Citation Nr: 21068600 Decision Date: 11/10/21 Archive Date: 11/10/21 DOCKET NO. 18-45 601 DATE: November 10, 2021 ORDER Entitlement to service connection for a back injury of the lumbar spine is denied. REMANDED Entitlement to a compensable disability rating for residuals of bilateral chalazion (claimed as blurred vision) is remanded. Entitlement to service connection for carpal tunnel syndrome of the right upper extremity is remanded. Entitlement to service connection for carpal tunnel syndrome of the left upper extremity is remanded. Entitlement to service connection for hiatal hernia, also claimed as gastroesophageal reflux disease (GERD) is remanded. FINDINGS OF FACT The preponderance of the evidence is against finding that the Veteran's back injury of the lumbar spine began during active service, or is otherwise related to an in-service injury or disease. CONCLUSIONS OF LAW The criteria for entitlement to service connection for back injury of the lumbar spine are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from June 1973 until his honorable discharge in May 1977, with 23 days lost under Section 972 Title 10 U.S.C. due to civil confinement. Specifically, from February 14, 1977 to March 9, 1977. These matters come before the Board of Veterans' Appeals (Board) on appeal from the October 2015 and September 2016 rating decisions by the Regional Office(s) (RO) of the United States Department of Veterans Affairs (VA). In March 2021, the Veteran testified at a virtual Board hearing before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing has been associated with the record on appeal. During the hearing, the undersigned held the record open for 60 days to allow for the submission of additional evidence. Service Connection 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, 1131; 38 C.F.R. § 3.303(a). To establish a right to compensation for a present disability, a Veteran 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 - the so-called "nexus" requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may be granted for any disease initially diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In addition, service connection for certain chronic diseases, including arthritis, may be established on a presumptive basis by showing that the condition manifested to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C. §§ 1101, 1112, 1113, 1131, 1137; 38 C.F.R. §§ 3.307, 3.309(a); Fountain v. McDonald, 27 Vet. App. 258, 271-72 (2015). Although the disease need not be diagnosed within the presumptive period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). Additionally, for certain chronic diseases with potential onset during service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. If chronicity in service is not established, a showing of continuity of symptoms after discharge may support the claim. 38 C.F.R. §§ 3.303(b), 3.309; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). 1. Entitlement to service connection for residuals of a back injury of the lumbar spine The Veteran asserts that his lumbar spine disability began during service and has existed since that time and/or it is related to an in-service back injury. First, the Board finds that there is a current disability. See Holton, 557 F.3d at 1366; 38 C.F.R. § 3.303(d). The Veteran is diagnosed with degenerative arthritis of the lumbar spine and thoracic scoliosis. See September 2015 Back (Thoracolumbar spine) VA examination, pp. 1-2. Second, the Board finds that there was an in-service event, injury or disease. See Holton, 557 F.3d at 1366; 38 C.F.R. § 3.303(d). The Veteran complained of back pain during service. See March 1975 Service Treatment Records; See November 1975 Service Treatment Records; see also October 2020 Buddy Statement. Third, the Board finds that the evidence of record does not support a finding that the Veteran's back disabilities are related to active service. The Veteran was afforded a VA examination in September 2015. The September 2015 VA examiner opined that it is less likely than not (less than 50 percent probability) that the Veteran's disability was incurred in or caused by the claimed in-service injury, event, or illness because although the Veteran was treated a few times for back pain (and abdominal pain), there was no mention of back pain at separation and back pain was not mentioned again until decades later based upon post-service medical records and there is no evidence of chronic low back condition between the Veteran's military service and the current date. Furthermore, the Board notes that during the Veteran's April 1977 periodic evaluation, the examination revealed that the Veteran had a normal clinical evaluation, the Veteran reported "[t]o the best of my knowledge, I am in the best of health," and there were no subsequent complaints of a back disability during service nor for decades after service. The Board notes that in October 2000, over 2 decades after discharge, VA treatment records reflect that the Veteran reported a history of chronic intermittent low back pain. See October 30, 2000 VA treatment records. Additionally, the Board notes that the Veteran's VA treatment records also reflect a history of multiple motor vehicle accidents. See February 12, 2004 VA treatment records. The Board notes that the Veteran submitted a positive nexus opinion from his treating VA staff physician (pain medicine physician (DO)) that opined that after review of the Veteran's medical history, in-service medical records, and CPRS records, it is his professional medical opinion that his time in active service has resulted in severe chronic back pain...it is more likely than not that the Veteran's pain condition is caused by his active service. See November 24, 2020 Medical Treatment Record. The Board finds that the November 2020 opinion is inadequate because it relies on an undocumented history from the Veteran that does not consider other relevant factors, including but not limited to the Veteran's April 1977 service treatment record in which the Veteran stated "[t]o the best of my knowledge, I am in the best of health," motor vehicle accidents, and supporting evidence of medical treatment to establish a chronic disability since service. For the above reasons, the Board finds the September 2015 VA examination to be more probative than the November 2020 opinion. Accordingly, entitlement to service connection for residuals of a back injury of the lumbar spine (claimed as back pain) is denied. In reaching this decision the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the Veteran's claim, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND 2. Entitlement to a compensable disability rating for residuals of bilateral chalazion (claimed as blurred vision) is remanded. The Veteran asserts that he is entitled to a higher disability rating because he has to live with pain, swelling, itching, and dryness. The Board notes that the Veteran is diagnosed with bilateral chalazion, bilateral pinguecula, bilateral age-related cataracts, and bilateral dry macular degeneration. However, of these disabilities, the only disability that the Veteran is service connected for is bilateral chalazion, which the August 2016 VA examiner noted is also in remission and does not cause scarring or disfigurement. See August 2016 VA examination, p. 7, Section 3(b). Additionally, the Board notes that the August 2020 VA examiner opined that there is no decrease in visual acuity or other visual impairment due to the Veteran's chalazion. See August 2020 VA examination, p. 10, Section 4(b). However, the August 2016 VA examiner found that the Veteran had a visual field defect and the August 2020 VA examiner found that the Veteran did not have a visual field defect and there has been no opinion provided as to the etiology of the Veteran's visual field defect from the August 2016 VA examination. Furthermore, no VA examiner has specifically addressed the etiology of the Veteran's reported symptoms (pain, swelling, itching, and dryness), and remand is required for clarification. 3. Entitlement to service connection for carpal tunnel syndrome of the right upper extremity is remanded. 4. Entitlement to service connection for carpal tunnel syndrome of the left upper extremity is remanded. Due to the similar dispositions for the above claims on appeal, the Board will address them in a common discussion below. VA has a duty to assist claimants to obtain evidence needed to substantiate a claim. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. VA's duty to assist includes providing a medical examination when is necessary to make a decision on a claim. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4). The RO did not provide the Veteran with an examination. Such development is necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim, but (1) contains competent evidence of diagnosed disability or recurrent symptoms of disability, (2) establishes that the Veteran suffered an event, injury or disease in service, has a presumptive disease during the pertinent presumptive period, or is service-connected for a disability that may have caused or aggravated the Veteran's disability; and (3) indicates that the claimed disability may be associated with the in-service event, injury, disease, or with another service-connected disability. 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79, 83-86 (2006) (noting that the third element establishes a low threshold and requires only that the evidence "indicates" that there "may" be a nexus between the current disability or symptoms and active service, including equivocal or non-specific medical evidence or credible lay evidence of continuity of symptomatology). Here, the Veteran reports and his VA treatment records reflect a disability of hand pain that he asserts is carpal tunnel syndrome; the Veteran served as a clerk/typist and asserts that he fell in 1974 or 1975; and his current disability may be related to his one or both of his in-service assertions. Because there is evidence of currently diagnosed disabilities, an in-service event, and an indication that the current disabilities may be associated with the in-service event, remand for a VA examination is required. 5. Entitlement to service connection for hiatal hernia, also claimed as GERD is remanded. Where VA provides the veteran with an examination in a service connection claim, the examination must be adequate. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). The Veteran was afforded a VA examination in October 2015. The October 2015 VA examiner found that the Veteran did not have, nor has he ever been diagnosed with an esophageal condition. However, the October 2015 VA examiner acknowledged that the Veteran had signs and symptoms of an esophageal condition (including GERD), specifically persistent recurrent epigastric distress, infrequent episodes of epigastric distress, pyrosis (heartburn), reflux, regurgitation, substernal arm or shoulder pain, sleep disturbance caused by esophageal reflux 4 or more times per year, periodic nausea, and mild chest pains due to esophageal stricture, spasm, and diverticula. Furthermore, the October 2015 VA examiner noted that the Veteran is prescribed continuous medication of Prilosec. The examiner concluded that there is no diagnosis because there is no pathology to render a diagnosis. However, the examiner failed to explain why, with the prescribed continuous medication and all of the symptomatology, is there no pathology to render a diagnosis. The October 2015 VA examiner also opined that the Veteran's disability is less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness because the Veteran had a normal UGI on January 15, 1975, which was within normal limits. However, the Board notes that the Veteran's upset stomach issues occurred both prior to and subsequent to the January 1975 UGI. Using a single snapshot in time in the middle of the Veteran's active service does not preclude the disability from beginning in or caused by his active-duty service. For the above reasons, remand is required. The matters are REMANDED for the following action: 1. Obtain an addendum opinion regarding the etiology of the Veteran's reported symptoms (pain, swelling, itching, and dryness) and the visual field defect (reflected in the August 2016 VA examination) from a VA examiner, specifically if the reported symptoms are caused or aggravated by the Veteran's service-connected chalazion. The entire claims file must be made available to and be reviewed by the examiner. If an examination is deemed necessary, it shall be provided. An explanation for all opinions expressed must be provided. The examiner should provide a detailed rationale as to any opinions provided. 2. Schedule the Veteran for a VA examination for his carpal tunnel syndrome (also claimed as wrist pain). The examiner must review the claims file. If a diagnosis cannot be provided but the Veteran's condition manifests in symptoms that cause functional impairment, then the examiner should consider them a "disability" for the purpose of providing the requested opinion(s) below. The examiner is asked to provide a response to the following: Is the Veteran's carpal tunnel syndrome (also claimed as wrist pain) at least as likely as not (50 percent probability or greater) related to the Veteran's active military service, including due to his duties as a clerk/typist and/or his assertion that he fell on his wrist in 1974 or 1975? Provide a detailed rationale to support the opinion(s). 3. Schedule the Veteran for a VA examination for his hiatal hernia, also claimed as GERD. The examiner must review the claims file. If a diagnosis cannot be provided but the Veteran's condition manifests in symptoms that cause functional impairment, then the examiner should consider them a "disability" for the purpose of providing the requested opinion(s) below. The examiner is asked to provide a response to the following: Is the Veteran's hiatal hernia, also claimed as GERD, at least as likely as not (50 percent probability or greater) related to the Veteran's active military service, including having its onset during service? The examiner must consider the Veteran's complete medical record, including but not limited to the January 1975 UGI, and repeated complaints of stomach pain. Provide a detailed rationale to support the opinion(s). M. Tenner Veterans Law Judge Board of Veterans' Appeals Attorney for the Board G. Deemer, Associate 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.