Citation Nr: 1806373 Decision Date: 02/01/18 Archive Date: 02/14/18 DOCKET NO. 11-32 535 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUES 1. Entitlement to service connection for gallbladder removal (claimed as gallstones). 2. Entitlement to service connection for pancreatitis. 3. Entitlement to service connection for sinusitis. 4. Entitlement to service connection for a back disability. 5. Entitlement to service connection for gastroesophageal reflux disorder (GERD). REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J.I. Tissera, Associate Counsel INTRODUCTION The Veteran serviced on active duty from March 1977 to March 1981 and September 1986 to October 2002. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana. FINDINGS OF FACT 1. A gallbladder disorder was not shown in service. The post-service cholecystectomy is not causally or etiologically related to service, to include any injury or event therein. 2. A pancreatic disorder was not shown in service. The currently-diagnosed pancreatitis is not causally or etiologically related to service, to include any injury or event therein. 3. The Veteran does not have sinusitis. 4. The evidence of record shows that the Veteran's congenital scoliosis was noted on the Veteran's entry point exam on June 16, 1986. 5. The evidence of record shows that the Veteran's T7-T8 compression fractures are not related to active service. 6. The Veteran's GERD is not causally or etiologically related to service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for gallbladder removal (also claimed as gallstones) have not been met. 38 U.S.C.A. §§ 1131, 1137, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.326(a) (2017). 2. The criteria for entitlement to service connection for pancreatitis have not been met. 38 U.S.C.A. §§ 1131, 1137, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102 , 3.159, 3.326(a) (2017). 3. The criteria for entitlement to service connection for sinusitis have not been met. 38 U.S.C.A. §§ 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.159, 3.303 (2017). 4. The criteria for entitlement to service connection for a back diability have not been met. 38 U.S.C.A. §§ 1111 , 1112, 1113, 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.303 , 3.304, 3.307, 3.309, 4.9 (2017); VAOPGCPREC 82-90 (July 18, 1990). 5. The criteria for entitlement to service connection for gastroesophageal reflux disorder (GERD) have not been met. 38 U.S.C.A. § 1110, 1131 (2012); 38 C.F.R. §§ 3.303 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist The duty to notify has been met. Neither the Veteran nor his representative, has alleged prejudice with regard to notice. The Federal Circuit has held that "absent extraordinary circumstances... it is appropriate for the Board and the Veterans Court to address only those procedural arguments specifically raised by the veteran...." Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). In light of the foregoing, nothing more is required. The duty to assist includes assisting the claimant in the procurement of relevant records. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). The RO associated the Veteran's service and VA treatment records with the claims file. All released or submitted private treatment records have been associated with the claims file. No other relevant records have been identified and are outstanding. As such, the Board finds VA has satisfied its duty to assist with the procurement of relevant records. The duty to assist also includes providing a medical examination or obtaining a medical opinion when necessary to make a decision on a claim, as defined by law. 38 C.F.R. § 3.159(c)(4). In this case, the Veteran was provided with VA examinations in March 2010 and October 2016. The examinations were adequate. The examiners reviewed the medical evidence of record in conjunction with the respective examinations, and conducted a thorough medical examination of the Veteran. The Veteran's pertinent symptomatology was recorded sufficiently to accurately adjudicate the claims. Based on the foregoing, the Board finds the examination reports to be thorough, complete, and sufficient base upon which to reach a decision on the Veteran's claims. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Barr v. Nicholson, 21 Vet. App. 303 (2007). Since VA has obtained all relevant identified records and provided adequate medical examinations, its duty to assist in this case is satisfied. II. Service Connection A. Legal Criteria Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). In general, service connection requires competent and credible 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 current disability. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service or aggravated by service. 38 C.F.R. §§ 3.303, 3.306. For the showing of a 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, as distinguished from merely isolated findings or a diagnosis including the word "chronic." Continuity of symptomatology is required where the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may legitimately be questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303. B. Legal Analysis 1. Gallbladder The Veteran testified at his December 2012 RO Hearing that during service in 2002 while aboard the USS Stout, he informally complained to the Chief Medical Corpsman of abdominal pain. According to the Veteran, the Corpsman dismissed the Veteran's complaint as probably a pulled muscle, gave him Motrin for the pain, and never followed up. According to a letter from the Veteran's private physician, the Veteran was treated for gallbladder symptoms in December 2003, more than one year after separation. In September 2004, the Veteran was found to have cholecystitis and his gallbladder was subsequently removed. The private physician states that it is possible that the Veteran may have had abdominal pain related to his gallbladder for some time prior to the actual diagnosis, but that he would be unable to make an appropriate determination as to the timeline of the initial onset of cholecystitis. In the October 2016 VA examination, the examiner reviewed the Veteran's medical records and opined that it is less likely as not that the Veteran's history of gallbladder removal was incurred in or caused by any event in service. The examiner noted that service treatment records do not support a diagnosis for a gallbladder problem requiring its removal during service. Furthermore, the examiner also noted that calculus in the Veteran's gallbladder was not found until September 2004, over a year after service. As a general matter, a layperson is not capable of opining on matters requiring medical knowledge. 38 C.F.R. § 3.159(a)(2); Routen v. Brown, 10 Vet. App. 183 (1997). In certain circumstances, however, lay evidence may be sufficient to establish a medical diagnosis or nexus. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). In that regard, lay evidence has been found to be competent with regard to a disease with "unique and readily identifiable features" that is "capable of lay observation." Barr v. Nicholson, 21 Vet. App. 303 (2007)(concerning varicose veins); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007)(a dislocated shoulder); Charles v. Principi, 16 Vet. App. 370 (2002)(tinnitus); Falzone v. Brown, 8 Vet. App. 398 (1995)(flatfoot). Certainly, the Veteran is competent to report the onset and duration of his abdominal pain. Nonetheless, medical knowledge is required in order to properly diagnose a condition such as cholecystitis and determine the necessity to remove the gallbladder. Under the circumstances, an opinion as to the precise nature and cause of the Veteran's abdominal pain would appear to depend on clinically observed findings from examination and application of accepted medical principles. As such, the Board is inclined to assign greater probative weight to the opinions expressed by the October 2016 examiner and the private physician than to the lay assertions contained in the record. The evidence in the record, particularly the opinion of the October 2016 VA examiner, does not show that the Veteran's gallbladder condition was incurred in or caused by service. The Board finds that a preponderance of the evidence is against the claim of service connection for gallbladder condition, and there is no doubt to be resolved. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 2. Pancreatitis As stated above, the Veteran testified during the December 2012 RO Hearing that in 2002, while he was in service, he complained of abdominal pain to the Chief Medical Corpsman of the USS Stout who did not examine the Veteran, gave him Motrin for pain, and failed to follow up. In the letter from the Veteran's private physician, he writes that on December 12, 2003, the Veteran went to a local ER where it was confirmed that he had pancreatitis with early small pseudocyst formation. The physician continues to treat the Veteran for acute pancreatitis flare ups at least every 6 months or more frequently as needed for treatment and symptom control. While it is possible that the Veteran may have had abdominal pain related to his pancreas for some time prior to the actual diagnosis, the private physician was unable to make an appropriate determination as to the timeline of the initial onset of pancreatitis. In the October 2016 VA examination, the examiner reviewed the Veteran's medical records and opined that it is less likely as not that the Veteran's history of pancreatitis was incurred in or caused by any event in service. The examiner noted that service medical records simply do not support a diagnosis of pancreatitis in service. The examiner also noted that the Veteran was found to have pancreatitis on a CT scan in December 2003, over a year since separation from service. Furthermore, the examiner opined that pancreatitis is thought to be secondary to the Veteran's overuse of alcohol. The evidence in the record, particularly the opinion of the October 2016 VA examiner, does not show that the Veteran's pancreatitis was incurred in or otherwise caused by service. The Board finds that a preponderance of the evidence is against the claim of service connection for pancreatitis, and there is no doubt to be resolved. Gilbert v. Derwinski, 1 Vet. App. 49, 55. 3. Sinusitis The Veteran contends that his sinusitis is due to the shipboard air pressure systems of the vessels he served on during his service. During the December 2012 RO Hearing, the Veteran testified that he had problems every time he changed temperate zones. He also testified that the USS Stout had its interior over-pressurized as part of a new defense system to chemical, biological, and radioactive materials. The Veteran continues to suffer from sinusitis and receives private treatment. In the March 2010 VA examination, the examiner reviewed the Veteran's medical records and examined the Veteran. The Veteran reported a history of sinusitis, having been treated at least 7 times during service for acute upper respiratory infections, according to his service medical records. According to the service treatment records, the Veteran was diagnosed with sinusitis and treated in May 1991 and April 2002, with the condition resolving. In the 12 months prior to the examination, the Veteran reported being treated 8 to 10 times by his private physician for a sinus infection and given Cephalexin or Amoxicillin, and has shown improvement. At the time of the examination, the Veteran did not have an active infection, nasal discharge, or sinus tenderness, and there was no evidence of a sinus disease. A radiology report made during the exam indicated that the Veteran's sinuses are adequately aerated with no inflammatory disease or other abnormalities; the Veteran had essentially normal paranasal sinuses. The examiner opined that the Veteran's sinus condition is less likely than not caused by or a result of or related to the diagnosis and treatment of sinusitis in service. The examiner based the opinion on the fact that both episodes of acute sinusitis in service were resolved without residuals, and the fact that the Veteran at the time had normal paranasal sinuses, demonstrating a lack of a chronic sinus condition. The evidence in the record, particularly the opinion of the March 2010 VA examiner, does not show that the Veteran has sinusitis or that such was incurred in or otherwise caused by service. The Board finds that a preponderance of the evidence is against the claim of service connection for sinusitis, and there is no doubt to be resolved. Gilbert v. Derwinski, 1 Vet. App. 49, 55. 4. Back disability The Veteran contends that he aggravated his congenital scoliosis during active service. In his December 2012 hearing, the Veteran testified that the use of heavy equipment and training as a Damage Control firefighter in service caused wear and tear on his spine. The Board notes in this regard that service connection is prohibited for congenital defects, including congenital scoliosis. See 38 C.F.R. § 4.9; see also VAOPGCPREC 82-90 (July 18, 1990) (discussing prohibition against granting service connection for congenital defects). The Board also notes in this regard that scoliosis is defined as an appreciable lateral deviation in the normally straight vertical line of the spine. Dorland's Illustrated Medical Dictionary 1669 (30th ed. 2003). According to the Veteran's entry point exam on June 16, 1986, his congenital scoliosis was identified. According to his service treatment records, the Veteran denied any back injury or back pain during his annual medical checkups. In the March 2010 VA examination, the examiner noted that the Veteran was seen once in service for a lower back strain, however it was not on account of thoracic spine pain. The Veteran's radiology reports in June 1986 and February 1991 show that the Veteran has scoliosis of the thoracic spine, but no signs of fractures. Following his separation from service, a December 2003 radiology report from the Columbus Regional Hospital showed thoracolumbar scoliosis, but no compression fractures. X-rays taken at the VA exam show moderate scoliosis of the thoracic spine, mild compression at T7-T8 secondary to the scoliosis, and mild generalized degenerative changes. The examiner opined that the Veteran's congenital scoliosis was not aggravated by service. The Veteran has congenital scoliosis of the thoracic spine which was present at the time of the entry point exam, therefore preexisting prior service. Subsequent x-rays in service show the Veteran has scoliosis, but do not indicate any changes or fractures. An x-ray following more than a year from separation of service shows scoliosis of the thoracic spine, but no changes or fractures. The examiner also determined that the Veteran's compression fractures at T7-T8 are a result of his congenital scoliosis disability, which occurred after the Veteran separated from service, as the fractures were not present as of the 2003 radiology report. The evidence in the record, particularly the opinion of the March 2010 VA examiner, does not show that the congenital scoliosis condition was aggravated by service. The Board finds that a preponderance of the evidence is against the claim of service connection for a back disability, and there is no doubt to be resolved. Gilbert v. Derwinski, 1 Vet. App. 49, 55. 5. GERD The Veteran contends that he has GERD which is a result of his military service. As stated above, the Veteran testified during the December 2012 RO Hearing that in 2002, while he was in service, he complained of abdominal pain to the Chief Medical Corpsman of the USS Stout who did not examine the Veteran, gave him Motrin for pain, and failed to follow up. After his separation from service, the Veteran began to see his private physician on January 3, 2003, with complaints of GERD, and was prescribed Prevacid. According to the letter from the private physician, he continues to see the Veteran for follow up care for GERD every 6 months or more frequently as needed for treatment and symptom control. The private physician does not state an opinion about the possible onset of GERD during service. In the October 2016 VA examination, the examiner reviewed the Veteran's medical records. The examiner noted that the service treatment records reflect a diagnosis of gastritis in April 1979. Another note from April 2002 refers to a complaint from the Veteran regard blood in his sperm. After separation from service, the Veteran was diagnosed with cholelithiasis, pancreatitis, and small duodenal polyp in September 2004, and the Veteran was prescribed Prevacid. In October 2004, the Veteran had an esophagogastroduodenoscopy (EGD) which did not show any gastric masses. The examiner opined that it is less likely as not that any alleged GERD was incurred in or caused by any event in service. The examiner noted that service medical records do not support a diagnosis of GERD in service. The examiner also found it significant that an EGD in 2004 did not show evidence of GERD. The evidence in the record, particularly the opinion of the October 2016 VA examiner, does not show that the Veteran has a current GERD disability which occurred in or was caused by service. The Board finds that a preponderance of the evidence is against the claim of service connection for sinusitis, and there is no doubt to be resolved. Gilbert v. Derwinski, 1 Vet. App. 49, 55. ORDER 1. Service connection for gallbladder removal (also claimed as gallstones) is denied. 2. Service connection for pancreatitis is denied. 3. Service connection for sinusitis is denied. 4. Service connection for a back disability is denied. 5. Service connection for GERD is denied. ____________________________________________ Donnie R. Hachey Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs