Citation Nr: 21024349 Decision Date: 04/22/21 Archive Date: 04/22/21 DOCKET NO. 16-18 279 DATE: April 22, 2021 ORDER Entitlement to service connection for headaches is granted. Entitlement to service connection for a back disability is denied. Entitlement to service connection for a hiatal hernia with gastrointestinal reflux disease (GERD) is denied. Entitlement to service connection for a gastrointestinal (GI) disability, other than hiatal hernia with GERD, is denied. FINDINGS OF FACT 1. Resolving all reasonable doubt in the Veteran’s favor, the probative evidence of record shows that the Veteran has continuously had symptoms of headaches since service. 2. The Veteran’s back disability was not shown as chronic in service and did not manifest to a compensable degree within the applicable presumptive period, continuity of symptomatology is not established, and the disability is not otherwise etiologically related to an in-service injury or disease. 3. The preponderance of the evidence is against finding that the Veteran’s hiatal hernia with gastrointestinal reflux disease GERD began during active service or is otherwise related to an in-service injury or disease. 4. The preponderance of the evidence is against finding that the Veteran’s GI disability began during active service or is otherwise related to an in-service injury or disease. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for headaches have been met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. 2. The criteria for entitlement to service connection for a back disability have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309. 3. The criteria for entitlement to service connection for a hiatal hernia with GERD have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.317. 4. The criteria for entitlement to service connection for a GI disability, other than hiatal hernia with GERD, have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.317. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active military service from August 1981 to August 1984, March 1989 to September 1989, September 1990 to June 1991, October 1991 to March 1992, February 1994 to August 1994, and November 2005 to January 2006. This appeal was most recently before the Board of Veterans’ Appeals (Board) in August 2020, at which time these claims were remanded for additional evidentiary development. As the requested development has been completed, the claims have been properly returned to the Board for adjudication. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Service Connection Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.§§ 1110, 1131; 38 C.F.R. § 3.303. Generally, establishing service connection requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). In addition, certain diseases, such headaches (as an organic disease of the nervous system) and degenerative joint disease (arthritis) are presumed to have been incurred in service if manifested to a compensable degree within one year after service. The presumption is rebuttable by probative evidence to the contrary. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). When chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support a claim for such diseases. 38 C.F.R. § 3.303 (b); see Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). VA regulations also provide that compensation will be paid for disability due to undiagnosed illness and medically unexplained chronic multi-symptom illnesses, including chronic fatigue syndrome, fibromyalgia, and functional gastrointestinal disorders, to a Persian Gulf War veteran who exhibits objective indications of a qualifying chronic disability if that disability became manifest either during active service in the Southwest Asia theater of operations, or to a degree of 10 percent or more not later than December 31, 2021, and by history, physical examination, and laboratory tests cannot be attributed to any known clinical diagnosis. 38 C.F.R. § 3.317 (a)(1) (effective before and after Oct. 24, 2017). The term medically unexplained chronic multi-symptom illness means a diagnosed illness without conclusive pathophysiology or etiology that is characterized by overlapping symptoms and signs and has features such as fatigue, pain, disability out of proportion to physical findings, and inconsistent demonstrations of laboratory abnormalities. Chronic multi-symptom illness of partially understood etiology and pathophysiology, such as diabetes and multiple sclerosis, will not be considered medically unexplained. 38 C.F.R. § 3.317 (a)(2)(ii). Signs or symptoms which may be manifestations of undiagnosed illness or medically unexplained chronic multi-symptom illness include, but are not limited to: (1) Fatigue, (2) Signs or symptoms involving skin, (3) Headache, (4) Muscle pain, (5) Joint pain, (6) Neurologic signs and symptoms, (7) Neuropsychological signs or symptoms, (8) Signs or symptoms involving the respiratory system (upper or lower), (9) Sleep disturbances, (10) Gastrointestinal signs or symptoms, (11) Cardiovascular signs or symptoms, (12) Abnormal weight loss, and (13) Menstrual disorders. 38 C.F.R. § 3.317 (b). If signs or symptoms have been attributed to a known clinical diagnosis, service connection may not be provided under the specific provisions pertaining to Persian Gulf veterans. See VAOPGCPREC 8-98 (Aug. 3, 1998). “The very essence of an undiagnosed illness is that there is no diagnosis.” Stankevich v. Nicholson, 19 Vet. App. 470, 472 (2006); see also Gutierrez v. Principi, 19 Vet. App. 1, 10 (2004) (a Persian Gulf War veteran’s symptoms “cannot be related to any known clinical diagnosis for compensation to be awarded under section 1117”). However, the term “disability” for VA compensation purposes refers to the functional impairment of earning capacity rather than the underlying cause of the impairment and pain alone may be a functional impairment. See Saunders v. Wilkie, 887 F.3d 1356, 1364-68 (Fed. Cir. 2018) (indicating that the term “disability” refers to the functional impairment of earning capacity, rather than the underlying cause of the impairment, and pain alone may be a functional impairment). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt shall be given to the claimant. 38 U.S.C.§ 5107; see Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). 1. Entitlement to service connection for headaches is granted. The Veteran maintains entitlement to service connection for headaches. The Veteran has shown evidence of a current disability for his claimed headaches, to include VA examination reports and VA treatment records which have variously diagnosed him with migraines and tension headaches. With respect to the presence of an in-service event, injury, or disease, the Veteran’s service treatment records contain complaints of headaches in December 1983 and January 1984. Accordingly, the Board finds that an in-service event, injury, or disease, is met with respect to the Veteran’s claim. The Board will next address whether the evidence shows a nexus, or connection, between the Veteran’s claimed headache disability and active service. The Veteran has consistently and continuously asserted throughout the claims period that his headaches had onset during service and have progressed continuously since that time. The Board finds that the Veteran, as lay person, is competent to speak to manifestations or symptoms of headaches or migraines. He is competent to express those observable symptoms of his disability, here migraine headaches, as he has on many occasions to VA and private examiners throughout the claims period. Layno v. Brown, 6 Vet. App. 465 (1994). Under certain circumstances, lay statements may support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability, or symptoms of disability, susceptible of lay observation. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Lay persons are competent to provide opinions on some medical issues. Kahana v. Shinseki, 24 Vet. App. 428 (2011). Here, the Board finds that headaches, or migraines, are of the type of medical condition in which a normal lay person can competently attest to. Therefore, as the Board finds that the Veteran’s both competent and credible to speak to the continuity of his symptoms since active service, the Board finds that the Veteran’s claim must be granted on a presumptive basis, based on continuity of symptomatology. 38 U.S.C. § 1112; 38 C.F.R. §§ 3.307, 3.309. Further, the Board acknowledges the presence of the negative nexus opinions, one provided in August 2012 and the other provided in December 2020. However, both of these opinions are inadequate as the August 2012 examiner failed to discuss the headaches noted in the Veteran’s service treatment records, and the December 2020 examiner failed to consider the Veteran’s competent lay testimony. Thus, the Board affords these opinions no probative value. The Board finds that the current evidence is sufficient to decide the Veteran’s claim. Given the current diagnosis of migraine headaches, the Veteran’s in-service incident, and his competent, credible testimony regarding continuous symptoms since service, the Board resolves all reasonable doubt in favor of the Veteran. Accordingly, service connection for headaches is warranted. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. 2. Entitlement to service connection for a back disability is denied. The Veteran maintains entitlement to service connection for a back disability. He specifically avers that he developed this disability due to the manual pushing and loading of heavy cargo and equipment during his periods of active duty service. Turning to the evidence of record, the Veteran’s service treatment records are silent for complaint, treatment, or diagnosis of a back disability. The Veteran’s spine and musculoskeletal system were consistently assessed as normal apart from notations of a two centimeter scar in the lumbar area. Post-service VA treatment records from August 2011 document the Veteran’s complaints of severe pain to the lower back that radiated into his legs. The Veteran reported that the pain had started over the previous three days and denied any recent trauma or injury. Aggravating factors included standing and sitting for long periods. He stated that he used Methocarbamol and Tylenol #3 with no relief. He was prescribed a narcotic medication for pain relief. In November 2011, the Veteran continued to report persistent low back pain, described as throbbing constantly and occasional sharpness that increased when he did certain movements or sat for prolonged periods and improved when he laid down. Pain level was consistently at an eight and morphine brought it down to a six or seven for about four hours. He stated that lidocaine helped some by numbing the area. On physical examination, no gross deformity was noted, nor was there costovertebral angle tenderness. There was tenderness to the lower lumbar spine and decreased range of motion to rotation, side bending. A diagnosis of chronic low back pain was rendered. Morphine dosage was increased to manage pain. In February 2012, the Veteran underwent radiographic testing of his lumbar spine. Mild degenerative changes and lumbosacral disc narrowing were observed. March 2012 radiographic testing confirmed those findings, revealing mild degenerative arthritis with L5-S1 degenerative disc disease (DDD) and L5-S1 disc bulge abutting the thecal sac. At the Veteran’s March 2012 physical medicine rehab consult, he reported that his back pain had started many years before and was at that time an ache in the middle of his low back with radiation into his legs. On physical examination, here was no edema, erythema, warmth, or palpable/visible masses. No asymmetry or deformity was noted. There was tenderness of the lumbar spinous processes. Range of motion was decreased in both flexion and extension. Pain in the lumbar area was noted. His back disability was diagnosed as mechanical low back pain with mild DDD/DJD. From June to August 2012, the Veteran attended eight outpatient physical therapy sessions for his back disability. He made fair progress with back flexibility but continued to complain of some back pain. In November 2012, February and July 2013, and June 2014 he underwent lumbar epidural injections that provided some relief. The Veteran underwent radiographic testing of his lumbar spine again in March 2014. L3-4, L4-5, L5-S1 disc protrusions were observed. In January 2015, the Veteran was afforded a VA examination. There, he reported that he had always had back pain since the service due to working pushing heavy cargo in planes. He stated that he never went for evaluation of the pain because he thought he was going to be grounded. At that time, he self-treated with Ben Gay, Biofreeze, and Advil. Concerning his then-current course of treatment, he described use of morphine, lumbar epidural injections, and acupuncture. He reported use of a back brace, a TENS unit, and taking Baclofen. Following a physical examination of the Veteran and a review of the claims file, including the radiographic studies, the examiner confirmed the diagnoses of L3-4, L4-5, L5-S1 disc protrusions and DDD and DJD of the lumbar spine. The examiner then opined that the Veteran’s low back disability was less likely than not incurred in or caused by the claimed in-service injury, event or illness, reasoning that the Veteran’s service medical records did not contain any evidence of such a condition or complaint of one. The Veteran underwent radiofrequency nerve ablation in May 2016 and September 2017. He has continued to report chronic low back pain which is documented in his VA and private treatment records. In September 2019, the Veteran attended another VA examination. There, he stated that he noticed severe, intermittent back pain that radiated into both legs in 2010. He reported that the pain was aggravated with prolonged standing, walking, and bending. The Veteran detailed chiropractic care, physical therapy, and medication. He also described pain management as lumbar epidural injections and radiofrequency nerve ablation. Following a physical examination of the Veteran and a review of the claims file, including the radiographic studies, the examiner diagnosed the Veteran with lumbosacral strain, degenerative arthritis of the spine, and related radiculopathy. The examiner then opined that the Veteran’s low back disability was less likely than not incurred in or caused by the claimed in-service injury, event or illness, again reasoning that the Veteran’s service medical records did not contain any evidence of such a condition or complaint of one. In December 2020, an addendum medical opinion was provided by a VA examiner. The examiner reviewed the claims file prior to opining that the Veteran’s low back disability was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. He noted that the Veteran’s service treatment record did not document a back condition during his service. The examiner recounted documentation of the Veteran’s lumbar spine disability, including the Veteran’s self-report that his symptoms began in 2010 and his diagnosis of degenerative arthritis, both of which occurred outside of his date of military service. He further detailed risk factors for lumbar pathology, including lifestyle, physical inactivity, smoking, prior injury/surgery, and/or increased height and weight. The examiner noted that the Veteran had struggled with increased weight and the inability to implement lifestyle changes to help resolve other comorbid conditions. Thus, he found it more likely that the Veteran’s low back disability was secondary to weight changes and lifestyle with no connection to military service. Based on a careful review of all the subjective and clinical evidence, the preponderance of the evidence weighs against a finding that service connection for a back disability is warranted. As an initial matter, the Veteran has a current low back disability, variously diagnosed as L3-4, L4-5, L5-S1 disc protrusions and DDD and DJD of the lumbar spine. Review of the Veteran’s service treatment records does not reveal complaint and treatment for low back pain; physical examinations during service were grossly normal. However, the Board observes that the Veteran’s military operational specialty was that of an aircrew in-flight refueling craftsman. Thus, it finds that his descriptions of manual pushing and loading of heavy cargo and equipment is consistent with the circumstances of his military service, and the second requirement of entitlement to service connection, an in-service event or injury, has been met. At issue is whether the Veteran’s current back disability is etiologically related to the manual labor performed during his active duty service. Three medical opinions have been provided regarding whether such an etiological relationship exists. The Board finds that the first two medical opinions, provided in January 2015 and September 2019, are inadequate and of low probative value, as they were predicated upon the absence of documentation in the Veteran’s service treatment records. Conversely, the Board finds that the third medical opinion, provided in December 2020, is adequate and highly probative. It was provided by a medical professional who reviewed the Veteran’s medical history and treatment records and supported his conclusions with medical reasoning and detailed rationale, including his determination that the Veteran’s disability was more likely related to weight changes and lifestyle. Nieves-Rodriguez v. Peake, No. 06-3012 (Vet. App. Dec. 1, 2008). The Board notes that certain chronic diseases, such as arthritis, are presumed to have been incurred in service if manifested to a compensable degree within one year after service. However, in this case there is no competent, credible medical evidence detailing the diagnosis of a back disability, to include arthritis, within one year of the Veteran’s discharge from service to warrant a grant of service connection on a presumptive basis. In fact, it was noted the Veteran’s back disorder did not begin until 2010. The Board has also considered the applicability of continuity of symptomatology. Service connection may be established by showing continuity of symptoms since service. 38 C.F.R. § 3.303 (a). Continuity of symptomatology is established if a claimant demonstrates: (1) a condition noted during service; (2) evidence of post-service continuity of the same symptoms; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptoms. Given that the Veteran’s claimed back condition was not noted during service, continuity of symptomatology has not been established. Consideration has been given to the Veteran’s contentions that his current back disability is related to his service. Although laypersons, such as the Veteran, are sometimes competent to provide opinions on certain medical questions, the specific issue in this case falls outside the realm of common knowledge of a lay person as it involves making definitive clinical diagnoses and causation findings based on medical knowledge of the musculoskeletal system. See Jandreau v. Nicholson, 492 F.3 s 1372, 1377 n.4 (Fed. Cir. 2007). While the Veteran is certainly competent to report that the labor he engaged in during service and pain he experienced during that time, he is not competent to link that to a diagnosis or etiology. His assertions are therefore not competent evidence of a medical nexus. In sum, the benefit-of-the-doubt rule does not apply, and the service connection claim must be denied. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 3. Entitlement to service connection for a hiatal hernia with GERD is denied. 4. Entitlement to service connection for a GI disability is denied. The Veteran maintains entitlement to service connection for hiatal hernia with GERD and for a GI disability. As there is considerable overlap in the applicable evidence for these two claims, the Board will discuss them together. Turning to the evidence of record, the Veteran’s service treatment records document complaints of nausea, vomiting, and diarrhea in May 2002 during his tour of duty in Persian Gulf. He was diagnosed with diarrhea of infectious origin. Two days later, the symptoms had resolved. His remaining service treatment records are silent for complaint, treatment, or diagnosis of a hiatal hernia with GERD or a GI disability. Post-service, in August 2011, the Veteran complained of symptoms commensurate with GERD and was provided an esophagogastroduodenoscopy (EGD). At that time, a small hiatus hernia without reflux or esophagitis was found. November and December 2011 VA treatment records document the Veteran’s hiatal hernia and GERD treated with Omeprazole and a bout of gastroenteritis treated with fluids and Phenergan. In August 2012, the Veteran underwent a VA examination. There, he reported experiencing food poisoning while in service in 2004 which resolved after a clear liquid diet. The Veteran reported that an August 2011 colonoscopy revealed hemorrhoids an EGD revealed hiatal hernia and reflux. He stated that he was on Omeprazole with good results, and denied diarrhea, constipation, abdominal discomfort, nausea, vomiting, or a history of anemia. Following a clinical evaluation of the Veteran, the examiner observed that he had diagnoses of hiatal hernia and GERD that were discovered after separation. He found that the Veteran did not have a functional GI disorder(s). He had food poisoning which resolved while in service. In November 2016, the Veteran underwent another EGD which revealed gastritis with negative results for H. pylori. Another EDG was provided two months later in January 2017. Gastric mucosa with mild chronic inflammation and reactive changes and no H. pylori-like organisms were observed. There was no evidence of esophagitis, varices, Barrett’s esophagus, hiatal hernia, stricture, ring, or web. The Veteran underwent another VA examination in September 2019. There, he reported the onset of heartburn and epigastric discomfort following food poisoning in service in the Persian Gulf. His then-current complaints were of acid reflux, some vomiting, and heartburn. The Veteran endorsed the use of Ranitidine on a regular basis. Based on a clinical evaluation and interview of the Veteran, the examiner noted diagnoses of GERD and hiatal hernia. The examiner determined that there was no specific GI disease or hiatal hernia noted and no upper GI R gastroscopy evaluations noted during service, therefore, the claimed conditions was less likely than not incurred in or caused by the claimed in-service, injury, event or illness. Another VA examination was provided in December 2020. Based on a clinical evaluation and interview of the Veteran, the examiner noted a diagnosis of gastritis, resolved, from 2016. The examiner found that the Veteran’s claimed disabilities were less likely than not incurred in or caused by the claimed in-service, injury, event, or illness. He reasoned that the Veteran was not diagnosed with GERD in service; he had an acute GI illness in May 2002 with nausea, vomiting, and GI upset that resolved with supportive care. The examiner noted that 40 percent of adults in the U.S. experiencing reflex symptoms with commonly associated hiatal hernia and the risk factors for such included obesity, hiatal hernia, scleroderma, alcohol use, tobacco use, and pregnancy. He detailed the Veteran’s EGD testing in 2016 and 2017 and found that the Veteran’s disabilities were likely related to his age and consistent weight gain. Based on a careful review of all the subjective and clinical evidence, the preponderance of the evidence weighs against a finding that service connection for a hiatal hernia with GERD or a GI disability is warranted. As an initial matter, the Veteran has been diagnosed with a hiatal hernia with GERD and other GI disabilities, including gastroenteritis and gastritis, during the appellate period. Review of the Veteran’s service treatment records reflects one in-service complaint of GI problems, including nausea, vomiting, and diarrhea, diagnosed as diarrhea of infectious origin. Thus, the second requirement of entitlement to service connection, an in-service event or injury, has been met. At issue is whether the Veteran’s hiatal hernia with GERD or GI disability is etiologically related to the GI symptoms exhibited during his active duty service. Two medical opinions were proffered addressing this issue. The first, proffered in September 2019, is internally inconsistent and unclear. The examiner diagnosed both GERD and hiatal hernia; however, in providing a negative nexus opinion, he reasoned that the Veteran did not manifest either GERD or any GI disorder at the present time or during service. Additionally, the examiner did not reconcile the findings of no diagnosis with the Veteran’s then-current complaints of acid reflux, nausea, and vomiting. As such, the Board finds that this medical opinion is of low probative value. Caluza v. Brown, 7 Vet. App. 498, 506 (1995). The Board finds that the second medical opinion, provided in December 2020, is adequate and highly probative. It was provided by a medical professional who reviewed the Veteran’s medical history and treatment records and supported his conclusions with medical reasoning and detailed rationale, including his determination that the Veteran’s disabilities were more likely related to his age and weight changes. Nieves-Rodriguez v. Peake, No. 06-3012 (Vet. App. Dec. 1, 2008). The Board has also considered the applicability of 38 C.F.R. § 3.317 (a)(1) due to the Veteran’s service in the Persian Gulf. However, as the Veteran’s symptoms have been attributed to known clinical diagnoses of hiatal hernia with GERD, gastroenteritis, and gastritis, service connection cannot be granted for an undiagnosed illness due to service in the Persian Gulf. Due consideration has been given to the Veteran’s contentions that his hiatal hernia with GERD or GI disability is related to his service. Although laypersons, such as the Veteran, are sometimes competent to provide opinions on certain medical questions, the specific issue in this case falls outside the realm of common knowledge of a lay person as it involves making definitive clinical diagnoses and causation findings based on medical knowledge of the GI system. See Jandreau v. Nicholson, 492 F.3 s 1372, 1377 n.4 (Fed. Cir. 2007); see also 38 C.F.R. § 3.159 (a)(1). While the Veteran is certainly competent to report that the GI symptoms he experienced during service, he is not competent to link that to a diagnosis or etiology. His assertions are therefore not competent evidence of a medical nexus. In sum, the benefit-of-the-doubt rule does not apply, and the service connection claim must be denied. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). T. Berry Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board L. Bush 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.