Citation Nr: 21014838 Decision Date: 03/15/21 Archive Date: 03/15/21 DOCKET NO. 15-41 235A DATE: March 15, 2021 ORDER Entitlement to service connection for gastroesophageal reflux disease (GERD) is denied. Entitlement to a total disability rating based on individual unemployability (TDIU) by reason of service-connected disabilities, prior to November 17, 2020, is denied. FINDINGS OF FACT 1. The most probative evidence reflects that GERD was not manifested in service and is not otherwise shown to be related to an inservice injury, disease or illness. 2. The most probative evidence reflects that the Veteran's service-connected disabilities did not render him unable to secure and follow a substantially gainful occupation prior to November 17, 2020. CONCLUSIONS OF LAW 1. The criteria for service connection for gastroesophageal reflux disease (GERD) have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for a TDIU have not been met prior to November 17, 2020. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1981 to June 1988. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois. By a rating action in July 2014, the RO denied service connection for hiatal hernia. Subsequently, in June 2015, the RO denied the claim for a TDIU. The Veteran perfected a timely appeal to those decisions. In September 2018, the Board remanded the issue of service connection for GERD for evidentiary development. In July 2019, the Board remanded the issue of entitlement to a TDIU to the RO for further evidentiary. Following the requested developments, supplemental statements of the case (SSOCs) were issued in June 2020. In August 2020, the Board again remanded the claims to the RO for further evidentiary development. Following the requested development, an SSOC was issued in November 2020. Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303 (a) (2019). "To establish a right to compensation for a present disability, a Veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service"- the so-called "nexus" requirement." Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The Veteran can provide competent reports of factual matters of which he has first-hand knowledge, such as experiencing pain in service, reporting to sick call, being placed on limited duty, and undergoing physical therapy. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a lay person is competent to identify the medical condition (noting that sometimes the lay person will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer), (2) the lay person is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. See Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). Similarly, laypersons are competent to diagnose and provide nexus opinions to some extent, notably where the diagnosis or opinion is not of a complex nature. Id., see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. 1. Entitlement to service connection for GERD The Veteran maintains that he developed a chronic stomach condition in service, and he has continued to experience symptoms of a stomach condition, including heartburn; he indicates that no testing was done, but he was instructed to follow a bland diet and use over the counter medication such as maalox. The Veteran further maintains that he was eventually diagnosed with GERD and was prescribed Pantoprazole. 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 record reflects that the Veteran currently has a diagnosis of GERD. Significantly, following a DBQ examination in May 2015, the examiner reported diagnoses of GERD and hiatal hernia. Another DBQ examination in October 2019 reported a diagnosis of GERD. A more recent DBQ examination report in November 2020 reflects a diagnosis of GERD. Thus, the current disability requirement is satisfied. Concerning the second requirement of an in-service incurrence of a disease, there is no evidence of treatment for any gastrointestinal disorders during service. The STRs, including the September 1981 enlistment examination as well as the May 1988 separation examination, are negative for any clinical findings or diagnosis of GERD or hiatal hernia during military service. The Board therefore concludes that the in-service element is not met in this case. In addition, post service treatment records show that the Veteran was not diagnosed with GERD until September 2014, more than 26 years following Veteran's separation from military service. While not dispositive, the passage of so many years between discharge from active service and the objective documentation of a claimed disability is a factor that weighs against a claim for service connection. Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). Moreover, although the Veteran has been diagnosed with GERD, there is no competent and probative evidence of record linking his GERD to active service. Rather, following a DBQ examination in October 2019, the examiner opined that the Veteran's GERD was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner noted that there was no documentation of GERD or similar symptoms or treatment noted in the STRs to support that the Veteran had GERD while in service. More recently, in November 2020, a DBQ examiner opined that the Veteran's GERD was less likely than not incurred in or caused by his inservice injury, event or illness. The examiner noted that the Veteran’s entrance examination contained no mention of a past or current medical history of GERD or like symptoms, and objective evidence of GERD was not shown until 2013 or 2014. The examiner further noted that the claims file failed to show any objective evidence of chronicity of care for GERD. Therefore, the examiner concluded that, based on the evidence, a nexus could not be established. 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). The Board has also considered the Veteran's statements asserting a nexus between his GERD and his military service. As a lay person, however, the Veteran in this case is not competent to provide a nexus opinion regarding this issue. The issue is medically complex, as it requires knowledge of the interaction between multiple organ systems in the body and pathology. Therefore, it is outside the competence of the Veteran in this case because the record does not show that he has the skills or medical training 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 VA/DBQ examiners’ opinions. For all of the above reasons, the preponderance of the evidence is against a finding that there is a nexus between the Veteran's GERD and his active service. The Board has considered the benefit of the doubt doctrine when making these findings, but the preponderance of the evidence is against the Veteran's claim for entitlement to service connection. 38 U.S.C. § 5107 (b) (2012); 38 C.F.R. § 3.102 (2019). The appeal as to this issue must be denied. 2. Entitlement to a TDIU prior to November 17, 2020 Awards of TDIU are governed, in part, by 38 C.F.R. § 4.16 (a) (2019). Under that regulation, total disability ratings for compensation can be assigned, where the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities: provided that, if there is only one such disability, the disability must be ratable at 60 percent or more, and that, if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. See also 38 C.F.R. §§ 3.340, 3.341 (2018). Neither nonservice-connected disabilities nor advancing age may be considered in the determination. 38 C.F.R. §§ 3.341, 4.19; Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Thus, the Board may not consider the effects of the Veteran's nonservice-connected disabilities on his ability to function. Prior to November 17, 2020, the Veteran was service connected for pes planus and plantar fasciitis, rated as 50 percent from May 8, 2013; tinnitus, rated as 10 percent from May 30, 2017, contact dermatitis, rated as 0 percent from May 8, 2013, and left ear hearing loss, rated as 0 percent from May 30, 2017. The Veteran's combined rating is 50 percent from May 8, 2013 and 60 percent from May 30, 2017. Therefore, the Veteran does not meet the schedular requirements for TDIU prior to November 17, 2020. A total rating based on individual unemployability may still be assigned to a veteran who fails to meet these percentage standards if he or she is unemployable by reason of his or her service-connected disabilities. 38 C.F.R. § 4.16 (b). In this case, the evidence does not show that the Veteran is precluded from employment by disabilities caused by his pes planus and plantar fasciitis, contact dermatitis, left ear hearing loss and tinnitus prior to November 17, 2020. The Veteran’s claim for a TDIU (VA Form 21-8940) was received in January 2015, wherein he stated that he became too disabled to work September 30, 2012. The Veteran indicated that he had a High School education, and he last worked in September 2012 as an IT manager. Submitted in support of the claim was an Administration decision by the Social Security Administration (SSA), dated in October 2015, which found that the Veteran became disabled in March 2013. It was determined that the Veteran was disabled due to severe impairments caused by degenerative joint disease and gouty arthritis in the ankles and feet; morbid obesity; and anxiety disorders. Following a DBQ examination in May 2015, the examiner stated that the feeling of itching bothers the Veteran from concentrating while working and requiring frequent over the counter use of Benadryl. Following a DBQ examination for hearing loss and tinnitus in October 2017, the examiner noted that the tinnitus greatly affects the Veteran’s ability to function as he is unable to hear other people due to the noise and he had difficulty being in a room with others, background noise and he is unable to go to concerts. Following an audiological evaluation in March 2020, the DBQ examiner indicated that the Veteran had difficulty hearing in meetings. Following an examination for skin conditions in March 2020, the examiner stated that the skin condition does not impact the Veteran’s ability to work. Following a foot examination in March 2020, the DBQ examiner stated that the Veteran may be limited in walking, standing and climbing. The Board finds that, while the Veteran experienced limitations associated with his service-connected pes planus and plantar fasciitis, contact dermatitis, left ear hearing loss and tinnitus, the evidence does not reflect that his disabilities were so limiting as to prevent him from engaging in employment prior to November 17, 2020. (Continued on the next page)   Finally, the Board has considered the fact that the Veteran has been found disabled for SSA purposes. The Board initially notes that VA is not bound by SSA's determinations. See Collier v. Derwinski, 1 Vet. App. 413, 417 (1991). The Board further notes that the legal criteria for entitlement to SSA disability benefits are similar to those for entitlement to a TDIU. However, the Veteran's SSA records reflect that the Veteran was found disabled for SSA purposes based on the Veteran meeting SSA vocational rule 201.14, which takes into account the Veteran's age as a deciding factor. Moreover, the records show that the Veteran was found disabled primarily based on nonservice-connected disabilities. As the Veteran's age and nonservice-connected disabilities are not for consideration in determining entitlement to a TDIU, the Board finds the fact that the Veteran has been found disabled for Social Security Administration purposes to be unpersuasive and of no evidentiary value in determining whether the Veteran is entitled to a TDIU. Thus, based on the above, the Board finds that the preponderance of the evidence is against the finding that the Veteran was unable to secure or follow a substantially gainful occupation as the result of his service-connected disabilities during the period on appeal prior to November 17, 2020. Therefore, the Board finds that TDIU due to service-connected disabilities is not warranted for the period on appeal prior to November 17, 2020. See 38 C.F.R. §§ 3.340, 3.341, 4.16. SCOTT W. DALE Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Suzie S. Gaston 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.