Citation Nr: 20019682 Decision Date: 03/17/20 Archive Date: 03/17/20 DOCKET NO. 13-06 189 DATE: March 17, 2020 ORDER Entitlement to service connection for gastroenteritis, to include as due to exposure to biological hazards is denied. Entitlement to service connection for ulcers, to include as due to exposure to biological hazards is denied. REMANDED Entitlement to service connection for bilateral hearing loss is remanded. Entitlement to service connection for cardiomyopathy, claimed as chest pain, is remanded. Entitlement to service connection for a thyroid nodule, to include as due to exposure to biological hazards is remanded. Entitlement to service connection for a lung nodule, to include as due to exposure to biological hazards is remanded. Entitlement to service connection for gastroesophageal reflux disease (GERD) is remanded. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that the Veteran’s gastroenteritis is due to or aggravated by his military service. 2. The Veteran does not have a current ulcer disorder. CONCLUSIONS OF LAW 1. The criteria for service connection for gastroenteritis have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1131, 1133, 5107; 38 C.F.R. §§ 3.102. 3.303, 3.304, 3.317. 2. The criteria for service connection for an ulcer disorder have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1131, 1133, 5107; 38 C.F.R. §§ 3.102. 3.303, 3.304, 3.317. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 2006 to December 2007, which included service in the Southwest Asia Theater of Operations. This case comes before the Board of Veterans’ Appeals (Board) on appeal from May and September 2009 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. In October 2017, the Veteran testified at a Videoconference hearing before the undersigned Veterans Law Judge. A copy of the transcript has been associated with the claims file. In March 2018, the Board remanded this appeal for additional development and consideration. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110,1131; 38 C.F.R. § 3.303 (a). Service connection requires: (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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). The Board notes that in addition to the regulations pertaining to service connection, there are additional regulations in place for Persian Gulf War veterans. In this respect, service connection for chronic, undiagnosed illnesses arising from service in Southwest Asia during the Persian Gulf may be established under 38 U.S.C. § 1117 and 38 C.F.R. § 3.317. Under those provisions, service connection may be established for objective indications of a chronic disability resulting from an undiagnosed illness or illnesses, provided that such disability (1) became manifest in service on active duty in the Armed Forces in the Southwest Asia theater of operations during the Persian Gulf War, or to a degree of 10 percent or more not later than December 31, 2016; and (2) by history, physical examination, and laboratory tests cannot be attributed to a known clinical diagnosis. To fulfill the requirement of chronicity, the illness must have persisted for six months. 38 U.S.C. § 1117; 38 C.F.R. § 3.317. Signs and symptoms which may be manifestations of undiagnosed illness include, but are not limited to: fatigue, signs or symptoms involving skin, headache, muscle pain, joint pain, neurologic signs or symptoms, neuropsychological signs or symptoms, signs or symptoms involving the respiratory system (upper or lower), sleep disturbances, gastrointestinal signs or symptoms, cardiovascular signs or symptoms, abnormal weight loss, and menstrual disorders. 38 C.F.R. § 3.317 (b). 1. Gastroenteritis The Veteran is seeking service connection for a gastrointestinal disorder, claimed as gastroenteritis, that he alleges is due to his military service, to include as due to exposure to biological hazards while stationed in Iraq. The question for the Board is whether the Veteran currently has gastroenteritis that is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that, while the Veteran has a diagnosis of gastroenteritis during the appeal period, the preponderance of the evidence is against finding that it is attributable to his military service. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a), (d). The Veteran’s service treatment records show he complained of gastrointestinal disorders during service, which was ultimately diagnosed as gastroenteritis in November 2007. Following service, the available VA treatment records show continued complaints of gastrointestinal disorders. For instance, in May 2013, VA treatment records reflect the Veteran was diagnosed with viral gastroenteritis. The Veteran underwent a VA examination in January 2009. At that time, the examiner noted the Veteran’s reported symptoms of chest pain and heartburn. The examiner ultimately provided a diagnosis of GERD and mild duodenitis. A diagnosis of gastroenteritis was not provided. In September 2018, the Veteran was again examined by VA in connection with the March 2018 remand directives. At that time, the examiner determined there were no current symptoms or findings consistent with gastroenteritis. The examiner stated that gastroenteritis is a transitory disorder usually caused by a virus. Further, the examiner concluded that the condition resolved. Finally, the examiner concluded that there is insufficient evidence that the gastroenteritis was related to exposure to biological hazards. The Veteran was also scheduled for a VA Gulf War Examination in September 2018. The VA examiner concluded that gastroenteritis is a condition with a clear and specific etiology. The Board notes that the Veteran has not submitted any evidence in support of his claim, to include etiological opinions from other physicians. As such, the only evidence in the claims file is against a finding that the Veteran’s gastroenteritis is etiologically related to his military service. Based on the foregoing, the Board concludes that the evidence is against the service connection claim. The Veteran is competent to report experiencing abdominal discomfort, but he is not competent to opine regarding the etiology of his diagnosed gastroenteritis. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). In sum, the Board has found the Veteran does not have gastroenteritis that is incurred in, due to or aggravated by service. Accordingly, the criteria for service connection are not met and the claim must be denied. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt rule is not applicable. See 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). 2. Ulcer disorder The Veteran is seeking service connection for ulcers that he alleges are due to his military service, to include as due to exposure to biological hazards while stationed in Iraq. The question for the Board is whether the Veteran has a current ulcer disorder that began during service or is at least as likely as not related to an in-service injury, event, or disease. For the reasons discussed below, the Board concludes that the Veteran does not have a current diagnosis of an ulcer disorder, and has not had a diagnosis, at any time during the pendency of the claim or recent to the filing of the claim. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007); 38 C.F.R. § 3.303(a), (d). The Veteran’s service treatment records show he complained of gastrointestinal disorders during service, which was ultimately diagnosed as gastroenteritis in November 2007. However, a diagnosis of ulcers was not provided. Following service, the available VA treatment records show continued complaints gastrointestinal disorders. However, a clinical diagnosis of ulcers has not been provided. The Veteran underwent a VA examination in January 2009. At that time, the examiner noted the Veteran’s reported symptoms of chest pain and heartburn. The examiner ultimately provided a diagnosis of GERD and mild duodenitis without evidence of ulcers. In September 2018, the Veteran was again examined by VA in connection with the March 2018 remand directives. At that time, the examiner again noted no presence of an ulcer disorder. The Board notes that the Veteran has not submitted any evidence in support of his claim, to include etiological opinions from other physicians. As such, the only evidence in the claims file is against a finding that the Veteran currently suffers from an ulcer disorder. Additionally, to the extent the Veteran believes he currently suffers from the claimed disorder he is not competent to provide a diagnosis in this case. The issue is medically complex and requires specialized medical education pertaining to the gastrointestinal system, as well as the ability to interpret complicated diagnostic medical testing are required in order to render a diagnosis. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to the competent medical evidence. Accordingly, the Board finds that the most probative evidence of record demonstrates that the Veteran does not suffer from chronic undiagnosed symptoms and illnesses, as there is simply no indication he has complained of or sought treatment for ulcers any point during the appeals period. See 38 U.S.C. §§ 1110, 1131, 1117; 38 C.F.R. §§ 3.303(a), (d), 3.317; see also Nieves-Rodriguez, 22 Vet. App. at 304 (holding that, when evaluating medical evidence, the Board considers evidence to be more probative if it includes clear conclusions and supporting data with a reasoned analysis connecting the data and conclusions). The Board finds that the Veteran’s claim fails as he has not met the first element of service connection, the requirement of a current diagnosis, for the claimed disorder. As the preponderance of the evidence is against the Veteran’s claim of entitlement to service connection for this disorder, the benefit-of-the-doubt doctrine is not for application. 38 U.S.C. § 5107 (b). As such, the claim must be denied. REASONS FOR REMAND 1. Bilateral hearing loss The Veteran is seeking entitlement to service connection for bilateral hearing loss that he argues is the result of acoustic trauma in service during his time in Iraq. As the Board previously noted in the March 2018 remand, the Veteran’s military occupational specialty (MOS) was field artillery. The Veteran’s DD Form 214 also shows he served in a designated imminent danger pay area in Iraq. As such, his military noise exposure during service was conceded. In October 2018, the Veteran was scheduled for a VA Hearing Loss Disability Benefits Questionnaire (DBQ). The VA examiner provided a diagnosis of bilateral hearing loss. However, regarding the etiology of the hearing loss, the VA examiner determined that it was less likely as not due to the Veteran’s military service because there was no documentation of threshold shifts in service. Here, the Board finds that the opinion of the October 2018 examiner is inadequate as it relies on a lack of in-service documentation regarding whether the Veteran’s diagnosed hearing loss is due to his military service. In this respect, the examiner failed to address the Veteran’s military occupational specialty and his exposure to acoustic trauma in-service. As such, an addendum opinion is required. Barr v. Nicholson, 21 Vet. App. 303 (2007). 2. Thyroid and lung nodules In the March 2018 remand, the Board previously noted the claims file shows diagnoses of both thyroid and lung nodules. See April 2016 VA Treatment Record. The Board found the January 2009 VA examination regarding the lung nodule was inadequate as the examiner failed to provide any opinion as to the etiology of the granuloma to which the lobe nodule was attributed. In the September 2018 VA Respiratory Conditions DBQ, the examiner noted that there are a variety of causes for granulomatous disease. The examiner further stated that here, a specific diagnosis has not been determined and the lung nodule cannot be attributed to any known diagnosis. The examiner noted that the calcified granuloma is considered stable and benign and there is insufficient evidence that this was incurred during service, or that exposure(s) of any sort during service caused the granuloma. The examiner therefore concluded that it was likely than not incurred during service. Regarding the thyroid nodules, on the September 2018 VA Thyroid and Parathyroid Conditions DBQ, the examiner concluded that a current thyroid ultrasound was normal and did not show the presence of thyroid nodules. Therefore, the examiner concluded that it was less likely than not that thyroid nodules were incurred in or caused by service. Again, no rationale was provided for the thyroid nodules diagnosed during the appeals period. In the September 2018 VA Gulf War Examination, the examiner determined that lung nodules are imaging findings of variable etiology, generally due to a condition with a clear and specific etiology. Thyroid nodules are also imaging findings, usually benign, and are due to a condition with a clear and specific etiology. No specific rationale as it pertains to the diagnosed disorders and the Veteran was provided. The Board finds the opinions contained in both the September 2018 VA Thyroid and Respiratory DBQs, and the September 2018 VA Gulf War Examination to be inadequate for rating purposes. Specifically, none of these examinations provided a sufficient rationale as to the nature and etiology of lung and thyroid nodules, to include as due to exposure to biological hazards. Instead, the examiners all provided generalizations as to the etiology of nodules, but not as it applies to this Veteran. Thus, a remand for addendum opinions is warranted. Barr, supra. 3. Heart disorder In March 2018, the Board remanded this claim to determine the nature and etiology of his diagnosed cardiomyopathy. At that time, the Board determined the January 2009 VA examination of record was inadequate as the examiner failed to provide any rationale to support the conclusory statement that the diagnosed heart disorder was less likely than not due to service, to include a finding of whether the Veteran’s diagnosed cardiomyopathy may have manifested as chest pain or other observable symptoms during his military service, or within one year of separation. In the September 2018 VA examination, obtained on remand, the VA examiner noted that the cardiomyopathy was first diagnosed in 2009, which is two years after discharge from active service. The examiner also stated that the cardiomyopathy has resolved as it appeared to have been related to uncontrolled hypertension. Further, the examiner stated that service treatment records did not reveal findings consistent with the condition. However, this is factually inaccurate as the service treatment records clearly noted complaints of chest pain in October 2007. As such, this opinion is inadequate, and an addendum opinion is required. Barr, supra. 4. GERD In March 2018, the Board remanded this claim to determine the nature and etiology of his claimed gastrointestinal disorders. As discussed above, the Board found that the claims for ulcers and gastroenteritis were entitled to service connection. Therefore, the remaining gastrointestinal disorder is GERD. The Veteran was scheduled for a VA examination in September 2018 in accordance with the March 2018 remand directives. The examiner noted a diagnosis of GERD. However, the examiner stated that if the Veteran’s symptoms were as severe as described, then he likely would have been referred for a gastrointestinal consultation and further testing, which had not been done. Therefore, it is less likely than not that GERD was incurred in or causally related to service activities and/ or exposures. The Board finds that the opinion of the September 2018 VA examiner is inadequate as it relies on a lack of in-service documentation regarding whether the Veteran’s diagnosed GERD is due to his military service. Further, the examiner failed to actually provide a rationale for the negative finding that the currently diagnosed GERD is not due to the Veteran’s military service and, instead, focused on the Veteran’s post-service treatment. As such, an addendum opinion is required. Barr, supra. The matters are REMANDED for the following action: 1. Obtain an addendum opinion from the October 2018 VA examiner, if available, as to the nature and etiology of the diagnosed bilateral hearing loss. The entire claims file must be made available to the examiner. The examiner is asked to provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that a current hearing loss disability was incurred in service or are otherwise medically related to service, to include the conceded noise exposure therein. • The examiner must take into consideration that that the Veteran’s exposure to acoustic trauma has been conceded. • The examiner is advised that the Veteran is competent to report symptoms and treatment, and that his reports must be taken into account. • It should be noted that the absence of in-service evidence of a hearing disability during service is not always fatal to a service connection claim. Evidence of a current hearing loss disability and a medically sound basis for attributing that disability to service may serve as a basis for a grant of service connection for hearing loss where there is credible evidence of acoustic trauma due to significant noise exposure in service, post-service audiometric findings meeting the regulatory requirements for hearing loss disability for VA purposes, and a medically sound basis upon which to attribute the post-service findings to the injury in service. The examiner should set forth all examination findings, along with the complete rationale for any conclusions reached. 2. Obtain an addendum opinion from the September 2018 VA examiner, if available, as to the nature and etiology of the diagnosed cardiomyopathy. The entire claims file must be made available to the examiner. The examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran’s diagnosed cardiomyopathy first manifest in service, as evidenced by the reported chest pain, or within one year of discharge, or is otherwise medically related to service. • The examiner is reminded that the requirement of a current diagnosis is met if provided at any time during the pendency of the claim or recent to the filing of the claim, even if the condition resolves during the pendency of the claim. • Here, the claim was filed in December 2008 and a diagnosis of cardiomyopathy was rendered in January 2009. Thus, it is undisputed that he has a current diagnosis for this disorder and an etiological opinion must be provided. The designated examiner should additionally consider that in Dalton v. Nicholson, 21 Vet. App. 23 (2007), the Court determined an examination was inadequate where the examiner did not comment on the Veteran’s report of in-service injury and, instead, relied on the absence of evidence in the Veteran’s service treatment records to provide a negative opinion. The examiner should set forth all examination findings, along with the complete rationale for any conclusions reached. 3. Obtain an addendum opinion from the September 2018 VA examiner(s), if available, regarding the nodules on the lungs and thyroid. The entire claims file must be made available to the examiner. The examiner is asked to provide answers to the following: (a.) State whether it is at least as likely as not that any of the claimed disorders pertaining to the lung or thyroid can be attributed to known clinical diagnoses. (b.) If the examiner attributes any current disorder pertaining to nodules on the lung and thyroid to known clinical diagnoses, the examiner must state whether it is at least as likely as not that any such diagnosis is related to or had its onset in service or is otherwise related to service. In doing so, the examiner must acknowledge and discuss any lay report of recurrent symptoms since service. (c.) If the examiner finds the Veteran’s symptoms cannot be attributed to known diagnoses or if the examiner finds that the Veteran has a medically unexplained chronic multi symptom illness, the examiner should indicate if the symptoms are chronic (i.e., have they existed for six months or more or exhibited intermittent episodes of improvement and worsening over a six-month period) and the examiner should indicate if they have become manifest to a compensable degree at any time after his military service, or were first manifest in service. (d.) The examiner should comment, if possible, on whether nodules on the lungs or thyroid may be due to exposure to biological hazards. 4. Obtain an addendum opinion from the September 2018 VA examiner(s), if available, regarding the diagnosed GERD. The entire claims file must be made available to the examiner. The examiner is asked to provide answers to the following: (a.) Is the diagnosed GERD at least as likely as not related to or had its onset in service or is otherwise related to service? In doing so, the examiner must acknowledge and discuss any lay report of recurrent symptoms since service. (b.) Is at least as likely as not that the diagnosed GERD may be due to exposure to biological hazards. The examiner should additionally consider that in Dalton v. Nicholson, 21 Vet. App. 23 (2007), the Court determined an examination was inadequate where the examiner did not comment on the Veteran’s report of in-service injury and, instead, relied on the absence of evidence in the Veteran’s service treatment records to provide a negative opinion. All findings, along with a fully articulated medical rationale for all opinions expressed should be set forth in the examination report. 5. THE AOJ MUST REVIEW THE CLAIMS FILE AND ENSURE THAT THE FOREGOING DEVELOPMENT ACTION HAS BEEN COMPLETED IN FULL. IF ANY DEVELOPMENT IS INCOMPLETE, APPROPRIATE CORRECTIVE ACTION MUST BE IMPLEMENTED. IF ANY REPORT DOES NOT INCLUDE ADEQUATE RESPONSES TO THE SPECIFIC OPINIONS REQUESTED, IT MUST BE RETURNED TO THE PROVIDING EXAMINER FOR CORRECTIVE ACTION. YVETTE R. WHITE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Berry, 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.