Citation Nr: 1808497 Decision Date: 02/09/18 Archive Date: 02/20/18 DOCKET NO. 10-05 703 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to service connection for gastritis. 2. Entitlement to service connection for a right ankle injury. ATTORNEY FOR THE BOARD R. Brunot, Associate Counsel INTRODUCTION The Veteran served on active duty in the Unites States Air Force from July 1972 to January 1993. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. This case was remanded to the Agency of Original Jurisdiction (AOJ) in November 2012 for the Veteran to receive a VA examination for his gastritis and right ankle disability. Stegall v. West, 11 Vet. App. 268 (1998). In accordance with Stegall, the Veteran received a VA examination in November 2014. Id. This case was also remanded by the Board in September 2016 for an additional VA examination; the Board found the November 2014 VA examination was inadequate because the VA examiner did not fully consider the evidence of record. The Board notes in January 2017, the Veteran stated he did not want a new VA examination. When a claimant, without "good cause," fails to report for a scheduled examination or reexamination scheduled in conjunction with an original compensation claim, the claim shall be rated based on the evidence of record. 38 C.F.R. § 3.655 (2017). VA's duty to assist is not a one-way street. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991); Swann v. Brown, 5 Vet. App. 229, 233 (1993). The Board will decide these matters based on the evidence of record. Therefore, the AOJ complied with the Board's remand directives. FINDINGS OF FACT 1. The preponderance of evidence reflects the Veteran's gastritis is related to his active duty service. 2. The preponderance of evidence reflects the Veteran's right ankle disability is related to his active duty service. CONCLUSIONS OF LAW 1. The requirements to establish service connection for a gastritis disability have been met. 38 U.S.C. § § 1110, 1131, 5107, 5107A (2012); 38 C.F.R. § § 3.102, 3.159, 3.303 (2017). 2. The requirements to establish service connection for a right ankle disability have been met. 38 U.S.C. § § 1110, 1131, 5107, 5107A (2012); 38 C.F.R. § § 3.102, 3.159, 3.303 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C. § 1110 (2012); 38 C.F.R. § 3.303 (2017). To establish service connection for the claimed disorder, there must be (1) medical 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) medical, or in certain circumstances, lay evidence of a nexus between the claimed in-service disease or injury and the current disability. See 38 C.F.R. § 3.303 (2017); see also Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). The Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The evaluation of evidence generally involves a three-step inquiry. First, the Board must determine whether the evidence comes from a "competent" source. Second, the Board must determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). Third, the Board must weigh the probative value of the evidence in light of the entirety of the record. A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. See 38 C.F.R. § 3.102 (2017). When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails. See Gilbert v. Derwinski, 1 Vet. App. 4 (1990). The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). A. Gastritis The Veteran has a long, documented history of reporting indigestion and cramping. The Veteran's complaints of gastritis are noted multiple times in the Veteran's STRs in addition to his complaints of diarrhea and cramping. Additionally, the Veteran's indigestion and cramping are noted on his January 1992 retirement examination. The Veteran's complaints are continually noted in his VA treatment records. The evidence also includes lay statements from the Veteran stating that he has suffered from gastritis since his time in the military and continues to suffer. In a March 2008 private opinion, the Veteran's doctor stated that the Veteran had chronic gastritis secondary to his anti-inflammatory medications needed to treat his ongoing musculoskeletal disabilities. The Veteran's doctor stated that the Veteran's condition existed after military service and negatively impacted his quality of life. Furthermore, in an October 2009 private opinion, a private physician noted the Veteran's gastritis began during his military career. The October 2009 private examiner noted the Veteran's diagnosis in August 1975 while on active duty and stated the Veteran still suffered from gastritis. Ultimately, the doctor concluded that it was more likely than not that the Veteran's gastritis had its clinical onset during his military service. The Veteran received a VA examination in November 2014. The VA examiner considered the Veteran's in-service treatment for gastritis, in addition to the entire claims file. Ultimately the VA examiner concluded the Veteran's gastritis was an acute instance during service because there was no evidence of chronicity of care. The Board considers all the evidence of record and finds the October 2009 private opinion and lay statements from the Veteran carry more probative weight than the November 2014 VA examination. The November 2014 VA examiner concluded there was no chronicity of care, but the evidence of record documents the Veteran's continued complaints and treatment for gastritis since service. Furthermore, the November 2014 VA examiner failed to consider the Veteran's lay statements. Therefore, the Board finds the preponderance of the probative evidence is for the Veteran's claim and as such service connection for gastritis is warranted. See Alemany v. Brown, 9 Vet. App. 518 (1996). B. Right Ankle Injury The Veteran's STRs documented his right ankle injuries. The December 1973 treatment records document that the Veteran's right ankle was injured playing basketball. In addition, a March 1984 record indicated that the Veteran twisted his right foot. For treatment, he was told to ice and elevate his right foot. The evidence of record also contains the Veteran's lay statements that he has suffered from chronic ankle pain since he was injured playing sports in service. The Veteran stated that he currently suffers from pain, weakness, and limited motion. The evidence of record also contains etiological opinions. The Veteran received a VA examination in November 2014. The November 2014 VA examiner stated that there was no evidence in the service treatment records of treatment for a twisted right ankle injury during service. Therefore, the VA examiner concluded the Veteran's current right ankle condition was not related to his service. Conversely, the Board received a Veterans Health Administration (VHA) opinion in December 2017. The VHA examiner considered the Veteran's in-service right ankle injury and concluded that the Veteran's current disability was at least as likely as not related to service. The Board assigns the VA examiner's opinion on the Veteran's right ankle disability low probative weight. The VA examiner failed to consider the Veteran's in-service injury in coming to an etiological opinion. Therefore, the Board finds that opinion is inadequate. However, the December 2017 VHA examiner considered the entire record in providing an etiological opinion, and thus, the Board concludes this opinion carries high probative value. Accordingly, the evidence of record is not in relative equipoise and the preponderance of probative evidence is for the Veteran's claim. Consequently, the Board concludes service connection for a right ankle disability is granted. ORDER Service connection for gastritis is granted. Service connection for a right ankle disability is granted. ____________________________________________ D. Martz Ames Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs