Citation Nr: 21002686 Decision Date: 01/14/21 Archive Date: 01/14/21 DOCKET NO. 03-26 210 DATE: January 14, 2021 ORDER Entitlement to service connection for a gastrointestinal disorder is denied. Entitlement to service connection for residuals of a Giardia lamblia infection is denied. Entitlement to service connection for fracture of the body is denied. REMANDED Entitlement to service connection for an acquired psychiatric disorder is remanded. Entitlement to service connection for a kidney disorder is remanded. Entitlement to a rating in excess of 10 percent for residuals of a traumatic brain injury (TBI) is remanded. FINDINGS OF FACT 1. The Veteran’s current gastrointestinal disorder is not related to service. 2. The Veteran does not have any residual disabilities associated with the Giardia lamblia infection treated in service. 3. The evidence of record weighs against a finding that the Veteran has a diagnosis of multiple fractures in the body. CONCLUSIONS OF LAW 1. The criteria to establish service connection for a gastrointestinal disorder are not met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria to establish service connection for residuals of a Giardia lamblia infection are not met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 3. The criteria to establish entitlement to service connection for fracture of the body are not met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from January 1971 to June 1971. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a December 2002 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In August 2004, the Board remanded the claims for development. In an August 2008 decision, the Board denied the Veteran’s claims. The Veteran appealed that decision to the United States Court of Appeals for Veterans Claims (Court). In a July 2009 Order, pursuant to a Joint Motion for Remand, the Court vacated and remanded the August 2008 decision back to the Board. The Board thereafter remanded claims for further development in October 2010, September 2016, and December 2018. The Board also notes that the Veteran recently appealed the issue of entitlement to a rating in excess of 10 percent for residuals of a TBI. As the issue has been certified to the Board, consideration of the issue is appropriate at this time. Service Connection Laws and Regulations Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303 (a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). Only chronic diseases listed under 38 C.F.R. § 3.309 (a) are entitled to the presumptive service connection provisions of 38 C.F.R. § 3.303 (b). Walker v. Shinseki, 708 F.3d 1331 Fed. Cir. 2013). Establishing service connection generally requires (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 evidence of a nexus between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). In rendering a decision on appeal the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57(1990). Competency of evidence differs from weight and credibility. Generally, the degree of probative value which may be attributed to a medical opinion issued by a VA or private treatment provider takes into account such factors as its thoroughness and degree of detail, and whether there was review of the claims file. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000). Also significant is whether the examining medical provider had a sufficiently clear and well-reasoned rationale, as well as a basis in objective supporting clinical data. See Bloom v. West, 12 Vet. App. 185, 187 (1999); Hernandez-Toyens v. West, 11 Vet. App. 379, 382(1998); see also Claiborne v. Nicholson, 19 Vet. App. 181, 186 (2005) (rejecting medical opinions that did not indicate whether the physicians actually examined the veteran, did not provide the extent of any examination, and did not provide any supporting clinical data). The Court has held that a bare conclusion, even one reached by a health care professional, is not probative without a factual predicate in the record. Miller v. West, 11 Vet. App. 345, 348 (1998). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. Gastrointestinal Disorder Initially, the Board notes that the Veteran has been diagnosed with a gastrointestinal disability, to include gastritis. See August 2017 VA examination report. Next, the Board finds that the Veteran was treated for gastrointestinal symptoms in service. Service records include a March 1971 treatment note where the Veteran was seen for epigastric distress and substernal pain for two weeks. He also reported occasional vomiting of blood. The provisional diagnosis was peptic ulcer disease. In an April 1971 service clinical record, the Veteran complained of left inguinal pain after eating. He also reported postprandial (after eating) vomiting for two months with hematemesis (i.e., vomiting blood). The Veteran indicated that he had lost approximately 15 pounds. Examination of the abdomen revealed slight epigastric tenderness. During treatment, the Veteran’s stool specimen revealed Giardia lamblia, which was treated. However, it was specifically noted that the Giardia lamblia “was not felt” to be the cause of the Veteran’s symptoms. Upper GI series conducted in April 1971 showed a normal esophagus, stomach, and duodenum with no evidence of ulceration; however, the Veteran’s continuing symptoms were not explained. Post-service VA treatment records from November 2000 to November 2002 show that the Veteran reported having a history of diverticulitis (“diagnosed years ago outside VAH”) with recurrent rectal bleeding and hematochezia (vomiting of blood). An April 2007 VA gastroenterology procedure note indicated that the Veteran had been found to have erosive gastritis, two small and superficial ulcers at antrum, and mild duodenitis. In a 2009 VA esophagogastroduodenoscopy (EGD), the Veteran was found to have gastritis in the stomach. During an August 2017 VA examination report, the Veteran continued to report epigastric discomfort after eating. He also reported nausea and occasional vomiting. The examiner then opined that the Veteran’s gastrointestinal complaints were more likely related to his chronic gastritis condition, diagnosed in 2007; and not related to service. In a separate February 2020 opinion, a VA examiner opined that the Veteran’s March and April 1971 reports of abdominal and epigastric pain were “acute gastritis” that were treated and resolved. After reviewing all evidence of record, the Board finds that the uncontradicted opinions from the VA examiners are the most persuasive evidence regarding the etiology of the Veteran’s current gastrointestinal disorder. The examiners’ conclusions, together, followed an extensive examination of the Veteran and a review of his claims file, as well as consideration of reported history; therefore, the VA examination reports are afforded great probative weight. See Prejean v. West, 13 Vet. App. 444, 448-49 (2000) (noting that factors for assessing the probative value of a medical opinion include the medical expert's access to the claims file and the thoroughness and detail of the opinion). The Board notes that the Veteran, while entirely competent to report his symptoms, is not competent to proffer an opinion as to diagnosis or etiology. See 38 C.F.R. § 3.159(a)(1)(2) (defining competent medical evidence and competent lay evidence); Charles v. Principi, 16 Vet. App. 370 (2002) (finding the veteran competent to testify to symptomatology capable of lay observation). Such opinions require specific medical training and are beyond the competency of a lay person, and accordingly, the Board finds the medical findings cited above are more probative. See Jandreau v. Nicholson, 492 F.3d 1372, 137677 (Fed. Cir. 2007). Based upon the foregoing, as the preponderance of the evidence is against the claim, the benefit of the doubt rule does not apply, and the claim must be denied. Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). Residuals of Giardia Lamblia Infection The evidence includes an August 2017 infectious intestinal disorder VA examination report. At that time, it was noted that the Veteran had been diagnosed with Giardia lamblia infestation in 1971. The Veteran indicated that he had been treated for the parasite infection and that it had resolved. He denied any recurrent intestinal parasite infections since that time. The August 2017 VA examiner further opined that there was no evidence of any residuals in the digestive tract relating to the Veteran’s 1971 parasitic infestation of Giardia lamblia presently, nor during the pendency of the appeal. Except for gastritis, the examiner found no evidence of any additional gastrointestinal disorders. Moreover, in a February 2020 addendum opinion, a VA examiner considered medical literature submitted by the Veteran, which indicated that the long-term consequences of Giardia duodenalis infections suggested an increase incidence of IBS (irritable bowel syndrome) and CFS (chronic fatigue syndrome). Notably, however, the examiner found that the Veteran had not been diagnosed with either IBS or CFS. For these reasons, the Board finds that the evidence weighs against the claim of service connection for residuals of Giardia lamblia infection. The Veteran has a separate claim for service connection for gastritis (remanded herein). Moreover, he has not identified any other diagnosed residual associated with the in-service infection; instead, the Veteran himself has reported that the infection was treated and resolved in service. Service connection cannot be granted in the absence of proof of a current disability. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). In the absence of a diagnosis of a current disability, the claim must be denied. Because the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is not for application. 38 U.S.C. § 5107; 38 C.F.R. § 3.102.   Fracture of the Body The Veteran has claimed entitlement to service connection for “fracture of the body.” He has already been awarded service connection for residuals of a TBI and service connection for costochondritis (as a result of being hit in the chest during service). The claim of entitlement to service connection for fracture of the body therefore does not include those previously adjudicated claims. The claim of entitlement to service connection for “fracture of the body” is too general and too speculative to warrant further development. The Veteran’s VA medical records do not diagnose a generalized joint condition, and they do not diagnose any residual disabilities associated with any previous fractures. A review of the October 2003 hearing transcript before a Decision Review Officer appears to indicate that the Veteran was claiming that he had fractured his rib/chest in service. As noted above, service connection for the rib/chest disability has already been awarded to the Veteran. See July 2020 rating decision. Service connection cannot be granted in the absence of proof of a current disability. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). In the absence of a diagnosis of a current disability, service connection for fracture of the body cannot be granted. REASONS FOR REMAND Psychiatric Disorder and Residuals of a TBI The Veteran was afforded a VA mental disorders examination in July 2017. At that time, the Veteran was diagnosed with major depressive disorder. It was further noted that records did not show a diagnosis of a TBI. The examiner also noted that the Veteran had mild memory loss, such as forgetting names, directions, or recent events. Following the 2017 VA psychiatric examination, the Veteran was awarded service connection for a TBI with headaches. See October 2018 rating decision. As the Veteran has been found to have a psychiatric disorder, the new examination should address whether the disorder is a behavioral/emotional manifestation of the Veteran’s TBI. Moreover, the Veteran maintains that his symptoms associated with his TBI are more severe than what is contemplated by the currently assigned 10 percent rating. As such, new examinations are warranted. Kidney Disorder Pursuant to the Board’s most recent remand directive, an addendum opinion was requested regarding the etiology of the Veteran’s kidney disorder. Following a review of the claims file, the examiner was asked to identify all kidney disorders since September 2002. If no diagnosis was made, the examiner was asked to reconcile the findings in the April 2007 VA treatment record and August 2017 VA examination report (which included a diagnosis of chronic renal disease, diagnosed in 2007). A medical opinion was obtained in January 2020. At that time, and upon review of the Veteran’s medical records, the examiner opined that there was no evidence of chronic kidney disease on examination. The chronic kidney disease previously reported was found to be secondary to a kidney renal stone obstruction which was acute and resolved. The Board finds the January 2020 medical opinion is inadequate. First, kidney renal stones are a disability for which service connection may be awarded as they were diagnosed within the applicable appeal period (i.e. 2018). VA treatment records also show that the Veteran was diagnosed with a left renal cyst in 2007. On remand, the Veteran should be afforded a new VA examination that adequately addresses the nature and likely etiology of any kidney or renal disorder diagnosed during the appeal period. The matters are REMANDED for the following actions: 1. Schedule the Veteran for a VA psychiatric examination. The claims file must be available to another appropriate examiner for the requested opinions. The examiner is asked to address the following: (a.) State whether the Veteran’s diagnosed depressive disorder is as likely as not (50 percent or greater probability) a residual of the Veteran’s service-connected TBI disability or whether it is a separate disability. The examiner is asked to address whether it is possible to distinguish between the symptoms of any such unassociated diagnosed psychiatric disability found, from any symptoms or diagnoses that are attributable to the TBI, to include any symptoms related to cognitive, behavioral/emotional or physical manifestations of a TBI. If the symptoms cannot be distinguished, the examiner should state so in their opinion, and identify the indistinguishable symptoms. (b.) If the symptoms are distinguishable, state whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s diagnosed psychiatric disorder is either caused or aggravated by the service-connected TBI residuals. The report must include a complete rationale for any opinions expressed. 2. Schedule a new VA TBI examination to assess the current severity of the Veteran’s residuals of a TBI. 3. Schedule a new VA examination to assess the nature and etiology of any kidney/renal disorder. The claims file must be available to the examiner for the requested opinions. The examiner is asked to address the following: (a.) Identify all kidney disorders diagnosed since September 2002. If any of the diagnoses are not warranted, please reconcile these findings with the diagnoses of record in the August 2017 VA examination report and VA treatment records in 2007 and 2018. (b.) For each diagnosis, state whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s kidney disorder is related to service, to specifically include the Giardia lamblia infection diagnosed in service. The report must include a complete rationale for any opinions expressed. 4. Then, readjudicate the claims on appeal. L. Chu Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. Casadei, 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.