Citation Nr: 21076804 Decision Date: 12/27/21 Archive Date: 12/27/21 DOCKET NO. 14-08 418 DATE: December 27, 2021 ORDERS Service connection for blindness is denied. Service connection for glaucoma is denied. Service connection for hypertension is denied. Service connection for rheumatoid arthritis is denied. Service connection for a disability manifested as chronic right shoulder pain is denied. Service connection for a disability manifested as chronic left shoulder pain is denied. Service connection for a disability manifested as left elbow joint swelling is denied. Service connection for a disability manifested as right elbow joint swelling is denied. Service connection for a disability manifested as right wrist joint swelling is denied. Service connection for a disability manifested as left wrist joint swelling is denied Service connection for a disability manifested as numbness, pain, and stiffness in the right toes is denied. Service connection for a disability manifested as numbness, pain, and stiffness in the left toes is denied. Service connection for a disability manifested as numbness, pain, and tingling in the left leg is denied. Service connection for a disability manifested as jaw joint pain and swelling is denied. Service connection for a disability manifested as right hip joint swelling is denied. Service connection for a disability manifested as left hip joint swelling is denied. Service connection for a disability manifested as right knee pain is denied. Service connection for a disability manifested as left knee pain is denied. Service connection for a disability manifested as right ankle pain is denied. Service connection for a disability manifested as left ankle pain is denied. Service connection for bilateral pes planus is denied. Service connection for a left foot bunion is denied. Service connection for a right foot bunion is denied Service connection for musculoskeletal discomfort due to a rib fracture is denied. Service connection for a disability manifested as right hand weakness is denied. Service connection for a disability manifested as joint swelling in the left hand is denied. Service connection for tonsillitis is denied. Service connection for a disability manifested as dizzy spells is denied. Service connection for a disability manifested as chronic fatigue is denied. Service connection for pharyngitis is denied. Service connection for an allergy disorder is denied. Service connection for a breathing disorder is denied. Service connection for sleep apnea is denied. Service connection for a heart disorder manifested by an irregular heartbeat and a heart murmur is denied. Service connection for an ulcer is denied. Service connection for gastritis is denied. Service connection for a gastrointestinal disorder manifested by gas and stomach problems is denied. Service connection for gastroesophageal reflux disease (GERD) is denied. Service connection for a kidney disorder is denied. Service connection for a lipoma of the left chest is denied. Service connection for obesity is denied. Service connection for a disability manifested by numbness and pain in the left arm is denied. Service connection for a disability manifested by numbness, pain, and stiffness in the left fingers is denied. Service connection for a disability manifested by numbness, pain, and stiffness in the right fingers is denied. REMANDED The claim for service connection for a traumatic brain injury (TBI) is remanded. The claim for a total disability rating for compensation based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. The most probative evidence of record weighs against a conclusion that the Veteran has blindness, glaucoma, hypertension, rheumatoid arthritis, a disability manifested as chronic right or left shoulder pain, a disability manifested as right or left elbow joint swelling, and a disability manifested as right or left wrist joint swelling due to service; hypertension or rheumatoid arthritis were not shown to a compensable degree within one year of service. 2. The most probative evidence of record weighs against a conclusion that the Veteran has a disability manifested as numbness, pain, and stiffness in the right or left toes; a disability manifested as numbness, pain, and tingling in the left leg; a disability manifested as jaw joint pain and swelling; a disability manifested as right or left hip joint swelling; a disability manifested as right or left knee pain; and a disability manifested as right or left ankle pain due to service. 3. The most probative evidence of record weighs against a conclusion that the Veteran has bilateral pes planus, a left or right foot bunion; musculoskeletal discomfort due to a rib fracture; a disability manifested as right hand weakness, a disability manifested as joint swelling in the left hand, tonsillitis, a disability manifested as dizzy spells, a disability manifested as chronic fatigue, pharyngitis, an allergy disorder, a breathing disorder, sleep apnea, a heart disorder manifested by an irregular heartbeat and a heart murmur, or an ulcer due to service; a heart disorder or ulcer were not shown to a compensable degree within one year of service. 4. The most probative evidence of record weighs against a conclusion that the Veteran has gastritis; a gastrointestinal disorder manifested by gas and stomach problems; GERD; a kidney disorder; a lipoma of the left chest; obesity; a disability manifested by numbness and pain in the left arm; or a disability manifested by numbness, pain, and stiffness in the left or right fingers due to service. CONCLUSIONS OF LAW 1. The criteria for service connection for blindness, glaucoma, hypertension, rheumatoid arthritis, a disability manifested as chronic right or left shoulder pain, a disability manifested as right or left elbow joint swelling, or a disability manifested as right or left wrist joint swelling have not been met. 38 U.S.C. §§ 1101, 1112, 1113, 1131, 1137, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2021). 2. The criteria for service connection for a disability manifested as numbness, pain, and stiffness in the right or left toes; a disability manifested as numbness, pain, and tingling in the left leg; a disability manifested as jaw joint pain and swelling; a disability manifested as right or left hip joint swelling; a disability manifested as right or left knee pain; and a disability manifested as right or left ankle pain have not been met. 38 U.S.C. §§ 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2021). 3. The criteria for service connection for bilateral pes planus, a left or right foot bunion; musculoskeletal discomfort due to a rib fracture; a disability manifested as right hand weakness, a disability manifested as joint swelling in the left hand, tonsillitis, a disability manifested as dizzy spells, a disability manifested as chronic fatigue, pharyngitis, an allergy disorder, a breathing disorder, sleep apnea, a heart disorder manifested by an irregular heartbeat and a heart murmur, and an ulcer have not been met. 38 U.S.C. §§ 1101, 1112, 1113, 1131, 1137, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2021). 4. The criteria for service connection for gastritis; a gastrointestinal disorder manifested by gas and stomach problems; GERD; a kidney disorder; a lipoma of the left chest; obesity; a disability manifested by numbness and pain in the left arm; or a disability manifested by numbness, pain, and stiffness in the left or right fingers have not been met. 38 U.S.C. §§ 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2021). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1975 to August 1976. This case was remanded by the Board of Veterans' Appeals (Board) on multiple occasions, most recently in March 2021, and is now ready for appellate review of the issues adjudicated below. I. Legal Criteria When there is an approximate balance in the evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the U.S. Court of Appeals for Veterans Claims (Court) held that an appellant need only demonstrate that there is an "approximate balance of positive and negative evidence" in order to prevail. The Court has also stated, "It is clear that to deny a claim on its merits, the evidence must preponderate against the claim." Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert. Service connection will be granted for disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303. Service connection may be granted for any disease diagnosed after discharge from service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. §§ 3.303(d). Where a Veteran manifests certain chronic diseases, including arthritis, ulcers, and cardiovascular disorders, to a degree of 10 percent within one year from the date of termination of service, such disease shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1112, 1137; 38 C.F.R. § §§ 3.307, 3.309. Alternatively, service connection may be established under 38 C.F.R. § § 3.303(b) by (a) evidence of (i) the existence of a chronic disease in service or during an applicable presumption period under 38 C.F.R. § § 3.307 and (ii) present manifestations of the same chronic disease, or (b) when a chronic disease is not present during service, evidence of continuity of symptomatology. The United States Court of Appeals for the Federal Circuit clarified that the law providing for awards of service connection on the basis of continuity of symptomatology is limited to "chronic" diseases listed under 38 C.F.R. § 3.309(a), such as arthritis, ulcers, and cardiovascular disorders. II. Analysis The service treatment reports (STRs) in pertinent part reflect treatment for abdominal pain and dizziness in November 1975; upper respiratory complaints, to include in January and June 1976; chest pain in February 1976; and foot pain in April 1976. Chest and foot x-rays conducted during service were negative and no chronic illness was identified with respect to any of these complaints. The August 1976 separation examination was silent for any symptomatology or pathology related to these complaints. The remaining STRs, to include the reports from the separation examination, are silent for any of the other conditions for which service connection is claimed. A medical history collected at separation was positive for "[s]wollen or painful joints," but is otherwise silent for any of the conditions for which service connection is claimed adjudicated herein. Reviewing the post service evidence, while they are positive for several of the conditions for which service connection is claimed, such clearly reflect a post-service onset of disability, and there is no competent or reliable evidence indicating that any of the conditions for which service connection is claimed adjudicated herein are related to service. As such, VA examinations or opinions to address these claims are not necessary to fulfill the duty to assist. To the extent the assertions of the Veteran and his representative are advanced in an attempt to establish that he has a current disability associated with the conditions for which service connection is claimed adjudicated herein, such complex medical matters are within the province of trained medical professionals. See Jones v. Brown, 7 Vet. App. 134, 137-38 (1994). As the Veteran and his representative are shown to have the appropriate training and expertise, neither are competent to render a persuasive opinion as to these matters. While the Veteran is competent to describe any lay observable symptoms associated with the claims for service connection adjudicated herein, the undersigned finds the silent separation examination for any of these conditions and the lack of any competent or reliable evidence indicating that these conditions are related to service to weigh against a finding of continuity of relevant symptoms associated with any of these conditions that may be attributed to service. Finally, as rheumatoid arthritis, an ulcer, or a cardiovascular disorder to include hypertension were not shown to a compensable degree within one year of separation from service, service connection for such on the basis of chronic disease, to include by way of continuity of symptomatology, is not warranted. 38 U.S.C. §§ 1101, 1112, 1137; 38 C.F.R. §§ 3.307, 3.309. Given all of the above, the undersigned finds that the preponderance of the evidence is against the claims for service connection for blindness, glaucoma, hypertension, rheumatoid arthritis, a disability manifested as chronic right or left shoulder pain, a disability manifested as right or left elbow joint swelling, a disability manifested as right or left wrist joint swelling, a disability manifested as numbness, pain, and stiffness in the right or left toes; a disability manifested as numbness, pain, and tingling in the left leg; a disability manifested as jaw joint pain and swelling; a disability manifested as right or left hip joint swelling; a disability manifested as right or left knee pain; a disability manifested as right or left ankle pain; bilateral pes planus, a left or right foot bunion; musculoskeletal discomfort due to a rib fracture; a disability manifested as right hand weakness, a disability manifested as joint swelling in the left hand, tonsillitis, a disability manifested as dizzy spells, a disability manifested as chronic fatigue, pharyngitis, an allergy disorder, a breathing disorder, sleep apnea, a heart disorder manifested by an irregular heartbeat and a heart murmur, an ulcer, gastritis; a gastrointestinal disorder manifested by gas and stomach problems; GERD; a kidney disorder; a lipoma of the left chest; obesity; a disability manifested by numbness and pain in the left arm; and a disability manifested by numbness, pain, and stiffness in the left or right fingers. As such, these claims must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, supra. REMAND The June 1975 service entrance examination and medical history collected at that time were silent for a history of a TBI or a related condition. The medical history collected at that time was specifically negative for a head injury, "[f]requent or severe headache," or periods of unconsciousness. As suchand despite a March 2017 MRI (magnetic resonance imaging of the head) which noted a history of the Veteran sustaining frontal head trauma as a child with loss of consciousness of an unspecified duration and concern for frontal and occipital lobe abnormalities and worsened speech, mood, and behaviorclose inspection of this case mandates the conclusion that the Veteran did not have a TBI upon entrance to service. Therefore, the Veteran must be presumed to have been sound upon entrance to service with respect to the matter of whether a TBI existed at service entrance. Paulson v. Brown, 7 Vet. App. 466, 470 (1995). Thus, the proper ajduicative posture of the appeal with respect to the claim for serivce connection for a TBI is one of whether serivce connection for such is warrant on a direct basis, rather than on the basis of aggravation of a disabilty that existed prior to service. See id. With regard to the matter of entitlement to service connection for a TBI on a direct basis, a June 1976 STR noted that the Veteran complained of dizziness and headaches after striking his head against a concrete floor. Symptoms included pain on the right side of the head over the right ear and inside the Veteran's mouth and the Veteran reported at that time that he wanted to sleep a lot. A skull x-ray revealed no fractures and the impression was a possible mild concussion. No follow up treatment for the head injury was rendered during service and the August 1976 separation examination was silent for a TBI or any indicia thereof. The medical history collected at separation, while positive for a head injury, was specifically negative for "[d]izziness or fainting spells" or periods of unconsciousness. Given the above in service evidence and the fact that the Veteran has not been afforded a VA examination that specifically addresses the matter of whether he has current disability due to a TBI that is the direct result of the in-service head injury described above irrespective of his head injury as a child prior to service, the Veteran must be afforded a VA examination that includes an opinion with respect to this matter so as to fulfill the duty to assist. As the resolution of the claim for service connection for a TBI is inextricably intertwined with the claim for TDIU, the adjudication of this claim by the Board must be deferred at this time. Harris v Derwinski, 1 Vet. App. 80 (1991). For the reasons set forth above, this case is REMANDED for the following development: Arrange for a VA examination and medical opinion to address the claim for service connection for TBI on a direct basis. The Veteran's record, to include a copy of this remand, should be made available to and reviewed by the examiner, and the examiner should provide an opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran has current disability due to a TBI or related disorder that is due to the June 1976 head injury sustained in service. The examiner should support the opinion with a detailed rationale. MARJORIE A. AUER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Andrew Ahlberg, 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.