Citation Nr: 21014599 Decision Date: 03/15/21 Archive Date: 03/15/21 DOCKET NO. 10-28 818 DATE: March 15, 2021 ORDER Entitlement to service connection for foot warts is denied. Entitlement to service connection for otitis media is denied. Entitlement to service connection for a gastrointestinal condition is denied. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that the Veteran has a current bilateral foot wart condition that is related to an in-service event, injury or disease. 2. The preponderance of the evidence is against finding that a chronic ear disability (infections) began during active service, or is otherwise related to an in-service injury, event, or disease. 3. The preponderance of the evidence is against finding that a gastrointestinal condition began during active service, or is otherwise related to an in-service injury or disease. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral foot warts have not been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 2. The criteria for service connection for an ear disability (infections) are not met. 38 U.S.C. §§ 1110, 1111, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). 3. The criteria for service connection for a gastrointestinal condition are not met. 38 U.S.C. §§ 1110, 1111, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1974 to April 1979. In October 2020, the Board of Veterans’ Appeals (Board) remanded the claim to the Agency of Original Jurisdiction (AOJ) of the Department of Veterans Affairs (VA) for additional development. As the actions specified in the remand have been completed, the matter has been properly returned to the Board for appellate consideration. See Stegall v. West, 11 Vet. App. 268 (1998). Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). 1. Service connection for bilateral foot warts The Veteran contends that his bilateral foot wart disability is related to his active duty service. At the outset, the Board notes that the Veteran is service-connected for bilateral foot tinea pedis from June 22, 2010. The Board ultimately finds that, with respect to the Veteran’s bilateral foot warts, the criteria for service connection have not been met. A September 1976 service treatment record (STR) indicated that the Veteran complained of lesions on his bilateral feet. The Veteran was diagnosed with athlete’s foot (tinea pedis) and prescribed medication. The Board notes that near the September 1976 STR entry “warts both feet” was written in different handwriting and with a different instrument. Also, in October 1977, the Veteran complained of warts; however, nothing was found upon examination and nothing was prescribed to treat the Veteran’s complaint. The Veteran was found to be physically qualified for training. The Veteran’s July 1974 and December 1978 examinations showed no complaints or findings for abnormal foot or skin pathology. In a July 2010 statement, the Veteran noted that he was on his feet for long periods of time and had tinea pedis with sporadic warts. In February 2015, the Veteran underwent a VA examination for skin diseases. The Veteran was diagnosed with recurrent tinea pedis by medical history, normal upon examination and herpes simplex virus infection by medical history, normal upon examination. The Veteran reported having an intermittent bilateral foot fungus infection since active service. He treated his condition with a topical antifungal cream. Upon physical examination, the Veteran did not have any infections of the skin. The Board remanded the claim so that a VA examiner address whether the Veteran had a diagnosis of warts and, if so, whether it was related to his active service. In March 2018, a VA examiner found that a diagnosis of bilateral foot warts was not warranted. The examiner rationed that the Veteran complained of having bilateral foot warts in September 1976; however, upon examination the Veteran was diagnosed with athlete’s foot. There was no evidence of a diagnosis of bilateral foot warts per the 1976 medical examiner. Also, review of the Veteran’s STRs does not show any evidence of a diagnosis of warts during active service, or thereafter. Further, the February 2015 VA examination did not show evidence of skin findings compatible with, and/or a diagnosis of, bilateral foot warts. The examiner noted that the Veteran was diagnosed with athlete’s foot during active service and had been service-connected for this condition. Once again, the Board remanded for a VA examiner to address the Veteran’s assertion of sporadic warts since active service. In July 2020 the Veteran underwent a VA examination for foot conditions. The examiner diagnosed the Veteran with bilateral foot warts as the September 1976 STR had the note “warts both feet.” The Veteran reported being unsure of having warts on his feet during active service, but noted that he had a fungal infection that he treated with cream. The Veteran then became irate and left during the interview. In December 2020, a VA examiner opined that it was less likely as not that the claimed condition was incurred in or caused by the claimed in-service injury, event, or illness. The examiner reviewed the entire claims file and found that the Veteran had not been diagnosed with warts. She noted that the September 1976 STRs had “warts both feet” written in one area, but the actual entry had different handwriting with the diagnosis of athlete’s foot. Throughout his active service, the Veteran was not diagnosed with warts, nor treated for warts after his service. Therefore, the examiner was unable to establish a nexus. The examiner’s opinion is probative, because it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). While the Veteran believes his bilateral foot warts are related to his military service based on reoccurrence of the condition, he is not competent to provide a nexus opinion in this case. The issue is medically complex, as it requires knowledge of pathology. Therefore, it is outside the competence of the Veteran in this case because the record does not show that he has the medical training or credentials to make such a determination. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). Consequently, the Board gives more probative weight to the December 2020 examiner. The most probative evidence establishes that the Veteran’s bilateral foot condition is not related to any qualifying period of service. Service connection is not warranted. In sum, the Veteran has a current bilateral foot wart disability and references to a similar condition on active duty, however, no nexus exists between the current disability and military service. The preponderance of the evidence weighs against a finding for service connection for the wart disability. The benefit-of-the-doubt rule has been considered however as the weight of the evidence is against the claim, it is not for consideration. 38 C.F.R. § 3.102. The claim is denied. 2. Service connection for otitis media The Veteran asserts that a bilateral ear condition had its onset during active duty service and that he has suffered from chronic ear problems ever since that time. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that, while the Veteran reports bilateral ear pain since service and has been treated for bilateral ear conditions, and evidence shows that he was treated for left earaches during active service, the preponderance of the evidence weighs against finding that a bilateral ear condition had its onset in service or is otherwise related to an in-service injury, event, or disease. Regarding an in-service disease or injury, STRs document a left earache in September 1975 and May 1977. The diagnosis was probable acute otitis externa. The Veteran’s separation physical in December 1978 documented a normal clinical evaluation of the ears. In January 1999, the Veteran complained of congestion, a sore throat, cough, and bilateral earaches. In July 2000, the Veteran sought treatment for bilateral ear pain. He was diagnosed with otitis media and externa and prescribed ear drops. In January 2008, the Veteran reported having bilateral ear infections. In May 2009 and November 2009, the Veteran complained of right ear pain. The November 2009 physician diagnosed the Veteran with TMJ and noted that it was the cause of his bilateral ear pain. In February 2015, the Veteran underwent a VA examination for ear conditions. The Veteran was diagnosed with right acute external otitis by medical history, resolved with no objective residuals and acute otitis media and externa by medical history, resolved with no objective residuals. However, review of the STRs reveals that the February 2015 VA examiner was mistaken as the Veteran complained of left ear aches during active service. He was not diagnosed with a right ear condition during active service. The Veteran stated that he had right ear infections since active service that have been manifested by pain and ear drainage. He stated that he rarely visited the doctor for his right ear condition as it is self-limited. Physical examination of the ears was normal. The examiner did not provide a medical opinion as there was no current diagnosis for which his symptoms would be attributable. VA treatment notes from April 2008, November 2009, May 2016, and September 2016 noted that the Veteran complained of left earaches. In August 2017, a VA ear, nose, and throat physician noted that the Veteran’s TMJ caused his left ear pain. In March 2018, a VA examiner opined that the claimed condition was less likely than not caused by the claimed in-service injury, event, or illness. The examiner rationed that the Veteran complained of having a left ear ach in September 1975 with purulence in the left ear and dullness noted bilaterally. In May 1977, the Veteran was evaluated for a left earache. On physical examination, he had left ear fluid buildup and the right ear was normal. His diagnosis was probable left ear acute otitis externa with eustachian tube dysfunction. The examiner noted that the Veteran separation examination did not note an ear condition; thus, there was no objective evidence of chronicity of the Veteran’s in-service ear conditions. Post service, the Veteran did not complain of an ear condition until 2000, decades after his active service. He was diagnosed with right otitis media and otitis externa in July 2000. In November 2009, the Veteran underwent a private ear, nose, and throat examination as he experienced bilateral ear pain for one week. Physical examination of the ears was normal: however, the Veteran was diagnosed with temporomandibular joint disorder (TMJ). In May 2016 the Veteran complained of a left earache. In August 2017, the Veteran complained of intermittent ear pain for the past few months, worse with chewing food. There was no ear drainage or hearing deficit. The assessment was TMJ was causing his ear pain. The examiner concluded that the veteran’s right otitis media diagnosis in July 2000 is not directly related to active service as he had no right ear problems during active service. The examiner found that the Veteran’s complaint of intermittent left ear pain since active service is most likely related to his TMJ diagnosis. In October 2019, a VA examiner opined that the claimed condition was less likely than not caused by the claimed in-service injury, event, or illness. The examiner rationed that there is no objective evidence for an in-service diagnosis of a right ear condition. Based on this, a nexus has not been established. Also, the Veteran’s left ear condition was acute only and there was no objective evidence of chronicity as there was no evidence to support a left ear condition upon physical examination. Therefore, a nexus has not been established. In July 2020 the Veteran underwent a VA examination for ear conditions. The examiner diagnosed the Veteran with left ear otitis media based on his September 1975 diagnosis. The Veteran reported onset of bilateral ear pain (left greater than right) during active service. He was diagnosed with an infection and prescribed antibiotics that cured him. He stated that the ear infection reoccurred often. He reported that his current symptoms included fluid drainage and ear pain/pressure. Upon physical examination, the Veteran then became irate and left during the interview. In December 2020, a VA examiner opined that it was less likely as not that the claimed condition was incurred in or caused by the claimed in-service injury, event, or illness. The examiner rationed that the Veteran had two acute episodes of left ear otitis media during active service. Since active service, there have been no evidence of chronicity of care or chronic complaints. Ear complaints have been decades apart and there have been ample opportunities to report chronic complaints in treatment visits: however, the record does not show chronic ear complaints. The Veteran’s complaints are not supported by the evidence. Therefore, a nexus has not been established. After considering the totality of the evidence of record, the Board finds that service connection for an ear condition is not warranted as there is no competent evidence linking any such disability to the Veteran’s military service. While service treatment records do document acute otitis externa in 1975, follow up records are silent with respect to any chronic disorder. Significantly, the Veteran’s discharge examination showed that the Veteran’s ears were clinically evaluated as normal. The first post-service medical evidence is many years after service (i.e., 1999). The passage of so many years between discharge from active service and the objective documentation of a claimed disability is a factor that tends to weigh against a claim for service connection. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). Importantly, although the Veteran has indicated experiencing pertinent symptoms since service, as otitis media is not one of the diseases enumerated under 38 C.F.R. § 3.309 (a), a medical nexus is required. In this regard, after reviewing the claims file, the highly probative December 2020 VA etiological opinion found that the Veteran’s ear condition was not related to service. There is no medical evidence of record to refute this opinion. Further, the 2018 VA examiner stated that the Veteran’s ear condition was more likely secondary to TMJ based on the November 2009 private physician’s diagnosis of TMJ and the August 2017 VA finding. The Board recognizes that lay assertions may serve to support a claim for service connection by demonstrating the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. 38 Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). In the instant case, the Veteran is competent to report symptoms in-service, as well as pertinent symptomatology since service. However, he is not competent to directly link his current ear condition to service as medical expertise is required. Importantly, the question of causation involves a medical subject concerning an internal physical process extending beyond an immediately observable cause-and-effect relationship. As such, the question of etiology in this case may not be competently addressed by lay evidence, and the opinions of the Veteran are nonprobative evidence. See Jandreau, supra. Thus, his claims are outweighed by the medical evidence of record, including the December 2020 opinion. In conclusion, based on the analysis above, the Board finds that the preponderance of evidence is against the Veteran’s claim for service connection for a bilateral ear condition, diagnosed as otitis media. As the preponderance of the evidence weighs against the claim, the benefit-of-the-doubt doctrine does not apply. See 38 U.S.C. § 5107 (b). 3. Service connection for a gastrointestinal condition The Veteran contends that he has a current stomach disorder, to include gastroesophageal reflux disease (GERD), that is related to service. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that, while the Veteran has a current diagnosis of GERD, and evidence shows that he was treated for acute gastroenteritis in service, the preponderance of the evidence weighs against finding that the Veteran's diagnosis of GERD began during service or is otherwise related to an in-service injury, event, or disease. STRs reflect that the Veteran was treated for stomach cramps in January 1977; the diagnostic assessment was acute gastroenteritis. In July 1977 the Veteran complained of nausea and vomiting. He had a follow-up later in July 1977 and was feeling better. On separation examination in December 1978, his abdomen and viscera were clinically normal. In February 2015, the Veteran underwent a VA examination for stomach conditions. He was diagnosed with gastroenteritis by medical history, resolved, with no objective residuals noted. The Veteran reported episodes of diarrhea, nausea, and vomiting since active service. The Veteran noted that his symptoms were triggered by eating foods with high fat contents. A 2012 colonoscopy revealed diverticulosis with hemorrhoids. The examiner noted that the Veteran had acute gastroenteritis during active service that had resolved as evidenced by the normal separation examination. In 1996 and 1997, the Veteran complained of chills, cough, diarrhea, nausea, vomiting, chest congestion, and stomach cramps for a few days in each instance. No diagnosis was provided. In 2010, the Veteran was diagnosed with GERD, but there is no evidence that chronic diarrhea with associated nausea and vomiting is associated with his GERD. The examiner did not provide a medical opinion as there was no current diagnosis for which his symptoms would be attributable. In March 2018, a VA examiner opined that the only medical condition pertinent to the Veteran’s gastrointestinal condition claim was acute gastroenteritis and that there is no evidence of chronicity. The Veteran complained of dizziness, stomach cramps, emesis, and diarrhea in September 1976 and was diagnosed with acute gastroenteritis. Review of the STRs did not show any evidence of a diagnosis of any chronic gastrointestinal complaints, abnormal physical findings, a diagnosis of GERD, diverticulosis, internal hemorrhoids, or gastric pain. The Veteran first reported a gastrointestinal complaint 18 years after separation from service in 1996 when he complained of chills, cough, diarrhea, nausea, vomiting, chest congestion, and stomach cramps for a few days: however, no diagnosis was provided. The VA medical records note a diagnosis of epigastric pain and GERD in 2010 with continuing treatment since. A 2012 colonoscopy showed diverticulosis and internal hemorrhoids. The examiner noted that the diagnoses of GERD, epigastric pain, and diverticulosis with hemorrhoids were made more than 30 years after the Veteran’s separation from active service without evidence of incurrence in, or chronicity since service, and are therefore less likely than not related to active military service. The Board found examinations performed in February 2015, and the addendum medical opinion obtained in March 2018 to be deficient, because the examiner erroneously relied upon a lack of a current diagnosis during examinations and lack of medical treatment in service for concluding the Veteran’s current gastrointestinal disorder was less likely than not incurred in service. Therefore, the issue was remanded for a VA examination. In October 2019, a VA examination for esophageal conditions. He was diagnosed with GERD. The Veteran reported stomach pains, vomiting, and diarrhea during active service. He reported recurrent episodes of stomach pains since active service. His symptoms have not required continuous medication as a treatment method. The VA examiner opined that the Veteran’s claimed condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner rationed that the Veteran was diagnosed with acute gastroenteritis with flu symptoms (nausea, diarrhea, and vomiting) twice during active service and that his symptoms resolved in one day after treatment. There was no objective evidence to support chronicity of these symptoms after military service. The Veteran has a current diagnosis of GERD, which was an incidental finding and is unrelated to his claimed symptoms noted during active service. Therefore, a nexus is not established as there have been no recurrent episodes of gastroenteritis. Once again, the Board remanded the claim for another opinion as the October 2019 examiner failed to consider or discuss the Veteran’s reports of ongoing diarrhea, nausea, and vomiting since active duty. In July 2020 the Veteran underwent a VA examination for intestinal conditions. The examiner diagnosed the Veteran with acute gastroenteritis based on his January 1977 diagnosis. The Veteran reported onset of stomach pain and diarrhea during active service. He was treated for his symptoms with improvement. He reported that he had intermittent gastrointestinal symptoms after service, but he did not seek treatment from the VA until the 2000s. The Veteran then became irate and left during the interview. In December 2020, a VA examiner opined that the claimed conditions were less likely than not incurred in or caused by the claimed in-service injury, event, or illness, including the January 1977 and July 1977 gastrointestinal complaints. The examiner rationed that the Veteran was diagnosed with acute gastroenteritis, that was only ever noted to be acute in severity. There was no evidence of chronicity of care of gastroenteritis. Although the Veteran noted chronicity of his acute gastroenteritis symptoms, his assertions are subjective only and not supported by the treatment notes. Of note, as of 2016, the Veteran was being treated for GERD symptoms, but not gastroenteritis symptoms. Further, treatment records from 2019 do not note treatment for, or complaints of, gastroenteritis symptoms. Based on the above, a nexus has not been established for the Veteran’s gastrointestinal condition claim. The December 2020 VA examiner's opinion is probative, because it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). While the Veteran believes he has a current stomach disorder that is related to an in-service injury, event, or disease, he is not competent to provide a nexus opinion in this case. This issue is also medically complex, as it requires specialized medical education, knowledge of the interaction between multiple organ systems in the body, and the ability to interpret complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to the competent medical evidence. In reaching the above conclusion, the Board has considered the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claims, that doctrine does not apply. See 38 U.S.C. § 5107 (b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert, 1 Vet. App. at 55-56. T. Berry Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Costello, 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.