Citation Nr: 21004894 Decision Date: 01/28/21 Archive Date: 01/28/21 DOCKET NO. 15-02 056 DATE: January 28, 2021 ORDER Service connection for a lumbar spine disability is denied. Service connection for arthritis is denied. Service connection for a gastrointestinal disability is denied. Service connection for brain atrophy, to include as a residual of a traumatic brain injury (TBI), is denied. FINDINGS OF FACT 1. A lumbar spine disability is not attributable to service and arthritis of the lumbar spine was not manifest within one year of separation from service. To the extent scoliosis is of congenital origin, it was neither aggravated by service nor subject to a superimposed injury or disease that caused additional disability. 2. Arthritis is not attributable to service and was not manifest within one year of separation from service. 3. A gastrointestinal disability is not attributable to service and a peptic ulcer was not manifest within one year of separation from service. 4. Brain atrophy, to include as a residual of a TBI, is not attributable to service, and a brain hemorrhage, thrombosis, or tumor was not manifest within one year of separation from service. CONCLUSIONS OF LAW 1. The criteria for service connection for a lumbar spine disability have not been met. 38 U.S.C. §§ 1110, 1112, 1113, , 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309. 2. The criteria for service connection for arthritis have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309. 3. The criteria for service connection for a gastrointestinal disability have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309. 4. The criteria for service connection for brain atrophy, to include as a residual of a TBI, have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1966 to February 1968 in the United States Army, with service in Vietnam from February 1967 to February 1968. These matters come before the Board of Veterans' Appeals (Board) on appeal from a June 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In April 2018, the Veteran and his spouse testified before the undersigned during a hearing at the RO. A transcript of the hearing is included in the electronic claims file. In July 2018, the Board remanded the appeal for further development. At the time of the Board’s remand, the appeal also included a claim for service connection for a headache disability. Subsequently, in an October 2020 rating decision, the RO granted service connection for migraine headaches. As such, that claim is no longer in appellate status and will not be addressed below. Service Connection VA provides compensation for disability resulting from disease or injury incurred in or aggravated by service. This is referred to as a “service connection.” 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Generally, in order to show a service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). Additionally, for certain chronic diseases, including arthritis, peptic ulcers, and brain hemorrhage, thrombosis, and tumors, a presumption of service connection arises if the disease is manifested to a degree of 10 percent within one year following discharge from service. 38 C.F.R. §§ 3.307(a)(3), 3.309(a). For those listed chronic diseases, a showing of continuity of symptoms affords an alternative route to service connection when the requirements for application of the presumption are not met. 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F. 3d 1331 (Fed. Cir. 2013). 1. Service connection for a lumbar spine disability is denied. The Veteran has current degenerative arthritis of the lumbar spine with a vertebral fracture, and scoliosis. At the hearing, the Veteran testified that he participated in numerous air assaults during service, landing with heavy equipment on his back that weighed 40 to 50 pounds. He reported that this caused back pain and a compression of his spine, with symptoms persisting to the present. On his March 1966 service entrance examination, no pertinent abnormalities were noted and he raised no relevant complaints. Service treatment records (STRs) thereafter do not document complaints, treatment, or diagnoses pertaining to a lumbar spine disability. On his February 1968 separation examination, no abnormalities of the spine were found and the Veteran voiced no relevant complaints. On the matter of the etiology of the current lumbar spine disabilities, the record contains a VA examination report from April 2019. On review of the record and examination of the Veteran, the examiner opined that the current lumbar spine disability was less likely than incurred in or caused by service. While noting the Veteran’s service in Vietnam from February 1967 to February 1968, the examiner emphasized that the STRs do not contain any documentation of a complaint or injury, including on the service separation examination. With regard to the Veteran’s scoliosis, the examiner noted that the condition is typically present during childhood and adolescence, although adults can develop degenerative scoliosis or scoliosis secondary to another condition. While he could not pinpoint the nature or precise etiology of the Veteran’s scoliosis, he opined that it was less likely than not aggravated beyond its natural progression by military service given the lack of any pertinent complaints or injuries therein, as well as the normal findings on the separation examination. As for the lumbar spine disabilities other than scoliosis, considering the pertinent evidence in light of the governing legal authority, the Board finds that the preponderance of the evidence is against the claim. The probative evidence does not show that these disabilities are related to the Veteran’s active military service, or that a chronic disability was incurred in service. The STRs are silent for pertinent documentation, and the spine was found normal on his separation examination. A lumbar spine disability was not found within one year of separation from service nor is there x-ray evidence of arthritis; rather, the evidence reflects that the disability was not shown until many years after service discharge. The fact that he sought treatment for other conditions after service, but not a lumbar spine disability, weighs against the credibility of any statements that his disability persisted since discharge. See AZ v. Shinseki, 731 F.3d 1303 (Fed. Cir. 2013) (recognizing the widely held view that the absence of an entry in a record may be considered evidence that the fact did not occur if it appears that the fact would have been recorded if present). Moreover, the Board emphasizes the multi-year gap between the Veteran’s discharge from active duty service in 1968 and his initial report of symptoms related to a low back disability. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). The claims file contains private treatment records dating back to 1998 documenting other orthopedic complaints, without mention of the lumbar spine in the earliest records. Because he described other orthopedic complaints but not a low back condition, it is reasonable to conclude that none was present. Additionally, he reported to the April 2019 VA examiner that the onset of his low back symptoms was the late 1980s, approximately 20 years after discharge. The medical opinion evidence is also persuasive. The April 2019 VA examiner addressed the contentions of service connection, but opined that the Veteran’s current lumbar spine disabilities were not related to military service, even considering his Vietnam service. The examination request additionally noted that the Veteran was exposed to herbicide agents in service, and the examiner nonetheless opined that the current disabilities were not related to any aspect of military service. The examiner based his conclusions on an examination of the claims file, including the post-service treatment records and diagnostic reports. He reviewed and accepted the reported history and symptoms in rendering the opinions, and provided a rationale for the conclusion reached. With regard to the Veteran’s scoliosis, some disabilities, such as congenital or developmental defects, are not deemed diseases or injuries for VA purposes. 38 C.F.R. § 3.303(c). Under certain circumstances, service connection may be granted for such disorders if they are shown to have been aggravated during service. See 38 C.F.R. § 3.303(c); VAOPGCPREC 82-90 (July 18, 1990); VAOPGCPREC 67-90 (July 18, 1990). In a precedent opinion, VA's General Counsel indicated that, for service connection purposes, there is a distinction under the law between a congenital or developmental “disease” and a congenital “defect.” A congenital abnormality that is subject to improvement or deterioration is considered a "disease," while a congenital abnormality that is more or less stationary in nature and not considered capable of improving or deteriorating is considered a "defect." VAOPGCPREC 82-90; O'Bryan v. McDonald, 771 F.3d 1376, 1380 (Fed. Cir. 2014). Congenital diseases may be service-connected if the evidence as a whole shows aggravation in service within the meaning of VA regulations. A congenital or developmental “defect,” on the other hand, may not be service-connected in its own right. However, service connection may be granted for additional disability due to disease or injury superimposed upon such defect in service. VAOPGCPREC 82-90. Therefore, absent superimposed disease or injury, service connection may not be allowed for a congenital or developmental defect as they are not a disease or injury within the meaning of applicable legislation relating to service connection. Id. Parenthetically, the law also provides a distinct analysis applicable to “preexisting” disabilities. This analysis does not apply here, however, as the Veteran’s scoliosis was not “noted” on entry into service, and there is no clear and unmistakable evidence that scoliosis existed prior to service. The April 2019 examiner could not determine the nature of the Veteran’s scoliosis. However, even if it is of congenital origin, the preponderance of the evidence is against an award of service connection for the disability as either a congenital disease or defect. If a disease, the examiner opined that the scoliosis was not aggravated by service beyond its normal progression. If a defect, the examiner indicated that no superimposed injury occurred during service resulting in any additional disability. The only evidence to the contrary of the April 2019 VA examiner’s opinions is the lay evidence. The Veteran, however, does not have the requisite medical knowledge, training, or experience to be able to render a competent medical opinion regarding the cause of such medically complex disabilities as degenerative arthritis of the lumbar spine with a vertebral fracture or scoliosis. See, e.g., Kahana v. Shinseki, 24 Vet. App. 428, 437 (2011). In reaching these decisions the Board considered the doctrine of reasonable doubt, however, the doctrine is not for application. 2. Service connection for arthritis is denied. 3. Service connection for a gastrointestinal disability is denied. The Veteran has current arthritis affecting various joints, including the shoulders, knees, and cervical spine. He also has current gastroesophageal reflux disease (GERD), gastritis, diverticulosis, and a hiatal hernia. See VA examination reports of April 2019. At the hearing, the Veteran related all of his disabilities to the general rigors of service in Vietnam, but predominantly testified regarding his lumbar spine disability. He did not provide specific testimony regarding his general arthritis or gastrointestinal disability. On his service entrance examination, no pertinent abnormalities were noted and the Veteran raised no relevant complaints. STRs thereafter do not document complaints, treatment, or diagnoses pertaining to arthritis of any joint or a gastrointestinal disability. On his February 1968 separation examination, no abnormalities of the joints, abdomen, or viscera were found and the Veteran voiced no pertinent complaints. On the matter of the etiology of the current disabilities, the record contains VA examination reports from April 2019. As for the Veteran’s arthritis, the examiner opined that the disability was less likely incurred in or caused by military service. The first indication of a knee disability was in 1999, when x-rays revealed bilateral medial compartment narrowing. The first indication of a shoulder disability was in 2006, when and MRI report indicated degenerative joint disease. The examiner noted the absence of a specific instance of pain on injury in service, and opined it is more likely than not that the Veteran’s arthritic condition is multifactorial in nature, with advancing age and genetic predisposition as factors. As for the gastrointestinal disability, the examiner similarly opined that the disability was less likely incurred in or caused by service. Rather, his current problems were more than likely due to chronic constipation related to poor dietary choices and a lack of fiber consumption. Additionally, he sustained an H. pylori infection in 2018, which at least as likely as not aggravated his gastritis and GERD. His hiatal hernia was not demonstrated until 2016. Considering the pertinent evidence in light of the governing legal authority, the Board finds that the preponderance of the evidence is against the claims. The probative evidence does not show that the arthritic disability or gastrointestinal disability are related to the Veteran’s active military service. Neither arthritis nor a peptic ulcer were not found within one year of separation from service; rather, the evidence reflects that the disabilities were not shown until many years after service discharge. Moreover, the Board emphasizes the multi-year gap, without explanation, between the Veteran’s discharge from active duty service in 1968 and his initial report of symptoms related to arthritis or a gastrointestinal disability. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). He reported to the April 2019 VA examiner that the onset of his arthritic symptoms was in the late 1990s, approximately 30 years after discharge, and the onset of his gastrointestinal symptoms was in 2000, more than 30 years after discharge. The medical opinion evidence is also persuasive. The April 2019 VA examiner addressed the contentions of service connection, but opined that the Veteran’s arthritic and gastrointestinal disabilities were not related to military service, including service in Vietnam. The examination request additionally noted that the Veteran was exposed to herbicide agents in service, and the examiner nonetheless opined that the current disabilities were not related to any aspect of military service. He based his conclusions on an examination of the claims file, including the post-service treatment records and diagnostic reports. He reviewed and accepted the reported history and symptoms in rendering the opinions, and provided a rationale for the conclusion reached. The only evidence to the contrary of the April 2019 VA examiner’s opinion is the lay evidence. The Veteran, however, does not have the requisite medical knowledge, training, or experience to be able to render a competent medical opinion regarding the cause of such medically complex disabilities as arthritis, GERD, gastritis, diverticulosis, or a hiatal hernia. See, e.g., Kahana v. Shinseki, 24 Vet. App. 428, 437 (2011). In reaching this decision the Board considered the doctrine of reasonable doubt, however, the doctrine is not for application. 4. Service connection for brain atrophy, to include as a residual of a TBI, is denied. The Veteran has current brain parenchyma volume loss. See VA examination reports of March 2019 & April 2019. At the hearing, the Veteran related all of his disabilities to the general rigors of service in Vietnam, but predominantly testified regarding his lumbar spine disability. In written correspondence and as documented in VA examination reports, he reports that during service, he jumped from a height of approximately ten feet out of a helicopter, and struck his head with his rifle. He did not lose consciousness or experience an alteration in his mental state. He has reported to VA examiners that he was never diagnosed with a concussion or a TBI. On his service entrance examination, no pertinent abnormalities were noted and the Veteran raised no relevant complaints. STRs thereafter do not document complaints, treatment, or diagnoses pertaining to a head injury or any cognitive problem. On separation from service, no abnormalities of the head or scalp were found. On the accompanying Report of Medical History, the Veteran reported experiencing headaches, although the examining physician noted that the reported history was of no clinical significance. On the matter of the etiology of the current disabilities, the record contains VA examination reports from March 2019 and April 2019. On VA examination in March 2019, the examiner reviewed the claims file and examined the Veteran. He noted a December 2007 magnetic resonance imaging (MRI) report, which documented brain parenchyma volume loss, more prominent in the temporal lobes. He opined that this MRI report is radiographic evidence of early-onset dementia. In April 2019, the March 2019 VA examiner completed an additional report, opining that the current brain atrophy was less likely than not incurred in or caused by military service. The Veteran was diagnosed with cognitive impairment in December 2011 and the 2007 MRI indicated brain volume loss. The examiner opined that these impairments are at least as likely as not idiopathic in nature or secondary to genetic predisposition, and are less likely than not related to military service, including the physical rigors of service in Vietnam. He noted that a separate TBI examination was pending. On VA examination in April 2019, another examiner reviewed the claims file and examined the Veteran. He performed diagnostic testing and reviewed previous MRI reports, including one from 2011. He opined that the current disability was less likely than not related to military service, including the Veteran’s duties in Vietnam. The Veteran did not meet the criteria for a TBI diagnosis. His reports of head trauma during service did not involve a loss of consciousness, amnesia, or alteration in mental state. The 2011 MRI report indicated that the current brain atrophy is associated with hydrocephalus ex-vacuo, a nonspecific finding which can indicate Alzheimer’s disease, stroke, or trauma. VA psychiatric examinations and headache examinations have also been conducted, with no indication or diagnosis of a TBI. The post-service VA and private treatment records are similarly silent for complaints, treatment, or diagnoses pertaining to a TBI. Considering the pertinent evidence in light of the governing legal authority, the Board finds that the preponderance of the evidence is against the claim. The probative evidence does not show that the current brain atrophy is related to the Veteran’s active military service, but is idiopathic in nature or due to genetic predisposition. While accepting the fact that the Veteran struck his head with his rifle during service, the injury did not constitute a TBI in the absence of a loss of consciousness, amnesia, or alteration in mental state, as discussed by VA examiners. As he did not sustain a TBI in service, he does not have any TBI residual. In this regard, the Board observes that while service connection has been granted for a headache disability, this was not based on a finding of a TBI in service; rather, the April 2019 VA examiner related the current headaches to the Veteran’s report of headaches on separation from service. Neither the current disability nor a brain hemorrhage, thrombosis, or tumor was found within one year of separation from service; rather, the evidence reflects that the current disability was not shown until many years after service discharge. The fact that he sought treatment for other conditions after service, but not for symptoms related to brain atrophy, weighs against the credibility of any statements that his disability persisted since discharge. See AZ v. Shinseki, 731 F.3d 1303 (Fed. Cir. 2013) (recognizing the widely held view that the absence of an entry in a record may be considered evidence that the fact did not occur if it appears that the fact would have been recorded if present). Moreover, the Board emphasizes the multi-year gap between the Veteran’s discharge from active duty service in 1968 and his 2007 diagnosis of brain atrophy on MRI. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). The medical opinion evidence is also persuasive. The March 2019 and April 2019 VA examiners addressed the contentions of service connection, but opined that the Veteran’s brain atrophy was not related to military service, including service in Vietnam. The examination request additionally noted that the Veteran was exposed to herbicide agents in service, and the examiners nonetheless opined that the current disability was not related to any aspect of military service. Rather, the current disability was found to be likely idiopathic or secondary to genetic predisposition. The examiners based their conclusions on an examination of the claims file, including the post-service treatment records and diagnostic reports. They reviewed and accepted the reported history and symptoms in rendering the opinions, and provided a rationale for the conclusion reached. The only evidence to the contrary of the April 2019 VA examiner’s opinion is the lay evidence. The Veteran, however, does not have the requisite medical knowledge, training, or experience to be able to render a competent medical opinion regarding the cause of such a medically complex disability as brain atrophy. See, e.g., Kahana v. Shinseki, 24 Vet. App. 428, 437 (2011). In reaching this decision the Board considered the doctrine of reasonable doubt, however, the doctrine is not for application. M. Tenner Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Smith, 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.