Citation Nr: 21061553 Decision Date: 10/04/21 Archive Date: 10/04/21 DOCKET NO. 17-38 945 DATE: October 4, 2021 ORDER Entitlement to service connection for residuals of a head injury is denied. Entitlement to service connection for a cervical spine disability is denied. Entitlement to service connection for a disability manifested by tremors is denied. REMANDED Entitlement to service connection for a chronic gastrointestinal disability is remanded. FINDINGS OF FACT 1. Chronic residuals of a head injury did not manifest during active service or within one year of service and is not otherwise related to service. 2. A cervical spine disability did not manifest during active service or within one year of service and is not otherwise related to service. 3. A disability manifested by tremors did not manifest during active service or within one year of service and is not otherwise related to service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for residuals of a head injury have not been met. 38 U.S.C. §§ 1110, 1112, 1113; 38 C.F.R. §§ 3.303, 3.307, 3.309. 2. The criteria for entitlement to service connection for a cervical spine disability have not been met. 38 U.S.C. §§ 1110, 1112, 1113; 38 C.F.R. §§ 3.303, 3.307, 3.309. 3. The criteria for entitlement to service connection for a disability manifested by tremors have not been met. 38 U.S.C. §§ 1110, 1112, 1113; 38 C.F.R. §§ 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant is a Veteran who served on active duty from July 1964 to September 1973. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2015 rating decision by the Atlanta, Georgia, Regional Office (RO) of the Department of Veterans Affairs (VA). In May 2019, the Board, among other things, remanded the issues on appeal for additional development. A July 2020 rating decision granted entitlement to service connection for depression. The issue on appeal as to that matter is considered to have been fully resolved. 1. Entitlement to service connection for residuals of a head injury. 2. Entitlement to service connection for a cervical spine disability. 3. Entitlement to service connection for a disability manifested by tremors. Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110. Service connection connotes many factors but basically it means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. 38 C.F.R. § 3.303(a). Generally, the evidence must show: (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, 1166-67 (Fed. Cir. 2004). The term "disability" for VA compensation purposes refers to the functional impairment of earning capacity rather than the underlying cause of the impairment and it is noted that pain alone may be a functional impairment. See Saunders v. Wilkie, 887 F.3d 1356, 1364-68 (Fed. Cir. 2018). Certain chronic diseases, including arthritis and organic diseases of the nervous system, are subject to presumptive service connection if manifest to a compensable degree within one year from separation from service even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. §§ 1112, 1113; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden element is through a demonstration of continuity of symptomatology if the disability claimed qualifies as a chronic disease listed in 38 C.F.R. § 3.309(a). The Board has the authority to discount the weight and probity of evidence in light of its own inherent characteristics and its relationship to other evidence. Madden v. Gober, 125 F.3d 1477 (Fed. Cir. 1997). VA may favor one medical opinion over another, provided an adequate basis is provided. Owens v. Brown, 7 Vet. App. 429 (1995). It is the policy of VA to administer the law under a broad interpretation, consistent with the facts in each case, with all reasonable doubt to be resolved in favor of the claimant. 38 C.F.R. § 3.102. The Veteran contends that he has residuals of a head injury, a cervical spine disability, and a disability manifested by tremors as a result of active service. He asserts that residuals of a head injury, a cervical spine disability, and a disability manifested by tremors developed from injuries in November 1969 when he sustained nasal bridge fractures. VA records show service connection is established including for residuals of a nose fracture and a scar above the right eye. Service treatment records show that in November 1969 the Veteran sustained injuries during a touch football game when he ran into an axel supporting a large metal reel. The diagnoses included nasal fracture times two, a two-inch jagged scar over the right eye, and a one-inch jagged scar on the nasal bridge. Records are negative for complaints, treatment, or diagnosis associated with additional residuals involving an injury to the head, including to the cervical spine and nervous system. An August 1973 separation examination revealed a normal clinical evaluation of the head, spine, and neurologic system. VA examination in October 1973 revealed the Veteran's head, face, and neck were within normal limits. The musculoskeletal system, as to the spine, and the nervous system, including neurological and psychiatric, were within normal limits. Private treatment records include February 2011 report noting the Veteran complained of neck pain that began in approximately June 2010. A diagnosis of cervical facet syndrome was provided. Magnetic resonance imaging (MRI) revealed mild cervical degenerative disease. A November 2012 report noted the Veteran complained of neck pain and stated he had developed a bobbing motion of the head over the previous year. He indicated it was something than ran in his family. The examiner found that bobbing of the head was likely a benign essential tremor. A January 2016 neurology consultation report noted a full neurological examination had been completed, including mental status, cranial nerve, motor, reflex, sensory, gait, and cerebellar evaluations. It was noted that the pertinent findings included a moderate head tremor without other tremors. Muscle tone, cranial nerves, and reflexes were normal. Motor examination revealed normal strength. The examiner found the head tremor appeared to be an essential tremor and noted he may have some related neck pain. VA traumatic brain injury (TBI) examination in November 2019 found no diagnosis was warranted. The examiner, a psychiatrist, noted that the Veteran sustained a mild TBI/concussion and fractured nose in November 1969 but that his mild TBI/concussion had resolved. It was explained that the natural history for mild TBI/concussion was symptoms in close proximity to the event that resolved within three to six months. The examiner found that the Veteran reported objective memory complaints that started about 25 years earlier and tremors of the head in about 2014 were not residuals of his mild TBI/concussion in 1969. A November 2019 VA central nervous system examination included a diagnosis of essential tremors. The examiner found it was less likely that the Veteran's essential tremors were incurred in or caused by the claimed in-service injury, event, or illness. It was noted that the evidence did not support that essential tremors occurred during service and that there was no evidence of complaint, treatment, or diagnosis for essential tremors for 40 years after active service. A November 2019 VA cervical spine examination included a diagnosis of mild cervical degenerative changes. It was noted that the Veteran reported that after his injury in 1969 he started experiencing neck stiffness, head bobbing, and pain when turning his head. The examiner found it was less likely that the disorder was incurred in or caused by the claimed in-service injury, event, or illness. The provided rationale noted, and reiterated in an August 2020 addendum opinion, the Veteran's subjective complaints but found that the evidence did not show a cervical spine condition before 2010. Based upon the evidence of record, the Board finds that chronic residuals of a head injury, a cervical spine disability, and a disability manifested by tremors were not manifested during or within one year of the Veteran's active service and that the preponderance of the evidence fails to establish that a present disability is etiologically related to service. Although the Veteran is shown to have sustained a head injury with a subsequently diagnosed mild TBI/concussion, the overall evidence of record demonstrates his mild TBI/concussion in service resolved without residual disability, that his current cervical spine disability associated pain began in June 2010, and that his essential tremors began in approximately 2011. The November 2019 VA medical opinions are persuasive and based upon adequate rationale. The examiners are shown to have reviewed the evidence of record and to have adequately considered the credible lay statements and reported symptom manifestation history of record. See Dalton v. Nicholson, 21 Vet. App. 23 (2007). Consideration has also been given to the Veteran's personal assertions that he has residuals of a head injury, a cervical spine disability, and a disability manifested by tremors as a result of active service. However, while lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), the specific issues in this case fall outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). The disabilities at issue are not conditions that are readily amenable to lay diagnosis or probative comment regarding etiology. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). In conclusion, the Board finds service connection for residuals of a head injury, a cervical spine disability, and a disability manifested by tremors is not warranted. When all the evidence is assembled VA is then responsible for determining whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a preponderance of the evidence is against the claim in which case the claim is denied. Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). The preponderance of the evidence is against the claims. REASONS FOR REMAND 1. Entitlement to service connection for a chronic gastrointestinal disability is remanded. Although the chronic gastrointestinal disability service connection issue was previously remanded, the Board finds that additional development is required for an adequate determination. A November 2019 VA medical opinion found it was less likely that diagnoses of gastroesophageal reflux disease (GERD) and Barrett's esophagus were incurred in or caused by an in-service injury, event, or illness. The examiner stated that the available medical records were silent for esophagitis or GERD complaints prior to 2005. The Board notes, however, that a July 1972 hospital report noted the Veteran complained of indigestion that was not relieved by Maalox and that an October 1973 VA examination noted he complained of recurring acid reflux. At his November 2019 VA examination the Veteran reported, in essence, that his condition was unchanged since active service. A February 2000 private treatment report also noted a history of acid reflux into the esophagus when not taking Prilosec. The Veteran was noted to have been taking Prilosec for approximately two to three years. In light of the inconsistent reports as to symptom manifestations prior to 2005, the Board finds that an additional medical opinion is required prior to appellate review. The matters are REMANDED for the following action: (Continued on the next page) Obtain an addendum opinion from an appropriate clinician regarding whether the Veteran's GERD and/or Barrett's esophagus is at least as likely as not related to symptoms reported to have manifest during and to have continued since active service. DUSTIN L. WARE Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Douglas 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.