Citation Nr: 21006089 Decision Date: 02/03/21 Archive Date: 02/03/21 DOCKET NO. 17-29 450 DATE: February 3, 2021 ORDER Entitlement to service connection for residuals of stroke (also claimed as numbness and memory loss) to include as secondary to service-connected anxiety disorder is denied. REMANDED Entitlement to service connection for a gastrointestinal disability to include acid reflux as secondary to service-connected anxiety disorder is remanded. FINDING OF FACT The weight of the evidence is against a finding that the Veteran’s stroke was incurred during active service, is etiologically related to his military service, or is secondary to a service-connected disability. CONCLUSION OF LAW The criteria for service connection for residuals of stroke disability are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty service in the United States Army from June 1993 to December 2001, from January 2003 to January 2004, and from June 2006 to December 2007. The Veteran has also served in the Reserve component. In August 2019, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A hearing transcript has been associated with the record. This matter was previously before the Board in December 2019, where the board remanded the issues of service connection for temporomandibular disorder (TMJ), service connection for residuals of stroke disability and service connection for acid reflux, for additional development including providing the Veteran with appropriate VA examinations. The matter has returned to the Board for further appellate review. During the pendency of this appeal, in an August 2020 rating decision, service connection for temporomandibular disorder (TMJ) was granted with an evaluation of 10 percent effective July 17, 2014. The Veteran has not in response, separately appealed either the rating or effective date assigned for his TMJ. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997) (where an appealed claim for service connection is granted during the pendency of the appeal, a second Notice of Disagreement (NOD) thereafter must be timely filed to initiate appellate review of the claim concerning "downstream" issues such as the compensation level assigned for the disability and effective date). As such, the claim for service connection for TMJ is no longer on appeal to the Board. Entitlement to service connection for residuals of stroke (also claimed as numbness and memory loss) to include as secondary to service-connected anxiety Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. A. § 1110; 38 C.F.R. § 3.303 (a). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). “Active military, naval, or air service” includes any period of active duty for training during which the individual concerned was disabled or died from a disease or injury incurred in line of duty. 38 U.S.C. § 101 (24); 38 C.F.R. § 3.6 (a). Active duty for training is full-time duty performed by Reserves for training purposes or by members of the National Guard of any state. 38 U.S.C. § 101 (22); 38 C.F.R. § 3.6 (c). Active military, naval, or air service also includes any period of inactive duty for training during which the individual concerned was disabled or died from an injury incurred or aggravated in line of duty or from an acute myocardial infarction, a cardiac arrest, or a cerebral vascular accident occurring during such training. 38 U.S.C. § 101 (24); 38 C.F.R. § 3.6 (a). Inactive duty training means duty other than full-time duty prescribed for Reserves or the National Guard of any state. 38 U.S.C. § 101 (23); 38 C.F.R. § 3.6 (d). Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The U.S. Court of Appeals for Veterans Claims (Court) has held that "Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability. In the absence of proof of a present disability there can be no valid claim." Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); see also Rabideau v. Derwinski, 2 Vet. App. 141, 143-44 (1992). Further, because many veterans experience illnesses or injuries that leave no lasting impact, these medical conditions are considered acute and transitory, and the current disability element cannot be met by a showing that the veteran had a disease or injury while on active duty. Id. 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. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49 at 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. 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"). Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. It may also include statements conveying sound medical principles found in medical treatises. Competent medical evidence may also include statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159 (a)(1). Competent lay evidence is any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159 (a)(2). This may include some medical matters, such as describing symptoms or relating a contemporaneous medical diagnosis. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. The Veteran claims that he has numbness and memory loss issues which are related to a stroke he suffered in 2002. Alternatively, the Veteran asserts that his numbness and memory loss issues may be secondary to his service-connected anxiety disorder. For the reasons set forth below, service connection for residuals of stroke disability, is not warranted in this case. Initially, the Board notes that the Veteran is not service connected for stroke. The evidence also does not demonstrate that the Veteran’s stroke was incurred during his periods of active duty, active duty of training purposes (ACDUTRA) or inactive duty for training purposes (INACDUTRA). The record reveals that the Veteran had stroke in February 2002. Specifically, it is noted in the Veteran’s service records that between December 17, 2001 to June 1, 2002, the Veteran was a member of the Army National Guard Unit member and points earned towards retirement was zero. See DPRIS Response. See also DFAS Payment Worksheet (where it was noted that the definition of veteran under 38 USC 101(2) is not met by completion of any period of such service; and that qualifying active duty periods while in the Reserves/National Guard were between February 2, 2003 to January 8, 2004 and June 28, 2006 to December 5, 2007). Since the Veteran's claimed disability was not incurred during a period of ACDUTRA/INACDUTRA with the Army National Guard, the claim for service connection must be denied on that basis. The Board will now assess whether the Veteran’s claimed disability is directly related to service or whether it is related to his service-connected anxiety disorder. A review of the record does not show a current diagnosis of residuals of stroke to include numbness and memory loss. Service treatment records (STRs) show that on February 2007, the Veteran reported that he had stroke related to vascular malformation in 2002 and some associated memory loss, while he was on terminal leave. He then joined the National Guard and deployed 6 months afterwards and was told that “he was ok as long as he took 81 mg of asa a day”. See Reserves STR. In February 2003, the Veteran reported a history of having a stroke a couple of years back and was placed on Coumadin for about a six month period of time and ultimately this was discontinued, and that he was continued on Plavix and aspirin. He stated that he has no sequelae from having the stroke; however, he is very concerned about the continued long-term effects of taking Plavix and sought advice on the possibility of having a neurology evaluation to get a second opinion. See Reserves STR. The Veteran was afforded a VA Mental Health Conditions examination in February 2020 to determine his current emotional and cognitive functioning in light of his reported symptoms related to stroke residuals and to determine if stroke residuals are secondary to his service-connected anxiety. Tests Administered included Clinical Interview, Mental Status Examination, Test of Memory Malingering, Repeatable Battery for the Assessment of Neuropsychological Status (RBANS), and Trail Making Test (form A). The examiner noted the following in his summary and impression: “He (the Veteran) does not currently meet criteria for neurocognitive disorder (less than 50 percent probability) related to military service. He performed poorly on embedded measures of effort which resulted in overall invalid test results. However, despite his lack of effort on some tasks, his performance was above average to superior on several tests. The Veteran continues to meet criteria for Generalized Anxiety Disorder and his current level of impairment is best described as, occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally function satisfactorily with routine behavior and self-care). Additionally, this examiner concurs with the prior examiner from 3/6/2018 with regard to problematic longstanding personality characteristics…” The examiner concluded that the Veteran does not appear to have residuals related to stroke. See February 2020 C&P Examination. The Veteran was also afforded a Central Nervous System and Neuromuscular Diseases (CNS) examination to any residuals of stroke in February 2020. The Veteran’s neurologic exam on speech, gait, strength was normal. No muscle atrophy and no muscle weakness in the upper and/or lower extremities attributable to a CNS condition was noted. The examiner noted that he had isolated decreased sensation of right upper shoulder over the trapezius, right inner arm, right inner thigh. The examiner stated that the Veteran does not have depression, cognitive impairment or dementia, or any other mental health conditions attributable to a CNS disease and/or its treatment. The examiner remarked that the subjective decreased sensation in isolated areas mentioned above are not in a specific peripheral or cranial nerve distribution/pattern. The examiner stated that “all noted stroke & TIAs in available records are self-reported”. Additionally, the examination noted that significant diagnostic test findings on an EMG UE, performed on August 24, 2020 revealed a normal study; and that there was no electrodiagnostic evidence of right median or ulnar mononeuropathy. See February 2020 C&P Examination. The Board notes that VA treatment records do not reflect complaints of numbness. Specifically, in an August 2016 PM&R Electrodiagnostics Report, the Veteran denied numbness and tingling. See CAPRI. The Board acknowledges that the Veteran complained of memory loss in a July 2016 Annual/Vesting Visit. See CAPRI. Private medical records reflect a past medical history of stroke with no residual. See August 2015 Medical Treatment Record - Non-Government Facility. In the instant case, the probative evidence of record fails to demonstrate any current diagnosis of residuals of stroke to include numbness and memory loss except for the Veteran’s subjective complaints. While there is competent evidence of the Veteran suffering a stroke in 2002, the record contains inconsistent lay statements from the Veteran regarding his residuals to include numbness and memory loss. Further, although the Veteran is competent to report having terrible short term memory and loss of sensation (numbness) on his nose, parts of his face, some of his fingertips and forearms, the evidentiary record does not reflect any diagnosed residual of stroke to include numbness and memory loss. See Sanchez-Benitez, supra (a symptom, without a diagnosed or identifiable underlying malady or condition, does not, in and of itself, constitute a "disability" for which service connection may be granted). The Board also notes that the Veteran is competent to report his own symptoms or matters within his personal knowledge. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). In addition, laypersons may, in some circumstances, opine on questions of diagnosis and etiology. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (the Board's categorical statement that 'a valid medical opinion' was required to establish nexus, and that a layperson was 'not competent' to provide testimony as to nexus because she was a layperson, conflicts with Jandreau). However, in this case, the Board notes that the Veteran has not identified any findings of a current diagnosed residuals of stroke to include numbness and memory loss. While a finding that the Veteran had a disability "at some point during the processing of his claim," can satisfy the service connection requirement for manifestation of current disability, the weight of the evidence does not demonstrate that the Veteran has been diagnosed with any residuals of stroke to include numbness and memory loss at any time since he filed his current claim in July 2014. McClain v. Nicholson, 21 Vet. App. 319, 323 (2007). The Board emphasizes that Congress has specifically limited entitlement to service connection for disease or injury to cases where such incidents have resulted in disability. See 38 U.S.C. A. § 1131. See also McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Unless there is a current disability, there can be no valid claim for service connection for the disability. See Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). For the reasons stated above, the Board finds that the Veteran does not currently have residuals of stroke to include numbness and memory loss. Since there is no evidence of any current disability, the preponderance of the evidence is against the claim for service connection. Therefore, the benefit-of-the-doubt doctrine does not apply. 38 U.S.C. A. § 5107 (b); 38 C.F.R. § 3.102. Accordingly, the claim for service connection for residuals of stroke to include numbness and memory loss, is denied. REASONS FOR REMAND Entitlement to service connection for a gastrointestinal disability to include acid reflux as secondary to service-connected anxiety is remanded. The Veteran asserts that his gastrointestinal disability is either directly related to his active duty service or is secondary to his service-connected anxiety disorder. The Veteran was afforded a VA examination in February 2020, for his claimed condition pursuant to the Board’s December 2019 remand directives. The Veteran’s diagnosis was listed as “gastroesophageal reflux disease (GERD) and 2006 indicated as date of diagnosis. On examination, the Veteran reported GERD, and that he has been taking Omeprazole for 5 yrs, with pretty good control, with occasional breakthrough, and is being treated with Gaviscon. The Veteran noted that his symptoms are triggered with eating or taking medications too late. The Veteran reported “severe heartburn since ’o6. Notes reflux and heartburn and that symptoms occur after food and with bending”. With respect to direct service connection, the examiner opined that the condition claimed was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event or illness. The examiner’s rationale was that STRs are silent for symptoms, diagnosis, or treatments for GERD. With respect to secondary service connection, the examiner opined that the condition claimed is less likely than not (less than 50 percent probability) proximately due to or the result of the Veteran's service-connected anxiety. Citing medical literature, the examiner rationalized that “Peer-reviewed medical literature does NOT list “anxiety disorder” as a causative or aggravating factor for GERD; and that there's no objective evidence to show progression of GERD beyond its natural progression; and that available treatment records indicate no new findings, interventions, or treatments for worsening GERD/reflux esophagitis, claimed as Gastrointestinal disability”. See February 2020 C&P Examination. The Board regrets further delay but cannot adjudicate the Veteran’s appeal relying on either the March 2018 or February 2020 VA examinations. Both of these exams are inadequate regarding direct service connection. It appears that both examiners omitted pertinent lay evidence in formulating their opinions, but instead focused on the absence of complaints in service medical reports in providing negative opinions. Relying on the absence of evidence in medical records to provide a negative opinion is contrary to established case law, and such opinions are therefore inadequate. See Dalton v. Nicholson, 21 Vet. App. 23 (2007). Also, an April 2014 private treatment record from Digestive Health Associates stated that the Veteran has been seen for severe heartburn since 2006 (presumably, when the Veteran was in service). Also, the February 2020 examiner seems to acknowledge a diagnosis of GERD in 2006 (presumably, when the Veteran was in service) but proffered a negative opinion. This is somehow contradictory. Based on the above, a remand is necessary to obtain an adequate addendum opinion addressing the pertinent medical questions based on all of the evidence. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) The matters are REMANDED for the following action: 1. Obtain and associate with the Veteran’s claim file, any outstanding and pertinent VA or private treatment records. 2. Thereafter, obtain an addendum VA opinion from a qualified clinician regarding the etiology of the Veteran’s GERD. (Only if deemed necessary to provide an opinion, should the Veteran be afforded a new VA examination). Provide the examiner with the claims file, including a copy of this REMAND, for review. After reviewing the claims file, the examiner should respond to the following: (a) Whether it is at least as likely as not (50 percent probability or more) that the Veteran’s GERD is etiologically related to the Veteran's active duty service. (b) Whether it is at least as likely as not (50 percent probability or more) that the Veteran’s GERD was caused, or alternatively, aggravated (increased beyond the natural progression of the disability) by the Veteran’s anxiety disorder, or any other service-connected disability. (c) Whether it is at least as likely as not (50 percent probability or more) that the Veteran’s GERD is aggravated by the Veteran’s service-connected anxiety disorder. In offering the above opinions, the examiner must consider the full record, to include the lay statements regarding the onset of the Veteran’s symptoms, and the opinions should reflect such consideration. A clearly stated rationale for the opinions offered should be provided and must not be based solely on the lack of any in-service records. If the examiner is unable to provide an opinion without resort to speculation, he or she should explain whether the inability is due to the limits of the examiner's medical knowledge, medical knowledge in general or there is evidence that, if obtained, would permit the opinion to be provided. DAVID L. WIGHT Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N. M. Rogers, 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.