Citation Nr: 1807180 Decision Date: 02/05/18 Archive Date: 02/14/18 DOCKET NO. 14-24 371A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUES 1. Entitlement to service connection for left foot disability. 2. Entitlement to service connection for gastrointestinal condition, to include Barrett's esophagus and gastroesophageal reflux disease (GERD). REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD C. Lamb, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1971 to December 1971, with additional service in the National Guard. This matter is before the Board of Veterans' Appeals (Board) on appeal from a June 2011 rating decision of the Detroit, Michigan, Department of Veterans Affairs (VA) Regional Office (RO). In August 2017, the Veteran testified at a Board videoconference hearing before the undersigned. A copy of the transcript of that hearing has been associated with the claims file. FINDINGS OF FACT 1. The Veteran's left foot disability clearly and unmistakably existed prior to service, and clearly and unmistakably did not increase in severity during active service beyond the natural progression of the disease. 2. The Veteran's gastrointestinal condition did not originate in service, within a year of service, and is not etiologically related to the Veteran's active service. CONCLUSIONS OF LAW 1. The criteria for service connection for left foot disability have not been met. 38 U.S.C. §§ 1101, 1110, 1111, 1112, 1113, 1137, 1153, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2017). 2. The criteria for service connection for gastrointestinal condition have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist VA provided the Veteran with a 38 U.S.C. § 5103(a)-compliant notice in June 2010. The record also shows that VA has fulfilled its obligation to assist the Veteran in developing the claims, including with respect to a VA examination of the Veteran. Neither the Veteran nor his representative has identified any deficiency in VA's notice or assistance duties. See Scott v. McDonald, 789 F.3rd 1375 (Fed. Cir. 2015). Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated during service. 38 U.S.C. § 1110 (2012); 38 C.F.R. § 3.303 (2017). In order to establish entitlement to service connection, there must be (1) evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) a causal connection 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 presumed for certain chronic diseases which develop to a compensable degree within one year after discharge from service, even though there is no evidence of the disease during the period of service. That presumption is rebuttable by probative evidence to the contrary. 38 U.S.C. §§ 1101, 1112, 1113 (2012); 38 C.F.R. 3.307, 3.309(a) (2017). Lay evidence presented by a Veteran concerning continuity of symptoms after service may not be deemed to lack credibility solely because of a lack of contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (2006). The Board has the authority to discount the weight and probity of evidence in light of its own inherent characteristics and its relationship to other evidence. Madden v. Gober, 125 F.3d 1477 (Fed. Cir. 1997). The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. The Board must determine whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either case, or whether the preponderance of the evidence is against the claim, in which case, service connection must be denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Left Foot Condition The Veteran seeks entitlement to service connection for a left foot disability. Specifically, the Veteran asserts that he entered service with a preexisting left foot condition that was permanently aggravated during active duty service. 1. Factual Background The Veteran's service treatment records (STRs) include a September 1971 enlistment examination noting normal feet and the Veteran denied any foot trouble. A November 1971 STR shows the Veteran had been seen multiple times at the foot clinic for treatment of cramps in the 1st, 2nd and 3rd toes of the left foot. The Veteran reported almost chopping off that area in a camping accident in 1969. No limitation of motion or paresthesia was found, however a visible scar was noted. The physician suggested separation and discharge. A November 1971 Medical Board statement noted the Veteran first came to the attention of the medical department earlier that month when he reported to sick call complaining of a painful left foot and cramping. At that time, the Veteran reported a left foot injury that occurred in 1969. The Medical Board statement also noted that the left foot disability was not noted during the enlistment examination and physical examination revealed no limitation of motion or paresthesia. Lastly, the Medical Board found that the current disability was not a proximate result of active duty service. The Veteran was informed of the Medical Board's findings and he did not submit a rebuttal statement. The Veteran also had service in the National Guard in the 1980s. The Board notes that the record is silent as to any treatment or complaints of a left foot condition between the Veteran's activity duty service in 1971 and his enlistment in the National Guard in March 1987. Also, in March 1987 the Veteran obtained a left foot examination letter from his physician who noted a well healed scar at the MP joint of the left big toe. The physician noted that the Veteran had good extension with some loss of flexion. An X-ray study was noted as negative. In addition, the Veteran's March 1987 National Guard enlistment examination noted normal feet, although the clinician noted a scar on the left foot over the first three toes. The clinician also noted the Veteran had a tonsillectomy at age 23 and that the he had no significant medical or surgical events since then. The Veteran reported having had foot trouble. The clinician noted a left foot tendon surgery in 1969 and that the Veteran had partial movement of his left great toe, but full range of motion of the entire foot. The clinician further noted no sequelae and that the left foot did not currently cause problems. Lastly, the clinician found no other medical problems. A February 1988 annual examination noted normal feet and the clinician noted a 2-inch scar over the left great toe. The Veteran denied any foot trouble. The Veteran further stated that he was in good health. The Veteran underwent a VA left foot examination in April 2011. The Veteran reported injuring his left foot prior to service in 1969 due to an axe injury. The injury was to the flexor tendon of his left great toe with residual limited plantar flexion. The Veteran stated that he did not report his foot injury during his 1971 enlistment examination nor was it evaluated at that time. He stated that he developed foot pain during boot camp and eventually received a Medical Board separation from service. The Veteran asserted that boot camp activity aggravated his foot. Current symptoms included swelling, heat, redness, stiffness, fatigability, weakness, and lack of endurance. The Veteran was diagnosed with traumatic flexor tendon injury left great toe. The examiner opined that the left foot condition was not permanently aggravated by his activities during service. The examiner based his opinion on the short two month period in service prior to discharge. Further, the examiner found no documentation to support ongoing problems with the left foot after separation that would further support a finding of permanent aggravation related to his relatively short period of active duty service. Additionally, the examiner noted that the Veteran was accepted into the National Guard with no restriction concerning his left foot, that the scar was noted on his enlistment examination and that he worked for over thirty years as a factory electrician with no reported significant problems. At an August 2017 Board hearing, the Veteran testified that he had a left foot injury prior to service but that he did not report the injury on his medical history questionnaire. The Veteran did testify that he reported the injury to the examining clinician. The Veteran further reported that his left foot condition worsened during active duty service. The Veteran stated that he had symptoms of calf cramps and toe spasms. The Veteran asserted that those symptoms were due to prior foot surgery that shortened the tendons in his left foot. The Veteran also testified that since service he had continued to have problems with his left foot, but that he did not seek medical attention for that condition. 2. Legal Analysis After a review of the claims file, the Board finds that there is clear and unmistakable evidence that the Veteran's current left foot disability pre-existed his period of active service and that there is clear and unmistakable evidence that the left foot disability was not aggravated by his active service. Initially, the Board notes that no left foot disability was noted on the Veteran's September 1971 enlistment examination. Therefore, the presumption of soundness attaches. 38 U.S.C. § 1111 (2012). To rebut the presumption of soundness VA must show, by clear and unmistakable evidence, (1) that the disease or injury existed prior to service, and (2) that the disease or injury was not aggravated by service. The claimant is not required to show that the disease or injury increased in severity during service before VA's duty under the second prong of this rebuttal standard attaches. Id; see also Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). In order to demonstrate that the condition clearly and unmistakably preexisted service and was not aggravated by service, the evidence must be undebatable. Quirin v. Shinseki, 22Vet. App. 390, 396 (2009) (quoting Vanerson v. West, 12 Vet. App. 254, 258-59 (1999)). With regard to the first inquiry on appeal, the Board notes that the medical evidence of record, including the Veteran's STRs, show that the Veteran suffered an axe injury to his left foot resulting in a traumatic flexor tendon injury. Importantly, the Veteran does not dispute this and instead has consistently asserted that his left foot injury occurred in 1969 prior to service. Accordingly, the Board finds that the Veteran's left foot disability clearly and unmistakably preexisted service. Turning to the second inquiry on appeal, the Board finds the April 2011 VA examination the most probative evidence of record. After a review of the evidence or record including a physical examination of the Veteran, the examiner determined that the left foot disability was not permanently aggravated by the Veteran's short period of active duty service. The examiner noted no medical evidence following the Veteran's period of active duty service that would support a finding that his left foot condition had been aggravated. The examiner further noted that the Veteran enlisted in the National Guard sixteen years following his active duty service, that the left foot condition was noted on the enlistment examination, but that the Veteran was not given any restrictions concerning his left foot. Lastly, the examiner noted that the Veteran worked as an electrician for 30 years with no evidence of any significant left foot problems during that time. The Board finds that the VA examiner's opinion is based upon sufficient facts and data and this opinion is probative. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Additionally, the Board finds that the opinion is consistent with the evidence of record. The Board also acknowledges the Veteran's testimony that since his period of active duty service he continued to have problems with his left foot but that he did not seek medical attention for that condition. Accordingly, the Board finds that the Veteran's testimony further supports the VA examiner's conclusion that the left foot disability was not aggravated by service. Importantly, there is no medical or lay evidence that supports an adverse conclusion. Accordingly, the Board finds that the evidence is clear and unmistakable that the Veteran's left foot disability preexisted service and was not permanently aggravated by such service beyond the natural progression of the disease. Therefore, presumption of soundness is rebutted by clear and unmistakable evidence that demonstrates that the left foot disability preexisted service and was not aggravated by such service. The Board finds that the preponderance of the evidence is against the claim and that the benefit of the doubt doctrine is not for application. The claim is denied. See 38 U.S.C. § 1111, 5107(b) (2012); 38 C.F.R. § 3.102 (2017); Gilbert v. Derwinski, 1 Vet. App. 49, 58 (1990). Gastrointestinal Condition The Veteran seeks entitlement to service connection for a gastrointestinal condition. Specifically, the Veteran asserts that during service he experienced symptoms related to his current gastrointestinal condition. 1. Factual Background The Veteran's STRs include a September 1971 enlistment examination that noted a normal throat and the Veteran denied any ear, nose or throat (ENT) trouble, stomach trouble or frequent indigestion. In October 1971, the Veteran complained of a sore throat, congestion and a cough. The physician noted the Veteran's tonsils were swollen and he was diagnosed with mild tonsillitis. A November 1971 STR shows a diagnosis for flu syndrome. Symptoms included headaches, dizziness and cough. A March 1987 National Guard examination also noted a normal throat. The clinician did note the Veteran had a tonsillectomy at age 23 and that there had been no significant medical or surgical events since. The Veteran denied any ENT trouble, frequent indigestion or stomach trouble. The clinician further noted no other medical problems. A February 1988 annual examination also noted a normal throat and the Veteran again denied any ENT trouble, frequent indigestion or stomach trouble. The Veteran further stated that he was in good health and taking no medication. The clinician noted a tonsil operation in 1974 at age 23. An August 2010 private medical record shows that a recent gastroscopy found an inflammation of the stomach lining identified as gastritis. The physician noted causes for gastritis including excessive stomach acids, aspirin, anti-inflammatory medications and smoking. The gastroscopy also found Barrett's esophagus which was most likely from chronic reflux disease. At an April 2011 VA examination, the Veteran reported that he complained of heart burn during service and that those symptoms were the precursor of his current gastrointestinal condition. The examiner noted no STRs noting treatment for heart burn. The examiner noted a well-documented endoscopy report noting esophagitis and reflux and noted a current diagnosis for Barrett's esophagitis. The examiner opined that the Veteran's Barret's esophagitis was not caused by or a result of a condition that occurred during service. The examiner based this opinion on a lack of evidence showing treatment for indigestion or heartburn during service. The examiner did note treatment for a sore throat but further noted that there was no indication the condition was anything more than viral pharyngitis. At an August 2017 Board hearing, the Veteran testified that he first began experiencing gastrointestinal symptoms prior to his enlistment including heart burn and reflux. The Veteran also testified that he reported this condition at his enlistment examination and that he experienced symptoms during basic training. During basic training, he stated he went to the dispensary where he received treatment. The Veteran also testified that since service his symptoms continued and that he received treatment two to three years following service. Lastly, the Veteran testified that he was treated for tonsillitis a few times during active duty service which he opined could have been symptomatic of his gastrointestinal condition. 2. Legal Analysis In the present case, the Board finds that the preponderance of the evidence is against the Veteran's claim of service connection for gastrointestinal condition. The existence of a current disability is the cornerstone of a claim for VA disability compensation. 38 U.S.C. §§ 1110 (2012); Degmetich v. Brown, 104 F. 3d 1328 (1997) (holding that interpretation of sections 1110 of the statute as requiring the existence of a present disability for VA compensation purposes cannot be considered arbitrary). It is not in dispute that the Veteran currently receives treatment and has a diagnosis for gastritis and Barrett's esophagitis; therefore there is sufficient evidence the Veteran meets the threshold criterion for service connection of a current disability. Boyer v. West, 210 F.3d 1351 (Fed. Cir. 2000). Specifically, an August 2010 gastroscopy provided the abovementioned diagnoses. Thus, the remaining question is whether this disorder manifested in service, within one year of service, or is otherwise related thereto. The Board notes that the Veteran's STRs are completely silent as to any complaints or treatment for a gastrointestinal problem. As noted above, the Veteran was discharged from the Navy after serving a little more than two months. In this regard, the Board recognizes the Veteran's testimony that he experienced heart burn and reflux during active duty service and that he reported those symptoms during his enlistment examination. The Veteran's representative notated that the Veteran's 1971 enlistment examination Form 88 included a notation next to "G-N Esophageal" which he asserts evidences recognition of a gastrointestinal condition. A review of the enlistment examination shows a notation next to "G-U System." The Board further acknowledges the Veteran's testimony that he experienced gastrointestinal symptoms during basic training for which he received treatment. However, as noted above, the Veteran's STRs do not reflect that he reported or received treatment for a gastrointestinal condition. Moreover, the Board notes that "G-U System" refers to genitourinary system, not gastrointestinal system. Thus, the Board finds that the notation next to "G-U System" on the Veteran's enlistment examination does not support a finding of a gastrointestinal condition at the time he entered service. The Board also notes that the Veteran's National Guard examination reports additionally do not evidence any gastrointestinal condition. The first competent evidence of any gastrointestinal condition is the August 2010 gastroscopy examination record noting the above mentioned diagnoses. As such, the Board finds the Veteran's service records the most probative evidence of record. In addition, the Board finds probative the April 2011 VA examination report in which the examiner found that treatment for a sore throat, noted as tonsillitis in the STRs, was not indicative of a condition other than viral pharyngitis. The Board additionally notes that the National Guard examination evidences the Veteran underwent a tonsillectomy in 1974. Moreover, the National Guard examination reports further shows that the Veteran denied any frequent indigestion or stomach trouble at that time which further supports the VA examiner's conclusion. Although lay persons are competent to provide opinions on some medical issues, as to the specific issue in this case, an opinion as to the onset and diagnosis for a gastrointestinal condition falls outside the realm of common knowledge of a lay person. Kahana v. Shinseki, 24 Vet. App. 428 (2011); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Neither the Veteran nor his representative has produced competent evidence indicating the onset of a gastrointestinal condition prior to August 2010. Therefore, as the second element (in-service incurrence) is not demonstrated with respect to a gastrointestinal condition, the claim for service connection must be denied. See Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); see also Kahana v. Shinseki, 24 Vet. App. 428, 438 (2011) (VA may use silence in the service treatment records as evidence contradictory to a veteran's assertions if the service treatment records appear to be complete and the injury, disease, or symptoms involved would ordinarily have been recorded had they occurred). As no in-service incurrence is shown, the Board need not address whether there is a causal relationship between the present disorder and service (third element). Consequently, service connection for a lumbar spine disability on the basis that it became manifest in service and persisted, on a chronic disease presumptive basis (under 38 U.S.C. § 1112), is not warranted. Although the Veteran is entitled to the benefit of the doubt where the evidence is in approximate balance, the benefit of the doubt doctrine is inapplicable where, as here, the preponderance of the evidence is against the claim for service connection for gastrointestinal condition. The claim is denied. 38 U.S.C. § 5107 (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to service connection for left foot disability is denied. Entitlement to service connection for a gastrointestinal condition, to include Barrett's esophagus and GERD, is denied. ____________________________________________ Thomas H. O'Shay Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs