Citation Nr: 20023078 Decision Date: 04/02/20 Archive Date: 04/02/20 DOCKET NO. 16-35 192A DATE: April 2, 2020 ORDER Entitlement to service connection for gastroesophageal reflux disease (GERD), claimed as acid reflux and dyspepsia, is granted. Entitlement to service connection for migraine headaches, claimed as migraine headaches, is granted. Entitlement to service connection for bilateral hearing loss is denied. REMANDED Entitlement to service connection for degenerative disc disease (DDD) of the lumbar spine with intervertebral disc syndrome (IVDS) is remanded. Entitlement to service connection for a left knee disability is remanded. Entitlement to service connection for a right knee disability is remanded. Entitlement to service connection for a left shoulder disability is remanded. Entitlement to service connection for a right shoulder disability is remanded. Entitlement to an initial rating in excess of 10 percent of peroneal tendon tear of the right ankle is remanded. FINDINGS OF FACT 1. The evidence of record is in relative equipoise as to whether the Veteran’s currently diagnosed GERD was incurred during active duty service. 2. The evidence of record is in relative equipoise as to whether the Veteran’s currently diagnosed migraine headaches were incurred during active duty service. 3. The competent evidence of record does not demonstrate that the Veteran has a bilateral hearing loss disability for VA purposes. CONCLUSIONS OF LAW 1. The criteria for service connection for GERD have been met. 38 U.S.C. §§ 1110, 5103, 5107 (2012); 38 C.F.R. § 3.303 (2019). 2. The criteria for service connection for migraine headaches have been met. 38 U.S.C. §§ 1110, 5103, 5107 (2012); 38 C.F.R. § 3.303 (2019). 3. The criteria for service connection for bilateral hearing loss have not been met. 38 U.S.C. § §§ 1110, 5103, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1996 to January 2000 and from September 2000 to July 2005. This matter came to the Board of Veterans’ Appeals (Board) on appeal from an April 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In March 2019, the Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge. A transcript of that hearing is associated with the record. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). 1. Entitlement to service connection for GERD. 2. Entitlement to service connection for migraine headaches. The Veteran is seeking service connection for GERD and migraine headaches. Having carefully reviewed all evidence of record, the Board determines that there is sufficient basis to award service connection for GERD and migraine headaches. Initially, the Veteran has current diagnoses of GERD and migraine headaches, as evidenced by March 2014 VA examination reports. See Degmetich v. Brown, 104 F.3d 1328, 1333 (Fed. Cir. 1997) (holding that the existence of a current disability is the cornerstone of a claim for VA disability compensation). The Veteran contends that in 1998 or 1999 he developed symptoms of heartburn for which he was prescribed Nexium to control acid reflux. He states that he has been on the same medication with good relief ever since that time. Regarding headaches, the Veteran reported onset in 2001 at which time he was hospitalized for bacterial meningitis and experienced severe headaches. He believes that his recurrent headaches are related to the damage suffered when he contracted bacterial meningitis. The Veteran is competent to attest to the factual matters of which he has first-hand knowledge, such as observable symptoms of indigestion and headaches since service. See Layno v. Brown, 6 Vet. App. 465 (1994). The Board also finds the lay assertions of in-service events to be credible as they are consistent with the Veteran’s service treatment records. To that effect, service treatment records show that he complained of difficulty swallowing in November 1997 and dyspepsia in May 2003. In May 2003, he reported frequency indigestion about for two years. Also, the record reflects that he was hospitalized for intractable headaches and possible encephalitis in July 2001. He was ultimately diagnosed with meningitis but continued to experience severe headaches in August 2001. Here, the record contains conflicting medical opinions regarding the causal relationship of the Veteran’s disabilities to his service. The medical evidence of record includes an opinion that the Veteran’s current diagnoses of GERD and migraine headaches are related to his service. To that effect, in a May 2019 letter, a private family physician, Dr. T.K., noted that he has been the Veteran’s family physician since May 2018 and was asked to review the Veteran’s service treatment records. Dr. K. noted the Veteran’s symptoms of GERD date back to the late the 1990s while on active duty. It was noted that in May 2003 the Veteran was seen for dyspepsia, which the examiner opined, likely was caused by the Veteran’s GERD, and he was started on Prilosec 20 mg every day. He continued to have ongoing GERD and has been successfully treated with Nexium 20 mg every day for years. Dr. K. opined that as the Veteran did not report any issues with reflux symptoms prior to entry into military service, it is apparent that hits medical issue began during his years of service. With respect to migraine headaches, Dr. K. noted that the Veteran was hospitalized in July 2001 after days of severe headaches at which time he was diagnosed with bacterial meningitis for which he was treated with appropriate antibiotics. In August 2001, he was noted to have ongoing headaches, certainly related to the meningitis. Dr. K. opined that “[i]t is certainly more likely than not that [the Veteran’s] chronic migraine headaches are related to the meningitis that was contracted on active duty and as such should again be considered service-related/service-connected.” The Board finds the foregoing opinions to be persuasive as they are based upon a complete review of the Veteran’s claims file, in consideration of the Veteran’s reported history, a report reflecting physical evaluation of the Veteran and the physician’s expertise in this matter. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (holding that factors for assessing the probative value of a medical opinion include the physician’s access to the claims folder and the thoroughness and detail of the opinion). In contrast, an April 2014 VA examiner opined that the Veteran’s GERD with hiatal hernia and tension headaches were less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. The rationale was that there is no objective medical evidence of chronicity of care of GERD with hiatal hernia/tension headaches in service treatment records or in the years proximal to military service. However, this examiner did not address the Veteran’s competent and credible lay statements of the symptoms that have persisted since service. See 38 U.S.C. § 1154(a); 38 C.F.R. § 3.303(a); Barr v. Nicholson, 21 Vet. App. 303 (2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Layno v. Brown, 6 Vet. App. 465 (1994). Upon review of the record, the Board finds the evidence to at least be in equipoise as to whether the Veteran’s current GERD and migraine headaches are related to service. Accordingly, after resolving all doubt in favor of the Veteran, the Board finds that service connection for GERD and migraine headaches is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 3. Entitlement to service connection for bilateral hearing loss. The threshold for normal hearing is from 0 to 20 decibels, and higher threshold levels indicate some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). The determination of whether a veteran has a service-connectable hearing loss is governed by 38 C.F.R. § 3.385, which states that hearing loss will be considered to be a “disability” when the threshold level in any of the frequencies 500, 1000, 2000, 3000 and 4000 Hertz is 40 decibels or greater; or the thresholds for at least three of these frequencies are 26 decibels or greater; or speech recognition scores are less than 94 percent. 38 C.F.R. § 3.385 (2019). The Veteran is seeking service connection for bilateral hearing loss. However, the medical evidence of record fails to show a current diagnosis of the claimed a bilateral hearing loss disability. In conjunction with the current claim, the Veteran was provided a VA audiological examination in June 2015. The report noted a diagnosis of sensorineural hearing loss. On the authorized audiological evaluation, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 10 10 10 10 10 LEFT 10 10 5 15 15 Speech audiometry revealed speech recognition ability of 100 percent in the right ear and 96 percent in the left ear. The diagnosis was normal hearing, bilaterally. The examiner noted the Veteran sometimes had difficulty understanding conversation in background noise. Here, the clinical examination demonstrates that the Veteran’s bilateral hearing does not meet the criteria to be a disability for VA purposes under 38 C.F.R. § 3.385. There is no other report of hearing evaluation showing bilateral hearing loss disability as defined under 38 C.F.R. § 3.385 at any time during the appeal period or prior to the appeal period. See McClain v. Nicholson, 21 Vet. App. 319 (2007); see Romanowsky v. Shinseki, 26 Vet. App. 289 (2013). Lay testimony regarding the Veteran’s observable symptoms is competent and credible evidence. See Layno v. Brown, 6 Vet. App. 465, 469-70 (1994) (holding that a lay witness is competent to testify to that which the witness has actually observed and is within the realm of his personal knowledge). Concerning this, the Veteran has reported he has problem understanding conversations in background noise. The Board has no reason to question the credibility of the Veteran’s contentions regarding his difficulty hearing. However, the Veteran lacks the requisite medical expertise to render a medical diagnosis. See Davidson, 581 F.3d at 1316; Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The diagnosis of a hearing loss disability for VA purposes is based on an objective audiometric testing and is not simply determined based on mere personal observation by a lay person. See id.; 38 C.F.R. § 3.385. However, audiometric and speech discrimination ability testing show that the Veteran does not have a bilateral hearing loss disability for VA purposes. Accordingly, in the absence of competent medical evidence of a bilateral hearing loss disability, the criteria for establishing service connection for bilateral hearing loss have not been established. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) (In the absence of proof of a present disability, there can be no valid claim for service connection); 38 C.F.R. § 3.303. REASONS FOR REMAND 4. Entitlement to service connection for DDD of the lumbar spine with IVDS is remanded. The Veteran underwent a VA examination in March 2014. After reviewing the Veteran’s claims file, the VA examiner opined that the Veteran’s lumbar spine disability was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. The examiner provided the following rationale: 1.There is no objective medical evidence in STR [(service treatment records)] of chronicity of care of [d]egenerative [d]isc [d]isease, [l]umbar [s]pine with IVDS. 2.The STR is silent for [d]egenerative [d]isc [d]isease, [l]umbar [s]pine with IVDS. 3.There is no objective medical evidence of chronicity of care of [d]egenerative [d]isc [d]isease, [l]umbar [s]pine with IVDS in the years proximal to military service. 4.Therefore with regard to [d]egenerative [d]isc [d]isease, [l]umbar [s]pine with IVDS., causality with military service is NOT established. The Board finds that the VA medical opinion is inadequate. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). Here, it appears that the only rationale provided by the examiner for the negative nexus opinion appears to be the lack of treatment records, or insufficient documentation, recording the Veteran’s symptomatology or diagnosis during service. However, the absence of contemporaneous medical evidence does not in itself preclude a grant of service connection. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). Additionally, the examiner did not address the Veteran’s competent and credible lay statements regarding the onset of the symptoms that have persisted since service. See 38 U.S.C. § 1154(a); 38 C.F.R. § 3.303(a); Barr v. Nicholson, 21 Vet. App. 303 (2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Layno v. Brown, 6 Vet. App. 465 (1994). During the March 2014 VA examination, the Veteran reported that the onset of his back symptoms was in 1997 after heavy lifting and physical training. Indeed, service treatment records include multiple notations of back pain. In December 1996, the Veteran reported that he felt a snap in the back while playing basketball. A December 1998 record shows musculoskeletal strain, low back pain and that the Veteran was put on physical profile for lumbar strain. The Veteran also complained that the medication for his back pain was not working in October 2004. As such, the VA medical opinion is based on an inaccurate factual premise that service treatment records are silent for the Veteran’s lumbar spine disability. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (holding that a medical opinion based upon an inaccurate factual premise has no probative value). When the medical evidence is inadequate, VA must supplement the record by seeking an advisory opinion or ordering another medical examination. Littke v. Derwinski, 1 Vet. App. 90, 93 (1990); Colvin v. Derwinski, 1 Vet. App. 171 (1991); Hatlestad v. Derwinski, 3 Vet. App. 213 (1992). Therefore, a remand is required to obtain another medical opinion in this matter. 5. Entitlement to service connection for a left knee disability is remanded. 6. Entitlement to service connection for a right knee disability is remanded. The Veteran contends that his bilateral knee pain is the result of the physical strain while serving as a carpenter in service, in particular from kneeling and crawling on hard surfaces such as concrete, asphalt, gravel, dirt and shingles on roofs. He had to install various flooring tiles. In a November 2011 written statement, he reported that his knees became noticeably painful around his fifth year of active duty and he began to notice clicking and popping in the knees while walking, kneeling, and squatting. In disability compensation claims, VA must provide a medical examination when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, (2) evidence establishing that an event, injury, or disease occurred in service, or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran’s service or with another service-connected disability, but (4) there is insufficient competent medical evidence on file for VA to make a decision on the claim. 38 U.S.C. § 5103A(d)(2), 38 C.F.R. § 3.159(c)(4)(i); see also McLendon v. Nicholson, 20 Vet. App. 79 (2006). The third prong, which requires that the evidence of record “indicates” that the claimed disability or symptoms “may be” associated with the established event, is a low threshold. McLendon, 20 Vet. App. at 83. Based on the competent lay testimony of record, the Board finds that a VA examination is warranted to adequately decide the merits of these claims. McLendon, 20 Vet. App. at 83; also see Layno v. Brown, 6 Vet. App. 465, 469-70 (1994) (holding that a lay witness is competent to testify to that which the witness has actually observed and is within the realm of his or her personal knowledge). 7. Entitlement to service connection for a left shoulder disability is remanded. 8. Entitlement to service connection for a right shoulder disability is remanded. The Veteran contends that his bilateral shoulder pain is primarily associated with his lumbar spine disability (back pain). He reports that he has limited motion when raising arms above the head, especially when lifting objects. During his March 2019 Board hearing, the Veteran testified that he believed that he has adjusted his movement to protect his back, which in turn affected his shoulders causing shoulder pain. The claims for service connection for bilateral shoulder disabilities are inextricably intertwined with the issue of service connection for DDD of the lumbar spine with IVDS as the Veteran has alleged that they are secondary to lumbar spine DDD. Harris v. Derwinski, 1 Vet. App. 180 (1991). Therefore, the issues of service connection for bilateral shoulder disabilities, secondary to DDD of the lumbar spine with IVDS, are deferred. 9. Entitlement to an initial rating in excess of 10 percent for peroneal tendon tear of the right ankle. While the record contains a March 2014 VA examination regarding the Veteran’s right ankle disability, the examination does not comply with the requirements in Sharp v. Shulkin, 29 Vet. App. 26, 34-36 (2017). Specifically, Veteran reported flare-ups regarding the right ankle disability. The examiner also found weakened movement, excess fatigability, incoordination, pain on movement, interference with sitting, standing and weight bearing contributed to the functional impairment of the right ankle. However, although the examiner found that there was no additional limitation of range of motion of the ankle following repetitive-use testing, the examiner did not describe any functional loss during flare -up. In this regard, the VA examiner failed estimate, according to the Veteran, to what extent, if any, the Veteran’s flare-ups affect functional impairment. See Sharp, 29 Vet. App. at 34-36 (holding that when conducting evaluations for musculoskeletal disabilities, examiners must inquire whether there are periods of flare, and if the answer is “yes”, examiners must state their severity, frequency, and duration; name the precipitating and alleviating factors; and estimate, according to the Veteran, to what extent, if any, they affect functional impairment.). Therefore, given that the clinical findings are almost 6 years old, another VA examination is warranted. The matters are REMANDED for the following actions: 1. Obtain a medical opinion from a suitable VA examiner. The claims file must be made available to the examiner for review. After a thorough review of all evidence in the claims file, to include the Veteran’s service treatment records, the post-service treatment records, and the Veteran’s lay statements, the examiner must provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran’s DDD of the lumbar spine with IVDS was incurred in or otherwise related to the Veteran’s military service, to include the physical strain from heavy lifting and physical training during service. The examiner is asked to elicit information from the Veteran regarding current symptoms and complaints through the years, and fully consider the Veteran’s lay statements regarding the onset and symptoms of the claimed disability. The examiner should address whether any claimed symptoms in service are consistent with any current disorder. A complete rationale for any opinion expressed should be provided. 2. Schedule the Veteran for a VA examination to determine the etiology of any current knee disability. The claims file must be made available to the examiner for review. After a thorough review of all evidence in the claims file, to include the Veteran’s service treatment records, the post-service treatment records, and the Veteran’s lay statements, the examiner must provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran currently has any knee disability that was incurred in or otherwise related to the Veteran’s military service, to include the physical strain from kneeling and crawling on hard surfaces while serving as a carpenter during service. A complete rationale for any opinion expressed should be provided. 3. Schedule the Veteran for a VA examination to assess the current nature and severity of his service-connected peroneal tendon tear of the right ankle. Range of motion should be reported, including whether and the extent to which such motion is affected by pain, weakness, fatigue, lack of endurance, incoordination or other symptoms resulting in functional loss. Based upon a review of the medical records, lay statements submitted in support of the claim, and/or statements elicited from the Veteran during the examination, state whether the Veteran experiences flare ups of his service-connected right ankle disability, and how he or she characterizes the additional functional loss during a flare. If the Veteran describes experiencing flare ups, identify the: a. frequency; b. duration; c. precipitating factors; and d. alleviating factors. Based upon the information elicited as a result of the foregoing, state whether it is at least as likely as not (50 percent probability or greater) that a flare up or repetitive use over time results in any of the following: e. marked limitation of ankle motion; f. ankle ankylosis in plantar flexion, and if so, at what degree; g. subastragalar or tarsal joint ankylosis in poor weight-bearing position; or h. malunion of os calcis or astragalus, with marked deformity Please explain why or why not. If the examiner cannot provide the requested opinions without resorting to speculation, he/she should explain why an opinion cannot be provided (e.g. lack of sufficient information/evidence in this case, or a lack of knowledge among the medical community at large, and not the insufficient knowledge of the individual examiner). If the inability to provide an opinion without resorting to speculation is due to a deficiency in the record (additional facts are required), the RO should develop the claim to the extent it is necessary to cure any such deficiency. If the inability to provide an opinion is due to the examiner’s lack of requisite knowledge or training, then the RO should obtain an opinion from a medical professional who has the knowledge and training needed to render such an opinion. 4. After completing the above, readjudicate the issues on appeal. If any benefit sought on appeal remains denied, provide an additional supplemental statement of the case to the Veteran, and return the appeal to the Board for appellate review, after the Veteran and his representative have had an adequate opportunity to respond. L. CHU Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. J. In, 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.