Citation Nr: 21014315 Decision Date: 03/11/21 Archive Date: 03/11/21 DOCKET NO. 10-18 584 DATE: March 11, 2021 ORDER Service connection for a right thumb disability is denied. REMANDED Entitlement to service connection for a right ankle disability is remanded. Entitlement to service connection for a left ankle disability is remanded. Entitlement to service connection for a joint pain disability is remanded. Entitlement to service connection for a right wrist disability is remanded. Entitlement to service connection for a left wrist disability is remanded. Entitlement to service connection for a right knee disability is remanded. Entitlement to service connection for a left knee disability is remanded. Entitlement to service connection for a right arm pain disability is remanded. Entitlement to service connection for a left arm pain disability is remanded. Entitlement to service connection for sleep apnea is remanded. Entitlement to service connection for a gastrointestinal disability, to include gastritis, GERD, and esophageal dysmotility with spasm is remanded. FINDING OF FACT The preponderance of the evidence reflects that the Veteran's right thumb condition is not etiologically related to his active military service. CONCLUSION OF LAW The criteria for service connection for right thumb condition have not been met. 38 U.S.C. §§ 1101, 1110, 1131, 1154, 5107; 38 C.F.R. §§ 3.303, 3.304. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from June 1983 to July 2003. These matters are before the Board of Veterans’ Appeals (Board) on appeal from rating decisions issued in June 2009 and February 2010 by the Department of Veterans Affairs (VA) Regional Office in Jackson, Mississippi. The claims were remanded by the Board in August 2015 for further development. With the exception of the service connection claim regarding the Veteran’s right thumb disability, the Board finds that there has not been substantial compliance with its previous remand instructions and further development is warranted. See Stegall v. West, 11 Vet. App 268 (1998) (where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance). Entitlement to service connection for a right thumb disability The Veteran contends generally that he has a right thumb condition related to his military service. However, the claims folder does not reflect the Veteran sustained a right hand or right thumb condition. Rather, the only thumb injury documented in the Veteran’s service treatment records (STRs) are in regard to his 7-year-old son sustaining a right-hand injury while playing basketball. To prevail on a direct service connection claim, there must be competent evidence of (1) a current disability, (2) in-service incurrence or aggravation of a disease or injury, and (3) a nexus between the in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303 (a). The question for the Board is whether the Veteran has a right thumb condition that is etiologically related to, or aggravated by, an in-service disease or injury. In doing so, it finds that the competent, credible, and probative evidence is against a finding that the Veteran’s right condition is related to his military service. In an August 2017 VA medical opinion, the examiner opined that the Veteran’s right thumb condition was at least as likely as not to have incurred in, or caused by the claimed in-service injury, event, or illness. However, the examiner incorrectly stated that the Veteran was treated for a right-hand injury in May 1993, during active service. As noted previously, the Veteran’s STRs do not reflect in-service treatment of complaint of a right hand or right thumb condition. As the August 2017 VA medical opinion was based on incorrect facts, the Board finds that it is not probative. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (holding that the Board may reject a medical opinion based on an inaccurate factual basis). In a March 2019 VA medical examination, an examiner opined that the Veteran’s claimed right thumb condition was less likely than not related to his military service. The examiner explained that the Veteran did not have in-service treatment for, or complaints of a right thumb condition. The examiner further noted that there were no degenerative changes or abnormality on x-ray examination in 2008, approximately five years after active service. Based on this evidence, the Board finds that the Veteran’s claim for service connection must be denied. The Board accords great probative weight to the opinion proffered by the March 2019 VA examiner. The examiner provided a rationale, relying on and citing to the records reviewed. Moreover, the examiner offered a clear conclusion with supporting data as well as reasoned medical explanations connecting the two. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); 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.”). Notably, there is no contrary medical opinion of record. The Board notes that the Veteran may sincerely believe that he has a right thumb condition causally related to active service. However, the most probative clinical etiology opinion with regard to the Veteran’s claimed condition is against such a finding. The Veteran has not been shown to have the experience, training, or education necessary to make an etiology opinion to the claimed disability. Although lay persons are competent to provide opinions on some medical issues, the Board finds that a lay person is not competent to provide a probative opinion as to the specific issue in this case in light of the education and training necessary to make a finding with regard to the complexity of the hand for VA purposes. The Board finds that such etiology findings fall outside the realm of common knowledge of a lay person. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The Board has considered the doctrine of giving the benefit of the doubt to the appellant, under 38 U.S.C. § 5107, and 38 C.F.R. § 3.102), but does not find that the evidence is of such approximate balance as to warrant its application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The claim is denied. REASONS FOR REMAND Entitlement to service connection for a right ankle disability is remanded. Entitlement to service connection for a left ankle disability is remanded. Entitlement to service connection for a joint pain disability is remanded Entitlement to service connection for a right wrist disability is remanded. Entitlement to service connection for a left wrist disability is remanded. Entitlement to service connection for a right knee disability is remanded. Entitlement to service connection for a left knee disability is remanded. Entitlement to service connection for a right arm pain disability is remanded. Entitlement to service connection for a left arm pain disability is remanded. The Veteran was afforded a VA examination regarding his claimed conditions in September 2016. The examiner opined that the Veteran’s bilateral knee, ankle, and wrists are at least as likely as not related to his military service. In support of this conclusion, the examiner simply noted the Veteran’s May 2003 Report of Medical History, in which the Veteran answered yes to having experiencing knee trouble, painful wrist, and joints. However, the examiner failed to explain if the conditions noted during service are the same as the Veteran’s current condition; further, the examiner failed to provide any medical rationale to support the medical conclusion provided. As such, the Board finds the medical opinion to be of little probative value. A subsequent medical opinion was obtained in August 2019. The examiner concluded that the Veteran’s claimed bilateral ankle, bilateral arms, bilateral knees, and bilateral wrists are less likely than not to have been incurred while in service, and/or cause by or aggravated by any service-connected disability. The examiner’s opinion was based, in part, due to a lack of consistent medical treatment. Specifically, the examiner noted the Veteran’s detail of in-service symptoms of joint pain in May 2003. However, the examiner discounted the Veteran’s lay statements by focusing on the lack of medical treatment post-service, noting a roughly five-year gap from the next documented medical treatment or complaint for joint pain. An examination is deemed to be inadequate where the examiner relies on the absence of evidence of disability in the service treatment records, and does not account for competent lay testimony as to continuity of symptoms, to provide a negative opinion. Dalton v. Nicholson, 21 Vet. App. 23, 39-40 (2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1336 n. 1 (Fed. Cir. 2006) (finding VA's examiner's opinion flawed because it relied solely on the absence of contemporaneous medical evidence). Thus, the Board finds that the August 2019 examination report is inadequate. Additionally, the August 2019 opinion infers that the Veteran claimed joint pains (to include bilateral knees, arms, knees, and wrists) are related to his non-service-connected gout. Despite this, the claims folder does not contain a medical opinion as to whether these claimed conditions are directly related to his gout, and if so, whether or not the Veteran’s in-service complaints of joint pain were early manifestations of his gout. For these reasons, an adequate medical opinion addressing such inquiries must be obtained prior to adjudicating the musculoskeletal issues on appeal. Entitlement to service connection for sleep apnea is remanded. The Veteran was afforded a VA examination regarding his sleep apnea claim in September 2016. The examiner opined that the Veteran’s sleep apnea was less likely than not related to his military service. The examiner noted that the Veteran was not diagnosed with sleep apnea until 2008, five years after service. Additionally, the examiner noted various general causes of sleep apnea including age (noting the Veteran’s age), obesity, gender (noting the Veteran as male), craniofacial and upper airway abnormalities, and smoking. However, the examiner failed to note the Veteran’s in-service complaint of frequent trouble sleeping. (See May 2003 Report of Medical History). Additionally, the examiner failed to note whether the Veteran’s in-service increase in weight contributed to the development of his current sleep apnea. (See September 1998 Nutrition Clinic for Weight Reduction). As such, the Board finds the September 2016 medical opinion to be inadequate for adjudication purposes. The Veteran was provided another VA medical opinion in August 2017. The examiner opined that the Veteran’s sleep apnea is less likely than to have not incurred while in service, and/or cause by or aggravated by any service-connected disability. The examiner merely noted that the Veteran did not receive a diagnosis of sleep apnea post military service. As the examiner failed to provide and adequate rational, the Board finds the medical opinion to be inadequate. Dalton, supra. The Veteran was provided another VA medical opinion in August 2020. The examiner opined that the Veteran’s sleep apnea is less likely than to have not incurred while in service, and/or cause by or aggravated by any service-connected disability. The examiner’s opinion was based, in part, due to a lack of consistent medical treatment. Specifically, the examiner noted the Veteran’s detail of in-service symptoms of frequent trouble sleeping in May 2003. However, the examiner discounted the Veteran’s lay statements by focusing on the lack of medical treatment post-service, noting an approximately five-year gap from the diagnosis for sleep apnea. As with the above claims, the Board finds that this conclusion renders the opinion inadequate. Dalton, supra; Buchanan, supra. Additionally, the August 2020 medical opinion infers that the Veteran claimed sleep apnea is related to the Veteran’s weight and body mass index. Again, the examiner failed to note whether the Veteran’s in-service increase in weight contributed to the development of his current sleep apnea. (See September 1998 Nutrition Clinic for Weight Reduction). As such, the Board finds the September 2016 medical opinion to be inadequate for adjudication purposes and an adequate medical opinion addressing such inquiries must be obtained prior to adjudicating the sleep apnea issue on appeal. Entitlement to service connection for a gastrointestinal disability, to include gastritis, GERD, and esophageal dysmotility with spasm is remanded. The claims folder reflects that the Veteran has been diagnosed with a chronic gastrointestinal disability, GERD and esophageal spasms; and chronic constipation which he attributes to service. The Board notes he complained of frequent indigestion and heartburn as well as stomach troubles at separation examinations in May 2003 and June 2003. A September 2016 examination report noted the Veteran with no GERD diagnosis. In an August 2017 medical opinion, the examiner opined that the Veteran’s diagnosed esophageal dysmotility with spasm is less likely caused by or the result of any service-connected disability. The examiner went on to say that the Veteran’s condition might have been aggravated during service considering military stress and nutrition specifics of the military. However, the examiner noted that the Veteran’s esophageal dysmotility with spasm did not have its onset until after a 2011endoscopy, for which the examiner attributes the diagnosis to. With that, it is inconsistent for the Veteran’s military service to aggravate a condition that did not exist during service. Further, the examiner failed to note an instance in which aggravation could be ascertained during active service. As such, the Board finds the medical opinion to be inadequate. In a separate August 2017 medical opinion, the examiner noted that the Veteran was diagnosed with gastritis upon separating from the military service. The examiner explained that gastritis is a temporary condition of the stomach that is treatable. The examiner further noted the Veteran’s diagnosed esophageal dysmotility with spasm. The examiner opined that it is less likely than not that the Veteran’s claimed condition is related to service. However, the examiner did not provide an actual rationale to support the medical conclusion. As such, the Board finds the medical opinion to be inadequate. In an October 2020 medical examination, the Veteran was diagnosed with chronic constipation. The examiner concluded that the Veteran’s claimed gastrointestinal condition is less likely than not related to his active service. The examiner stated while the May 2003 separations examination noted the Veteran with heartburn the veteran does not have a diagnosable stomach condition. The examiner further noted, incorrectly, that the Veteran’s STRs does not demonstrate complaints of constipation. The examiner also noted that the Veteran did not have a diagnosis of gastritis. The examiner additionally opined that it is less likely than not that the Veteran’s claimed condition, to include chronic constipation is related to or aggravated by any service-connected disability. The examiner explained that the Veteran does not have a diagnosable stomach condition and that there is no association between the Veteran’s constipation and his current service-connected disabilities. Here, the October 2020 medical opinion is based, in part, on incorrect facts and does not provide adequate rationale for the conclusions reached. Reonal, supra. The claims folder reflects that during service the Veteran did note that he experienced chronic constipation. (See For Personnel Exceeding Percent Body Fat Standards). As such, a supplemental medical opinion is needed. See Barr v. Nicholson, 21 Vet. App. 303 (2007) (when VA endeavors to provide an examination for a service-connection claim, even if not statutorily obligated to, it must ensure the examination is adequate, else, notify the Veteran why such an examination will not or cannot be provided). Thus, an adequate medical opinion addressing such inquiries must be obtained prior to adjudicating the gastrointestinal issue on appeal. The matters are REMANDED for the following action: 1. Obtain supplemental opinions from an appropriate clinician regarding entitlement to service connection for a bilateral ankle disability. The claims file must be made available to and be reviewed by the examiner in conjunction with the examination. The examiner is requested to provide the following opinions: Whether it is at least as likely as not (50 percent probability or more) that the Veteran’s bilateral ankle condition began in service, was caused by service, or is otherwise related to service; and Whether it is at least as likely as not (50 percent probability or more) that the Veteran’s bilateral ankle condition is related to the Veteran’s non-service-connected gout. And if so, were the Veteran’s in-service complaints of joint pain, to include ankle pain a manifestation of the Veteran’s gout. Any opinion provided must be accompanied with an adequate rationale discussing the Veteran’s in-service complaints of bilateral ankle and joint pain. 2. Obtain supplemental opinions from an appropriate clinician regarding entitlement to service connection for a joint pain disability. The claims file must be made available to and be reviewed by the examiner in conjunction with the examination. The examiner is requested to provide the following opinions: Whether it is at least as likely as not (50 percent probability or more) that the Veteran’s joint pain condition began in service, was caused by service, or is otherwise related to service; and Whether it is at least as likely as not (50 percent probability or more) that the Veteran’s joint pain condition is related to the Veteran’s non-service-connected gout. And if so, were the Veteran’s in-service complaints of joint pain a manifestation of the Veteran’s gout. Any opinion provided must be accompanied with an adequate rationale discussing the Veteran’s in-service complaints of joint pain. 3. Obtain supplemental opinions from an appropriate clinician regarding entitlement to service connection for a bilateral wrist disability. The claims file must be made available to and be reviewed by the examiner in conjunction with the examination. The examiner is requested to provide the following opinions: Whether it is at least as likely as not (50 percent probability or more) that the Veteran’s bilateral wrist condition began in service, was caused by service, or is otherwise related to service; and Whether it is at least as likely as not (50 percent probability or more) that the Veteran’s bilateral knee condition is related to the Veteran’s non-service-connected gout. And if so, were the Veteran’s in-service complaints of joint pain, to include wrist pain a manifestation of the Veteran’s gout. Any opinion provided must be accompanied with an adequate rationale discussing the Veteran’s in-service complaints of bilateral wrist and joint paint. 4. Obtain supplemental opinions from an appropriate clinician regarding entitlement to service connection for a bilateral knee disability. The claims file must be made available to and be reviewed by the examiner in conjunction with the examination. The examiner is requested to provide the following opinions: Whether it is at least as likely as not (50 percent probability or more) that the Veteran’s bilateral knee condition began in service, was caused by service, or is otherwise related to service; and Whether it is at least as likely as not (50 percent probability or more) that the Veteran’s bilateral knee condition is related to the Veteran’s non-service-connected gout. And if so, were the Veteran’s in-service complaints of joint pain, to include bilateral knee pain a manifestation of the Veteran’s gout. Any opinion provided must be accompanied with an adequate rationale discussing the Veteran’s in-service complaints of bilateral knee and joint paint. 5. Obtain supplemental opinions from an appropriate clinician regarding entitlement to service connection for a bilateral arm condition. The claims file must be made available to and be reviewed by the examiner in conjunction with the examination. The examiner is requested to provide the following opinions: Whether it is at least as likely as not (50 percent probability or more) that the Veteran’s has a bilateral arm condition began in service, was caused by service, or is otherwise related to service; and Whether it is at least as likely as not (50 percent probability or more) that the Veteran has a bilateral arm condition is related to the Veteran’s non-service-connected gout. And if so, were the Veteran’s in-service complaints of joint pain, to include arm pain a manifestation of the Veteran’s gout. Any opinion provided must be accompanied with an adequate rationale discussing the Veteran’s in-service complaints of bilateral arm and joint paint. 6. Obtain a supplemental medical opinion regarding the service connection claim for sleep disturbance, including but not limited to, obstructive sleep apnea. The claims file should be made available to the examiner in conjunction with the opinion. The examiner is requested to provide the following opinions: Whether it is at least as likely as not (50 percent probability or more) that the Veteran’s sleep impairment began in service, was caused by service, or is otherwise related to service. Any opinion provided should be reconciled with the previous opinions obtained. If the examiner concludes any sleep disturbance impairment is not directly related to service, the examiner is also asked to determine whether it is at least as likely as not (a 50 percent probability or more) any sleep impairment was caused by or aggravated by the Veteran’s service connected disabilities. Any opinion provided must be accompanied with an adequate rationale discussing the Veteran’s in-service complaints of frequent trouble sleeping and in-service treatment for his increase in body weight and bodyfat. 7. Obtain a supplemental opinion from an appropriate clinician regarding entitlement to service connection for a gastrointestinal disability. The claims file must be made available to and be reviewed by the examiner in conjunction with the examination. The examiner is requested to provide an opinion as to whether it is at least as likely as not (50 percent probability or more) that the Veteran’s gastrointestinal disability began in service, was caused by service, or is otherwise related to service. Any opinion provided must be accompanied with an adequate rationale discussing the Veteran’s in-service complaints of chronic constipation and indigestion. JEREMY J. OLSEN Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Brandon A. Williams, 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.