Citation Nr: 21010400 Decision Date: 02/24/21 Archive Date: 02/24/21 DOCKET NO. 15-23 064A DATE: February 24, 2021 ORDER Service connection for an esophagus spasm, to include achalasia, is denied. REMANDED Entitlement to service connection for left ear hearing loss is remanded. FINDING OF FACT 1. The Veteran did not serve in the Republic of Vietnam and the evidence does not establish that he was exposed to Agent Orange during his period of service. 2. An esophagus spasm, to include achalasia, was not present during service, or for many years thereafter, and was not caused by any incident of service. CONCLUSION OF LAW The criteria for service connection for an esophagus spasm, to include achalasia, have not been met. 38 U.S.C. §§ 101(24), 1101, 1110, 1112, 1113, 1116, 1131, 1137, 1154(a), 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the Air Force from June 1962 to May 1966. He also apparently had additional service in the Air Force Reserve. This matter is before the Board of Veterans’ Appeals (Board) on appeal of a June 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Hartford, Connecticut, that denied service connection for left ear hearing loss (listed as bilateral hearing loss) and for an esophagus spasm, to include achalasia. In May 2019, the Board remanded the issues of entitlement to service connection for left ear hearing loss and for an esophagus spasm, to include achalasia. Esophagus Spasm, to include Achalasia Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff’d per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (table). The term “active military, naval, or air service” includes active duty, any period of active duty for training during which the individual was disabled or died from a disease or injury incurred in or aggravated in the line of duty, and any period of inactive duty training during which the individual was disabled or died from an injury incurred in or aggravated in the line of duty. 38 U.S.C. § 101 (24). Determinations as to service connection will be based on review of the entire evidence of record, to include all pertinent medical and lay evidence, with due consideration to VA’s policy to administer the law under a broad and liberal interpretation consistent with the facts in each individual case. 38 U.S.C. § 1154(a); 38 C.F.R. § 3.303(a). Secondary service connection may be granted for a disability that is proximately due to, the result of, or aggravated by an established service-connected disability. 38 C.F.R. § 3.310 (2018); see also Allen v. Brown, 7 Vet. App. 439 (1995). A veteran who served in the Republic of Vietnam during the Vietnam era is presumed to have been exposed during such service to certain herbicide agents (e.g., Agent Orange). In the case of such a veteran, service incurrence for the following diseases will be presumed if they are manifest to a compensable degree within specified periods, even if there is no record of such disease during service: chloracne or other acneform diseases consistent with chloracne, type 2 diabetes, Hodgkin’s disease, chronic lymphocytic leukemia, multiple myeloma, non-Hodgkin’s lymphoma, acute and sub-acute peripheral neuropathy, porphyria cutanea tarda, prostate cancer, respiratory cancers (cancer of the lung, bronchus, larynx, and trachea), and soft-tissue sarcomas. 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307 (a)(6), 3.309(e). Effective August 31, 2010, ischemic heart disease (including, but not limited to, acute, subacute, and old myocardial infarction; atherosclerotic cardiovascular disease including coronary artery disease (including coronary spasm) and coronary bypass surgery; and stable, unstable and Prinzmetal’s angina), is included as a disease associated with herbicide exposure under 38 C.F.R. § 3.309 (e). (Under 38 C.F.R. § 3.309 (e), the term ischemic heart disease does not include hypertension or peripheral manifestations of arteriosclerosis such as peripheral vascular disease or stroke, or any other condition that does not qualify within the generally accepted medical definition of Ischemic heart disease. 38 C.F.R. § 3.309 (e) (Note 3.). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and recurrence of symptoms. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the 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); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran’s particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d at 1377 (Fed. Cir. 2007) (holding that “[w]hether lay evidence is competent and sufficient in a particular case is a factual issue to be addressed by the Board”). The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C. § 7104(a) (West 2002). Moreover, the United States Court of Appeals for Veterans Claims (Court) has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran’s demeanor when testifying at a hearing. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff’d per curiam, 78 F.3d 604 (Fed. Cir. 1996). In determining the probative value to be assigned to a medical opinion, the Board must consider three factors. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The initial inquiry in determining probative value is to assess whether a medical expert was fully informed of the pertinent factual premises (i.e., medical history) of the case. A review of the claims file is not required, since a medical professional can also become aware of the relevant medical history by having treated a Veteran for a long period of time or through a factually accurate medical history reported by a Veteran. See Id. at 303-04. The second inquiry involves consideration of whether the medical expert provided a fully articulated opinion. See Id. A medical opinion that is equivocal in nature or expressed in speculative language does not provide the degree of certainty required for medical nexus evidence. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The third and final factor in determining the probative value of an opinion involves consideration of whether the opinion is supported by a reasoned analysis. The most probative value of a medical opinion comes from its reasoning. Therefore, a medical opinion containing only data and conclusions is not entitled to any weight. In fact, a review of the claims file does not substitute for a lack of a reasoned analysis. See Nieves-Rodriguez, 22 Vet. App. at 304; see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (“[A] medical opinion... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions.”). The Veteran contends that he has an esophagus spasm, to include achalasia, that is related to service, to include as due to Agent Orange exposure. He specifically maintains that he was exposed to Agent Orange while performing pre-flight and post-flight inspections on C-130 aircraft going and coming from Vietnam and Cambodia. The Veteran reports that many returning C-130 aircraft had dirt and debris from Vietnam, as well as equipment that was used in the fields of Vietnam and Cambodia. He also asserts that he had swallowing problems during service and since service. See Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). The Veteran served on active duty in the Air Force from June 1962 to May 1966. He also apparently had additional service in the Air Force Reserve. His DD Form 2014 for his period of active duty from June 1962 to May 1966 lists his occupational specialty as an aircraft mechanic. His service personnel records indicate that he served in Okinawa, Japan from November 1964 to May 1966. There is no evidence of record that the Veteran served in the Republic of Vietnam, and he does not contend he served in that country. Therefore, exposure to Agent Orange is not conceded in this case. The Veteran’s service treatment records for his period of active duty from June 1962 to May 1966 do not show treatment for any esophageal problems, to include an esophagus spasm and/or achalasia. A post service private examination report shows treatment for variously diagnosed gastrointestinal problems, including achalasia. An April 2013 private esophageal conditions examination report from K. Atta-Mensah, M.D., relates diagnoses of gastroesophageal reflux disease (GERD) and achalasia. A July 2020 VA esophageal conditions examination report includes a notation that the Veteran’s claims file was reviewed. The examiner reported that attempts were made to contact the Veteran by phone on two occasions, but they were unsuccessful. As to a diagnosis, the indicated that the Veteran did not presently have, and had never been diagnosed with, an esophageal condition. The examiner stated that no diagnosis of an esophageal condition was confirmed. The examiner maintained that she was unable to confirm any gastrointestinal diagnosis, except from an April 2013 handwritten examination report. The examiner reported that there was no evidence found to verify what was documented in the April 2013 handwritten examination report, and the Veteran did not answer the two phone calls that were placed to him. The examiner also indicated that the claimed condition 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 reported that the Veteran served from 1962 to 1966. The examiner stated that the entrance and separation examination reports, respectively, are silent for any gastrointestinal complaints, diagnoses, or treatment. The examiner also maintained that the Veteran’s service treatment records are silent for any gastrointestinal complaints, diagnosis, or treatment, including an esophageal spasm and achalasia. It was noted that the claims file had no medical evidence of gastrointestinal concerns, to include an esophageal spasm and achalasia, except for a handwritten April 2013 private examination report. The examiner reported that the information in the April 2013 private examination report could not be verified by medical evidence. The examiner indicated that there was no medical evidence to support the Veteran’s GERD and achalasia as related to service, pursuant to the April 2013 examination report. The examiner stated that, pursuant to the April 2013 examination report, the Veteran had a fundoplication in May 2012, which was forty-six years after his separation from service. The examiner maintained that no nexus had been established. The Board notes that, as the Veteran did not serve in the Republic of Vietnam during the Vietnam era, and as there is no competent evidence indicating exposure to Agent Orange during his period of military service, he is not entitled to service connection for an esophagus spasm, to include achalasia, on a presumptive basis due to Agent Orange exposure. 38 C.F.R. § 3.309(e). Nevertheless, the Veteran is not precluded from establishing service connection for his claimed disability on a direct basis. See Combee v. Brown, F.3d at 1039 (Fed. Cir. 1994). The Board observes that the medical evidence does not suggest that the Veteran’s claimed esophagus spasm, to include achalasia, is related to his period of active duty. In fact, the medical evidence provides negative evidence against this finding, indicating that the Veteran’s claimed esophagus spasm, to include achalasia, began many years after his period of active duty, without any relationship to any incident of service. A VA examiner, pursuant to the July 2020 VA esophageal conditions examination report, following a review of the claims file, found that the Veteran did not presently have, and had never been diagnosed with, an esophageal condition. The Board observes, however, that an April 2013 private esophageal conditions examination report from K. Atta-Mensah, M.D., relates diagnoses of gastroesophageal reflux disease (GERD) and achalasia. The Board notes, however, that the examiner, pursuant to the July 2020 VA esophageal conditions examination report, also addressed the diagnoses, pursuant to the April 2013 private esophageal examination report from Dr. Atta Mensah, and specifically indicated that that there was no medical evidence to support that the Veteran’s GERD and achalasia were related to service, pursuant to the April 2013 examination report. The examiner also stated that, pursuant to the April 2013 examination report, the Veteran had a fundoplication in May 2012, which was forty-six years after his separation from service. The examiner maintained that no nexus had been established. The Board observes that there are no positive etiological reports of record. The Veteran has essentially asserts that his esophagus spasm, to include achalasia, had its onset during his period of active duty. However, while the Veteran is competent to report that he had symptoms that he thought were due an esophagus spasm, to include achalasia, during service, or since service, he is not competent to relate his currently claimed esophagus spasm, to include achalasia, to service. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) (lay evidence can be competent and sufficient to establish a diagnosis of a condition when a layperson is competent to identify the medical condition, or reporting a contemporaneous medical diagnosis, or the lay testimony describing symptoms at the time supports a later diagnosis by a medical professional); Buchanan v. Nicholson, 451 F.3d. 1331 (Fed. Cir. 2006) (lay evidence is one type of evidence that must be considered and competent lay evidence can be sufficient in and of itself). In the Veteran’s case, such a nexus opinion requires a certain level of expertise given the medically complex question. A lay opinion is not sufficient in this case to prove nexus. The weight of the competent demonstrates that the Veteran’s esophagus spasm, to include achalasia, began many years after his period of active duty and was not caused by any incident of service. The Veteran’s claimed esophagus spasm, to include achalasia, was neither incurred in nor aggravated by service. In sum, the preponderance of the evidence is against the claim for entitlement to service connection for an esophagus spasm, to include achalasia; there is no doubt to be resolved; and service connection is not warranted. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND The remaining issue on appeal is entitlement to service connection for left ear hearing loss. This case was remanded in May 2019, partly to schedule the Veteran for an appropriate VA examination to determine the nature, onset and/or likely etiology of his claimed left ear hearing loss. The examiner was to conduct an audiological evaluation, including speech recognition testing, to determine whether the Veteran currently had a left ear hearing loss disability. If left ear hearing loss was identified, the examiner was to provide an opinion as to whether it was at least as likely as not that any current left ear hearing loss resulted from one or more incidents during the Veteran’s period of active duty from June 1962 to May 1966, including his exposure to acoustic trauma. The May 2019 Board remand also directed that the examiner must specifically discuss the impact of the Veteran’s acoustic trauma on the hair cells in his cochlea, and state whether it was at least as likely as not that any current left hearing loss occurred sooner, or progressed to a greater degree of severity than it otherwise would have, as a result of his exposure to acoustic trauma during service. The examiner was requested to acknowledge and discuss the reports by the Veteran that his left ear hearing loss was first manifested during his period of service and had continued since service. Pursuant to the May 2019 Board remand, the Veteran was afforded a VA audiological examination in December 2020. There is a notation that the Veteran’s claims file was reviewed. The examiner did not provide any hearing test results or relate any diagnoses. The examiner stated that audiological testing could not be performed. The examiner maintained that the Veteran’s “right” ear was completed impacted with wax. The examiner reported that it was too hard to remove the wax, and she suggested that the Veteran use Debrox drops to soften the wax for seven days prior to removal. The Board observes that the examiner did not provide any audiological testing results and/or diagnoses, as requested in the May 2019 Board remand. The examiner solely reported that audiological testing could not be performed, that the Veteran’s “right” ear was completed impacted with wax, and that he should use Debrox drops to soften the wax for seven days prior to removal. Additionally, the Board notes that the Veteran’s representative, in a January 2021 informal hearing presentation, indicated that the December 2020 VA audiological examination was inadequate. The representative requested that the Veteran be afforded a new examination. In light of the above, and the lack of an adequate VA examination of record, the Board finds that the Veteran should be afforded a VA examination, with the opportunity to obtain responsive etiological opinions, following a thorough review of the record, as to his claim for service connection for left ear hearing loss. 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79 (2006); see also Stefl v. Nicholson, 21 Vet. App. 120, 125 (2007); Stegall v. West, 11 Vet. App. 268, 271 (1998). The matters are REMANDED for the following action: 1. Ask the Veteran to identify all other medical providers who have treated him for his claimed left ear hearing loss and esophagus spasm, to include achalasia, since April 2013. After receiving this information and any necessary releases, obtain copies of the related medical records which are not already in the claims folder. Document any unsuccessful efforts to obtain the records, inform the Veteran of such, and advise him that he may obtain and submit those records himself. 2. Notify the Veteran that he may submit lay statements from himself and from other individuals who have first-hand knowledge, and/or were contemporaneously informed of his in-service and post-service problems regarding his left ear hearing loss. The Veteran should be provided an appropriate amount of time to submit this lay evidence. 3. Schedule the Veteran for a VA examination (or telehealth interview, review of the record, etc. if an in-person examination is not feasible) to determine the nature, onset and/or likely etiology of his claimed left ear hearing loss. The claims file must be reviewed by the examiner. The examiner must conduct an audiological evaluation, including speech recognition testing, to determine whether the Veteran currently has left ear hearing loss disability. If left ear hearing loss is identified, the examiner must provide an opinion as to whether it is at least as likely as not that any current left ear hearing loss resulted from one or more incidents during the Veteran’s period of active duty from June 1962 to May 1966, including his exposure to acoustic trauma. The examiner must specifically discuss the impact of the Veteran’s acoustic trauma on the hair cells in his cochlea, and state whether it is at least as likely as not that any current left hearing loss occurred sooner, or progressed to a greater degree of severity than it otherwise would have, as a result of his exposure to acoustic trauma during service. Additionally, the examiner must specifically acknowledge and discuss the reports by the Veteran that his left ear hearing loss was first manifested during his period of service and has continued since service. STEVEN D. REISS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. D. Regan, 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.