Citation Nr: 21026081 Decision Date: 04/29/21 Archive Date: 04/29/21 DOCKET NO. 15-01 657 DATE: April 29, 2021 ORDER Service connection for Crohn’s disease is denied. Service connection for a nerve disorder of the right and left forearms is denied. REMANDED Entitlement to service connection for a right knee disorder is remanded. Entitlement to service connection for a left knee disorder is remanded. FINDINGS OF FACT 1. The Veteran’s Crohn’s disease was not manifest during his first period of active service from January 1975 to January 1978, or within a period of active duty training (ACDUTRA). 2. Crohn’s disease was noted at service entrance into the Veteran’s second period of active duty service from November 2001 to December 2002; the Veteran’s preexisting Crohn’s disease did not permanently increase in severity during his second period of active duty service. 3. The Veteran’s reported neurological symptoms in the forearms are not shown to be related to service or a service-connected disorder. CONCLUSIONS OF LAW 1. The criteria to establish service connection for Crohn’s disease are not met. 38 U.S.C. §§ 1110, 1131, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.306 (2020). 2. The criteria to establish service connection for a nerve disorder of the right and left forearms are not met. 38 U.S.C. §§ 1110, 1131, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1975 to January 1978, and from November 2001 to December 2002. He also served in the Navy Reserves from 1988 to 2008. This appeal comes before the Board of Veterans’ Appeals (Board) from the July 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In April 2018, he testified at a Travel Board hearing before the undersigned Veterans Law Judge. A transcript of this hearing has been associated with the claims file. The issues on appeal were previously remanded by the Board in July 2018 and August 2020. Service Connection Laws and Regulations Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303 (a). Active military, naval, or air service includes any period of active duty training (ACDUTRA) during which the individual concerned was disabled or died from disease or injury incurred in or aggravated in the line of duty, or any period of inactive duty training (INACDUTRA) during which the individual concerned was disabled or died from injury (but not disease) incurred in or aggravated in the line of duty. 38 U.S.C. §§ 101 (21), (22), (23), (24), 106; 38 C.F.R. § 3.6 (a), (c), (d) (2020). 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). Service connection may 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). Only chronic diseases listed under 38 C.F.R. § 3.309 (a) (2020) are entitled to the presumptive service connection provisions of 38 C.F.R. § 3.303 (b). Walker v. Shinseki, 708 F.3d 1331 Fed. Cir. 2013). In rendering a decision on appeal the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57(1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) (“although interest may affect the credibility of testimony, it does not affect competency to testify”). Generally, the degree of probative value which may be attributed to a medical opinion issued by a VA or private treatment provider takes into account such factors as its thoroughness and degree of detail, and whether there was review of the claims file. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000). Also significant is whether the examining medical provider had a sufficiently clear and well-reasoned rationale, as well as a basis in objective supporting clinical data. See Bloom v. West, 12 Vet. App. 185, 187 (1999); Hernandez-Toyens v. West, 11 Vet. App. 379, 382(1998); see also Claiborne v. Nicholson, 19 Vet. App. 181, 186 (2005) (rejecting medical opinions that did not indicate whether the physicians actually examined the veteran, did not provide the extent of any examination, and did not provide any supporting clinical data). The Court has held that a bare conclusion, even one reached by a health care professional, is not probative without a factual predicate in the record. Miller v. West, 11 Vet. App. 345, 348 (1998). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. Crohn’s Disease The Veteran testified that he was diagnosed with Crohn’s disease in February 1996 (during his period in the Naval Reserves). In May 1996, the Veteran reported that he suffered toxic shock and was administered to the hospital where he was treated for 3 weeks. Treatment records include a July 1996 letter from Dr. Pickover, the Veteran’s treating gastroenterologist. The July 1996 letter indicated that the Veteran had a gastrointestinal disorder and was admitted to the hospital from May 19, 1996 to June 1996. The Veteran underwent surgery on May 31, 1996. In a June 2012 VA examination, it was noted that the Veteran had a history of Crohn’s disease, first diagnosed in 1996. The examiner indicated that the Veteran had intestinal perforation and surgery with a partial bowel resection in May 1996. The Veteran does not contend, and the record does not establish, that his current Crohn’s disease began during his first period of active duty service from January 1975 to January 1978. See 38 C.F.R. § 3.303 (a). As noted above, the Veteran was diagnosed with Crohn’s disease in 1996, approximately two decades after his completion of active duty service. The Veteran’s Naval Reserves service records also indicate he was not completing a period of ACDUTRA when he was diagnosed with Crohn’s disease. Service personnel records include an Annual Retirement Point Record which indicated that the Veteran had ‘0’ active duty points in 1996. Therefore, service connection cannot be granted based on symptoms shown during a period of ACDUTRA as, even giving full credit to the allegations the symptoms began in 1996, there was no ACDUTRA that year. To the extent that the Veteran’s Crohn’s disease occurred during any period of INACUDTRA, service connection may not be established because, as state above, service connection is warranted only for injuries (not diseases) incurred or aggravated during INACDUTRA. Crohn’s is a disease, and not an injury, and as such the indication of such occurrence in 1996, falls outside the Veteran’s qualified active service period. As it pertains to the Veteran’s second period of active duty service (i. e., from November 2001 to December 2002), a November 2001 Report of Medical History shows that the Veteran reported having Crohn’s disease since 1996. A November 2001 Report of Medical Examination also indicates that Crohn’s disease, status post partial bowel resection was noted. As such, the Veteran had a pre-existing disease prior to service entrance into his second period of active duty service. For these reasons, the presumption of soundness at service entrance does not attach. See 38 U.S.C. § 1111. Because Crohn’s disease was a preexisting disability “noted” upon entrance to active service, service connection may be granted only if it is shown that the Veteran’s Crohn’s disease was aggravated by service, that is, if the preexisting Crohn’s disease was worsened in severity beyond its natural progression during service. 38 U.S.C. § 1153; 38 C.F.R. § 3.306. Where a disorder is noted on service entrance, 38 U.S.C. § 1153 applies. A preexisting injury or disease will be considered to have been aggravated by active military, naval, or air service, where there is an increase in disability during such service (presumption of aggravation), unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 U.S.C. § 1153. In such claims of preexisting disability, the veteran (the evidence of record) bears the burden of showing that there was an increase in disability during service to trigger the presumption of aggravation. See Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). Only if this burden is met does the burden of proof shift to VA to prove non-aggravation (by clear and unmistakable evidence). The Board finds that the Veteran’s Crohn’s disease did not increase in severity during his second period of active duty service. In a Post-Deployment Health Assessment, dated in November 2002, the Veteran indicated that he was in “good” health. In a corresponding Report of Medical Assessment, also dated in November 2002, the Veteran specifically indicated that his overall health was “the same” as compared to his last medical assessment. Because the evidence does not demonstrate worsening of Crohn’s disease during service (the preponderance of the evidence is against a finding of worsening during service), the presumption of aggravation does not arise in this case, so the burden on VA to rebut the presumption (by clear and unmistakable evidence) does not arise. See 38 U.S.C. § 1153; 38 C.F.R. § 3.306. For these reasons, the Board finds that the weight of the evidence demonstrates that the Veteran’s Crohn’s disease was not manifest during his period of active service from January 1975 to January 1978, or within a period of ACDUTRA. The Board further finds that the Veteran’s pre-existing Crohn’s disease was not permanently increase in severity during his second period of active duty service. Accordingly, service connection for Crohn’s disease must be denied. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. Nerve Disorder of the Right and Left Forearms The Veteran maintains that he has numbness and/or hypersensitivity in the forearms as a result of either his Crohn’s disease surgery or as a result of his treatment for service-connected lumbar spine disability. Initially, as determined herein, the Board has denied the Veteran’s claim for service connection for Crohn’s disease; as such, service connection for a nerve disorder as secondary to Crohn’s disease is denied as a matter of law. 38 C.F.R. § 3.310; Sabonis v. Brown, 6 Vet. App. 426 (1994). The Board notes that the Veteran has not been diagnosed with a nerve disability pertaining to his upper extremities. A July 2012 EMG report and VA medical opinion indicated that there was “no evidence of neuropathy o[f] arms or radiculopathy.” There was also no evidence of any nerve damage. Notwithstanding, the Veteran is competent to report numbness or hypersensitivity in his forearms as such symptom is capable of lay observation. However, there is no competent evidence relating those symptoms to service or a service-connected disability. The Board recognizes the Veteran’s contention that his forearm symptoms are related to treatment for his spine disorder, but he, as a lay person, is not competent to medically relate his symptoms to the surgeries for his spine disability. To the contrary, a VA examiner examined the Veteran in June 2012 and provided an addendum in July 2012 in which he affirmatively opined that the Veteran’s claimed nerve damage in both arms was less likely than not related to his treatment for his lumbar spine disability. The VA examiner, a physician, reviewed the Veteran’s claims file, his medical history, and considered the Veteran’s contentions, including his contention of hypersensitivity of the forearms after receiving IV injections associated with his surgeries. The Board finds the opinion to be adequate, competent, and highly probative. Based on a review of the foregoing evidence, and the applicable laws and regulations, the Board finds that the preponderance of the evidence is against the Veteran’s claim of service connection for a nerve disorder of the right and left forearms. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine; however, as the preponderance of the evidence is against the Veteran’s claim, that doctrine is not helpful to the Veteran. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. REASONS FOR REMAND Right and Left Knee Disabilities The Veteran is service connected for a lumbar spine disability (spinal fusion at L3-L4), currently rated as 40 percent disabling. He has also been assigned separate disability ratings for right and left lower extremity lumbar radiculopathy. During a June 2012 VA peripheral nerves examination, the Veteran was noted to have pain in his legs as a result of his radiculopathy. During the April 2018 Board hearing, the Veteran indicated that, as a result of his lumbar spine disabilities, his gait may have changed. In a July 2012 VA addendum opinion, the examiner did not provide an opinion regarding secondary service connection for the knees. Instead, the examiner noted that a subspecialty examination (orthopedic) was required. The Veteran underwent a knee examination in August 2019, and was diagnosed the Veteran with bilateral knee osteoarthritis. An opinion regarding secondary service connection is needed. As such, a remand is required. The matters are REMANDED for the following actions: 1. Obtain any outstanding VA treatment records and associate them with the claims file. 2. Schedule a VA knee examination to help determine the nature and etiology of current knee disorder(s). The examiner is asked to address the following: (a.) State whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s bilateral knee disorder (diagnosed as osteoarthritis) was either caused or aggravated by his service-connected lumbar spine and/or bilateral lower extremity radiculopathy disabilities. ** During the April 2018 Board hearing, the Veteran indicated that, as a result of his lumbar spine disabilities, his gait may have changed. **The examiner is advised that, for secondary service connection, “aggravation” need not be permanent in nature. See Ward v. Wilkie, 31 Vet. App. 233, 241-42 (2019). (b.) All opinions are to be accompanied by a rationale consistent with the evidence of record. 3. Then, readjudicate the claims on appeal. S. B. MAYS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. Casadei, 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.