Citation Nr: 19144792 Decision Date: 06/11/19 Archive Date: 06/10/19 DOCKET NO. 18-27 018 DATE: June 11, 2019 ORDER Entitlement to service connection for a left hip disability is denied. REMANDED Entitlement to service connection for a sinus disability to include nasal polyps is remanded. Entitlement to service connection for hiatal hernia with gastroesophageal reflux disease (GERD) and Barrett's esophagus, claimed as secondary to service-connected lumbar spine disability, is remanded. FINDING OF FACT The preponderance of the evidence is against finding that the Veteran has a left hip disability that was caused or aggravated by his active military service. CONCLUSION OF LAW A left hip disability was not incurred in or aggravated by the Veteran’s military service. 38 U.S.C. §§ 1110, 1111, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.306. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from April 1977 to August 1994. This matter comes before the Board of Veterans Appeals (Board) on appeal from a January 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. 1. Entitlement to service connection for a left hip disability. In order to prevail on the issue of service connection for any particular disability, there must be evidence of a current disability; evidence of in-service occurrence or aggravation of a disease or injury; and medical evidence, or in certain circumstances, lay evidence, of a nexus between an in-service injury or disease and the current disability. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Medical evidence is generally required to establish a medical diagnosis or to address questions of medical causation; lay assertions of medical status do not constitute competent medical evidence for these purposes. Lay assertions, however, may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C. § 1153(a); 38 C.F.R. § 3.303(a); Jandreau, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see Buchanan v. Nicholson, 451 F. 3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). 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. See Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614, 618 (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. In this matter, the Veteran has asserted entitlement to service connection for a left hip disability. For the reasons set forth below, the Board concludes that service connection is not warranted. As indicated above, the Veteran served on active duty from April 1977 to August 1994. Service treatment records (STRs) dated in February 1981 documented his report of left hip pain radiating to the left foot. An April 1981 Report of Medical Board noted that the Veteran experienced back pain and left lower extremity pain after sustaining an injury aboard ship in February 1980. A March 1987 STR indicated that the Veteran had a history of back pain with radiation to the left buttock. A June 1988 Report of Medical Board indicated that the Veteran had left leg pain prior to a 1981 left L4-L5 laminectomy and diskectomy for herniated disc. It was further noted that the Veteran “has full, painless range of motion of both hips.” See the June 1988 Report of Medical Board. A January 1993 STR noted the Veteran’s complaints of left leg pain from June 1992 status-post injury; a diagnosis of recurrent left leg radiculopathy was indicated. The Veteran was afforded a VA examination in December 2014 at which time he reported left hip pain. An examination of the left hip showed full range of motion of the left hip; no functional impairment was shown. The examiner stated that the Veteran has “no significant hip pathology. He has radicular back pain for which he is connected and is what is causing the pain in this area. No service-connected hip problem.” When assessing the probative value of a medical opinion, the access to claims files and the thoroughness and detail of the opinion must be considered. The opinion is considered probative if it is definitive and supported by detailed rationale. See Prejean v. West, 13 Vet. App. 444, 448-49 (2000). The Court has held that claims file review, as it pertains to obtaining an overview of a claimant’s medical history, is not a requirement for private medical opinions. A medical opinion that contains only data and conclusions is not entitled to any weight. Further a review of the claims file cannot compensate for lack of the reasoned analysis required in a medical opinion, which is where most of the probative value of a medical opinion comes from. “It is the factually accurate, fully articulated, sound reasoning for the conclusion, not the mere fact that the claims file was reviewed, that contributes probative value to a medical opinion.” With respect to the current claim, the Board finds that the medical evidence demonstrating an absence of a diagnosed left hip disability, and any relationship between the claimed disability and the Veteran’s active duty service is particularly probative as to the question of entitlement to service connection for the claimed disability. Critically, the December 2014 VA examination report indicated that the Veteran does not in fact suffer from a continuing left hip disability. He exhibited no left hip pathology and, although he reported left hip pain, the examiner explained that such symptoms were part and parcel of the service-connected low back disability which is already compensated. As described above, the December 2014 VA examination report is based on review of the Veteran’s medical history, as well as interview and physical examination. The Board therefore places significant weight on the findings of the VA examiner as expressed in the December 2014 VA medical examination report. See Bloom v. West, 12 Vet. App. 185, 187 (1999) (the probative value of a physician’s statement is dependent, in part, upon the extent to which it reflects “clinical data or other rationale to support his opinion”). Moreover, the Veteran has not produced any medical evidence to contradict the conclusion of the December 2014 VA examiner. The Veteran was afforded ample opportunity to present competent medical evidence in support of his claim. He has not done so. See 38 U.S.C. § 5107(a) (it is the claimant’s responsibility to support a claim for VA benefits). In the absence of disability, service connection is not warranted. In order for a claimant to be granted service connection for a claimed disability, there must be evidence of a current disability. The presence of a disability at the time of filing of a claim or during its pendency warrants a finding that the current disability requirement has been met, even if the disability resolves prior to the Board’s adjudication of the claim. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Moreover, evidence prior to the date of claim must be considered in determining whether the current disability requirement has been met. Romanowsky v. Shinseki, 26 Vet. App. 289, 293 (2013) (Board erred in failing to address pre-claim evidence in assessing whether a current disability existed, for purposes of service connection, at the time the claim was filed or during its pendency). Here, however, there is no evidence to support findings that the Veteran has a left hip disability, nor has he identified any such documentation. To the extent the Veteran asserts he has a currently diagnosed left hip disability, lay evidence may be competent on a variety of matters concerning the nature and cause of disability. Jandreau v. Shinseki, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). The general principle that he experiences some pain or discomfort, which might be a symptom of a disability, has some tendency to establish a diagnosis. See Davidson, 581 F.3d at 1316; Kahana, 24 Vet. App. at 433, n. 4. In this case, however, the examiner considered the Veteran’s reported symptoms and concluded that they were not indicative of a left hip disability. The Veteran’s own assertions as to diagnosis and etiology concern an internal medical process, which extends beyond an immediately observable cause-and-effect relationship that is of the type that the courts have found to be beyond the competence of lay witnesses. Cf. Jandreau, 492 F.3d at 1376; Barr, 21 Vet. App. at 308-9; Falzone, 8 Vet. App. at 403 (lay person competent to testify to pain and visible flatness of his feet); with Clemons, 23 Vet. App. at 6 (“It is generally the province of medical professionals to diagnose or label a mental condition, not the claimant”); Woehlaert, 21 Vet. App. at 462 (unlike varicose veins or a dislocated shoulder, rheumatic fever is not a condition capable of lay diagnosis); Jandreau, 492 F.3d at 1377, n. 4 (“sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer”). See also Colantonio, 606 F.3d at 1382 (recognizing that in some cases lay testimony “falls short” in proving an issue that requires expert medical knowledge). In sum, the Veteran has not been diagnosed as having a left hip disability, and he has not alleged that he suffers from any symptomatology associated with the claimed disability that results in functional impairment. C.f., Saunders v. Wilkie, 866 F.3d 1356 (2018). As described above, the Veteran’s symptoms of left hip pain were attributed to the diagnosed lumbar spine disability by the December 2014 VA examiner. In sum, there is no evidence to support a finding that the Veteran has a left hip disability which is related to his active service. For the foregoing reasons, the preponderance of the evidence in this case is against the claim. The benefit of the doubt doctrine is therefore not for application, and the claim must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. REASONS FOR REMAND 1. Entitlement to service connection for sinus disability to include nasal polyps is remanded. The Veteran asserts entitlement to service connection for a sinus disability to include nasal polyps, which he contends was incurred during his military service. See the Veteran’s claim dated September 2014. With respect to current diagnosis, a September 2014 computerized tomography (CT) scan of the Veteran’s sinuses showed a right antrochoanal polyp with mucosal thickening of the right posterior ethmoid and sphenoid sinus. VA treatment records dated in March 2016 documented diagnoses of right-sided polyposis, allergic rhinitis, nasal obstruction, deviated septum, and chronic sinusitis. As to the question of in-service disability or injury, the Veteran’s STRs show that he was treated for complaints of cold and non-productive cough in January 1979 and was diagnosed with an upper respiratory infection. In August 1986, he was treated for complaints of coughing and congestion and was diagnosed with viral syndrome. The Veteran has not been afforded a VA opinion as to the etiology of his diagnosed sinus disability including nasal polyps. Therefore, this matter should be remanded to provide him with a VA medical opinion as to the etiology of his diagnosed sinus disability. See Charles v. Principi, 16 Vet. App. 270 (2002); see also 38 C.F.R. § 3.159(c)(4) (a medical examination or opinion is necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim). 2. Entitlement to service connection for hiatal hernia with GERD and Barrett's esophagus, claimed as secondary to service-connected lumbar spine disability is remanded. The Veteran asserts entitlement to service connection for hiatal hernia with GERD and Barrett’s esophagus, which he contends is caused or aggravated by the medications prescribed to treat his service-connected lumbar spine disability. See the Veteran’s statement dated August 2017. To this end, the Board notes that the Veteran is service-connected for herniated nucleus pulposus L4-L5. See the rating decision dated August 1994. With respect to current diagnosis, the Veteran was diagnosed with hiatal hernia, GERD, and Barrett’s esophagitis via an esophagogastroduodenoscopy in November 1997. These diagnoses were confirmed in November 2014. In support of his claim, the Veteran submitted an August 2017 private opinion from G.U., an advanced registered nurse practitioner (ARNP). In the August 2017 opinion, G.U. stated that the Veteran’s diagnosed hiatal hernia with GERD “is more likely than not (greater than 50/50 probability) secondary to, related to, and/or aggravated by their service-connected herniated nucleus pulposus L4-L5 . . . with medication treatment with nonsteroidal anti-inflammatory drugs (NSAIDs).” Ms. G.U. cited medical literature in support of her conclusion. In contrast, a VA medical opinion was obtained in February 2018 at which time the examiner determined that the diagnosed hiatal hernia with GERD and Barrett’s esophagus “is less likely than not (less than 50 percent probability) proximately due to or the result of the Veteran’s service-connected disability.” The examiner provided a detailed rationale to support the conclusion rendered. However, the February 2018 VA examiner failed to address whether the Veteran’s hiatal hernia with GERD and Barrett’s esophagus are aggravated by the NSAIDs prescribed to treat his service-connected lumbar spine disability. Accordingly, this matter should be remanded in order to obtain a VA addendum opinion to address the outstanding question of aggravation. See 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c)(4); see also Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (once VA undertakes the effort to provide an examination when developing a service connection claim, even if not statutorily obligated to do so, it must provide one that is adequate for purposes of the determination being made). The matters are REMANDED for the following action: 1. Refer the VA claims file to a medical professional to provide an opinion as to the claimed sinus disability to include nasal polyps. The clinician is requested to review the claims file in its entirety including all service treatment records, VA, and private treatment records. The clinician should then address the following: Is it at least as likely as not that the diagnosed sinus disability with nasal polyps was incurred in the Veteran’s active duty service? Should the clinician decide that a physical examination of the Veteran is required to address these questions, such should be scheduled. 2. Refer the VA claims file to a medical professional to provide an opinion as to the claimed hiatal hernia with GERD and Barrett’s esophagus. The clinician is requested to review the claims file in its entirety including all service treatment records, VA, and private treatment records. The examiner should then address the following: (a) Is it at least as likely as not that the diagnosed hiatal hernia with GERD and Barrett’s esophagus were caused by the NSAIDs prescribed to treat the Veteran’s service-connected lumbar spine disability? (b) Is it at least as likely as not that the Veteran’s diagnosed hiatal hernia with GERD and Barrett’s esophagus are aggravated (made worse as shown by comparing the current disability to medical evidence created prior to any aggravation) by the NSAIDs prescribed to treat the Veteran’s service-connected lumbar spine disability? If the Veteran’s diagnosed hiatal hernia with GERD and Barrett’s esophagus are aggravated by a service-connected disability, the clinician should also indicate the extent of such aggravation by identifying the baseline level of disability. This may be ascertained by the medical evidence of record and also by the Veteran’s statements as to the nature, severity, and frequency of his observable symptoms over time. (Continued on the next page)   Should the clinician decide that a physical examination of the Veteran is required to address these questions, such should be scheduled. K. CONNER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K. K. Buckley, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.