Citation Nr: 21065883 Decision Date: 10/27/21 Archive Date: 10/27/21 DOCKET NO. 16-25 309 DATE: October 27, 2021 ORDER Service connection for a left-hand strain is denied. Service connection for thoracolumbar spine degenerative disc disease (DDD) is denied. Service connection for a cervical spine disorder as secondary to thoracolumbar spine DDD is denied. Service connection for a bilateral leg disorder as secondary to thoracolumbar spine DDD is denied. REMANDED The issue of service connection for a stomach disorder, to include pancreatitis, gastroesophageal reflux disease (GERD), and gastritis is remanded. FINDINGS OF FACT 1. The Veteran did not undergo an in-service event, injury, or disease as to his left-hand strain. 2. The Veteran did not undergo an in-service event, injury, or disease as to his thoracolumbar spine DDD. 3. The Veteran's thoracolumbar spine DDD was not incurred in-service. 4. The Veteran's cervical spine disorder was not caused or aggravated by his thoracolumbar spine DDD. 5. The Veteran's bilateral leg disorder was not caused or aggravated by his thoracolumbar spine DDD. CONCLUSIONS OF LAW 1. The criteria to establish service connection for a left-hand strain have not been met. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(d). 2. The criteria to establish service connection for thoracolumbar spine DDD have not been met. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.159(c)(2), 3.303(b), (d), 3.307(a)(3), 3.309(a). 3. The criteria to establish service connection for a cervical spine disorder have not been met. 38 U.S.C. § 1110; 38 C.F.R. § 3.310. 4. The criteria to establish service connection for a bilateral leg disorder have not been met. 38 U.S.C. § 1110; 38 C.F.R. § 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Army from January 1966 to December 1967. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2013 rating decision of the St. Petersburg, Florida Regional Office (RO). In April 2019, the Veteran was afforded a videoconference hearing before the undersigned Veterans Law Judge (VLJ). During the hearing, the VLJ engaged in a colloquy with the Veteran toward substantiation of the claims. Bryant v. Shinseki, 23 Vet. App. 488, 496-97 (2010). A hearing transcript is in the record. In February 2021, the Board remanded the appeal to the RO for additional action. The RO did not substantially comply with the Board's remand directives as to the claim of service connection for a stomach disorder. Stegall v. West, 11 Vet. App. 268 (1998). Service Connection Service connection may be granted for a current disability arising from a disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110. 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). Service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of an 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). Left hand strain The Veteran asserts a left-hand injury due to his hand being caught between a trailer hook and hitch and that his hand was placed in a metal cast for approximately three weeks while stationed in Germany in 1967. The claim will be denied. Service treatment records (STRs) do not show complaints or contemporaneous reports concerning the Veteran's left hand. In his September 1967 pre-separation medical history report, the Veteran answered "no" to the question of whether he then had, or once had a bone, joint, or other deformity and whether he then had any illness or injury other than those already noted. In the Veteran's September 1967 pre-separation medical examination report, the service medical examiner noted no upper extremity abnormalities. The STRs are highly probative evidence because they were generated with the specific view of recording the events they describe. In this respect, they are akin to official records, which generally enjoy a high degree of probative value in the law. Rucker v. Brown, 10 Vet. App. 67, 73 (1997) (observing that although formal rules of evidence do not apply before the Board, recourse to the Federal Rules of Evidence may be appropriate if it assists in the articulation of the reasons for the Board's decision). A February 1970 VA left hand radiograph revealed "no evidence of a skeletal or articular abnormality." During the February 1970 VA orthopedic examination, a physical left-hand examination revealed some tenderness of index and mid-finger phalangeal joints, but all left-hand fingers had full range of motion, no deformities, and satisfactory grip. An August 2002 non-VA treatment record noted a weak left-hand grip compared to the Veteran's right hand. A December 2003 non-VA treatment reflects no active synovitis in the peripheral joints, including the hands and noted "good grip strength." In an October 2010 non-VA treatment record, a physical left-hand examination revealed full range of motion, no joint deformity, heat, swelling, erythema, or effusion. The February 2020 VA examiner diagnosed the Veteran with a left-hand strain. Contrary to the Veteran's account, the highly probative STRs do not show any complaints or contemporaneous reports concerning the Veteran's left hand. Significantly, the STRs do not show any left-hand treatment. AZ v. Shinseki, 731 F.3d 1303, 1315 (Fed. Cir. 2013) (finding that the absence of an entry in a record may be considered evidence that a fact did not occur if the fact would have been recorded if present); Kahana v. Shinseki, 24 Vet. App. 428, 440 (2011) (Lance, J., concurring) (holding that silence in the STRs can constitute "contradictory" evidence weighing against the credibility of a claimant's testimony if the STRs are complete "in relevant part," and there is competent evidence that the claimed "injury, disease, or related symptoms would ordinarily have been recorded had they occurred"). The Veteran is not credible as to his account of an in-service, injury, or disease as to his left hand. Additionally, three months prior to service separation, the service medical examiner noted no upper extremity abnormalities and the Veteran answered "no" to the question of whether he then had, or once had a bone, joint, or other deformity and whether he then had any illness or injury other than those already noted. Curry v. Brown, 7 Vet. App. 59 (1994) (noting that contemporaneous evidence has greater probative value than the history as reported by the veteran). In a February 2012 statement, the Veteran provided the names of six fellow service-members claimed to have knowledge of his in-service left-hand injury. However, the service-members' accounts are not credible because the Veteran claimed to have been treated with wraps and a metal cast during service and as noted, the STRs are complete "in relevant part," and there is competent evidence that the claimed "injury, disease, or related symptoms would ordinarily have been recorded had they occurred." AZ, 731 F.3d at 1315; Kahana, 24 Vet. App. at 440. A preponderance of the evidence is against a finding that the Veteran underwent an in-service, event, injury, or disease as to his left-hand strain. The STRs do not show complaints or contemporaneous reports concerning the Veteran's left hand. In his September 1967 pre-separation medical history report, the Veteran answered "no" to the question of whether he then had, or once had a bone, joint, or other deformity and whether he then had any illness or injury other than those already noted. In the Veteran's September 1967 pre-separation medical examination report, the service medical examiner noted no upper extremity abnormalities. Therefore, service connection is not warranted, and the claim is denied. Thoracolumbar spine DDD Degenerative disc disease, as arthritis, is a "chronic disease" listed under 38 C.F.R. § 3.309(a). Therefore, the provisions of 38 C.F.R. § 3.303(b) are for application. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Where the evidence shows a "chronic disease" in service or "continuity of symptoms" after service, the disease shall be presumed to have been incurred in service. For the showing of "chronic" disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. With chronic disease as such during active service, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected unless they are clearly attributable to intercurrent causes. Generally, if a condition noted during active service is not shown to be chronic, then, a "continuity of symptoms" after service is required to establish service connection. 38 C.F.R. § 3.303(b). Additionally, as a chronic disease, degenerative disc disease will be considered to have been incurred in or aggravated by service if the disease becomes manifest to a compensable degree within one year from the date of service separation. 38 C.F.R. § 3.307(a)(3). Continuity of symptomatology may be established by (1) a condition "noted" during service; (2) evidence of post service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and post service symptomatology. Savage v. Gober, 10 Vet. App. 488 (1997). If the condition was one as to which a lay person's observation is competent, medical evidence of "noting" is not necessarily required. Id. VA's duty to assist includes making as many requests as are necessary to obtain relevant records, such as military records, from a Federal department or agency. 38 C.F.R. § 3.159(c)(2). The claimant must cooperate fully with VA's reasonable efforts to obtain relevant records from Federal agency or department custodians. 38 C.F.R. § 3.159(c)(2)(i). The claimant must provide enough information to identify and locate the existing records. Id. The Veteran asserts injuring his thoracolumbar spine during a weekend drill with the National Guard in 1971. The Veteran has not asserted injuring his thoracolumbar spine during active-duty service with the Army. The claim will be denied. In November 2019, VA advised the Veteran to provide additional information pertaining to his Reserve or National Guard unit. In October 2020, VA notified the Veteran that he was advised to provide additional information and that he did not respond. In late-October 2020, the Veteran notified VA that he was in the Individual Ready Reserve Control Group and never assigned to an individual reserve unit. In April 2021, VA advised the Veteran to provide additional information as to his Individual Ready Reserve or National Guard unit. In July 2021, VA again advised the Veteran to provide additional information, to include which branch of the Individual Ready Reserve or National Guard the Veteran was assigned. The Veteran did not respond. STRs from the Veteran's active-duty service do not show complaints or contemporaneous reports pertaining to his thoracolumbar spine. In his September 1967 pre-separation medical history report, the Veteran did not report back trouble. In the Veteran's September 1967 pre-separation medical examination report, the service medical examiner noted no spine abnormalities. As discussed above, the STRs are highly probative evidence because they were generated with the specific view of recording the events they describe. In this respect, they are akin to official records, which generally enjoy a high degree of probative value in the law. Rucker, 10 Vet. App. at 73. During the April 2019 Board hearing, the Veteran testified injuring his thoracolumbar spine in 1971 during a weekend drill with the National Guard. However, during a February 2020 VA examination, the Veteran "denie[d] specific injury to the back" and that his back pain began "sometime before x-rays in 2002." The Veteran was diagnosed with thoracolumbar spine degenerative disc disease. A preponderance of the evidence is against a finding that the Veteran underwent an in-service event, injury, or disease as to his thoracolumbar spine DDD and/or that the Veteran's thoracolumbar spine DDD was incurred in-service. The Veteran consistently reported a thoracolumbar spine injury during a claimed period of service with the National Guard and not during his Army active-duty service. As to chronicity, STRs from the Veteran's active-duty service do not show a combination of manifestations sufficient to identify thoracolumbar DDD and sufficient observation to establish chronicity at the time or manifesting to a compensable degree within one year from the date of service separation as evidenced by the Veteran's report that his back pain began sometime in 2002. As to continuity of symptomatology, thoracolumbar spine DDD was not "noted" during service as evidenced by the service medical examiner noting no spine abnormalities in the Veteran's September 1967 pre-separation medical examination report. Additionally, the Veteran has not responded to VA's four requests to obtain information as to the Veteran's claimed Individual Ready Reserve or National Guard unit. Therefore, service connection is not warranted, and the claim is denied. Cervical spine and bilateral leg disorder Service connection shall be granted on a secondary basis under 38 C.F.R. § 3.310 where it is demonstrated that a service-connected disorder caused or aggravated a nonservice-connected disability. Allen v. Brown, 7 Vet. App. 439 (1995). The Veteran asserts his cervical spine and bilateral leg disorder as secondary to thoracolumbar spine DDD. The Veteran has not asserted, and the evidence does not raise a theory of direct service connection. Robinson v. Mansfield, 21 Vet. App. 545 (2008) (holding that VA is not required to raise sua sponte all possible theories of entitlement but must consider those bases reasonably raised either by the claimant or the evidence). As a matter of law, the claims will be denied because the Veteran's thoracolumbar spine DDD is not service connected. 38 C.F.R. § 3.310; Mason v. Principi, 16 Vet. App. 129 (2002). A preponderance of the evidence is against the claims. Therefore, service connection is not warranted, and the claims are denied. REASONS FOR REMAND The remaining matter is remanded for the following actions: 1. BACKGROUND FOR THE RO ADJUDICATOR The March 2021 VA negative etiology opinion as to the Veteran's stomach disorder was inadequate for two reasons: (1) the examiner did not consider the Veteran's competent statement of stomach trouble since service separation and relied on an absence of documented medical evidence from service separation to 2008 and (2) the examiner did not consider the Veteran's non-VA treatment records from May 2002 to the present. Barr v. Nicholson, 21 Vet. App. 303 (2007) (holding that a lay person is competent to identify the presence of disability or symptoms of disability subject to lay observation); Green v. Derwinski, 1 Vet. App. 121, 124 (1991) (a thorough and contemporaneous medical examination is one which considers the records of prior medical treatment). THE REMAND DIRECTIVES FOLLOW 2. Return the file to the VA examiner who provided the March 2021 VA medical opinion for a file review and an addendum opinion. If the examiner is not available, have the file reviewed by a similarly qualified examiner. Another examination is not required; however, if the VA examiner indicates that he or she cannot respond to the Board's questions without examination of the Veteran, another examination should be afforded to the Veteran. All relevant medical and non-medical records must be made available for review of pertinent documents. The examination report should specifically state that such a review was conducted. Was the Veteran's stomach disorder, to include pancreatitis, GERD, and/or gastritis caused by the two in-service reports of stomach trouble and/or in-service diagnosis of gastroenteritis? THE EXAMINER IS ADVISED THE VETERAN IS COMPETENT TO REPORT STOMACH TROUBLE SINCE SERVICE SEPARATION Although the examiner must review the VBMS file, his or her attention is drawn to the following: A May 1966 service treatment record reflects the Veteran's report of a stomach-ache for three days. The Veteran was diagnosed with gastroenteritis. A July 1967 service treatment record reflects the Veteran's report of vomiting once per day for one week. The Veteran was diagnosed with gastroenteritis. In his September 1967 pre-separation medical history report, the Veteran answered "yes" to the question of whether he then had, or once had stomach trouble. The service medical examiner noted that the Veteran had an occasional upset stomach. In the Veteran's September 1967 pre-separation medical examination report, no abdomen or viscera abnormalities were noted. In a February 1970 VA examination not focused on the Veteran's stomach, a digestive system examination revealed normal findings specifically, no masses, abnormalities, or tenderness. A May 2002 non-VA treatment record noted a prior medical history of peptic ulcer disease. A January 2003 non-VA treatment record reflects the Veteran's report of epigastric pain. He was diagnosed with esophageal reflux. In an August 2003 non-VA treatment record, the Veteran reported not taking Prevacid because it would relieve his stomach. He was diagnosed with esophageal reflux. In an October 2003 non-VA treatment record, it was noted that the Veteran had symptoms suggestive of esophageal reflux that occurred episodically. He was diagnosed with esophageal reflux. A December 2003 non-VA treatment record noted a prior medical history of GERD. A review of systems revealed occasional GERD symptoms. A January 2004 non-VA treatment record reflects a diagnosis of esophageal reflux. A January 2008 VA treatment record noted a prior medical history of stomach ulcers and the Veteran's treatment with Prevacid for ten years. A January 2010 non-VA esophagogastroduodenoscopy revealed diffuse antral gastritis and no ulcer or erosion. The Veteran was diagnosed with gastritis and it was noted that the Veteran's esophagus and duodenum were normal. An October 2010 private treatment record reflects a prior medical history of a gastric ulcer, dyspepsia, and GERD. A review of systems revealed peptic ulcer disease. Private treatment records dated February 2011 and April 2011 reflect a prior medical history of gastric ulcer. An April 2011 VA treatment record reflects the Veteran's report of stomach pain for five months. A July 2011 non-VA stomach antrum biopsy reveled benign antral gastric mucosa and mild chronic gastritis. A July 2011 non-VA esophagogastroduodenoscopy revealed stomach erythema and erosions. The non-VA examiner ruled out peptic ulcer disease and gastritis. The Veteran was diagnosed with erosive gastritis. A November 2011 non-VA treatment record reflects a prior medical history of gastric ulcer. A March 2012 non-VA treatment record reflects a diagnosis of reflux esophagitis. An April 2012 VA treatment record reflects a diagnosis of reflux esophagitis and recurrent peptic ulcer disease. An August 2012 non-VA treatment record reflects the Veteran's report of abdominal pain, epigastric pain, bloating, and stomach belching. He was diagnosed with GERD and epigastric abdominal pain. A June 2013 VA treatment record reflects the Veteran's diagnosis of pancreatitis, GERD, and gastritis. It was noted that the Veteran was not properly diagnosed with peptic ulcer disease. In his April 2019 Board hearing, the Veteran testified to experiencing stomach trouble since service separation in 1967. The March 2021 VA examiner diagnosed the Veteran with pancreatitis, GERD, and gastritis. 3. Readjudicate the issue on appeal. If the benefit sought on appeal remains denied, the Veteran should be provided a supplemental statement of the case (SSOC). An appropriate period should be allowed for response before the case is returned to the Board. Vito A. Clementi Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. Cohen, Counsel The Board's action is binding only in this case. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.