Citation Nr: 1807810 Decision Date: 02/07/18 Archive Date: 02/20/18 DOCKET NO. 14-24 604A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUES 1. Entitlement to a compensable rating for residuals, laceration injury, left middle finger. 2. Entitlement to service connection for left wrist condition, to include as secondary to a service-connected traumatic amputation, PIP joint, left index finger. 3. Entitlement to service connection for a gastrointestinal disorder, to include resolved gastroesophageal reflux disease (GERD)/gastritis, to include as secondary to the service-connected residuals, laceration injury, first toe of left foot. 4. Entitlement to service connection for multiple pulmonary nodules, right upper outer lung, claimed as nodules in bilateral lungs. 5. Entitlement to service connection for left foot tendonitis. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD S. Keyvan, Counsel INTRODUCTION The Veteran had active service from January 1977 to October 1994. This matter comes before the Board of Veterans' Appeals (Board) on appeal from the multiple rating decisions of the Indianapolis, Indiana Regional Office (RO). In January 2017, the Veteran testified during a hearing before the Veterans Law Judge at the Indianapolis RO. A transcript of the hearing is of record. The Veteran requested a copy of his September 2017 rating decision which continued the noncompensable rating for his service-connected thoracic ascending aortic aneurysm. In a letter dated on September 22, 2017, the AOJ indicated that the Veteran's Privacy Act request had been processed and mailed to his address of record. Although the Veteran sent a letter indicating that he had not yet received these records, his letter was dated on September 13, 2017 (and scanned into the electronic claims file in October 2017). As such, his letter was issued prior to the September 2017 letter sent by the AOJ reflecting that the requested records had been sent and the Privacy Act request had been processed. Moreover, neither the Veteran, nor his representative, have submitted additional documentation indicating that they had not yet received a copy of the requested rating decision, and/or requesting another a copy of this rating decision, which indicates that the records have since been received. As such, the Board will proceed with adjudicating the claims on appeal. In a May 2017 rating decision, the agency of original jurisdiction (AOJ) granted service connection for the Veteran's thoracic ascending aortic aneurysm and evaluated it as noncompensably disabling, effective January 4, 2017. In correspondence dated in September 2017, the Veteran requested that the AOJ review the aneurysm claim as to the level of disability. There is no executed VA Form 21-0958 Notice of Disagreement in the claims file with regard to this matter. The matter is referred to the AOJ for appropriate action. The issues of entitlement to service connection for left foot tendonitis; entitlement to service connection for multiple pulmonary nodules, right upper outer lung; entitlement to a compensable rating for residuals, laceration injury, left middle finger, and entitlement to an initial compensable rating for thoracic ascending aortic aneurysm are addressed in the REMAND portion of the decision below and are REMANDED to the AOJ. FINDINGS OF FACT 1. The Veteran has not had a disability of the left wrist during any time from contemporaneous to when he filed his claim to the present. 2. The Veteran has not had a gastrointestinal disorder during any time from contemporaneous to when he filed his claim to the present. CONCLUSIONS OF LAW 1. The criteria for service connection for a left wrist disability have not all been met. 38 U.S.C. §§ 1101, 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2017). 2. The criteria for service connection for a gastrointestinal disorder, to include GERD and gastritis, have not been met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.310 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Service Connection The Veteran contends that he began to develop pain in his left wrist several years prior. In the July 2014 substantive appeal, the Veteran stated that he noticed the pain mainly at night and after considerable use of his wrist. According to the Veteran, he never injured the left wrist, and the only thing he believes would be causing his symptoms would be some type of undetected damage from his in-service accident which led to his service-connected residuals, laceration injury, left middle finger. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303 (a) (2017). "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. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection for certain chronic diseases may also be established based upon a legal "presumption" by showing that the disease manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C. §§ 1112, 1137 (2012); 38 C.F.R. §§ 3.307, 3.309 (2017). In addition, service connection may be granted for any disease diagnosed after service when all the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d) (2017). Disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. 38 C.F.R. § 3.310 (a) (2017). The secondary condition shall be considered a part of the original condition. Id. The phrase "due to or the result of" encompasses disability caused by or aggravated by the service-connected disease or injury. See Allen v. Brown, 7 Vet. App. 439 (1995). "Aggravation" of a nonservice-connected condition by a service-connected condition means a chronic worsening of the nonservice-connected condition by the service-connected condition, not merely temporary or intermittent flare-ups. See Hunt v. Derwinski, 1 Vet. App. 292 (1991); Davis v. Principi, 276 F.3d 1341 (Fed. Cir. 2002). Left Wrist Disability Review of the service treatment records is negative for any treatment for, or complaints or diagnosis of, a left wrist disorder. Although the Veteran was seen at the military clinic in May 1986 with complaints of soreness in his left arm of two days duration, these symptoms appear to have been attributed to his left shoulder and he was not diagnosed with having any type of left wrist disorder following this treatment visit. The remainder of the service treatment records is negative for any evidence, notations, complaints, or symptom pertaining to the left wrist, and/or diagnosis of a left wrist disorder. At the August 1994 separation examination, although the clinical evaluation of the upper extremities was marked as abnormal, in the comments section, the in-service clinician noted that the Veteran's left index finger had been amputated. There were no notations or complaints of any left wrist symptoms in the Veteran's separation examination report, and the Veteran did not report a history of left wrist symptoms in his August 1994 medical history report. The post-service VA treatment records are also absent any treatment for, or diagnosis of a left wrist disorder. The Veteran was afforded a VA examination in connection to his claimed left wrist disorder in February 2011, at which time, he provided his medical history and described the circumstances surrounding his in-service injury. The Veteran explained how his index finger was amputated and his third finger was lacerated when a piece of aircraft equipment fell on his hand. The Veteran reported to experience wrist pain that was not directly involved with this injury, but was secondary to his service-connected residuals of his laceration injury, and described the pain as a "chronic slow onset pain that can become sharp with the right movement." According to the Veteran, his wrist pain has progressively worsened since its onset and he treats his symptoms with 400 milligrams (mg) of Ibuprofen every evening prior to going to sleep. After interviewing the Veteran regarding his medical history, conducting a physical examination of the left wrist, and reviewing the left wrist x-ray findings, the results of which were negative for any abnormalities, the VA examiner determined that there was no diagnosis pertaining to the left wrist condition because there was no pathology to render a diagnosis. According to the VA examiner, the Veteran's left wrist condition is less likely as not caused by, or a result of, his service-connected residuals, laceration injury, left middle finger. In reaching this determination, the VA examiner explained that with no objective medical findings on physical examination of the wrist, and no abnormalities on x-ray, it would be difficult to render a diagnosis, or to find a nexus between the old injury and the Veteran's current pain. According to the VA examiner, the Veteran has full range of motion in his wrist and, by his own account, his pain is sporadic. Upon consideration of the above evidence, the Board finds that the preponderance of the evidence is against the Veteran's claim of service connection for a left wrist disability. The evidence must show that the Veteran currently has the disability for which benefits are being claimed. Here, the greater weight of the evidence points to the Veteran not having any diagnosed left wrist pathology at any time from contemporaneous to when he filed his claim to the present. Although the post-service medical evidence of record reflects the Veteran's complaints of pain in his left wrist, the evidence is negative for a diagnosis pertaining to the left wrist. Moreover, the assessment of a pain does not equate to underlying disease. In other words, pain itself is not a disease. Sanchez-Benitez v. West, 13 Vet. App. 282 (1999), appeal dismissed in part, and vacated and remanded in part sub nom. Sanchez-Benitez v. Principi, 259 F.3d 1356 (Fed. Cir. 2001). Furthermore, even after conducting a comprehensive evaluation of the Veteran's left wrist, the February 2011 VA examiner has not identified a current disease, nor did she find any intrinsic pathology associated with the Veteran's left wrist. Moreover, the medical evidence of record during the appeal period is completely absent for a clear diagnosis pertaining to the left wrist joint. The Board has considered the Veteran's assertions that he has a left wrist disorder that is related to his time in service and/or is secondary to his residuals, laceration injury, left middle finger which arose as a result of his in-service injury. The evidence does not establish that the Veteran has expertise in diagnosing a medical condition. He is thus considered a non-expert, or a layperson. Whether the diagnosis of a layperson is competent evidence depends on the facts of the case. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Here, whether the Veteran has a left wrist disability due to disease or injury is a complex question. This is demonstrated by the fact that a medical professional has conducted an examination in response to his complaints and arrived at the conclusion that he has no associated pathology. The Board thus finds his statements that he has such disability to not be competent evidence. Further, the February 2011 VA examiner considered the Veteran's report of in-service and post-service symptoms in reaching his medical conclusion. Consequently, in this case, lay assertions of medical diagnosis cannot constitute evidence upon which to grant a claim for service connection. Because the competent evidence in the current appeal tends to show that the Veteran has not had any current left wrist disability from contemporaneous to when he filed his claim to the present, the Board concludes that the preponderance of the evidence is against the Veteran's claim for service connection for a left wrist disability. The benefit-of-the-doubt provisions do not apply. Service connection for a left wrist disability is not warranted. Gastrointestinal Disorder The Veteran also contends that he developed a gastrointestinal disorder, namely - gastritis, as a result of medication he took to treat the pain associated with his service-connected residuals of the first left toe and left middle finger. Specifically, during the November 2010 VA examination, the Veteran asserted that he began taking Ibuprofen for his left toe symptoms, and developed gastritis as a result. Review of the service treatment records is negative for any complaints of, or treatment for, gastrointestinal symptoms. At the August 1994 separation examination, the clinical evaluation of the abdomen and viscera was shown to be normal. In addition, the Veteran denied a medical history of stomach, liver, or intestinal trouble in his medical history report. Moreover, the Board notes that the Veteran contends that his claimed gastrointestinal disorder is secondary to his service-connected residuals, laceration injury, first toe of left foot - and specifically the medication he was taking for this disorder. In other words, the Veteran has not contended that his gastritis was incurred in, or directly related to, his military service. The Veteran was afforded a VA examination in connection to his claimed gastritis in February 2011, during which time, he provided his medical history and explained that he began increasing his Ibuprofen intake in 2010 due to the pain in his left foot. According to the Veteran, this caused him to experience severe pain in his stomach and he was seen by a VA physician who placed him on Omeprazole to counter his gastritis. Based on her discussion with, as well as her evaluation of, the Veteran, the VA examiner diagnosed the Veteran with gastroesophageal reflux/gastritis that had resolved, and determined that said disorder is less likely as not caused by, or a result of, the Veteran's left foot condition. In reaching this determination, the VA examiner noted that the Veteran had not experienced any symptoms since undergoing treatment with Omeprazole. According to the examiner, the Veteran's condition was subject to him taking Ibuprofen which had to be discontinued and with no current symptoms and discontinuation of the causative agent, no nexus could be made between the Veteran's left foot condition and his Ibuprofen induced gastritis. Subsequent VA treatment records dated from 2012 to 2014 reflect that the Veteran had a history of gastritis which had stabilized on Omeprazole. In the May 2014 VA medical opinion, the VA examiner determined that based on her evaluation of the Veteran as well as her review of the claims file, his claimed gastrointestinal disorder was less likely than not incurred in, or caused by, an in-service injury, event or illness. In reaching her negative determination, she relied on the relevant medical literature which documents that side effects involving the gastrointestinal system resolve on discontinuation of the offending medication/nonsteroidal anti-inflammatory drug (NSAID). She (the VA examiner) also found there to be no nexus between GERD and NSAIDs or analgesic medication. According to the examiner, the need for pain medication would be expected to be time limited upon healing/resolution of the wound. Upon consideration of the above evidence, the Board finds that the preponderance of the evidence is against the Veteran's claim of service connection for gastritis and/or any type of gastrointestinal condition. With regard to this claim, the Board notes that the existence of a current disability is the cornerstone of a claim for VA disability compensation. 38 U.S.C. §§ 1110, 1131; see Degmetich v. Brown, 104 F.3d 1328, 1332 (1997). As noted above, both the February 2011 and May 2014 VA examiners determined that while the Veteran had developed Ibuprofen-induced gastritis, this disorder resolved once he was taken off this medication and placed on Omeprazole. Indeed, even at the November 2010 VA examination, the Veteran explained that he developed gastritis due to his Ibuprofen use, and as such, he had since stopped taking it. In this regard, the Veteran described the onset, and ultimate resolution of his gastritis, in the past tense. This examination report documents the Veteran's initial assertion that he developed gastritis as a result of his Ibuprofen use, and his claim for secondary service connection appears to have originated from this examination report. Moreover, the earlier VA treatment records are absent a clear and definite diagnosis of gastritis, and by the time of his November 2010 VA examination, the Veteran himself asserted that he had since stopped taking Ibuprofen on the advice of his physician. As such, a diagnosis of gastritis, and any symptoms associated thereto, appear to have resolved by the time he initiated his claim, and a review of the documents throughout the pendency of the appeal also reflect that the Veteran's gastrointestinal symptoms had since resolved once he was placed on Omeprazole. The Board notes that the evidence must show that the Veteran has had the disability for which benefits are being claimed at some point during the pendency of the claim. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007) (noting that the requirement of a current disability is satisfied when the claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim and that a claimant may be granted service connection even though the disability resolves prior to the Secretary's adjudication of the claim). The Board has considered the Veteran's assertions that he has a gastrointestinal disorder that is secondary to the medication he has been prescribed for his left foot symptoms. The evidence does not establish that the Veteran has expertise in diagnosing a medical condition. He is thus considered a non-expert, or a layperson. Here, whether the Veteran has a gastrointestinal disorder at any time since the date of his claim is a complex question. This is demonstrated by the fact that medical professionals have conducted examinations in response to his complaints and arrived at the conclusion that any symptoms of a gastrointestinal disorder had resolved and he had no associated pathology. The Board thus finds his statements that he has such disability to not be competent evidence. In light of the fact that the evidence of record does not demonstrate that the Veteran has had a diagnosed gastrointestinal disability present at any time from the date of claim, forward, service connection for a gastrointestinal disorder is not warranted on a secondary basis either. Because the preponderance of evidence in this case tends to show that the Veteran has not been diagnosed with having a gastrointestinal disorder, to include gastritis, during the course of the claim and appeal, the appeal as to this issue must be denied. There is no reasonable doubt to be resolved. ORDER Entitlement to service connection for a left wrist disorder, to include as secondary to a service-connected disorder, is denied. Entitlement to service connection for a gastrointestinal disorder, to include as secondary to a service-connected disorder, is denied. REMAND The law provides that VA shall make reasonable efforts to notify a claimant of the evidence necessary to substantiate a claim and requires VA to assist a claimant in obtaining that evidence. 38 U.S.C. §§ 5103, 5103A (2012); 38 C.F.R. § 3.159 (2017). By way of the December 1995 rating decision, the RO granted service connection for the Veteran's residuals, laceration injury, left middle finger and evaluated it as noncompensably disabling. In February 2010, the Veteran sought a higher rating for this service-connected disorder, and he was afforded a VA examination in connection to this disorder in August 2010. In the September 2010 rating decision, the AOJ denied the Veteran's claim and continued the noncompensable rating for his residuals, laceration injury, left middle finger. In the June 2013 Informal Conference Report, the Veteran asserted that his service-connected residuals scars on his middle finger had increased in severity. The record reflects that it has been seven-and-a-half years since the Veteran has been provided a VA examination concerning this condition and given that he has asserted a worsening of this condition, a remand is necessary to ensure that the record contains evidence of the current severity of the Veteran's service-connected residuals, laceration injury, left middle finger. 38 U.S.C. § 5103A (2012); 38 C.F.R. § 3.159 (2017); Green v. Derwinski, 1 Vet. App. 121 (1991); Caffrey v. Brown, 6 Vet. App. 377 (1994). Also, in the April 2015 rating decision, the AOJ granted the Veteran's claim for service connection for left shoulder strain, and evaluated it as noncompensably disabling, effective December 2, 2014. The AOJ also denied the Veteran's claim for service connection for multiple pulmonary nodules in the right upper outer lung, as well as his claim seeking service connection for left foot tendonitis. In the April 2016 notice of disagreement (NOD), the Veteran expressed his disagreement with the denial of his claims for service connection for multiple pulmonary nodules of the right upper outer lung and his claim for service connection for left foot tendonitis. The United States Court of Appeals for Veterans Claims (Court) has held that, when an appellant files a timely NOD as to a particular issue and no statement of the case (SOC) is furnished, the Board should remand, rather than refer, the claim for issuance of an SOC. See Manlicon v. West, 12 Vet. App. 238 (1999). Under these circumstances, an SOC concerning the issues of entitlement to service connection for multiple pulmonary nodules in the right upper outer lung and entitlement to service connection for left foot tendonitis. As this claim is being remanded again, the Veteran's more recent VA medical records should also be retrieved and associated with the claims file. See 38 U.S.C. § 5103A (b), (c); 38 C.F.R. § 3.159 (b); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim). Accordingly, the case is REMANDED for the following action: 1. Obtain all outstanding VA medical records from July 2017 to the present. 2. Once these records have been obtained and associated with the claims file, then the AOJ shall schedule the Veteran for a scar examination of the residuals, laceration injury, left middle finger with the appropriate examiner. The examiner is asked to identify and assess all symptomatology of the residual laceration injury, to include any limitation of function and loss of sensation. In addition to conducting regular testing, the examiner should identify and numerate any and all scars associated with this disability, and opine as to whether such scars are linear, superficial, deep, painful, unstable, and/or exhibit any other disabling effects. It is preferable that the appropriate Disability Benefits Questionnaire (DBQ) be used for this purpose. The examiner must provide a comprehensive report including complete rationales for all opinions and conclusions reached, citing the objective medical findings leading to the conclusions. 3. Furnish the Veteran with an SOC regarding the claims for service connection for multiple pulmonary nodules right upper outer lungs and service connection for left foot tendonitis. The Veteran should be informed that he must file a timely substantive appeal in order to perfect an appeal to the Board. Only if the Veteran files a timely appeal should any of this additional issue be returned to the Board. 4. After completing the requested actions and any additional notification and/or development deemed warranted, readjudicate the remaining claims. If any benefits sought on appeal remain denied, the Veteran and his representative must be furnished a supplemental statement of the case. An appropriate period of time should be allowed for response before returning the case to the Board, if otherwise in order. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the Court for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012). ______________________________________________ JAMES G. REINHART Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs