Citation Nr: 21021020 Decision Date: 04/09/21 Archive Date: 04/09/21 DOCKET NO. 15-03 659 DATE: April 9, 2021 ORDER Service connection for gastroesophageal reflux disease (GERD), to include as secondary to service-connected disability, is denied. Service connection for a cervical spine disability, to include as secondary to service-connected disability, is denied. REMANDED Initial evaluation in excess of 10 percent for right knee strain is remanded. Service connection for Graves' Disease is remanded. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that the Veteran's GERD began during active service, is otherwise related to an in-service injury or disease, or is secondary to a service-connected disability. 2. The preponderance of the evidence is against finding that the Veteran’s cervical spine disability began during active service, is otherwise related to an in-service injury or disease, or is secondary to a service-connected disability. CONCLUSIONS OF LAW 1. The criteria for service connection for GERD, to include as secondary to service-connected disability, are not met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310. 2. The criteria for service connection for a cervical spine disability, to include as secondary to service-connected disability, are not met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran has various periods of active duty for training (ACDUTRA) and inactive duty training (INACDUTRA) between April 1989 to February 2006, including periods of service from October 1, 2001 to October 31, 2001, and from July 1, 2003 to August 31, 2003. The Veteran testified before the undersigned Veterans Law Judge in November 2017. A transcript of the hearing is in the record before the Board. In June 2018, the Board remanded claims for service connection for a cervical spine disability, GERD and Graves’ Disease, and a claim for an initial compensable rating for right knee strain. An April 2020 rating decision assigned a 10 percent evaluation for right knee strain, effective September 3, 2009, the date of the Veteran’s original claim for benefits. The Board finds that there has been substantial compliance with the remand in connection with the claims for service connection for GERD and a cervical spine disability decided here and the Board will proceed with adjudication. Stegall v. West, 11 Vet. App. 268 (1998). In so finding, the Board observes that the Veteran failed to respond to a November 2018 VA request for information as to when the claimed injuries/diseases occurred during ACDUTRA or INACDUTRA, the complete unit to which she was assigned at the time, and the type of training she was conducting at the time. Thus, VA has been unable to obtain potentially favorable evidence. “The duty to assist is not always a one-way street. If a veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence.” Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Moreover, despite the Veteran's failure to assist VA develop the evidentiary record, the Board observes that her eFolder contains sufficient information for the Board to determine the type of military service relevant to her cervical spine claim. While the eFolder does not contain sufficient information for the Board to determine the type of military service relevant to her GERD claim, the Board's denial of this claim is based not on the type of military service when she ate unhealthy food but rather on her own repeated, explicit denials of relevant symptoms as shown in her contemporaneous medical records, as explained below. In an October 2020 brief, the Veteran’s representative asserted in essence that the Veteran’s GERD is secondary to non-steroidal anti-inflammatory (NSAID) medications taken for service-connected disabilities, and her cervical spine disability is secondary to her service-connected left shoulder strain with mild degenerative changes. The Board has accordingly recharacterized the GERD and cervical spine issues above. In October 2020, a letter was sent to the Veteran in error which indicated that she had requested a (Travel) Board hearing that had not yet been held and suggested that she consider a virtual tele-hearing as an alternative. However, there is no outstanding hearing request of record. In November 2017, the Veteran testified before the undersigned Veterans Law Judge at a Board videoconference hearing. A transcript of the hearing is of record. Service Connection In general, 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). Service connection may also be granted for a disability that is proximately due to, or aggravated by, service-connected disease or injury. 38 C.F.R. § 3.310. When a claim for service connection is based only on a period of ACDUTRA or INACDUTRA, there must be evidence that the Veteran became disabled as a result of a disease or injury incurred or aggravated in the line of duty during that period of ACDUTRA or INACDUTRA to warrant service connection for that disability. 38 U.S.C. §§ 101 (2), (22), (24); 38 C.F.R. § 3.6 (a); Donnellan v. Shinseki, 24 Vet. App. 167, 172 (2010); Acciola v. Peake, 22 Vet. App. 320, 324 (2008). In the absence of such evidence, the period of ACDUTRA or INACDUTRA would not qualify as “active military, naval, or air service,” and the Veteran would not qualify as a “veteran” for that period of ACDUTRA or INACDUTRA service alone. 38 U.S.C. § 101 (2), (24); Acciola, 22 Vet. App. at 324. In general no presumptions (including the presumptions of soundness and aggravation) attach to periods of ACDUTRA and INACDUTRA unless those periods are also active service periods. See Paulson v. Brown, 7 Vet. App. 466, 470-71 (1995); see also Smith v. Shinseki, 24 Vet. App. 40 (2010) (presumption of soundness and presumption of aggravation not applicable to ACDUTRA). Thus, to establish aggravation under 38 U.S.C. § 1153, an ACDUTRA claimant must establish both that (1) “there was an increase in disability as to a preexisting injury or disease” and (2) that such an increase “was beyond the natural progress of that injury or disease.” Donnellan, supra, at 167, 172. See also Smith, supra, at 40, 48 (2010). 1. Service connection for GERD, to include as secondary to service-connected disability. The Veteran contends that her GERD is due to poor quality food she ate during service. Alternatively, the Veteran’s representative has asserted that the Veteran’s GERD is secondary to NSAID medications taken for service-connected disabilities. See October 2020 Appellant’s Post-Remand Brief. VA treatment records dated in 2018 show that the Veteran has GERD. 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, the preponderance of the evidence weighs against finding that the Veteran’s GERD began during service or is otherwise related to an in-service injury, event, or disease, or is proximately due to, or aggravated by, service-connected disease or injury. The Veteran has specifically testified that her GERD “basically started when [she] started flying” because the military did not provide box lunches for her and she was responsible for her own food. She stated that when she ran out of food, she “ending up eating candy bars and drinking sodas because that’s all that was left on the plane. That’s when I started having major problems with acid reflux and GERD.” She further indicated that her GERD started in 1994 when she started flying (see Board hearing transcript, page 14 ). In a December 2017 lay statement, C.J. stated that she trained with the Veteran. As Aircrew, they were not supplied box lunches by the Navy or any type of meals while on duty. At times, they landed in areas where no food was available to purchase or so late at night that everything was closed. If a crewmember ran out of food they brought, the only thing available for them was the items on sale on the aircraft. The Veteran had her gallbladder removed prior to service. Various Reports of Medical History dated in February 1989, December 1991, March 1994, November 1994, November 1995, November 1996, and November 2000 reflect that she denied frequent indigestion, stomach problems, and/or pain or pressure in the chest. Various Abbreviated Aeromedical Examination reports dated in December 1997, November 1998, December 1999 and December 2001 reflect that she denied indigestion, heartburn, or an ulcer. The earliest evidence of record of possible symptoms of GERD is in 2002. An Abbreviated Aeromedical Examination report dated in December 2002 reflects that the Veteran reported “indigestion, heartburn, ulcer”. The report notes that she had been seen by her family doctor for GERD and placed on medication two weeks earlier. She was treated empirically after mentioning that she occasionally had heartburn. In the past, she had used over-the-counter medication. The Board finds that the foregoing evidence does not support a finding that there is a causal relationship between the Veteran's present GERD and the food she ate during service. The Veteran is competent to report that her relevant symptoms began in 1994, as they are sensory and thus observable by a lay person. Layno v. Brown, 6 Vet. App. 465 (1994). However, the Board finds that the Veteran’s report of recurrent or continuous symptoms of GERD since that time lacks credibility as it is inconsistent with the repeated, explicit denials of relevant symptoms she made during 1994 and many years thereafter as shown in her contemporaneous medical records. Further, the record contains no medical evidence linking the Veteran's current GERD to the food she ate during service. The Veteran herself is not competent to provide a medical opinion regarding this issue. The issue is medically complex, as it requires knowledge of pathology and interpretation of complicated diagnostic medical testing. Therefore, it is outside the competence of the Veteran in this case because the record does not show that she 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). With respect to the assertions that the Veteran’s GERD is secondary to NSAIDs used to treat her service-connected disabilities, the Veteran is service-connected for left shoulder strain with mild degenerative changes and right knee strain. VA treatment records reflect that she has used Ibuprofen for knee pain and Motrin for left shoulder pain. However, there is no medical evidence linking the Veteran’s current GERD to such NSAID use and, as noted, the Veteran herself is not competent to provide a medical opinion regarding this issue. Jandreau, supra; see also Kahana, supra. The Board also finds that a VA examination and/or medical opinion is not required with respect to this claim, as the record does not reflect a factual basis indicating that there may be an association between the Veteran's GERD and the food she ate during service or the NSAIDs used to treat her service-connected disabilities. McLendon v. Nicholson, 20 Vet. App. 70 (2006). Generalized lay allegations are not sufficient to meet the McLendon standard, even though medical evidence is not necessarily required. Waters v. Shinseki, 601 F.3d 1274, 1276 (2010). In reaching this decision, the Board emphasizes that the denial of this claim is based not on the type of the Veteran's military service when she ate unhealthy food but rather on her own repeated, explicit denials of relevant symptoms as shown in her contemporaneous medical records. As the preponderance of the evidence is against the claim, service connection for GERD, to include as secondary to service-connected disability, is denied. 38 U.S.C. § 5107. 2. Service connection for a cervical spine disability, to include as secondary to service-connected disability. The Veteran contends that her cervical spine disability is related to an injury incurred during service. Alternatively, the Veteran’s representative has asserted that the Veteran’s cervical spine disability is secondary to her service-connected left shoulder strain with mild degenerative changes. See October 2020 Appellant’s Post-Remand Brief. The Veteran specifically asserts that her cervical spine disability occurred during a drill weekend in Texas when she was exiting a mock airplane and jammed her neck, and that she has had pain, swelling, and tenderness ever since. Her service personnel records confirm that she was on ACDUTRA when she attended the American Airlines School of Emergency Egress from May 22 - 25, 2000. In a December 2017 lay statement, C.J. stated that she trained with the Veteran on May 22 and May 23, 2000, and that during that time the Veteran complained of neck pain. The Board observes that the record contains clinical evidence of a cervical spine disability in 1998, several years prior to the claimed injury. A September 1998 VA Radiologic Examination report reflects that the Veteran had been in a motor vehicle accident on September 10, 1998 and had “persistent cervical discomfort since without neuro deficit.” Upon radiology examination, the impression was “cervical spine with mild C5-6 intervertebral disc space narrowing and degenerative osteoarthritic changes but not acute bony trauma.” A November 1998 Abbreviated Aeromedical Examination Report reflects that the Veteran denied neck pain. The report notes that she had been in a motor vehicle accident in September, but all had resolved. Military personnel records do not support a finding that she was on active duty, active duty for training, or inactive duty training in September 1998. Abbreviated Aeromedical Examination reports in December 1997, November 1998, December 1999, and October 2003 reflect that the Veteran denied neck pain. The next clinical evidence of neck pain is not until 2015, in a VA treatment record. A December 2017 private treatment record reflects that the Veteran had significant pain in the posterior neck. The record relates that she “has had no injury to her neck.” An MRI resulted in assessments of degenerative disc disease of the cervical spine. VA treatment records also show that the Veteran complained of neck pain in December 2017. The Board finds that the foregoing evidence does not support a finding that during the Veteran’s May 2000 ACDUTRA her preexisting cervical spine disability underwent an increase in disability. See Donnellan, supra. The Veteran's subsequent denial of neck pain in the October 2003 Abbreviated Aeromedical Examination Report, and the fact that earliest clinical evidence of neck pain is not until 2015, are evidence that her preexisting cervical spine disability was not aggravated beyond its natural progress by her May 2000 ACDUTRA. The Veteran is competent to report that during a drill weekend in Texas she jammed her neck and has had pain, swelling, and tenderness ever since. Layno, supra. However, the Board finds that her report of recurrent or continuous neck symptoms since that time lacks credibility as it is inconsistent with the explicit denial of relevant symptoms she made in October 2003, as shown in her contemporaneous medical records. Further, the record contains no medical evidence that the Veteran's preexisting cervical spine disability was aggravated beyond its natural progress during her May 2000 ACDUTRA. The Veteran herself is not competent to provide a medical opinion regarding this issue. The issue is medically complex, as it requires knowledge of pathology and interpretation of complicated diagnostic medical testing. Therefore, it is outside the competence of the Veteran in this case because the record does not show that she has the medical training or credentials to make such a determination. Jandreau, supra; see also Kahana, supra. With respect to the assertions that the Veteran’s current cervical spine disability is secondary to her service-connected left shoulder strain with mild degenerative changes, there is no medical evidence the cervical spine disability is proximately due to, or aggravated by, any service-connected disability. As noted, the Veteran herself is not competent to provide a medical opinion regarding this issue. Jandreau, supra; see also Kahana, supra. The Board also finds that a VA examination and/or medical opinion is not required with respect to this claim, as the record does not reflect a factual basis indicating that the Veteran's preexisting cervical spine disability was aggravated beyond its natural progress during her May 2000 ACDUTRA, or that her current cervical spine disability is proximately due to, or aggravated by, any service-connected disability. McLendon, supra. Generalized lay allegations are not sufficient to meet the McLendon standard, even though medical evidence is not necessarily required. Waters, supra. As the preponderance of the evidence is against the claim, service connection for a cervical spine disability, to include as secondary to service-connected disability, is denied. 38 U.S.C. § 5107. REASONS FOR REMAND 1. Initial evaluation in excess of 10 percent for right knee strain is remanded. This claim is remanded to obtain outstanding records of VA-authorized medical treatment. VA CAPRI records reflect that the Veteran was authorized non-VA treatment during the appeal period, including physical therapy in November 2013, for the right knee. The Veteran’s eFolder does not contain any records of the physical therapy. A remand is required to allow VA to obtain records of all non-VA treatment of the Veteran’s right knee. See 38 C.F.R. § 3.159 (c)(3) (in a claim for disability compensation, VA will make efforts to obtain records of examination or treatment at non-VA facilities authorized by VA). VA CAPRI records also reflect that a non-VA medical consult record was scanned into VistA imaging regarding the right knee in March 2014. On remand, VA should obtain all scanned/VistA imaging records pertaining to the Veteran’s right knee. This claim is also remanded to provide a VA examination as requested in the Board’s June 2018 remand. 2. Service connection for Graves' Disease is remanded. This claim is remanded to provide a VA examination to determine whether it is as likely as not that the Veteran’s Graves’ Disease was incurred during a period of ACDUTRA from November 11 to November 22, 2002, as requested in the Board’s June 2018 remand. The matters are REMANDED for the following action: 1. Obtain and associate with the Veteran’s eFolder copies of all non-VA treatment records relevant to the Veteran's right knee; if a release form is needed to request any records, ask the Veteran to complete such form. 2. Obtain and associate with the Veteran’s eFolder copies of all scanned/VistA imaging records relevant to the Veteran's right knee. 3. With regard to GRAVES’ DISEASE, obtain an opinion by an appropriate clinician as to whether it is as likely as not that the Veteran’s GRAVES’ DISEASE was incurred during a period of ACDUTRA from November 11 to November 22, 2002. The clinician should consider the pertinent evidence of record to include: a) Correspondence dated in January 2003 which reflects that blood work on November 25, 2002 showed serum Free T4 was 3.7 (normal.8-1.8), serum TSH was suppressed at.01. On January 9, 2003, serum Free T4 was 2.9 and serum TSH was less than.01; b) a December 14, 2002 Abbreviated Aeromedical Examination report which reflects that the Veteran denied fever, chills, night sweats, diarrhea, significant change in heat or cold tolerance, and/or weight. Her weight was 177 lbs.; c) a January 20, 2003 private record from Dr. A.F. which reflects that the Veteran was referred to the endocrinologist because she wished to have thyroid blood work done because a brother, sister, and grandmother all had thyroid conditions. It was noted that the Veteran reported that she had gained ten pounds over the past two months (her weight was 182.5 upon examination, which was an increase of 5.5 pounds since December 2002. In addition, she had weighed 182 pounds in December 2001; she had failed her physical fitness assessment in November 2001 due to exceeding her weight limit). She also reported that she had tremors for the past two months, and reported intolerance to heat and excessive sweating for years. She did not have diarrhea; and d) February 10, 2003 correspondence from Dr. A.F. (incorrectly dated February 10, 2004) which reflects that the Veteran’s last menstrual period has been seven weeks earlier, or in approximately the end of December 2002. The clinician should provide a complete rationale for each opinion. 4. With regard to the Veteran’s RIGHT KNEE disability, schedule the Veteran for an examination (or telehealth interview, review of the record, etc., if an in-person examination is not feasible) by an appropriate clinician to determine the current severity of her service-connected right knee strain. The clinician should provide a full description of the disability and report all signs and symptoms. (a) The clinician should test (and provide the results for) ranges of motion in active motion, passive motion, weight-bearing, and non-weight-bearing, for both the right and left knees. If the clinician is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. (b) The clinician should also express an opinion concerning whether there would be additional limits on functional ability on repeated use or during flare-ups, and, to the extent possible, provide an assessment of the functional impairment on repeated use or during flare-ups. The clinician should assess or estimate the additional functional impairment on repeated use or during flare-ups in terms of the degree of additional range of motion loss. If it is not possible to provide a specific measurement, or an opinion regarding flare-ups, symptoms, or functional impairment without speculation, the clinician must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the clinician (does not have the knowledge or training). The clinician should provide a complete rationale for each opinion. M. C. GRAHAM Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Davitian, 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.