Citation Nr: 21065386 Decision Date: 10/26/21 Archive Date: 10/26/21 DOCKET NO. 16-14 126 DATE: October 26, 2021 ORDER Entitlement to service connection for gastroenteritis is denied. REMANDED Entitlement to an initial rating in excess of 50 percent for an acquired psychiatric disability, to include major depression and PTSD, is remanded. Entitlement to an initial rating in excess of 10 percent for a back disability is remanded. Entitlement to an initial rating in excess of 10 percent for a left knee disability is remanded. Entitlement to an initial rating in excess of 10 percent for a left ankle disability is remanded. Entitlement to an initial compensable rating for hyperhidrosis is remanded. Entitlement to a total disability rating based on individual unemployment (TDIU) is remanded. FINDINGS OF FACT The Veteran does not have gastroenteritis that was incurred in or due to his time in service. CONCLUSIONS OF LAW The criteria for service connection for gastroenteritis are not met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from January 2007 to June 2012. These matters are on appeal from a May 2014 rating decision by a Department of Veterans Affairs (VA) regional office (RO). The Veteran had a hearing before a Veterans Law Judge. However, there was a problem with producing a complete transcript. The Veteran was notified of this and offered another hearing in a March 2020 letter. However, no response was received, indicating the Veteran waived his right to another hearing. In this regard, in light of the above, the Veteran's statements and the medical evidence and facts of this case have been reviewed in great detail. Generally, to prevail on a claim of service connection on the merits, there must be competent evidence of (1) 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 or other competent evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. See Hickson v. West, 12 Vet. App. 247 (1999); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). To establish service connection on a secondary basis, the evidence must show (1) that a current disability exists and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. 38 C.F.R. § 3.310(a)(b) (2016), Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). The Veteran contends he has gastroenteritis that was incurred in or due to his time in service. The Veteran's medical records do not indicate he is currently diagnosed with chronic or ongoing gastroenteritis. The Veteran's service treatment records (STRs) show he was seen for gastroenteritis while in service. The Veteran had an examination for his gastroenteritis in May 2014. The examiner reviewed the Veteran's file and saw him in person. The examiner noted the Veteran did not have a stomach or duodenum condition. However, the examiner did note the Veteran had acute gastroenteritis in 2008 while in service. The examiner reported the Veteran said that he was not claiming a gastroenteritis condition. The examiner noted that while the Veteran had acute gastroenteritis while in service, it resolved with no residuals and was not a chronic condition and therefore, any current condition was less likely than not related to his time in service. While the Board has considered whether the Veteran may have offered more statements about his stomach condition at his hearing, the Board must weigh his statements against the objective evidence of record which does not show the Veteran has an ongoing stomach condition that began or manifested in service or that there is a nexus between any currently diagnosed stomach condition and his time in service. Regarding the claim above, the Board acknowledges the Veteran's statements that his conditions continue to affect his daily life. The Board has also considered the Veteran's statements about his symptoms and has assumed the Veteran said in his hearing that he still suffers from symptoms from this condition. However, while the Veteran is competent to report the symptoms of his disability, he is not competent to opine on matters requiring medical knowledge, such as determining the nature and etiology of his medical condition. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Therefore, the Board lends more weight to the examinations, medical records, and objective records on file and has weighed them as discussed above and discussed the relative probative value of each. The Board finds the examination of record to be adequate because the examiner saw the Veteran in person, reviewed his record, and performed all necessary testing. It is important for the Veteran to understand that the most probative medical evidence of record provides evidence against this claim that the Board cannot, unfortunately, ignore. This does not mean that the Veteran's condition did not cause him problems. Regarding all the above, the Board has considered the applicability of the benefit of the doubt doctrine. Because the preponderance of the evidence is against the Veteran's claim, the benefit of the doubt doctrine does not apply. See 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57(1990). REASONS FOR REMAND The Board regrets the delay but finds a remand is warranted in the Veteran's claims to an initial rating in excess of 50 percent for an acquired psychiatric disability, to include major depression and PTSD, entitlement to an initial rating in excess of 10 percent for a back disability, entitlement to an initial rating in excess of 10 percent for a left knee disability, entitlement to an initial rating in excess of 10 percent for a left ankle disability, and entitlement to an initial compensable rating for hyperhidrosis. The Board notes that while the Veteran had a hearing in January 2019 and most likely described the current severity and symptoms of his claimed conditions, this transcript was not able to be produced. Thus, the Board finds a remand to afford the Veteran updated examinations is warranted as his previous examinations were performed many years ago. The Veteran had an examination for his back in May 2014. The Veteran reported flare ups of his condition. In Correia v. McDonald, 28 Vet. App. 158 (2016), the United States Court of Appeals for Veterans Claims (Court) held that to be adequate, a VA examination of the joints must, wherever possible, include the results of the range of motion testing described in the final sentence of 38 C.F.R. § 4.59. The final sentence of section 38 C.F.R. § 4.59 directs that the joints involved should be tested for pain on both active and passive motion, in weight-bearing and non-weight-bearing and, if possible, with the range of the opposite undamaged joint. Additionally, a Court decision addressed what constitutes an adequate explanation for an examiner's inability to estimate motion loss in terms of degrees during periods of flare-ups. Sharp v. Shulkin, No. 16-1385 (Vet. App. Sept. 6, 2017). In Sharp, the Court held that a VA examiner must attempt to elicit information from the record and the Veteran regarding the severity, frequency, duration, or functional loss manifestations during flare-ups before determining that an estimate of motion loss in terms of degrees could not be given. It also held that any inability to furnish such an estimate must be predicated on a lack of medical knowledge among the medical community at large, rather than insufficient knowledge by the individual examiner. The Veteran's previous examination for his back did not comply with the directives in Correia or Sharp. Lastly, the Veteran's previous examinations for all of his conditions were approximately six years ago and updated examinations are warranted in order to determine the current severity of the Veteran's disabilities. Snuffer v. Gober, 10 Vet. App. 400, 403(1997). The Court has held that a request for a total disability rating based on individual unemployability (TDIU), whether expressly raised by the Veteran or reasonably raised by the record, is not a separate "claim" for benefits, but rather, can be part of a claim for increased compensation. Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). The Veteran has stated in several correspondences that his service-connected disabilities interfere with his ability to work. Therefore, a remand is warranted to elicit more information about his employment. The matters are REMANDED for the following action: 1. The AOJ should obtain any of the Veteran's outstanding VA and private medical records and associate them with the claims file. If possible, the Veteran himself should submit any pertinent new evidence regarding the condition at issue in order to expedite the claim. 2. Send the Veteran the appropriate form to elicit current employment information. 3. After completing the above development and all outstanding records have been associated with the claims file, the Veteran should be afforded an appropriate VA examinations for 1) his psychiatric disability and 2) his back disability, his 3) left knee disability, his 4) left ankle disability, and his 5) hyperhidrosis disability. The record, to include a copy of this Remand, must be made available to and be reviewed by the examiner. Regarding the Veteran's musculoskeletal disabilities, the Veteran's disabilities should be tested for pain on both active and passive motion, in weight-bearing and non-weight-bearing, and, if possible, with the range of the opposite undamaged joint. If for any reason the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, s/he should clearly explain why that is so. The examiner must estimate any functional loss in terms of additional degrees of limited motion experienced during flare-ups and repetitive use over time. If the examiner cannot provide the above-requested opinion without resorting to speculation, s/he should state whether all procurable medical evidence has been considered, to specifically include the Veteran's description as to the severity, frequency, duration of the flare-ups and his description as to the extent of functional loss during a flare-up and after repetitive use over time; whether the inability is due to the limits of medical community or the limits of the examiner's medical knowledge; and whether there is additional evidence, which if obtained, would permit the opinion to be provided. The examiner should provide a complete rationale for any opinion provided. 4. After undertaking any other appropriate development deemed necessary, readjudicate the issues on appeal based on the additional evidence of record. If the determinations remain adverse to the Veteran, he must be provided with a supplemental statement of the case. An appropriate period of time must then be allowed for a response before the record is returned to the Board for further review. John J. Crowley Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Snoparsky 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.