Citation Nr: 21072438 Decision Date: 12/03/21 Archive Date: 12/03/21 DOCKET NO. 17-61 077 DATE: December 3, 2021 ORDER Service connection for a low back disorder is denied. Service connection for gastroesophageal reflux disease (GERD) is denied. REMANDED Entitlement to service connection for a bilateral knee condition is remanded. Entitlement to service connection for polyarthritis is remanded. FINDINGS OF FACT 1. The Veteran's low back disorder was not shown as chronic in service and arthritis of the lumbar spine did not manifest to a compensable degree within the applicable presumptive period; continuity of symptomatology is not established; and the disability is not otherwise etiologically related to an in-service injury or disease. 2. The preponderance of the evidence is against finding that GERD began during active service, is otherwise related to an in-service injury or disease, and is not shown to be secondary to a service-connected disability. CONCLUSIONS OF LAW 1. The criteria for service connection for a low back disorder, including arthritis, have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1117, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.317. 2. The criteria for service connection for GERD have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1989 to May 1993. In March 2020, a videoconference hearing was held before the undersigned. A transcript of the hearing is associated with the Veteran's claims file. In a May 2020 decision, the Board found that new and material evidence had been received to reopen previously denied claims of service connection for a low back disability, GERD, a skin disorder, and a chronic psychiatric disorder. These issues were then remanded for further development of the evidence. Following development, service connection was awarded for chronic skin and psychiatric disabilities. As such, these issues are no longer before the Board for appellate consideration. The matters of service connection for GERD and a low back disorder have been returned to the Board. The May 2020 decision also denied service connection for several issues, including bilateral knee disorders and polyarthritis. The Veteran appealed the denial of these two issues to the United States Court of Appeals for Veterans Claims (Court) and the Board's decision was vacated pursuant to a July 2021 Order, following a Joint Motion for Remand (JMR). The parties agreed that the Board erred in that it failed to address whether the Appellant's undiagnosed joint pain of the elbows, knees and shoulders qualified as an undiagnosed illness under 38 C.F.R. § 3.317. This included reliance on the October 2014 VA examination that found that the Veteran did not have a current undiagnosed illness manifested as joint pain. It was agreed that it must be determined whether the joint pain, including bilateral knee pain, qualifies as an undiagnosed illness consistent with the Court's decision in Joyner v. McDonald, 766 F.3d 1393, 1395 (Fed. Cir. 2014). Service Connection Service connection for a low back disorder The Veteran contends that service connection should be established for his low back disorder. During the hearing before the undersigned, he stated that he had complaints of low back pain soon after his separation from service. It is asserted that this was due to his military occupational specialty as a tanker in service where he was always "banging up against" the back of the tank turret. This became worse over time until he eventually needed injections to treat his back pain. Certain chronic diseases will be presumed related to service, absent an intercurrent cause, if they were shown as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service (or within an applicable presumptive period) with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). The Veteran has a current diagnosis of degenerative arthritis of the lumbar spine as evidenced by the October 2020 VA examination. Arthritis is an enumerated condition under 38 C.F.R. § 3.309(a); Walker, 708 F.3d 1331. Review of the Veteran's service treatment records (STRs) shows no complaint or manifestation of low back pain or arthritis of the lumbar spine. On examination for separation from service, he reported that he did not have, nor had he had, low back pain. Clinical evaluation of the spine at that time was normal. Post-service medical evidence shows that the Veteran was treated for low back musculoskeletal pain in August 1997 and in September 1998. An examination was conducted by VA in April 1999. At that time, the Veteran reported injuring his back while jumping off of a tank wile in service. He now had stiffness of the back. Objective examination showed no evidence of painful motion, spasm, weakness or tenderness. The musculature of the back was well developed. There were no neurologic abnormalities. Range of motion was normal. X-ray studies of the lumbosacral spine were normal. The diagnosis was mechanical back pain syndrome without radiculopathy and with normal range of motion. A June 2015 private treatment record shows that the Veteran was noted to have a history of lumbar pain, but X-ray studies at that time showed normal views of the lumbar spine. Low back pain was again demonstrated on a report of private treatment dated in April 2017, when sciatica was noted. An examination was conducted by VA in October 2020. As noted above, the diagnosis was degenerative arthritis of the spine. The diagnosis was dated from 2015. Following examination, the examiner opined that the claimed condition was less likely than not incurred in or caused by a claimed in-service injury, event or illness. The rationale was that during service the Veteran had musculoskeletal low back pain that was acute only. It was acknowledged that in March 1998, examination revealed a diagnosis of musculoskeletal back pain that began during service, but it was further noted that treatment records were silent for ten years. The examiner also stated the record showed arthritis of the back in August 2008, but there was no evidence of chronicity of care or symptoms that were subjective only. In conclusion, the examiner opined that a nexus had not been established. While the Veteran has stated that he had back pain beginning in service, the disability was not shown as chronic in service, arthritis did not manifest to a compensable degree within a presumptive period, and it was not noted in service with attributable continuity of symptomatology. The earliest complaints of back pain in the treatment records show the Veteran did not manifest this disorder until 1998, several years after separation from service. While the Veteran is competent to report having experienced symptoms of back pain since service, he is not competent to provide a diagnosis in this case or determine that these symptoms were manifestations of arthritis of the spine, as the Veteran has not demonstrated the necessary medical expertise. The issue is medically complex, as it requires knowledge of the interpretation of complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Additionally, it is noted that the Veteran has provided conflicting details of the development of his back pain. He initially stated that he injured his back while jumping from a tank, but during the Board hearing he stated that there was no specific injury, and it was just the constant traumas associated with riding in the tank turret that led to his low back disorder. These inconsistencies render the Veteran's statements of less probative value. The Board gives more probative weight to the competent medical evidence, which establishes that arthritis of the low back was not manifested until after normal X-ray studies were performed in 1999 and in 2015. Moreover, the VA examiner determined that the symptoms of which the Veteran complained were acute in nature and unrelated to the later development of degenerative arthritis of the lumbar spine. Thus, while service connection may still be granted on a direct basis, the preponderance of the evidence is against finding that a medical nexus exists between the Veteran's low back arthritis and an in-service injury, event or disease. 38 U.S.C. §§ 1110, 1131; Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303. Finally, the Board notes that degenerative arthritis is a known clinical diagnosis. Therefore, it may not be attributed by presumption to the Veteran's service in the Persian Gulf. 38 U.S.C. § 1117; 38 C.F.R. § 3.317. For these reasons, the Board finds that a preponderance of the evidence is against the Veteran's claim for service connection for a chronic low back disorder, including arthritis, and the claim must be denied. Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Service connection for GERD The Veteran contends that service connection should be established for GERD, which he asserts is related to medication he has taken for treatment of his low back disorder. Alternatively, he testified that he has been having complaints of heartburn since the 1990s that that, he believes it is related to service. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). Service connection may also be granted for disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). "When aggravation of a veteran's non-service-connected condition is proximately due to or the result of a service-connected condition, such veteran shall be compensated for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation." Allen v. Brown, 7 Vet. App. 439 (1995). The question for the Board is whether the Veteran has a current disability that began during service; is at least as likely as not related to an in-service injury, event, or disease; or is proximately due to or the result of a service-connected disease or disability. Review of the record shows that the Veteran has a diagnosis of GERD as demonstrated by an October 2020 VA examination. The Board nevertheless concludes that, while the Veteran has a current diagnosis of GERD, and the Veteran has testified that he had manifestations of gastrointestinal distress since service, the preponderance of the evidence weighs against finding that the Veteran's current diagnosis of GERD began during service or is otherwise related to an in-service injury, event, or disease. Treatment records show the Veteran was first noted to have heartburn in September 1998 and was diagnosed with a possible hiatal hernia, gastritis with no evidence of esophagitis, and mild reflux disease on VA examination in April 1999. This was several years after his separation from service. While the Veteran is competent to report having experienced symptoms of heartburn since service, he is not competent to provide a diagnosis in this case or determine that these symptoms were manifestations of GERD. The issue is medically complex, as it requires knowledge of the interpretation of complicated diagnostic medical testing. Jandreau 492 F.3d at 1372. Further, the October 2020 VA examiner opined that the Veteran's GERD was not at least as likely as not related to an in-service injury, event, or disease. The rationale was that any gastrointestinal disorder in service was considered to have been acute, with the earliest recognition of GERD found within the medical records being in 2011. The examiner noted that there was no evidence of chronicity of care in service and a nexus had not been established. In a December 2020 addendum, the VA examiner opined that the Veteran's service-connected tinnitus and hearing loss did not have any pathophysiologic mechanisms by which they could cause or aggravate a gastrointestinal disorder. Regarding medications that the Veteran was taking, the examiner opined that a review of the Veteran's medications showed these did not cause the claimed gastrointestinal disorder and, while some might have gastrointestinal side effects, these would be dose-related and ameliorate on discontinuation or dose modifications. Therefore, this would not constitute aggravation beyond the natural course of irritable bowel syndrome (IBS). The examiners stated further that GERD was due to relaxation of the gastroesophageal (GE) junction/sphincter and mediations did not cause this condition. "This is established medical knowledge and practice. Neither do medications aggravate GERD as they do not act on the integrity of the GE junction and therefore have no pathophysiologic mechanism by which to do so. As such, the Veteran's GERD was not related to or due to tinnitus, hearing loss, or the medications noted in the Veteran's record. The examiner's opinion is probative, because it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). It is also noted that, while service connection has been established for a persistent depressive disorder, tinnitus, right ear hearing loss, and eczema; service connection has not been established for a lumbosacral spine disorder. The VA examiner opined that the Veteran's GERD was not related in any way to his hearing loss and tinnitus, and, while no specific opinion was made regarding service-connected psychiatric disorder or eczema, the examiner did review all of the medications that the Veteran was taking and opined that these did not cause or aggravate the diagnosed GE disorders for which the Veteran has been diagnosed. As such, there is no basis for secondary service connection on the contended basis that the Veteran's GERD is the result of the medications that he has been taking or as a result of a service-connected disease or disability and this aspect of the Veteran's claim must be denied. Regarding direct service connection, the only nexus opinion in the record is that any gastrointestinal complaints that the Veteran may have had in service were acute in nature and not related to the later development of a chronic gastrointestinal disability. This is the only medical opinion in the record. The Board may not reject medical opinions based on its own medical judgment. Obert v. Brown, 5 Vet. App. 30 (1993); see also Colvin v. Derwinski, 1 Vet. App. 171 (1991). The Veteran believes his GERD is related to an in-service injury, event, or disease or to a service-connected disability or the medications he is taking, but he is not competent to provide a nexus opinion regarding this issue. The issue is medically complex, as it requires knowledge of the interaction between multiple organ systems in the body. Therefore, it is outside the competence of the Veteran in this case because the record does not show that he has the medical training or credentials to make such a determination. Jandreau 492 F.3d at 1372; see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). Consequently, the Board gives more probative weight to the VA medical opinions. For these reasons, the Board finds that a preponderance of the evidence is against the Veteran's claim for service connection for GERD, and the claim must be denied. Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. REASONS FOR REMAND Service connection for polyarthritis, including a bilateral knee condition is remanded. As noted, the July 2021 JMR found that the Board, in the May 2020 decision, failed to address whether the Veteran's joint pain of the elbows, knees and shoulders qualified as an undiagnosed illness under 38 C.F.R. § 3.317. The Board finds that there is no VA medical opinion that specifically addresses this matter. As such, it is found that an additional medical examination is necessary. McLendon v. Nicholson, 20 Vet. App. 79 (2006). The matters are REMANDED for the following action: 1. Schedule the Veteran for an appropriate examination to determine the nature and etiology of his joint pain condition. The examiner must review the entire claims file, including a copy of this remand. The examiner should conduct all appropriate diagnostic testing. The examiner should then record all noted signs and reported symptoms, document all clinical findings, and provide a diagnosis if possible. The examiner is asked to provide responses to the following: A) Identify the Veteran's objective indications of a disability. "Objective indications" of a qualifying chronic disability include both objective evidence perceptible to an examining physician and other non-medical indicators that are capable of independent verification. 38 C.F.R. § 3.317(a)(3). Non-medical indicators include evidence such as time lost form work, the veteran having sought treatment for his symptoms, and change in the veteran's appearance, physical abilities, and mental or emotional attitude. 60 Fed. Reg. 6661, 6663 (Feb. 3, 1995). B) By history, physical examination, or laboratory testing, can the Veteran's objective indications of a disability be attributed to a known clinical diagnosis? If the signs and symptoms are not characteristic of a known clinical diagnosis, the examiner should so indicate. There is no requirement that the examiner provide a diagnosis of undiagnosed illness. C) If the Veteran's objective indications cannot be attributed to a known clinical diagnosis, is there affirmative evidence that the undiagnosed illness is not incurred during active service during the Persian Gulf War or that it was caused by a supervening condition or event that occurred since the Veteran's departure from service during the Persian Gulf War? The examiner should note that a positive response to this question requires affirmative evidence. The mere absence of evidence is not sufficient. D) If the Veteran's objective indications can be attributed to a known clinical diagnosis, is the etiology of the Veteran's condition (1) inconclusive, (2) partially understood, or (3) fully understood? This determination as to each must be based on the Veteran's specific case and cannot be based on the etiology of the disease or disability population as a whole. E) If the Veteran's objective indications can be attributed to a known clinical diagnosis, is the pathophysiology of the Veteran's condition (1) inconclusive, (2) partially understood, or (3) fully understood? This determination as to each must be based on the Veteran's specific case and cannot be based on the pathophysiology of the disease or disability population as a whole. F) If BOTH the etiology AND pathophysiology are partially understood or fully understood, then is it at least as likely as not (a 50 percent or greater probability) that the Veteran's diagnosed condition was incurred in, or is otherwise related to, his active service? A complete rationale must be provided for all opinions expressed. A. ISHIZAWAR Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Joseph P. Gervasio 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.