Citation Nr: 21008883 Decision Date: 02/18/21 Archive Date: 02/18/21 DOCKET NO. 06-14 219 DATE: February 18, 2021 ORDER Service connection for a lumbar spine disability, diagnosed to include arthritis, is granted. REMANDED Whether there is new and material evidence sufficient to reopen a previously denied claim of entitlement to service connection for hiatal hernia is remanded. Entitlement to service connection for a gastrointestinal disability is remanded. FINDING OF FACT Resolving all doubt in favor of the Veteran, he injured his low back during service, has experienced low back symptoms continuously since separation from service, and has been diagnosed with arthritis of the lumbar spine. CONCLUSION OF LAW The criteria for service connection for a lumbar spine disability, diagnosed as arthritis, have been met. 38 U.S.C. §§ 1101, 1131, 1133, 5107; 38 C.F.R. §§ 3.304, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty from February 1980 to August 1981 and a prior period of active duty for training (ACDUTRA) from November 1978 to May 1979. In July 2018, the Department of Veterans Affairs (VA) Board of Veterans’ Appeals (Board) determined that new and material evidence sufficient to reopen a previously denied claim of entitlement to service connection for hiatal hernia had not been received and did not reopen the claim and denied the claims of entitlement to service connection for a low back disability and a gastrointestinal disability. The Veteran appealed the decision to the United States Court of Appeals for Veterans Claims (Court). Pursuant to a May 2019 Joint Motion for Remand (JMR) filed by the parties and a May 2019 Court Order, the Court remanded the claim back to the Board. The Veteran testified before the undersigned Veterans Law Judge (VLJ) of the Board at a November 2020 video-conference hearing. A hearing transcript is in the claims file. Entitlement to service connection for a low back disability, diagnosed to include arthritis. Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1101, 1131; 38 C.F.R. § 3.303 (a). Generally, to establish a right to compensation for a present disability, the claimant must provide competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d, 1362, 1366 (Fed. Cir. 2009). Alternatively, continuity of symptomatology may be established if a claimant can demonstrate: (1) that a condition was “noted” during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology under 38 C.F.R. § 3.303 (b); Barr v. Nicholson, 21 Vet. App. 303 (2007). Where a claimant asserts entitlement to a chronic condition but there is insufficient evidence of a diagnosis in service, he can establish service connection by demonstrating a continuity of symptomatology since service, but only if the chronic disease is listed under 38 C.F.R. § 3.309 (a), including arthritis. Walker v. Shinseki, 708 F.3d 1331, 1337-39 (Fed. Cir. 2013). Such chronic diseases are presumed to have been incurred in or aggravated by service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C. §§ 1131, 1133; 38 C.F.R. §§ 3.307, 3.309(a). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a claimant is competent to report on that of which he or she has personal knowledge). 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 appellant 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. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Veteran, in as early as July 1998, sought service connection for a lumbar spine disability. In a July 2005 Notice of Disagreement (NOD), he asserted that he was treated during service for a lumbar spine disability. During VA treatment in July 2005, he reported back pain, 20 years onset, believed by him to be related to in-service construction work resulting in gradual injury. In a January 2019 statement, the Veteran reported that he injured his back during service in 1980 and since then, he had experienced pain and suffering. In a February 2019 statement, the Veteran asserted that he injured his back during service in a motor vehicle accident and from lifting tires. During his November 2020 Board hearing, the Veteran reported that during service he served in engineering, building bridges, constructing roads, and conducting other repair on bases. He described constant worsening back pain with age since his in-service motor vehicle accident in 1980 and asserted that he was only treated minimally and sent back to work. The Veteran’s service treatment records include an April 1979 Report of Medical History, conducted upon separation from his period of ACDUTRA ending in April 1979 and thus prior to his period of active service beginning in February 1980, indicating his report of recurrent low back pain with no injury or illness noted during ACDUTRA. No lumbar spine disability was noted or diagnosed. It does not appear that there exists a Report of Medical Examination or Report of Medical History conducted at entry into the Veteran’s period of active service in February 1980, and if such exists, it is illegible. When determining whether a defect, infirmity, or disorder is “noted” at entrance into service, supporting medical evidence is needed. Crowe v. Brown, 7 Vet. App. 238 (1994). The mere transcription of medical history does not transform information into competent medical evidence. LeShore v. Brown, 8 Vet. App. 406 (1995). His service treatment records dated during his period of active duty include a partially illegible notation, the date obscured, indicating a motor vehicle accident and sore neck and back. In January 1981, he was diagnosed with mild lumbar pain/strain and in February 1981, he complained of low back pain, mild on flexion and extension, and was diagnosed with low back pain, chronic. In March 1981, he complained of low back pain; X-ray examination was normal, in June 1981, he complained of low back pain, and in December 1980, he complained of low back pain. His VA treatment records as early as May 1995 indicate that he presented with low back pain, a chronic problem. In November 2004, during VA treatment, he was diagnosed with low back pain/strain; results of private magnetic resonance imaging (MRI ) dated at that time indicate that he had a history of marked low back pain. His VA and private treatment records dated since include numerous occasions of complaint and treatment for low back pain. The Veteran did not report for a May 2016 Disability Benefits Questionnaire (DBQ); the examiner reported that there was X-ray evidence of arthritis of the lumbar spine of record and opined that the Veteran’s disability was less likely related to service on the basis that back sprains/strains generally resolve without residuals and degenerative arthritis is part of the normal aging process, that there was no objective medical evidence that his disability, symptomatic and diagnosed years after service, had its onset therein. In a November 2018 DBQ, the Veteran was diagnosed with lumbosacral strain and the examiner reported that there was X-ray evidence of arthritis. The examiner noted remote strain in 1980 with normal examination, remote motor vehicle accident, and since then, chronic back complaints with disc disease. The examiner reported that the Veteran had arthritis and disc disease less likely related to remote strain but rather natural age progression. The VA examiners, in May 2016 and November 2018, did not have the opportunity to consider the Veteran’s lay assertions, in his January 2019 and February 2019 statements and during his November 2020 Board hearing, of continued back pain since service. Instead, the examiners appear to have considered the absence of record VA or private treatment for low back pain; the etiological opinions are thus of little probative value. The Veteran is competent to report that he has experienced continued, and progressively worse, low back pain since separation from service; the Board finds no basis upon which to consider that he is not credible in this regard. Layno, 6 Vet. App. 465, 470; 38 C.F.R. § 3.159 (a) (2). The Board did consider that there exists a number of years during which the Veteran had VA and private treatment and did not report and was not treated for low back pain, as well as his July 2005 statement to VA treatment providers that the onset of his low back pain was 20 years prior. The Board can conceive of numerous scenarios wherein the Veteran was treated for significant physical and psychiatric problems unrelated to his lumbar spine for many years and did not complain of existing, recurrent, chronic low back pain, and can imagine that placing the onset of long-standing symptoms in terms of a specific number of years may be difficult and is easily represented by a figure of 20 years. In any event, the Board finds the Veteran’s lay assertions, in his January 2019 and February 2019 statements and during his November 2020 Board hearing, of continued back pain since service, as well as the February 1981 description of his low back pain during service as chronic, his May 1995 presentation of low back pain, a chronic problem, during VA treatment, and his history of marked low back pain noted during his private MRI in November 2004 as highly persuasive evidence of continued low back pain since service. Based on the forgoing, there is probative evidence of a current lumbar spine disability, diagnosed to include arthritis, in-service chronic low back pain and a motor vehicle accident, and, resolving all doubt in favor of the Veteran, continued low back pain from the time of separation from service to the present. 38 U.S.C. §§ 1101, 11131, 1133; 38 C.F.R. § 3.309; Walker, 708 F.3d 1331, at 1337-39. The Board thus finds that service connection for service connection a lumbar spine disability, diagnosed to include arthritis, is warranted. REASONS FOR REMAND 1. Whether there is new and material evidence sufficient to reopen a previously denied claim of entitlement to service connection for hiatal hernia is remanded. The Board, in its July 2018, the Department of Veterans Affairs (VA) Board of Veterans’ Appeals (Board) determined that new and material evidence sufficient to reopen a previously denied claim of entitlement to service connection for hiatal hernia had not been received and did not reopen the claim. The Board found that the original denial of the Veteran’s claim was based on the fact that there was no probative evidence of current hiatal hernia and the evidence submitted since that time remained silent for such. However, the parties to the May 2019 JMR discussed that there remained outstanding treatment records that could be relevant to the claim. Specifically, the parties noted that the Veteran was in receipt of disability benefits from the Social Security Administration (SSA) and reported treatment for six months in 1994 at the Butler VA Medical Center (VAMC). While the private April 1997 neuropsychiatric treatment records referring to such a medical history indicate that such treatment in 1994 at the Butler VAMC was for psychiatric treatment and detoxification, it remains that such records could contain evidence of a hiatal hernia. On remand, the VA Regional Office (RO) should obtain the Veteran’s VA treatment records from the Butler VAMC dated in 1994 and his complete SSA records. 2. Entitlement to service connection for a gastrointestinal disability is remanded. During the course of the lengthy appeal of the Veteran’s claim of entitlement to service connection for a hiatal hernia, the Board considered the Veteran’s post-service gastrointestinal complaints, including his gastroesophageal reflux disease (GERD) and umbilical hernia, and his in-service gastrointestinal complaints, and inferred a claim of entitlement to service connection for a gastrointestinal disability, other than hiatal hernia. In a February 2019 statement, related to a claim of entitlement to service connection for a hernia, without designation as to a hiatal or umbilical hernia, the Veteran asserted that he was forced to eat too fast during service. During his November 2020 Board hearing, as asserted that he had gastrointestinal problems during service. The Veteran’s service treatment records dated in April 1980 indicate that he was diagnosed with mild gastroenteritis and was diagnosed with such in August 1980. In October 1980 he reported throwing up blood and inquired as to the procedure for getting checked for an ulcer; an upper gastrointestinal series was normal. He complained of stomach pain and diarrhea in December 1980, he complained of stomach pain in January 1981, and he complained of diarrhea in February 1981. In March 1981, he complained of nausea, diarrhea, and cramping, and was diagnosed with gastroenteritis and in May 1981, he complained of stomach cramping and generalized tenderness and was diagnosed with gastroenteritis. In June 1981, he complained of diarrhea. The Veteran’s VA treatment records dated in October 1995 indicate that he complained of heartburn and was diagnosed with gastritis. During VA treatment in December 1995, he complained of dysuria and stomach bloating, and reported a history of hiatal hernia; he was diagnosed with umbilical hernia after an upper gastrointestinal series. In February 1999, he was discharged from VA detoxification and reported occasional gastrointestinal distress, later consultation for possible hernia revealed umbilical hernia. VA treatment records dated in February 2013 indicate that the Veteran presented for emergency treatment of epigastric and chest pain; physical examination revealed a small ventral umbilical hernia, he was diagnosed with epigastric pain. In October 2013, his VA problem list included GERD. In a May 2016 DBQ, for which the Veteran did not appear, the examiner diagnosed GERD, noting in-service mild gastroenteritis in December 1980 and normal results of upper gastrointestinal series in November 1980. The examiner opined that such was less likely related to service on the basis that there was no objective evidence of a continuity of care for GERD, that GERD was a common condition found in the general population, and that there was no objective medical evidence that the disability, symptomatic and diagnosed years after service, had its onset in service. Additional medical comment is required. The examiner, in May 2016, did not discuss the Veteran’s umbilical hernia. Also, it appears that the examiner considered only the Veteran’s noting in-service mild gastroenteritis in December 1980 and normal results of upper gastrointestinal series in November 1980, and not his numerous in-service instances of gastrointestinal complaints. The examiner did not have the opportunity to consider the Veteran’s February 2019 assertion that he was forced to eat too fast during service. On remand, the RO should afford the Veteran an adequate VA examination and obtain an etiological opinion as to his gastrointestinal disability. It appears that the most recent occasion the Veteran’s VA treatment records were associated with the claims file was in February 2020 ; on remand, the RO should obtain his updated VA treatment records. The matters are REMANDED for the following action: 1. Obtain the Veteran’s VA treatment records from the Butler VAMC dated in 1994 and his updated VA treatment records dated from February 2020 to the present. Document all requests for information as well as all responses in the claims file. 2. Obtain the Veteran’s federal records from the SSA. Document all requests for information as well as all responses in the claims file. 3. Then, schedule the Veteran for a VA examination for his gastrointestinal disability, including GERD and umbilical hernia. The examiner must review the claims file and provide a complete rationale to support the opinion(s). The examiner is asked to provide a response to the following: Is the Veteran’s gastrointestinal disability, including GERD and umbilical hernia, at least as likely as not (at least 50 percent probability) related to service, specifically considering his in-service: (1) April 1980 and August 1980 mild gastroenteritis; (2) October 1980 report of throwing up blood and normal upper gastrointestinal series; (3) December 1980 complaints of stomach pain and diarrhea; (4) February 1981 complaints of diarrhea; (5) March 1981 complaints of nausea, diarrhea, and cramping, and diagnosis of gastroenteritis; (6) May 1981 complaints of stomach cramping and generalized tenderness and diagnosis of gastroenteritis; and (7) June 1981 complaints of diarrhea; as well as his (8) lay statements that he was forced to eat too fast during service.   The examiner must provide a rationale for all opinions provided. P.M. DILORENZO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Department of Veterans Affairs 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.