Citation Nr: 21073765 Decision Date: 12/10/21 Archive Date: 12/10/21 DOCKET NO. 17-21 759 DATE: December 10, 2021 ORDER A disability rating in excess of 10 percent for gastroesophageal reflux disease (GERD), claimed as acid reflux and stomach nerves, is denied. Service connection for a back disorder is denied. Service connection for a bilateral knee disorder is denied. FINDINGS OF FACT 1. The Veteran's GERD has not been manifested by persistently recurrent epigastric distress with dysphagia, pyrosis, and regurgitation, accompanied by substernal or arm or shoulder pain, productive of considerable impairment of health. 2. The Veteran's back disorder and bilateral knee disorder were not shown in service or for many years thereafter and are not otherwise etiologically related to active duty service. CONCLUSIONS OF LAW 1. The criteria for a disability rating in excess of 10 percent for GERD, claimed as acid reflux and stomach nerves, have not been met. 38 U.S.C. §§ 1155, 5103, 5107; 38 C.F.R. §§ 3.159, 4.3, 4.114, Diagnostic Code (DC) 7346. 2. The criteria for service connection for a back disorder have not been met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309. 3. The criteria for service connection for a bilateral knee disorder have not been met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1974 to February 1980. In an August 2020 decision, the Board granted the Veteran's claims seeking service connection for bilateral hearing loss, tinnitus, and posttraumatic-stress disorder, and denied his claims seeking a disability rating in excess of 10 percent for GERD, a compensable disability rating for a right inguinal hernia, service connection for a back disorder, service connection for a bilateral knee disorder. The Veteran appealed this decision to the United States Court of Appeals for Veterans Claims (Court). In June 2021, the Court granted a Joint Motion for Remand (JMR), vacating the Board's decision, in part, and returning the Veteran's claims seeking a disability rating in excess of 10 percent for GERD, service connection for a back disorder, and service connection for a bilateral knee disorder to the Board. With respect to the Veteran's claim seeking a disability rating in excess of 10 percent for GERD, the JMR indicates that the Board erred by failing to address favorable evidence. Specifically, the JMR indicates that the Board erred by failing to address his testimony at the April 219 Board hearing that he experienced symptoms of GERD on a daily basis and a December 2018 treatment record reflecting that he reported chest pain that might have radiated to his shoulder. Thus, the JMR directed the Board to consider whether such favorable evidence shows that a disability rating in excess of 10 percent is warranted for his GERD. With respect to the Veteran's claims seeking service connection for a back disorder and a bilateral knee disorder, the JMR indicates that the Board erred by failing to address favorable evidence. Specifically, the JMR indicates that the Board erred by failing to address his testimony at the April 2019 Board hearing that he first sought treatment for his back and bilateral knee disorders "about three years" after discharge. Thus, the JMR directed the Board to consider whether such favorable evidence shows a nexus between his current back and bilateral knee disorders and his service, a continuity of symptomatology of those disorders, and/or whether such testimony shows that he should be afforded a VA examination for those disorders. Increased Rating Disability evaluations are determined by the application of a schedule of ratings that is based on average impairment of earning capacity. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. See 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. Where there is a question as to which of two separate evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that particular rating. 38 C.F.R. § 4.7. When a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. 1. Entitlement to a disability rating in excess of 10 percent for GERD, claimed as acid reflux and stomach nerves The Veteran contends that a disability rating in excess of 10 percent is warranted for his GERD. Specifically, he testified that he believes a higher disability rating is warranted because his GERD impacts his quality of life by causing burning sensations and pain in his chest that makes him feel like he is going to have a heart attack, that he experiences the burning sensation "all the time," that he has difficulty swallowing, that he experiences nausea and bloating after meals, that he regurgitates food and sour liquids, and that he has episodes of regurgitation on a daily basis. He also testified that a higher disability rating is warranted because he experiences stomach pains as a result of his GERD and that the stomach pains are extremely painful. The Veteran's GERD has been assigned a 10 percent disability rating under 38 C.F.R. § 4.114, DC 7346. Under DC 7346, a 30 percent disability rating is warranted for persistently recurrent epigastric distress with dysphagia, pyrosis, and regurgitation, accompanied by substernal arm or shoulder pain, productive of considerable impairment of health. 38 C.F.R. § 4.114, DC 7346. Based upon a review of the evidence of record, the Board determines that a disability rating in excess of 10 percent is not warranted for the Veteran's service-connected GERD. As an initial matter, the report from the June 2018 VA examination does not show that a disability rating in excess of 10 percent is warranted for the Veteran's service-connected GERD. There, the Veteran reported that he had problems with regurgitation one to two times per week, and that his regurgitation issues improved with medication. The examiner performed an in-person examination and determined that the Veteran's GERD was manifested by symptoms of infrequent episodes of epigastric distress, dysphagia, reflux, regurgitation, and sleep disturbance caused by esophageal reflux. Thus, the examiner did not determine that the Veteran's GERD was manifested by persistently recurrent epigastric distress with dysphagia, pyrosis, and regurgitation, or that his regurgitation was accompanied by substernal arm or shoulder pain, productive of considerable impairment of health. Indeed, the examiner noted that the Veteran's GERD did not cause any impact on his ability to work. Given that the June 2018 VA examination does not show persistently recurrent epigastric distress with dysphagia, pyrosis, and regurgitation, accompanied by substernal arm or shoulder pain, productive of considerable impairment of health, it fails to show that a disability rating in excess of 10 percent is warranted for the Veteran's GERD. Additionally, the Veteran's treatment records do not show that a disability rating in excess of 10 percent is warranted for his service-connected GERD. For example, a May 2018 treatment record reflects that he experiences intermittent dysphagia, December 2018 treatment records reflect that he was negative for dysphagia, heartburn, and indigestion, and denied dysphagia, a January 2019 treatment record reflects that he was negative for dysphagia, heartburn, and indigestion, a February 2019 treatment record reflects that he denied dysphagia, abdominal pain, and unexplained weight loss, and a January 2020 treatment record reflects that he denied heartburn. The Board acknowledges that a December 2018 treatment record reflects that he sought treatment after he experienced a sharp and/or squeezing pain in his chest that began when he started walking, had a duration of approximately five minutes, resolved after he drank a glass of water, and "might" have radiated to his shoulder. The Board finds that this treatment record does not show persistently recurrent epigastric distress with dysphagia, pyrosis, and regurgitation, accompanied by substernal arm or shoulder pain, productive of considerable impairment of health such that a disability rating in excess of 10 percent is warranted for the Veteran's service-connected GERD because there is no indication that this pain was substernal arm or shoulder pain related to GERD. Moreover, as set forth above, the clinical evidence of record does not show persistently recurrent epigastric distress with dysphagia, pyrosis, and regurgitation. Additionally, the Board has considered the statements from the Veteran that his service-connected is worse than the 10 percent disability rating that he currently receives. In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. In this case, the Board has specifically considered the Veteran's testimony at the April 2019 Board hearing that his GERD causes a burning sensation in his chest, that he experiences a burning sensation and pain in his chest, difficulty swallowing, nausea and bloating, and regurgitation on a daily basis. However, the Board concludes that this testimony is insufficient on its own because, as set forth above, it is contradicted by the clinical evidence of record including the May 2018, December 2018, January 2019, February 2019, and January 2020 treatment records, which reflect that he either denied dysphagia and heartburn or was negative for dysphagia and heartburn, contradicting his testimony that he experienced symptoms of GERD on a daily basis. On the whole, the Board places more probative value on statements the Veteran made to physicians in the course of medical treatment over statements made to the Board in the context of a claim for benefits. Moreover, although the Veteran is competent to report symptoms of his GERD, he is not competent to identify a specific level of disability of his service-connected GERD under DC 7346. See Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). On the other hand, such competent evidence concerning the nature and extent of the Veteran's service-connected GERD has been provided by the medical personnel who have examined him during the current appeal and who have rendered pertinent opinions in conjunction with the evaluations. The medical findings (as provided in the June 2018 VA examination report) directly address the criteria under which his GERD is evaluated. By virtue of the foregoing, the Board concludes that a disability rating in excess of 10 percent is not warranted for the Veteran's service-connected GERD. Service Connection Under the relevant laws and regulations, 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; 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. §§ 3.303(a), 3.304, 3.307, 3.309, 3.310. Generally, the evidence 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. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498, 505 (1995). 2. Entitlement to service connection for a back disorder 3. Entitlement to service connection for a bilateral knee disorder The Veteran contends that service connection for a back disorder and a bilateral knee disorder is warranted because these disorders are etiologically related to injuries that he sustained during a training exercise when he slipped on a rock and felt to the ground while carrying his rucksack. Further, he contends that his back disorder is related to active duty service because he was responsible for lifting, transporting, and storing heavy munitions and equipment and because he sought treatment for a back disorder three years after his separation from service. With respect to a bilateral knee disorder, he states that service connection is warranted because although he did not seek treatment during his active duty service, he sought treatment three years after his separation from service. Based upon the evidence of record, the Board determines that although the Veteran has current diagnoses of a back disorder and a bilateral knee disorder, service connection is not warranted. Initially, the Board finds that the Veteran's service treatment records fail to establish that his back and bilateral knee disorders were incurred in or are otherwise etiologically related to his active duty service. Specifically, his service treatment records do not reflect that he reported symptoms of, received treatment for, or was diagnosed with a back disorder or a bilateral knee disorder. In fact, the report from his November 1979 separation examination reflects that the examining physician determined that his lower extremities and spine were "normal." Thus, his service treatment records fail to establish that service connection is warranted for his back and bilateral knee disorders. The post-service clinical evidence also does not indicate that the Veteran has experienced continuous symptoms related to a back disorder or a bilateral knee disorder. Here, the objective medical evidence does not show any symptoms of or treatment for symptoms that could be attributed to either a back disorder or a bilateral knee disorder until December 2014, more than 34 years after his separation from service. Together with the findings of the physician that performed the November 1979 separation examination and determined that his lower extremities and spine were "normal," the gap between his active duty service and when he first sought treatment for back and bilateral knee disorders shows that a continuity of symptoms based upon the clinical evidence is not sufficient to support a direct nexus, including for purposes of the chronic disease presumption under 38 C.F.R. § 3.307(a)(3). The Board acknowledges the Veteran's statements regarding the history of his symptoms of back and bilateral knee disorders. In this regard, the Board specifically acknowledges that the Veteran testified that he first sought treatment for back and bilateral knee disorders "about three years after discharge" at the April 2019 Board hearing, but finds that his testimony is not credible. Although he is competent to report that he experienced the symptoms of these disorders, he is not competent to determine that these symptoms were manifestations of a particular disorder. See Jandreau, 492 F.3d at 1377, 1377 n.4. Nevertheless, to the extent he contends that these disorders were caused by an injury sustained during a training exercise during his active duty service and have persisted since service, the Board determines that the reported history of continued symptoms while competent, is nonetheless not probative in establishing the nexus element. As an initial matter, because the evidence shows that he did not seek treatment for back and bilateral knee disorders until more than 34 years after his separation from service. This significant gap weighs against his credibility. See Kahana v. Shinseki, 24 Vet. App. 428, 439-40 (2011). Moreover, the fact that the report from his November 1979 separation examination reflects that his spine and lower extremities were "normal," further weighs against his credibility in asserting that he has had continuous symptoms since his active duty service. Thus, a continuity of symptoms cannot be established based upon the Veteran's assertions. Moreover, other evidence, including the reports from the July 2018 VA examination of his knees and the June 2018 VA examination of his back, do not reflect that he reported that he began seeking treatment for back and knee disorders three years after his separation from service, or in approximately 1983 or 1984. Accordingly, his testimony that he began seeking treatment for bilateral knee and back disorders "about three years after discharge" is not supported with the other evidence of record where such statements would have been expected. The Board emphasizes granting benefits solely on the basis of the Veteran's statements is a significant step. Here, the Board is unconvinced that the Veteran's statements are sufficiently credible to grant service connection solely on this basis. Further, to the extent that the JMR instructs the Board to consider whether a new VA examination considering the nature and etiology of the Veteran's back and bilateral knee disorders is warranted given the Veteran's testimony that he sought treatment for back and bilateral knee disorders "about three years after discharge," the Board finds that an examination is not warranted. Specifically, given that the medical evidence shows that he did not seek treatment for a back or bilateral knee disorder until more than 34 years after his separation from service and that the medical evidence does not reflect that he told physicians, including the June 2018 and July 2018 VA examiners, that he sought treatment for or began experiencing symptoms of back and bilateral knee disorders about three years after his separation from service, his testimony regarding treatment is not credible. Accordingly, VA examinations to consider the nature and etiology of his back and bilateral knee disorders is not warranted and the available records and medical evidence are sufficient to make an adequate determination as to those claims. 38 C.F.R. § 4.2; cf. McLendon v. Nicholson, 20 Vet. App. 79 (2006); see also Barr v. Nicholson, 21 Vet. App. 303 (2007). Finally, service connection may be granted when the evidence establishes a medical nexus between active duty service and the current diagnosis. However, there is not sufficient evidence in the medical records to demonstrate a nexus between his active duty service and his back and bilateral knee disorders. Indeed, there is no objective medical evidence linking these disorders to his active duty service. Further, the Board notes that the Veteran has not provided sufficient evidence, including private opinions and/or medical evidence, to establish a nexus between his active service and his back and bilateral knee disorders. In arriving at its conclusion, the Board has also considered the statements made by the Veteran relating his back and bilateral knee disorders to his active duty service, including that they were caused by injuries that he sustained during a training exercise when he slipped on a rock and felt to the ground while carrying his rucksack, and that his back disorder is related to lifting, transporting, and storing heavy munitions and equipment during his active duty service. The Federal Circuit has held that "[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional." Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (quoting Jandreau, 492 F.3d at 1377). In this case, however, the Veteran is not competent to provide testimony regarding the etiology of his back and bilateral knee disorders. See Jandreau, 492 F.3d at 1377, n.4. Although he can provide competent testimony regarding symptoms, these are not disorders that can be diagnosed by their unique and identifiable features as they do not involve a simple identification that a layperson is competent to make. In any event, the diagnoses of dysfunctions and disorders, and their respective etiologies, are medical determinations and generally must be established by medical findings and opinion. See id. at 1376-77. Thus, to the extent that the Veteran believes that his back and bilateral knee disorders are related to his active duty service, he is a lay person without appropriate medical training and expertise to provide a medical diagnosis and etiological opinion. By virtue of the foregoing, the Board concludes that the preponderance of the evidence is against the Veteran's claims seeking service connection for back and bilateral knee disorders. 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. B.T. KNOPE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Crosnicker, Associate Counsel