Citation Nr: 21016035 Decision Date: 03/19/21 Archive Date: 03/19/21 DOCKET NO. 16-07 174 DATE: March 19, 2021 ORDER Service connection for GERD is denied. Service connection for a right arm injury is denied. FINDINGS OF FACT 1. The preponderance of the competent medical evidence weighs against finding that the Veteran has GERD that is causally related to his service. 2. The preponderance of the competent medical evidence weighs against finding that the Veteran has had a right upper extremity disability that is causally related to service. CONCLUSIONS OF LAW 1. The criteria for service connection for GERD have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for a right arm injury have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1998 to February 2000. These matters come to the Board of Veterans’ Appeals (Board) on appeal from an August 2013 rating decision. These matters were previously remanded by the Board in September 2018. The Board finds that there has been substantial compliance with those remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that a remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with its remand instructions, and imposes upon VA a concomitant duty to insure compliance with the terms of the remand); see also D’Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that only substantial rather than strict compliance with the Board’s remand directives is required under Stegall). As an initial matter, the Board notes a September 2020 statement submitted by the Veteran that his service connection claims for irritable bowel syndrome (IBS) and a left-hand ganglion cyst were not addressed in the Board’s previous remand or the subsequent supplemental statement of the case (SSOC). The Veteran’s service connection for a left-hand ganglion cyst claim was treated as a claim to reopen a claim for service connection for a left wrist fracture. The October 2013 notice of disagreement (NOD) does not mention a separate claim for a left-hand disability and only expressed disagreement with the denial of service connection for a left wrist fracture claim. Service connection for a left wrist fracture was granted in a February 2018 rating decision. Consequently, there is no separate service connection for a left-hand ganglion cyst claim currently before the Board. Further, the Veteran’s October 2013 NOD did not express disagreement with the denial of service connection for IBS. This claim was not included in the December 2015 statement of the case (SOC) and the Veteran did not address it in the February 2016 substantive appeal (Form 9). The Veteran was informed of these procedural deficiencies in the September 2018 Board decision. The Board again emphasizes that it does not have jurisdiction over the service connection for IBS claim because the Veteran did not submit a timely NOD. REFERRED Previously addressed by the Board in its September 2018 decision, the claim for service connection for debridement of a left wrist ganglion cyst appeared in the April 2018 SSOC but has not been formally adjudicated by the Agency of Original Jurisdiction (AOJ). As such, the Board does not have jurisdiction over this unadjudicated claim, and it is again referred to the RO for appropriate action. 38 C.F.R. § 19.9 (b). Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303 (a). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). 1. Service connection for GERD Factual Background & Analysis The Veteran contends that he began experiencing symptoms of acid reflux (GERD) including vomiting and digestive issues during his active duty service. See October 2013 NOD. A September 2017 Informal Conference Report reflects that the Veteran believes he was misdiagnosed for gastric problems during service. He continues to experience heartburn, reflux, pyrosis, burning and chronic diarrhea. April 2018 progress notes from the Veteran’s primary care physician reflect that he is being treated for GERD and is prescribed Omeprazole. The Veteran received a VA examination in January 2018 and the examiner noted a 2012 diagnosis for GERD. The examiner opined that there was insufficient evidence in the record to conclude that the Veteran’s GERD was causally related to active duty service. The Board remanded this matter in September 2018 finding that the January 2018 VA examiner’s nexus opinion included an inadequate rationale. On January 2020 VA examination the Veteran was diagnosed with GERD with an onset in 2012. The examiner opined that it was less likely than not that the Veteran’s GERD was incurred in or caused by his military service. The examiner provided the following rationale, “The Veteran reports frequent use of anti-inflammatory medication during his active military service, but was not diagnosed with GERD until 2012. During the Veteran’s active service there were reports of self-limited back pain in 1999 and 1 complaint of calf pain in 1999 for which he could have been prescribed anti-inflammatory medications for short term/acute use. The Veteran was discharged from active service in 2000 and medical records are silent for heartburn, abdominal pain at both an exam on 10/11/1999 and the Chapter Physical in 1/2000. Therefore, I opine that the Veteran’s current gastroesophageal reflux disease is less likely than not incurred in or caused by the veteran’s military service.” The Board has carefully reviewed the lay and medical evidence of record and finds any statements as to continuity of symptoms of GERD since service are not credible based on the record, as a whole, including no mention of this disability for several decades following service and no diagnosis for GERD until 2012. Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991) (finding that a pecuniary interest may affect the credibility of a claimant’s testimony); see also Caluza v. Brown, 7 Vet. App. 498, 510-511 (1995) (credibility can be generally evaluated by a showing of interest, bias, or inconsistent statements, and the demeanor of the witness, facial plausibility of the testimony, and the consistency of the testimony). In addition, the Veteran has not been shown to have the experience, training, or education necessary to give a probative etiology opinion for a gastrointestinal disability such as GERD. 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 complexities of the gastrointestinal system and connecting any disabilities to remote events during service. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011); see Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). The Board therefore affords more probative weight to the January 2020 VA examiner’s medical opinion which found that the Veteran’s documented gastrointestinal distress during service was acute and unrelated to his current GERD. This opinion was based on a review of the Veteran’s treatment records, objective testing and the examiner’s medical training, it is afforded significant probative weight. In sum, the preponderance of the competent medical evidence weighs against finding that the Veteran has GERD that is causally related to his service. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (A prolonged period without medical complaint can be considered, along with other factors concerning a claimant’s health and medical treatment during and after military service, as evidence of whether an injury or a disease was incurred in service which resulted in any chronic or persistent disability). There is no probative opinion (i.e., a clinical opinion based on review of pertinent records) that it is as likely as not that the Veteran’s GERD is causally related to, or aggravated by, his service and his statements asserting continuity of symptoms since service are not credible. See Mense v. Derwinski, 1 Vet. App. 354 (1991) (holding that VA did not err in denying service connection when the Veteran had failed to provide evidence demonstrating continuity of symptomatology and had failed to account for the lengthy time period following his service during which there was no clinical documentation of the claimed disorder). Consequently, the preponderance of the evidence weighs against finding that the Veteran’s GERD is causally related to his service. In reaching this decision, the Board has considered the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the Veteran’s claim, the doctrine is not applicable, and the appellant’s claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 2. Service connection for a right upper extremity injury (to include right hand/wrist/arm) Factual Background & Analysis The Veteran contends that he incurred a right upper extremity injury during service which has persisted to present day. See October 2013 notice of disagreement (NOD). A March 2012 VA examination contained a diagnosis for organic graphospasm of the right hand. The Veteran related this disability to a right shoulder condition. An October 2012 physical examination revealed a normal shoulder, arm, elbow, forearm, hand and wrist. See October 2012 Fairfight Medical Center Physical. A September 2017 Informal Conference Report reflects that the Veteran suffered a stab wound and treatment for a forearm laceration during service. He asserts that injury possibly involved the muscle/joint/nerve because the pain has continued from service to present. He communicated that he does not feel he was properly diagnosed during service and has since been diagnosed with De Quervain’s disease. The Veteran received a VA examination in November 2017 which indicated a diagnosed right forearm strain in 2018 and tenosynovitis in 2015. The examiner noted a diagnosis of a possible superficial sensory nerve neuropathy scar of the right forearm. The examiner, however, did not confirm the diagnosis after completing the examination, and a negative nexus opinion was provided based on a lack of continued care and treatment for the initial in-service forearm injury. The Board remanded this matter in September 2018 finding that the examiner’s nexus opinion included an inadequate rationale. The Veteran underwent a January 2018 VA examination for his hands and fingers. He was diagnosed with right hand tenosynovitis with an onset of 2015, extensor tendonitis and a right-hand strain with an onset of 2018. The examiner noted a bilateral fifth digit injury with residuals from service. STRs documented pain after lifting boxes. The examiner found that these issues during service were acute in nature and self-limited, he could not find a correlation between his present conditions and events during service. Thus, he opined that it was less likely than not that any right-hand disabilities were causally related to service given a review of the relevant medical treatment records and the Veteran’s post-service occupation as a construction worker. On January 2020 VA examination the Veteran was noted to have organic graphospasm and peripheral neuropathy of the right arm with an onset of 2012. The examiner opined that it was less likely than not that the Veteran’s right arm injury was incurred in or caused by his military service. The examiner provided the following rationale, “The Veteran’s current arm injury is symptoms are strictly subjective in nature. Claimant sustained a laceration to the right forearm during his military service which was repaired without complications. The Veteran reports some numbness over the scar area, which is consistent with superficial peripheral neuropathy, however there are no objective findings (Xray, nerve conduction testing) that reveal any other chronic findings regarding right upper extremity symptoms. The Veteran has had a prior episode of tendonitis to right wrist which was self-limiting, and De Quervain’s tenosynovitis which has been treated, however these have no bearing to his previous right forearm injury. Therefore, I opine that the Veteran’s current arm injury is less likely than not incurred in or caused by the veteran’s military service.” The Board has carefully reviewed the lay and medical evidence of record and finds any statements as to continuity of symptoms of right upper extremity disabilities (aside from a service-connected right forearm scar) since service are not credible based on the record, as a whole, including no mention of this disability for over a decade following service and no diagnosis for a right upper extremity disability until 2012. Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991) (finding that a pecuniary interest may affect the credibility of a claimant’s testimony); see also Caluza v. Brown, 7 Vet. App. 498, 510-511 (1995) (credibility can be generally evaluated by a showing of interest, bias, or inconsistent statements, and the demeanor of the witness, facial plausibility of the testimony, and the consistency of the testimony). In addition, the Veteran has not been shown to have the experience, training, or education necessary to give a probative etiology opinion for a right upper extremity 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 complexities of the musculoskeletal system and connecting any disabilities to events during service. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011); see Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). Therefore, the Board affords more probative weight to the January 2020 VA examiner’s opinion which found that no chronic right upper extremity disabilities stem from events or trauma occurring during the Veteran’s service. This opinion was based on a review of the Veteran’s treatment records, objective testing and the examiner’s medical training, it is afforded significant probative weight. (Continued on the next page)   In sum, the preponderance of the competent medical evidence weighs against finding that the Veteran has had a right upper extremity disability that is causally related to an event during service. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (A prolonged period without medical complaint can be considered, along with other factors concerning a claimant’s health and medical treatment during and after military service, as evidence of whether an injury or a disease was incurred in service which resulted in any chronic or persistent disability). There is no probative opinion (i.e., a clinical opinion based on review of pertinent records) that it is as likely as not that the Veteran has a right upper extremity disability that is causally related to, or aggravated by, his service and his statements asserting continuity of symptoms since service are not credible. See Mense v. Derwinski, 1 Vet. App. 354 (1991) (holding that VA did not err in denying service connection when the Veteran had failed to provide evidence demonstrating continuity of symptomatology and had failed to account for the lengthy time period following his service during which there was no clinical documentation of the claimed disorder). Consequently, the preponderance of the evidence weighs against finding that the Veteran has a right upper extremity disability that is causally related to his service. In reaching this decision, the Board has considered the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the Veteran’s claim, the doctrine is not applicable, and the appellant’s claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Jennifer White Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Kyle McKone 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.