Citation Nr: 21021217 Decision Date: 04/12/21 Archive Date: 04/12/21 DOCKET NO. 14-28 979A DATE: April 12, 2021 ORDER Entitlement to service connection for a gastrointestinal disability is denied. Entitlement to service connection for a lumbar spine disability is denied. FINDINGS OF FACT 1. A gastrointestinal disability did not manifest in-service, is unrelated (causation or aggravation) to a service-connected disease or injury, and is not otherwise related to service. 2. A lumbar spine disability did not manifest in service, is unrelated (causation or aggravation) to a service-connected disease or injury, is not otherwise attributable to service, and arthritis of the lumbar spine did not manifest within one year of separation from service. CONCLUSIONS OF LAW 1. A gastrointestinal disability was not incurred or aggravated in service and is not proximately due to, the result of, or aggravated by a service-connected disease or injury. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.310. 2. A lumbar spine disability was not incurred in or aggravated by service, arthritis may not be presumed to have been incurred therein, and a lumbar spine disability is not proximately due to, the result of, or aggravated by a service-connected disease or injury. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1975 to October 1976. Service Connection Service connection may be established for disability resulting from personal injury or disease contracted in the line of duty in the active military, naval, or air service. 38 U.S.C. §§ 1110, 1131. To establish a right to compensation for a present disability, a Veteran must show: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. 38 C.F.R. § 3.303(a); see also Davidson v. Shinseki, 581 F.3d 1313, 1315–16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). 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). In evaluating a claim, the Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1335 (2006). The evaluation of evidence generally involves a three-step inquiry. First, the Board must determine whether the evidence comes from a “competent” source. Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a); Layno v. Brown, 6 Vet. App. 465, 470 (1994) (providing that a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis if (1) the medical issue is within the competence of a layperson, (2) the layperson 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, 1377 (Fed. Cir. 2007). If the evidence is competent, the Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007) (observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible). After determining the competency and credibility of evidence, the Board must then weigh its probative value. In this regard, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498, 511–12 (1995). For a medical opinion (i.e., medical evidence) to be given weight, it must be: (1) based upon sufficient facts or data; (2) the product of reliable principles and methods; and (3) the result of principles and methods reliably applied to the facts. See Nieves-Rodriquez v. Peake, 22 Vet. App. 295, 302 (2008). In addition to direct service connection, secondary service connection is warranted for disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. 38 C.F.R. § 3.310(a). Any increase in severity of a non-service connected disease or injury that is proximately due to or the result of a service connected disease or injury, and not due to the natural progress of the nonservice connected disease or injury will be service connected. 38 C.F.R. § 3.310(b). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). 1. Gastrointestinal disability The Veteran has contended a gastrointestinal disability – found to be gastroesophageal reflux disease (GERD) – is either directly due to service or that it is the result of his obesity, which in turn was caused by inactivity due to his service-connected bilateral knee and bilateral hip disabilities. Service treatment records report instances of vomiting in April and June 1975. On a discharge examination dated in September 1976, the Veteran was found to be normal on clinical evaluation in all areas and his health was noted as good. On a report of medical history, dated the same month, the Veteran described himself as in good health and the Veteran denied any history of all health problems on the document. Approximately six months after discharge from service, an April 1977 VA treatment record noted the Veteran had reported recurrent abdominal pain with nausea for one year. It also noted he had been previously been diagnosed for an ulcer, which improved with Maalox and Mylanta. Additional VA treatment records between May 1986 and January 1992 note a medical history of peptic ulcers with onset in 1976. However, after 1992 peptic ulcers are rarely mentioned. In the over 1000 pages of VA treatment records dated since the early 2000s, the only reports are of a history of ulcers several times, but there are also denials of ulcers as well. Peptic ulcer is not included on recent problem lists. The last time ulcers are listed is a report of stomach ulcers on a mental health note dated in January 2015. A September 2003 VA treatment record notes a history of GERD, without date of onset. This is the first report of GERD. A December 2005 VA treatment record also notes a history of a bleeding ulcers and a remote history of peptic ulcer. A VA examination dated in January 2021 shows a diagnosis of GERD, with date listed as 2002 to 2003. The Veteran reported as his medical history that, in-service, a medical warrant officer told him he had an ulcer and should take maalox but had no diagnostic testing. He felt better afterwards and had a sensitive stomach afterwards and avoided acidic foods. He later was diagnosed with GERD. He reported a history of alcohol use, starting immediately after service, quitting in 1991, and picking back up in 2000 and quitting again in 2005. There was no imaging or endoscopy study confirming peptic ulcer in the records. The examiner noted that the Veteran had a long history of illegal drug and alcohol use and treatment for such, many times including treatment for stomach problems. The VA examiner reviewed all the evidence of record and opined that GERD was less likely than not incurred in service and provided the following rationale: The service treatment records do not document GERD. The Veteran denied frequent indigestion, stomach troubles and intestinal troubles on his separation history form. He admits to a history of alcohol use. His records from 1988 document the onset of alcohol use at age 14 (prior to military service). There is no indication or reason provided that the documentation on this 1988 report is false. Milk of magnesia and Mylanta are used for a variety of stomach related symptoms and are not exclusively used for GERD or a peptic ulcer. An upset stomach is commonly seen in individuals admitted to the hospital for detoxification post-polysubstance abuse. The claim of peptic ulcer is based on a conversation between the Veteran and a medical warrant officer in an aid station tent and is not based on established medical criteria. Therefore, a peptic ulcer has not been identified via diagnostic criteria. The Veteran’s available records indicate an alcohol abuse pattern and this alone is the significant contributory factor for the development of esophageal and stomach disorders. The examiner cited medical literature noting alcohol abuse is significantly associated with GERD. The VA examiner also noted the following: the Veteran was obese prior to any lumbar spine, hip, or knee complaints and the Veteran’s chronic alcohol abuse existed years prior to any obesity. Medical literature is very clear that his chronic alcohol abuse is the most significant contributory factor for his GERD. Therefore, his obesity as an intermediate step between a service-connected disability (a bilateral hip disability and a bilateral knee disability) and the diagnosed gastrointestinal disability (GERD) is not grounded in medical literature and medical literature fully supports that proper nutrition, dietary changes, and caloric count are the key to losing or maintaining weight. Hence it is less likely than not (less than 50 percent probability) that his claimed obesity acts as an intermediate. The Board notes that the Veteran’s DD 214 lists his primary specialty as medical specialist, with civilian occupation as practical nurse. However, the Veteran’s occupation listed in VA treatment records is general engineer at a VA hospital and he has a bachelor’s degree in construction technology. Further, the Veteran has not stated he is qualified through education, training, or experience to provide medical opinions nor has he stated he has any relevant recent credentials to do so. Therefore, the Veteran is considered a lay person here and not a person capable of providing competent medical evidence. The Board acknowledges that lay assertions may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms subject to lay observation. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Layno v. Brown, 6 Vet. App. 465, 470 (1994). The Veteran is competent to report symptoms (such as pain) to the extent they are lay observable. The Veteran had several instances of having digestive pain in and immediately after service, but these resolved and were not found to be due to any specific disease or injury in service. The Veteran is competent to report pain. However, the Veteran’s statements regarding inservice onset of GERD contradict the separation examination, which noted that the abdomen and viscera were normal. Equally important, at separation, he denied a history of frequent indigestion or any other symptoms which could be suggestive of GERD. The Board finds that the probative weight is due to contemporaneous medical evidence of record, which at separation showed that the Veteran denied any history or symptoms. The Veteran did have vomiting noted in service, but this resolved, at least according to the Veteran’s statements at separation, and is not in of itself indicative of any specific disease or injury. The Veteran also states he was told he may have or did have peptic ulcers, but this was never confirmed by any medical evidence of record. Again, the Veteran himself denied any history of ulcers at separation and the medical examination was normal. A history of ulcer was reported several times, but again, this does not appear to be a medical finding and was most likely a report of unsupported medical history. Therefore, the Veteran is competent to report what he was told, but this is not credible. His statements are contradicted by the separation examination and report of medical history. More recent medical records contain several reports of a history of ulcers, but nothing suggesting current ulcer disability. For GERD itself, the Veteran himself did not report GERD when giving a medical history when he first established treatment with VA, instead reporting a history of peptic ulcers, and GERD was not reported by the Veteran until the early 2000s. This is not consistent with a multi-decade long history of GERD, especially given that a large amount of medical records preexists the early 2000s. As a lay person, the Veteran is not competent to state the etiology of digestive pain, especially in a case such as here where the Veteran had multiple possible causes of digestive pain over multiple decades. A medical professional, in a VA opinion, noted a non-service-related cause, namely alcohol abuse. There is no evidence of record that the Veteran’s alcohol abuse disorder is secondary to, or caused by, a service-connected disability. 38 C.F.R. §§ 3.301, 3.310; Allen v. Principi, 237 F.3d 1368, 1381 (Fed. Cir. 2001). Compensation cannot be awarded primary alcohol abuse by law. With regards to the theory of obesity, the Veteran is not competent as a lay person to make a finding of GERD as due to obesity or obesity as due to service-connected disabilities. In this regard, the VA opinion on the matter is far more authoritative and is entitled to probative weight. It outweighs the Veteran’s contentions to the contrary. The examiner cited appropriate studies and noted that proper nutrition, dietary changes, and caloric count are the key to losing or maintaining weight and the Veteran’s use of alcohol abuse existed prior to obesity. Therefore, the Board finds the Veteran's lay statements are outweighed by the more credible and probative medical evidence. There is no probative evidence of GERD until many decades post-service and is not due to service-connected disease or injury. The Board finds that the preponderance of the evidence is against the claim and the claim must be denied. The benefit of the doubt doctrine does not apply. 2. Lumbar spine disability The Veteran contends that a lumbar spine disability is directly due to service (parachute jumps) or that it is due to obesity and that his obesity is the result of inactivity due to pain from his service-connected joint disabilities. On a discharge examination dated in September 1976, the Veteran was found to be normal on clinical evaluation in all areas and his health was noted as good. On a report of medical history, dated the same month, the Veteran described himself as in good health and the Veteran denied any history of all health problems on the document. The Veteran’s first report of back pain in the clinical records was in September 2010, after an on-the-job injury. An October 2010 MRI study showed minimal foraminal narrowing at L4-5 and L5-S1 with facet arthropathy, thecal sac narrowing at L5-S1 secondary to prominent epidural fat, and degenerative bony hypertrophy and sclerosis along the left inferior facet of L5. A February 2012VA examination diagnosed the Veteran with low back sprain, with onset in 2012, and an October 2019 VA examination report diagnosed the Veteran with degenerative arthritis of the lumbar spine, with onset in 2010. A Dr. B. also reported that the Veteran injured his back at work in a letter dated in February 2013. At the VA examination dated in January 2021, the Veteran was found to have degenerative arthritis of the spine and intervertebral disc syndrome. The examiner reviewed all the evidence of record and opined that this disorder was less likely than not incurred in service. The opinion’s rationale was there is no chronic lower back complaint in the Veteran’s service treatment records. The Veteran denied back troubles on his separation history form. Per literature, lumbar spine injuries resulting from parachuting activity is low. If an injury does occur, there are compression type fractures seen as evidence on radiographs. His radiographs and MRI in 2010 and his radiograph in 2015 do not document an acute or chronic compression type fracture of the vertebral bodies. There is no contemporaneous medical evidence of a lumbar spine disorder after leaving military service until 2010 where he reported injuring the lower back while pushing a linen cart at the hospital. On a 2008 note, he denied any type of back injury and denied any type of back pain. If he indeed had back problems from supposed parachute jumps, then it follows that he would have mentioned it over the course of years yet there are no medical provider clinic notes documenting ongoing clinical evaluations. It is not until 2010 that a back complaint is mentioned (this is 34 years after separating from military service). His lumbar spine imaging studies do not indicate any compression type fractures. Current medical literature supports that Degenerative Disc Disease (DDD) and Degenerative Joint Disease (DJD) changes of the lumbar spine are more likely secondary to expected aging process as commonly seen at this Veteran’s age group (54+) and that were likely accelerated and/or aggravated by overweight status (BMI over 37). As already noted, the Veteran is competent to report pain. Here, the Veteran’s statements to the effect of continuous pain are not credible. He denied any back problems on a separation report of medical history. His back was normal on separation examination. He did not report any back problems as due to service until many years afterwards. When back problems (pain) were first reported, they were attributed this to a recent work injury. In contrast, the VA examiner, after reviewing the treatment records, found there was no evidence that a lumbar disability was due to service, instead it was due to age. The medical professional who provided the opinion above is competent as medical professional to provide a medical opinion on the matter. The examiner's opinion is supported by accurate facts (review of treatment records) and that the Veteran’s arthritis was age and weight-related and not due to service. Therefore, this opinion has adequate rationale and is entitled to significant probative weight. Nieves-Rodriguez, 22 Vet. App. 295. The VA medical professional's opinion is more probative on this matter and statements to the contrary are not credible. Here, a lumbar spine disability was not manifested during service and arthritis did not manifest within one year of separation. The Veteran did not have the characteristic manifestations sufficient to identify the disease entity. Rather, at separation, the spine was clinically normal. On his report of medical history, the Veteran denied any relevant history. In addition, there is no evidence of a lumbar spine disability until many years post service. Arthritis was identified many years after service. As to any theory of a relationship to obesity, the reasons and bases in the prior section applies. The examiner cited appropriate studies and noted that proper nutrition, dietary changes, and caloric count are the key to losing or maintaining weight and that obesity pre-existed any of the service-connected disabilities. There is no acceptable evidence of a lumbar spine disability during service or arthritis within one year of separation. There is no accepted proof that the remote onset of a lumbar spine disability, including arthritis, is otherwise related to service or due to service-connected disease or injury. The most probative evidence in this case is the VA opinion, which outweighs the lay statements. For the reasons expressed above, the preponderance of the evidence is against the claim of entitlement to service connection. H. N. SCHWARTZ Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board P. Yoffe, 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.