Citation Nr: 21004281 Decision Date: 01/26/21 Archive Date: 01/26/21 DOCKET NO. 13-29 782 DATE: January 26, 2021 ORDER Service connection for a hiatal hernia is granted. REMANDED Entitlement to service connection for the right shoulder disability is remanded. Entitlement to service connection for lumbar spondylosis with degenerative changes is remanded. Entitlement to service connection for atypical chest pain is remanded. FINDING OF FACT After resolving all reasonable doubt in the Veteran’s favor, the competent, probative evidence of record, to include symptoms experienced shortly before discharge from service and a diagnosis of a hiatal hernia only 22 days after discharge from service, indicates that the currently diagnosed hiatal hernia had onset during or was otherwise related to service. CONCLUSION OF LAW Resolving all reasonable doubt in the Veterans favor, the criteria for service connection for a hiatal hernia disability are met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(d). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from October 1988 to June 1996, with additional periods of active duty service in the United States Air Force from December 2003 to February 2004, January 2005 to December 2005, July 2007 to November 2007, and from March 2008 to September 2008. The Veteran served in the Persian Gulf from February 1991 to April 1991 and from March 2005 to May 2005. This matter comes on appeal before the Board of Veterans’ Appeals (Board) from a December 2015 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). By way of procedural background, these issues were previously before the Board in September 2018 and May 2019. In the September 2018 Board decision, the Board determined that new and material evidence had been received to reopen the service connection claim for the low back disability and remanded the claim for further development. Additionally, the service connection claims for a right shoulder, left shoulder, angina, and hiatal hernia disabilities were also remanded for further development. Subsequently, the claims were returned to the Board in September 2019. The Board again remanded the claims for further development. While on remand, service connection was granted for a left shoulder disability. As this was a full grant of the benefit sought on appeal, this issue is no longer before the Board. The Veteran waived a hearing before the Board in her September 2016 substantive appeal, via a VA Form 9. Regarding the service connection claim for a disability manifested by angina, the Board notes that a cardiac etiology has been essentially ruled out in the Veteran’s VA treatment records, which is consistent with the February 2019, June 2019, and December 2019 VA examination reports. See, e.g., February 1998, June 2008, June 2009, and March 2016 treatment records. The United States Court of Appeals for Veterans Claims held that, in determining the scope of a claim, the Board must consider the Veteran’s description of the claim, symptoms described, and the information submitted or developed in support of the claim. Clemons v. Shinseki, 23 Vet. App. 1,5 (2009). Throughout the appeal, the Veteran has primarily described her symptoms as chest pain. Pursuant to the principles of Clemons, the Board shall broaden and recharacterize the claim as one seeking service connection for atypical chest pain, claimed as angina, in order to more accurately align with the Veteran’s symptoms. 1. Service connection for a hiatal hernia is granted. Service connection may be granted for a disability arising from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 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). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). 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; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). A hiatal hernia is not considered by VA to be a “chronic disease” listed under 38 C.F.R. § 3.309(a); therefore, the presumptive service connection provisions based on “chronic” in-service symptoms and “continuous” post-service symptoms under 38 C.F.R. § 3.303(b) do not apply. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). A layperson is competent to report on the onset and continuity of her current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). 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. Turning to the evidence of record, the Veteran sought treatment during a period of active service for right upper quadrant pain in September 2008. She had been having right side pain for approximately one month. The abdominal pain was sharp and radiated back to her shoulders. She rated the pain as a 7 out of 10 on a 10-point pain scale. She was not eating and nauseous. She had been treated by an outside medical facility the day before, who had prescribed Bentyl, a medication used to treat intestinal symptoms, and sent her home. She had been afforded an esophageal ultrasound (EUS), which was “apparently negative.” Her right back area was tender, worse in the thoracic region. She was taking Motrin and Nexium. She was negative for diarrhea, dysuria, and positive for chest pain. A chest x-ray study was negative. A second EUS of the stomach was afforded to her at this appointment and was noted to be a “2/10.” She was positive for hemorrhoids, but her rectal tone was normal, and the workup the day before was negative. She had slightly elevated liver function testing (LFTs). A CT scan with contrast was conducted and showed an enhancing lesion in the sigmoid area, a hypodensity splenic lilium, and a normal gallbladder. The Veteran was discharged, was advised to obtain a repeat CT scan in a few days, and to return if her symptoms worsened at all. The Veteran was discharged from active service on September 30, 2008. On October 22, 2008, twenty-two days after service discharge, the Veteran was afforded another EUS of the stomach and was diagnosed with a hiatal hernia. See also December 2008 panendoscopy with EUSCPT. The Veteran was afforded a VA examination in December 2010. The examiner indicated the Veteran had a lap cholecystectomy and remove of an umbilical hernia in 2008. On examination, a small hiatal hernia remained. An MRI study was also performed and confirmed a small hiatal hernia in December 2010. A June 2014 EGD showed a small nonobstructing muscular ring that was located three centimeters above the gastroesophageal junction. There was a pinch at 39 centimeters resulting in a small 3-centimeter hiatal hernia. See also December 2015 CT scan, August 2016 EGD, and May 2019 VA treatment records. In December 2019, the Veteran was afforded a VA examination for the hiatal hernia disability. The examiner, a physician, concluded that the service treatment records did not show that the Veteran was diagnosed in service with a hiatal hernia, which is established by direct visualization of the hernia. Although the condition was diagnosed a mere one month after service discharge, her symptoms in service alone would be inadequate to establish a diagnosis of a hiatal hernia in service. After a review of the evidence, both lay and medical, the Board finds that the evidence is at least in equipoise that the hiatal hernia had onset during or was otherwise related to service. The Board acknowledges the December 2019 VA medical opinion that determined the Veteran was not diagnosed with a hiatal hernia during service as it was not visualized during service. However, the Board does not find this opinion to be adequate to adjudicate the claim as it is solely based on the lack of contemporaneous medical evidence with a formal diagnosis of a hiatal hernia during service and does not adequately explain why her symptoms and treatment in-service are not at least as likely as not the same symptoms that led to the post-service hiatal hernia diagnosis less than 22 days later. See Dalton v. Nicholson, 12 Vet. App. 23 (2007); Walker, 708 F.3d at 1331. The Board finds this opinion to lack probative value and assigns it no weight. Furthermore, as noted above, 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). Here, the Board finds the Veteran’s in-service symptoms in September 2008 were consistent with symptoms of a hiatal hernia. In addition, the fact that she was clinically diagnosed with a hiatal hernia a little more than a month after the in-service treatment for hernia symptoms and only 22 days after discharge from service weighs in favor of the claim and constitutes probative evidence indicating that the Veteran’s hiatal hernia at least as likely as not had its onset in service. See Maxon v. Grober, 230 F.3d 1330, 1333 (Fed. Cir. 2000); Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007). Significantly, there is no competent and probative medical opinion of record weighing against an in-service onset for the Veteran’s hiatal hernia. While a remand to obtain such an opinion could be undertaken, the Board finds a remand is unnecessary to decide the claim with this evidence of record. After careful consideration of the evidence, any reasonable doubt that arises will be resolved in favor of the claimant. 38 C.F.R. § 3.102. See also 38 U.S.C. § 5107(b); Gilbert, 1 Vet. App. at 55. Given the totality of the evidence in this case, to include the competent medical and lay evidence discussed above, and with resolution of any reasonable doubt in the Veteran’s favor, the Board finds that service connection for a hiatal hernia is warranted. REASONS FOR REMAND 1. Entitlement to service connection for a right shoulder disability is remanded. As discussed above, the service connection claim for a right shoulder disability was remanded in May 2019 to obtain a VA examination and medical opinion. The subsequent July 2020 Supplemental Statement of the Case (SSOC) did not adjudicate this issue, the claim has not been granted, and there is no indication the Veteran has withdrawn this issue. Accordingly, a SSOC must be issued and sent to the Veteran readjudicating the service connection claim for a right shoulder disability. See Manlincon v. West, 12 Vet. App. 238 (1999). 2. Entitlement to service connection for lumbar spine spondylosis with degenerative changes is remanded. Unfortunately, another remand is necessary before the service connection claim for a low back disability can be adjudicated. There are several records referred to in the December 2015 rating decision, the August 2016 statement of the case, and the December 2019 VA medical opinion that do not appear to be part of the claims file. For example, records from the social security administration, a September 2008 separation examination, and March 2015 DD Form 214 are not of record but are referenced and relied upon in VA examinations and by the AOJ. On remand, any outstanding pertinent records must be associated with the claims file. In addition, the AOJ obtained an addendum medical opinion as to the nature and etiology of the low back disability in December 2019. The examiner, a physician, indicated that the Veteran was last discharged from service in 2008 and the discharge examination was negative for notations of a back disability. The examiner indicated she was next seen for back pain in 2016, more than eight years after service. The Veteran was currently diagnosed with low grade spondylosis, which was consistent with degenerative changes that occurred during the natural aging process and was not specific to injuries or military service. The examiner determined the medical records did not support back pain having been present since service. Based on the above, the examiner found it was less likely than not that the low back disability had onset during service. Nevertheless, after a review of the claims file, the medical records show the Veteran reported low back pain since discharge from the 2008 period of service, both in lay statements and in medical records. See, e.g., October 2009, January 2011, May 2011, September 2012, March 2014, June 2014, April 2015, May 2015 treatment records, December 2010 VA examination, and September 2010 statement. Thus, the examiner’s opinion, which is partially based on the Veteran not being treated for back pain for 8 years following discharge from service, is based on a faulty factual premise and is inadequate in its current form to decide the claim. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993) On further review of the record, the Veteran reported that she exited a Humvee in a rush due to mortar attacks wearing her body armor while in Iraq during the January 2005 to December 2005 period of active service. She landed the wrong way and had low back pain since that time. See December 2010 VA examination report. A veteran is presumed to have been sound upon entry when no preexisting condition is noted upon examination for entry into service. When rebutting the presumption of soundness, the burden is on VA to show by clear and unmistakable evidence both the pre-existence of disability prior to service and that the disability was not aggravated during service. 38 U.S.C. § 1111; 38 C.F.R. § 3.304(b); see also Wagner v. Principi, 370 F.3d 1089, 1095-96 (Fed. Cir. 2004). The presumption of soundness does not apply where an entrance examination was not conducted, but the presumption does apply where an existing examination record was lost or destroyed while in VA custody. See Smith v. Shinseki, 24 Vet. App. 40, 46 (2010); Quirin v. Shinseki, 22 Vet. App. 390, 396 n.5 (2009); Lee v. Brown, 10 Vet. App. 336, 339 (1997). First, there is no entrance examination of record for the January 2005 to December 2005 period of active service. Although all service treatment records were purportedly obtained, as discussed above, there are multiple missing records from the claims file. Thus, it is unclear whether the Veteran was afforded an entrance examination for the January 2005 period of active service or not. On remand, the RO should determine whether an entrance examination was conducted. The Veteran first reported low back pain in July 1991 after lifting 50 pounds. She also has reported low back pain symptoms, been treated for low back pain, or been on a restricted physical profile for low back symptoms in April 1992, April 1995, April 1996, May 1997, September 2003, and October 2004. Depending on whether an entrance examination was conducted for the January 2005 to December 2005 period of active service, a medical opinion should be obtained as to whether low back spondylosis with degenerative changes preexisted the January 2005 to December 2005 period of active service, and if so, whether the evidence is clear and unmistakable (undebatable) that the low back spondylosis with degenerative changes was not aggravated during that period of active service. 3. Entitlement to service connection for atypical chest pain is remanded. Unfortunately, another remand is necessary before the claim can be adjudicated. As discussed above, there are several documents not associated with the claims file that are referenced by the AOJ and VA examiners. On remand, any outstanding pertinent records must be associated with the claims file. In addition, a December 2019 VA addendum medical opinion was obtained to determine the nature and etiology of the atypical chest pain. The examiner, a physician, concluded that, after a review of the records, a cardiac disability was ruled out as an etiology for the atypical chest pain. The examiner explained that, because a cardiac cause for the chest pain had been ruled out, it would not be considered angina. As the Veteran did not have a current diagnosis of angina, it was less likely than not that it was due to or part of her active service. Although the examiner found that the Veteran did not have a current diagnosis of angina, he did not provide a diagnosis or an etiology opinion for the atypical chest pain. August 2017 VA treatment records report an assessment of “chest wall pain likely costochondritis” and March 2018 treatment records diagnosed her chest pain as a muscle strain. Neither of these diagnoses were addressed by the examiner. Thus, on remand, an addendum opinion should be obtained to determine whether the costochondritis or muscle strain, which were diagnosed during the appellate period, caused the atypical chest pain, and if so, whether either had onset during or is otherwise related to service. In addition, the Federal Circuit Court issued a precedential decision in April 2018, holding that pain alone, even without an underlying pathology or diagnosis, can constitute a disability under VA law where such pain results in functional impairment. Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018). On remand, an addendum opinion should also be obtained to determine whether a current disability is in fact shown based on the Veteran’s current symptomatology, whether the current level of pain results in functional impairment that affects her earning capacity, and whether the pain or other disability associated with the atypical chest pain is related to service. The matters are REMANDED for the following action: 1. Obtain any outstanding pertinent VA treatment records and associate them with the claims file. 2. Obtain all outstanding pertinent records and associate them with the claims file, to include records obtained from the Social Security Administration, a March 2015 DD Form 214, and a September 2008 separation examination. 3. Determine whether an entrance examination was conducted for the January 2005 to December 2005 period of service. If no examination was conducted, document this determination to the claims file. 4. Then, obtain an addendum medical opinion from an appropriate clinician about the nature and etiology of the low back disability, diagnosed as spondylosis with degenerative changes. The Veteran’s contentions should be considered. Whether an additional physical examination is necessary is left to the examiner’s discretion. After a thorough review of the claims file, the examiner should address the following: IF an entrance examination was conducted and either (1) a low back disability was not noted at entry or (2) the entrance examination has been lost or destroyed in VA custody, then: a) Provide an opinion as to whether the Veteran’s low back disability clearly and unmistakably (undebatable) pre-existed the January 2005 period of active service. b) If the low back spondylosis with degenerative changes preexisted the January 2005 period of service, provide an opinion whether the evidence is clear and unmistakable that the low back disability was not aggravated during the January 2005 to December 2005 period of active service, to include wearing body armor and entering and exiting Humvees. See April 2005 physical therapy service treatment record. d) If either the evidence is not clear and unmistakable that the low back spondylosis (i) preexisted the January 2005 to December 2005 period of service or that the (ii) low back disability was not aggravated during service, provide an opinion as to whether the low back disability had onset during or was otherwise related to the January 2005 to December 2005 period of active service, to include wearing body armor and getting in and out of Humvees. If is determined that no entrance examination was conducted, then: a) Provide an opinion as to whether it is at least as likely as not that the currently diagnosed low back disability preexisted service; and b) If the low back disability preexisted service, provide an opinion as to whether it is at least as likely as not that the preexisting low back spondylosis with degenerative changes was aggravated during the January 2005 to December 2005 period of active service, to include wearing body armor and getting in and out of Humvees. c) If the low back spondylosis with degenerative changes did not preexist the January 2005 to December 2005 period of service, provide an opinion as to whether the low back spondylosis with degenerative changes had onset during or was otherwise related to the January 2005 to December 2005 period of active service. *A complete rationale should be provided for each conclusion. 5. Obtain an addendum opinion from an appropriate clinician regarding the nature and etiology of the atypical chest pain. Whether a physical examination of the Veteran is required is left to the examiner’s discretion. After a thorough review of the claims file, the examiner should address the following: a) Identify any currently diagnosed disabilities associated with the Veteran’s atypical chest pain, whether diagnosed during the appellate period or on physical examination (if one is conducted). Specifically, discuss whether the atypical chest pain is associated with the costochondritis diagnosed in August 2017 or muscle strain diagnosed in March 2018. c) If a currently diagnosed disability with symptoms of atypical non-cardiac chest pain is identified, to include costochondritis or a muscle strain, provide an opinion as to whether it had onset during or is otherwise related to an active period of service. d) If a currently diagnosed disability with symptoms of atypical non-cardiac chest pain is not identified, provide an opinion as to whether the atypical chest pain (i) causes functional impairment that impacts her earning capacity; and, if so, (ii) whether the chest pain had onset or was otherwise related to service. 5. Issue a SSOC readjudicating the service connection claim for a right shoulder disability and provide copy of the SSOC to the Veteran and his representative. 6. Readjudicate the claims on appeal. S. B. MAYS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Harper, Associate 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.