowledges the negative opinion provided by the July 2014 examiner. However, the Board gives no weight to this opinion. In this regard, the examiner failed to discuss the periods of active service from November 2005 to February 2006 and from August 2007 to November 2007. Furthermore, the examiner failed to acknowledge or discuss the fact that the Veteran was diagnosed with gastritis in November 2007 and October 2008, which was within his periods of active service. Lastly, the examiner indicated that the Veteran had no complaints or treatment with regard to gastritis from August 2008 to November 2008, which directly conflicts with his service-treatment records indicating a diagnosis and treatment for gastritis in October 2008. In view of the foregoing, and in consideration of the credible medical evidence, the Board finds that the evidence is at least in equipoise as to whether the Veteran’s gastritis is the result of military service. In cases where the evidence is in relative equipoise, the claimant prevails. See Gilbert v. Derwinski, 1 Vet. App. 49, 53-54 (1990). 3. Entitlement to service connection for gastroesophageal reflux disease (GERD) The Veteran asserts that his GERD, claimed as reflux, was incurred during active service. The record reflects a current diagnosis of GERD. See e.g., 05/30/2014, C&P Exam, p. 4. Thus, a present disability has been established by the evidence. The Veteran’s service treatment records reveal that he was diagnosed with esophageal reflux in January 2006, August 2007, September 2008, and October 2008. Thus, an in-service incurrence has been shown by the evidence. Having established a current disability and in-service incurrence, the remaining question is whether the Veteran’s current GERD is the result of active service. The Veteran underwent a VA examination in May 2014, at which time the examiner assessed the Veteran with GERD. The year of diagnosis was listed as 2006. The Veteran reported persistent recurrent daily epigastric pain, heartburn, and reflux and daily use of Nexium, Zantac, and Gaviscon. The examiner concluded that based on his examination, review of the claims file, and findings, it was at least as likely as not that the Veteran’s GERD was incurred in service and continued since 2008. A subsequent records review was performed and a medical opinion was provided in July 2014. The examiner opined that the Veteran’s GERD clearly and unmistakably existed prior to service and was not aggravated beyond its natural progression by an in-service event, injury, or illness and only noted the Veteran’s period of active service from August 2008 to November 2008. Furthermore, the examiner indicated that the Veteran had no complaints of GERD for the period from August 2008 to November 2008. After a review of the record, the Board finds that the evidence is at least in equipoise as to whether the Veteran’s current GERD is related to service. In this regard, the Veteran was assessed with esophageal reflux in January 2006, August 2007, September 2008, and October 2008. Post-service treatment records confirm a current diagnosis of GERD. Lastly, the May 2014 VA examiner opined that it was at least as likely as not that the Veteran’s GERD was incurred in service and continued since 2008. The Board acknowledges the negative opinion provided by the July 2014 examiner. However, the Board gives no weight to this opinion. In this regard, the examiner failed to discuss the periods of active service from November 2005 to February 2006 and from August 2007 to November 2007. Furthermore, the examiner failed to acknowledge or discuss the fact that the Veteran was diagnosed with esophageal reflux in January 2006, August 2007, September 2008, and October 2008, which was within his periods of active service. Lastly, the examiner indicated that the Veteran had no complaints or treatment with regard to GERD from August 2008 to November 2008, which directly conflicts with his service-treatment records indicating a diagnosis of esophageal reflux in September and October 2008. In view of the foregoing, and in consideration of the credible medical evidence, the Board finds that the evidence is at least in equipoise as to whether the Veteran’s GERD is the result of military service. In cases where the evidence is in relative equipoise, the claimant prevails. See Gilbert v. Derwinski, 1 Vet. App. 49, 53-54 (1990). The Board notes that, in the event the symptoms of the Veteran’s gastritis and GERD are deemed entirely overlapping then only one award of service connection would be permissible to avoid the prohibition against pyramiding. 38 C.F.R. 4.14. REASONS FOR REMAND 1. Entitlement to service connection for a lumbar spine disability, including lumbar myositis and muscle spasm, is remanded. The Veteran has been diagnosed with lumbar myositis and muscle spasm and asserts it began during basic training while doing exercises lifting heavy bags and continued throughout his active service. See 05/30/2014, C&P Exam, p. 2. The Veteran’s service-treatment records reveal his complaints of back pain in November 2007, September 2008, and October 2008. In September 2008, he was assessed with lower back pain and paraspinal spasm, bilaterally. In October 2008 he was assessed with lumbago. During his October 2008 separation examination, he reported recurrent back pain and a weak muscle in his lower back. The examiner indicated that the Veteran had occupational lower back pain and had been evaluated. The Veteran was afforded a VA examination in May 2014, at which time the examiner concluded that it was less likely than not that the Veteran’s lumbar spine disability was incurred in service. The examiner indicated that there were complaints of lower back pain diagnosed as paraspinals muscle spasm in October 2008 but there was no further evidence of persistent or recurrent episodes of lower back pain. After a review of the evidence, the Board finds that the May 2014 examination is insufficient to determine the present claim. In this regard, the examiner failed to discuss or acknowledge the Veteran’s documented complaints of lower back pain commencing in September 2007. Furthermore, the examiner failed to discuss the October 2008 examiner’s assessment of occupational lower back pain during his separation examination. Lastly, the Veteran reported continued lower back pain during the May 2014 examination. However, the examiner failed to discuss these statements prior to concluding that there was no further evidence of persistent or recurrent episodes of lower back pain. Accordingly, the Board finds that a new VA examination is warranted to determine the nature and etiology of the Veteran’s current lumbar spine disability. 2. Entitlement to service connection for a right thigh and knee disability, including Osgood-Schlatter disease, is remanded. The Veteran filed a claim for service connection for a right thigh and leg disability. He has been assessed with right leg Osgood-Schlatter disease throughout the rating period on appeal. The Veteran’s service-treatment records reveal that he was diagnosed with bilateral OSD [Osgood-Schlatter disease] in November 2005. He reported right leg pain in August 2007 and was assessed with limb pain, right distal quadricep and hamstring, due to muscle strain. He was given a profile at that time. In September 2007, he reported posterior hamstring pain that started after a running test. He was diagnosed with a right thigh strain. In October 2008, he was assessed with joint pain localized in the knee. A VA examination was performed in July 2012 to assess the Veteran’s left leg disability. However, during this examination the examiner assessed the Veteran with bilateral Osgood-Schlatter disease and listed the date of diagnosis as November 2005. The examiner noted that there was evidence of bilateral knee pain in November 2005 and he was treated with physical modalities as Osgood-Schlatter disease. The examiner went on to state that there was no correlation between the bilateral Osgood-Schlatter disease and his current symptoms. A records review was performed in July 2014, at which time the examiner concluded that the Veteran’s right leg Osgood-Schlatter disease clearly and unmistakably existed prior to service and was not aggravated beyond its natural progression by an in-service event, injury, or illness. The examiner listed the Veteran’s active duty service from August 2008 to November 2008 and indicated that he had no complaints of right leg Osgood-Schlatter disease during this time frame. After a review of the evidence, the Board finds that the July 2012 examination and July 2014 records review are insufficient to determine the present claim. In this regard, the July 2012 examiner failed to provide sufficient rationale as to why the Veteran’s current Osgood-Schlatter disease is not related to his November 2005 diagnosis in service. Furthermore, the July 2014 examiner did not discuss the Veteran’s prior active service periods and did not discuss his right leg, thigh, and knee pain reported throughout his active periods of service. Moreover, the Board finds that the July 2014 opinion is insufficient to conclude that the Veteran’s right leg Osgood-Schlatter disease existed prior to his November 2005 service. In this regard, every Veteran shall be taken to have been in sound condition when examined, accepted and enrolled for service, except as to defects noted at the time of the examination, acceptance and enrollment, or where clear and unmistakable evidence such as to warrant a finding that the disease or injury existed before acceptance and enrollment, and was not aggravated by such service. 38 U.S.C. § 1111. In this case, the August 2005 reserve enlistment examination does not show any right leg, thigh, or knee disabilities. Moreover, the file does not contain clear and unmistakable evidence of a chronic disability prior to November 2005. Clear and unmistakable evidence means evidence that cannot be misinterpreted and misunderstood, i.e., it is undebatable. Quirin v. Shinseki, 22 Vet. App. 390, 396 (2009). Accordingly, the Board finds that the record does not reveal clear and unmistakable evidence that the Veteran’s right leg Osgood-Schlatter disease existed prior to November 2005. Thus, the presumption is not rebutted during the November 2005 to November 2006 active duty for training service period. Therefore, the Board finds that a new VA examination is warranted to assess the nature and etiology of the Veteran’s right leg and thigh disability. The matters are REMANDED for the following actions: 1. Obtain and associate with the claims file the Veteran’s updated VA treatment records from May 2018 to the present. 2. After completion of #1, schedule the Veteran for a VA examination, by an examiner who has not provided an opinion in this matter, to assess the nature and etiology of his lumbar spine disability. The claims folder, including a copy of this remand, must be made available to the examiner and such review should be noted in the examination report. The examiner should identify and discuss any lumbar spine disability identified during examination and the pendency of this claim (since April 2013). For each diagnosed lumbar spine disability, please respond to the following: is it at least as likely as not (probability of at least 50 percent) that any lumbar spine disability had its onset in and/or is otherwise etiologically related to his period(s) of active service from November 2005 to February 2006, August 2007 to November 2007, and August 2008 to November 2008? The examiner must provide a comprehensive rationale for each opinion provided. Specifically, the examiner should discuss the in-service complaints of lower back pain and the October 2008 separation examiner’s opinion indicating he had occupational lower back pain. If any opinion cannot be given without resorting to speculation, the examiner should explain why and 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), the record (additional facts are required), or the examiner does not have the knowledge or training. As appropriate, the AOJ should conduct additional development or supplement the record. 3. After completion of #1, schedule the Veteran for a VA examination, by an examiner who has not provided an opinion in this matter, to assess the nature and etiology of his right leg and thigh disability, including Osgood-Schlatter disease. The claims folder, including a copy of this remand, must be made available to the examiner and such review should be noted in the examination report. The examiner should identify and discuss any right leg and thigh disability identified during examination and the pendency of this claim (since April 2013). Including right leg Osgood-Schlatter disease. For each diagnosed disability, please respond to the following: A. For the time period of November 2005 to February 2006, is it at least as likely as not (probability of at least 50 percent) that any right leg or thigh disability, including Osgood-Schlatter disease, had its onset in and/or is otherwise etiologically related to this period of active service? B. If the answer to (A) is no, for the time periods of August 2007 to November 2007 and August 2008 to November 2008, is there clear and unmistakable evidence (undebatable) that any right leg or thigh disability, including Osgood-Schlatter disease, preexisted these periods of active service? C. If the answer to (B) is yes, then is there clear and unmistakable evidence that the preexisting right leg or thigh disability, including Osgood-Schlatter disease, was NOT aggravated (i.e., permanently worsened) during these periods of active service? D. If the answer to (B) is no, then is it at least as likely as not (probability of at least 50 percent) that the Veteran’s right leg or thigh disability, including Osgood-Schlatter disease, had its onset in and/or is otherwise etiologically related to these periods of active service? The examiner must provide a comprehensive rationale for each opinion provided. Specifically, the examiner must discuss the Veteran’s November 2005 diagnoses of Osgood-Schlatter disease, August 2007 profile for right leg pain and muscle strain, September 2007 diagnosis of right thigh strain, and October 2008 joint pain localized in the knee. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports are to be considered in formulating any opinion. If any opinion cannot be given without resorting to speculation, the examiner should explain why and 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), the record (additional facts are required), or the examiner does not have the knowledge or training. As appropriate, the AOJ should conduct additional development or supplement the record. ERIC S. LEBOFF Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD S. Hurley, Associate Counsel