Citation Nr: 18160757 Decision Date: 12/27/18 Archive Date: 12/27/18 DOCKET NO. 09-37 983 DATE: December 27, 2018 ORDER Entitlement to service connection for a left knee disability is denied. Entitlement to service connection for gastroesophageal reflux disorder (GERD)/hiatal hernia, to include as secondary to service-connected disabilities, is denied. FINDINGS OF FACT 1. A preponderance of the evidence is against a finding that the Veteran’s claimed left knee disability is related to active service or to a service-connected disability. 2. A preponderance of the evidence is against a finding that the Veteran’s current GERD/hiatal hernia is related to his service-connected disabilities. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a left knee disability have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310. 2. The criteria for entitlement to service connection for GERD/hiatal hernia have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1116, 1131, 5103A, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1971 to June 1991. These matters are before the Board of Veterans’ Appeals (Board) on appeal from a November 2002 administrative decision and from April 2008 and April 2009 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky. In September 2011, the Veteran testified before the undersigned Veterans Law Judge (VLJ). This case was previously before the Board in November 2011 and October 2016 when it was remanded for additional development. The Board finds that there has been substantial compliance with its prior remand directives in regard to the claims decided herein. See Stegall v. West, 11 Vet. App. 268 (1998). Service Connection Service connection may be granted for a disability resulting from disease or injury incurred or aggravated during active military service. 38 U.S.C. §§ 1110, 1131. Generally, service connection requires (1) the existence of a present disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Certain disabilities are presumed to be serviced connected if manifested to a compensable degree within one year following service. 38 C.F.R. §§ 3.303, 3.307, 3.309. Under 38 C.F.R. § 3.310(a), service connection may be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. See Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). Entitlement to service connection for a left knee disability. The Veteran asserts that his claimed left knee disability is etiologically related to active service. While his service treatment records (STRs) note that he had a fall in 1978, and had a motor vehicle accident in 1985, they are silent for any documented episodes of traumatic injury to any joint, to include his left knee. Additionally, the Veteran’s STRs are silent for any complaints, treatment, or diagnoses associated with a left knee condition. During his April 2013 VA examination, the Veteran was diagnosed with small bilateral spurring of the knees. The examiner noted that there was no radiologic or clinical evidence to suggest a diagnosis of any significant chronic condition to the left knee. The Veteran reported left knee pain in 2001 during an appointment with his private physician. No x-rays were taken at that time. During the April 2013 VA examination, x-rays of the Veteran’s knees were performed. The impression was bilateral small patellar enthesophytes with also a similar spur at the attachment of the patellar tendon of the right knee. According to the VA examiner, these were all traction osteophytes which were generally considered to be of little, if any, clinical significance. The Veteran had no other significant abnormalities to his knees. The VA examiner opined that the claimed left knee condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The rationale was that there was no documentation of complaints of, treatment for, or any diagnosis of a left knee condition while the Veteran was in service. Additionally, despite the Veteran falling in 1978, his STRs do not document any traumatic injury or a permanent profile for his left knee. It was not until 2011, over 20 years since his fall in 1978 that the Veteran first reported left knee pain, and 10 years since he left active service. The Board notes that the passage of time between the Veteran’s discharge and an initial diagnosis for the claimed disorder is one factor that weighs against the Veteran’s claim. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). The VA examiner noted that the spurs identified on the Veteran’s 2013 x-rays were not present in 2007 and did not represent any significant left knee condition. The VA examiner noted that in February 2007 and August 2008 letters, the Veteran’s private physician opined that the Veteran’s left knee condition was related to his fall in 1978 and was exacerbated by his motor vehicle accident in 1985. However, the VA examiner noted that the private physician did not have access to the Veteran’s treatment records when this positive nexus opinion was given. In the October 2016 remand, the Board noted that the April 2013 VA examiner appeared to raise the possibility, reflected in the Veteran’s complaints at the time, of a causal connection between the Veteran’s claimed left knee condition and his service-connected right ankle disorder. In compliance with the Board’s remand, the RO ordered a new VA examination to determine if the Veteran’s claimed left knee condition was secondarily related to his service-connected right ankle. In July 2018, the Veteran was contacted and stated that he never filed a claim for his knees. He did not show up for his scheduled VA examination and hung up on the VA employee contacting him. The Board notes that the VA’s duty to assist a claimant is not a one-way street. If a veteran wishes assistance with a claim, he or she cannot passively wait for it in those circumstances where his/her own actions are essential in obtaining the putative evidence. See Hayes v. Brown, 5 Vet. App. 60, 68 (1993). In the absence of examination findings, the claims file lacks competent evidence to put this claim for secondary service connection in equipoise, and the Board will not be remanding this case to obtain a new examination because of the high unlikelihood of the Veteran reporting for such examination. In this regard, the Board notes that, while Veteran is competent to observe his left knee symptoms, he does not have the training or credentials to provide a competent opinion as to a specific diagnosis, the onset date of such diagnosis concerning his left knee, or the causal effect of one disability upon another. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). As a result, the Board finds that the April 2013 VA opinion, finding no nexus between the Veteran’s current left knee condition and active service, on a direct basis, is the most probative evidence of record, as the examiner reviewed the claims file and provided a detailed rationale. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). As a result, because the Veteran missed his knee examination and expressed no interest in rescheduling it, the Board concludes that the preponderance of the evidence is against the claim. The benefit-of-the-doubt rule does not apply, and this service connection claim must be denied. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Entitlement to service connection for GERD/hiatal hernia, to include as secondary to service-connected disabilities. In this case, the Board acknowledges that in a December 2010 VA examination report, the Veteran was diagnosed with GERD and a hiatal hernia. The Veteran’s STRs are silent for any complaints, treatment, or diagnoses associated with GERD/hiatal hernia. The Veteran has never claimed that his GERD/hiatal hernia was directly related to active service. He has always claimed that his condition was a result of the medication he took for his other service-connected conditions. In both March 2009 and December 2010 VA examination reports, the examiners opined that it was less likely than not that the Veteran’s GERD and hiatal hernia were caused by or a result of the medications prescribed for the Veteran’s other service-connected disabilities. However, neither VA examiner specifically provided an opinion as to whether the Veteran’s medications could have aggravated his GERD and hiatal hernia. In the October 2016 remand, the Board ordered the RO to provide a new opinion to address this. In a May 2017 VA opinion, the examiner noted that the current evidence of record was insufficient to establish a baseline of the Veteran’s currently claimed GERD/hiatal hernia condition. There were no primary care or gastrointestinal (GI) specialty records available that were dated within the past two years to establish a baseline and/or to provide a current and accurate medical assessment of the Veteran’s GERD/hiatal hernia condition. The VA examiner opined that the Veteran’s current GERD/hiatal hernia was not aggravated beyond its natural progression. The rationale was that topical medications and nasal sprays were not significantly or systemically absorbed and should not impact the GI tract mucosa. Additionally, the VA examiner opined that the same was true for the lower esophageal sphincter tone. The VA examiner explained that the Veteran’s prescribed Celebrex, which was a carbon dioxide inhibitor non-steroidal anti-inflammatory medication, could, in theory, increase his GERD/hiatal hernia symptoms. However, the Veteran’s treatment records, including all documentation, did not support an increase in his symptoms after he started taking Celebrex. The evidence of record documented a condition well treated, and the Veteran was concurrently prescribed Nexium, to treat his GERD/hiatal hernia symptoms and to offset any potential symptoms from Celebrex. The VA examiner further noted that the Veteran took the standard dosage of his prescriptions and that there was no evidence to support the contention that the Veteran took a higher dosage of his medications. Finally, the examiner noted that there was no evidence to establish a condition aggravated to the degree of the need for a surgical intervention for severe, refractory GERD related to hiatal hernia. The Board notes that while the Veteran is competent to observe his GERD/hiatal hernia symptoms, he does not have the training or credentials to provide a competent opinion as to a specific diagnosis, the onset date of such diagnosis concerning his GERD/hiatal hernia, or whether this condition was caused or aggravated by the medication he took for his service-connected disabilities. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). As a result, the Board finds that the March 2009, December 2010, and May 2017 VA opinions, finding no nexus between the Veteran’s current GERD/hiatal hernia and his other service-connected disabilities, to include aggravation, on a secondary basis, are the most probative evidence of record, as the examiners reviewed the claims file and provided a detailed rationale. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). Based on the above analysis, the preponderance of the evidence is against the claim for service connection for a GERD/hiatal hernia condition on a direct and secondary basis, and the claim must be denied. 38 U.S.C. § 5107(b). A. C. MACKENZIE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Abrams, Associate Counsel