Citation Nr: 21068195 Decision Date: 11/09/21 Archive Date: 11/09/21 DOCKET NO. 18-27 186 DATE: November 9, 2021 ORDER Entitlement to service connection for a headache disability is denied. Entitlement to service connection for avitaminosis is denied. REMANDED Entitlement to service connection for bruised ribs, left side, is remanded. Entitlement to service connection for a back disability is remanded. Entitlement to service connection for a gastrointestinal disability (GI), to include gastroesophageal reflux disease (GERD), is remanded. FINDINGS OF FACT 1. The Veteran's avitaminosis, diagnosed as vitamin D deficiency, was not shown in service or for many years thereafter, and there is no probative evidence linking this disability to service. 2. The Veteran does not have a current diagnosis of a headache disability. CONCLUSIONS OF LAW 1. The criteria for service connection for avitaminosis, diagnosed as vitamin D deficiency, have not been met. 38 U.S.C. §§ 1110, 1131, 5107 (2018); 38 C.F.R. §§ 3.102, 3.303 (2020). 2. The criteria for service connection for a headache disability have not been met. 38 U.S.C. §§ 1110, 1131, 5107 (2018); 38 C.F.R. §§ 3.102, 3.303 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran's service in the Army National Guard from October 1985 to July 1996 includes a period of initial active-duty training (IADT) from November 1985 to February 1986. This matter comes to the Board of Veterans' Appeals (Board) on appeal from July 2014 and October 2016 rating decisions of the Department of Veterans Affairs (VA) Regional Office. In February 2020, the Veteran and his spouse testified at a Board video conference hearing. A transcript of the hearing is of record. The Board has expanded and recharacterized the issue of entitlement to service connection for hernia, hiatal, as noted on the title page above. This is in consideration of additional gastrointestinal symptoms and disorders in the record, to specifically include gastroesophageal reflux disease (GERD) and gastritis. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). Service Connection Law and Regulations Service connection may be granted for disability resulting from disease or injury incurred or aggravated during active military service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303. Generally, service connection requires (1) the existence of a present disability, (2) in-service incurrence or aggravation of an injury or disease, 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 (Fed. Cir. 2004). The term "active military, naval, or air service" is defined to include active duty, any period of active duty for training (ACDUTRA or ADT) during which the individual concerned was disabled or died from a disease or injury incurred or aggravated in line of duty, and any period of inactive duty for training (INACDUTRA or IADT) during which the individual concerned was disabled or died from an injury incurred or aggravated in line of duty." 38 U.S.C. § 101 (24); see also 38 C.F.R. § 3.6 (a). ACDUTRA includes full time duty in the Armed Forces performed by members of the Reserves for training purposes. 38 U.S.C. § 101 (22); see also 38 C.F.R. § 3.6 (c). INACDUTRA is generally duty (other than full-time duty) prescribed for Reserves or duty performed by a member of the National Guard of any State (other than full-time duty). 38 U.S.C. § 101 (23); 38 C.F.R. § 3.6 (d). Annual training is an example of ACDUTRA, while weekend drills are INACDUTRA. Analysis 1. Avitaminosis The Veteran testified that his vitamin D deficiency is due to nutritional deficiencies in service. His National Guard treatment records, including records related to his IADT from November 1985 to February 1986, do not show that he had avitaminosis. Rather, the earliest medical evidence of avitaminosis is a September 2016 private treatment record that reflects a diagnosis of vitamin D deficiency and notes September 2016 as the date of onset. This evidence is not inconsistent with the Veteran's hearing testimony to the extent that he testified he was not treated in service for a vitamin deficiency, and he does not know if he had a vitamin deficiency in service. He also testified that he is not sure when he acquired a vitamin deficiency. In short, the only evidence relating the Veteran's vitamin D deficiency, diagnosed many years after his July 1996 discharge from the Army National Guard, to service is the Veteran's opinion that it is due to a poor diet in service. However, as a layman, the Veteran is not shown to have the medical expertise to render an etiological opinion in this matter and his opinion in this regard is not found to be competent. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). In terms of affording the Veteran an examination, the Board acknowledges that the Veteran has not been afforded a VA examination regarding this claimed disability. However, the Board finds that an examination is not necessary as the requirements for affording the Veteran an examination have not been met. See McLendon v. Nicholson, 20 Vet App. 79 (2006). This is due to the lack of probative evidence of a causal relationship between the present disability of vitamin D deficiency and a disease or injury incurred or aggravated during service. The Veteran's generalized statements alone of a link are insufficient to satisfy the requirements under McLendon. See Waters v. Shinseki, 601 F.3d 1274, 1278-79 (Fed. Cir. 2010). Inasmuch as the weight of evidence is against an essential element for this claim, i.e., (3) a causal relationship between the post-service diagnosis of vitamin D deficiency and an in-service disease or injury, the claim must be denied. Shedden, 381 F.3d at 1163. In reaching this conclusion the Board has considered the applicability of the benefit of the doubt doctrine; however, as the preponderance of the evidence is against this claim, that doctrine is not applicable in the instant appeal. 38 U.S.C. § 5107(b). 2. Headache Disability The Veteran testified that he started getting headaches in service due to a lack of sleep and he self-treated the headaches with over-the counter medication. He denied going to sick call for treatment. He also denied receiving treatment from his current doctor, Dr. H., for headaches. Neither the Veteran's National Guard treatment records nor the private medical records on file show that the Veteran has a headache disability. In terms of his report that he has had headaches during ADT service and after service, he is competent to report this, and the Board finds him credible. See Layno v. Brown, 6 Vet. App. 465 (1994). However, he has not been shown have the medical expertise to diagnose a headache disability and his opinion as to the existence of a headache disability or as to the etiology of such is not competent medical evidence. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). In the absence of proof of a present disability, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The Board acknowledges that the Veteran has not been afforded a VA examination regarding this claimed disability. However, the Board finds that an examination is not necessary as the requirements for affording the Veteran an examination have not been met. See McLendon v. Nicholson, 20 Vet App. 79 (2006). This is due to the lack of probative evidence that the Veteran has a current headache disability. Id. Without a confirmed diagnosis of a headache disability, service connection for such a disability is not warranted and must be denied. 38 C.F.R. § 3.303; Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). In reaching this conclusion the Board has considered the applicability of the benefit of the doubt doctrine; however, as the preponderance of the evidence is against this claim, that doctrine is not applicable in the instant appeal. 38 U.S.C. § 5107(b). REASONS FOR REMAND 1. Left Rib and Back Disabilities The Veteran asserts that he has left rib and back disabilities related to his Army National Guard service in July 1990 when, while setting up tents, he sustained an injury to his left rib and back. He also asserts that he has had intermittent left rib and back pain ever since. Treatment records in July 1990 show that the Veteran was treated for "muscle bruise" and that he was restricted from heavy lifting. Unfortunately, it is not clear from these records whether this incident occurred during a period of active military, naval, or air service. A Statement of Medical Examination and Duty Status report (DA Form 2173) in July 1990 shows that the Veteran was on duty at the time of the July 1990 injury, but it is blank regarding the question of whether the Veteran was on AD, ADT, or IDT at the time. Recent treatment records show that the Veteran was given a working diagnosis in July 2019 of back strain, herniated disc, and sciatica, and a working diagnosis in November 2019 of back strain. Accordingly, this matter must be remanded for further verification as to the Veteran's duty status at the time of his treatment in July 1990. If the Agency of Original Jurisdiction verifies that the July 1990 incident occurred while the Veteran was on active duty, ACDUTRA or INACDUTRA, the Veteran should be afforded a VA examination to determine whether he has current left rib and back disabilities related to service. 38 U.S.C. §5103(A)(d). 2. GI Disability The Veteran testified in February 2020 that he experienced GI symptoms while on IADT and during drilling periods which he described as "food coming up". He attributes his symptoms to eating rations in service. He also testified that a Navy doctor told him he had reflux. His National Guard service records show that he was treated for abdominal pain in December 1985 and January 1986 (while on IADT), and he is currently diagnosed as having gastritis and GERD. The evidence outlined above meets the requirements for affording the Veteran a VA examination and a remand is thus warranted to schedule him for a GI examination. McLendon, 20 Vet App. at 79. The matters are REMANDED for the following action: 1. Verify the dates and type of service (e.g., active duty, ACDUTRA, INACDUTRA) that the Veteran had while serving with the Arkansas Army National Guard from October 1985 to July 1996. If this information is unavailable, all efforts to obtain it should be documented in the claim file. 2. Schedule the Veteran for a VA examination with an appropriate examiner to address the nature and etiology of his claimed GI disabilities. The examiner must review pertinent documents in the Veteran's claims file in conjunction with the examination. This must be noted in the examination report. For each diagnosed GI condition, the examiner should opine whether it is at least as likely as not (a 50 percent probability or more) that the Veteran's disorder(s) arose during service or a verified period of ACDUTRA; is otherwise the result of a disease or injury incurred during active duty or a verified period of ACDUTRA; or is otherwise the result of an injury incurred during a verified period of INACDUTRA. Rationale for all requested opinions shall be provided. If the examiner cannot provide an opinion without resorting to mere speculation, they shall provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). 3. If, and only if, the Veteran's July 1990 treatment for a "muscle bruise" is shown to have occurred during a verified period of service, schedule him for a VA examination with an appropriate examiner to address the nature and etiology of his claimed left rib and back disabilities. The examiner must review pertinent documents in the Veteran's claims file in conjunction with the examination. This must be noted in the examination report. For each diagnosed condition, the examiner should state whether it is at least as likely as not (a 50 percent probability or more) that the Veteran's disorder arose during a verified period of active duty or period of ACDUTRA; or is otherwise the result of a disease or injury incurred during active duty or a verified period of ACDUTRA; or is otherwise the result of an injury incurred during a verified period of INACDUTRA. Rationale for all requested opinions shall be provided. If the examiner cannot provide an opinion without resorting to mere speculation, they shall provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). Kristin Haddock Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Shawkey, 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.