Citation Nr: 21026282 Decision Date: 04/30/21 Archive Date: 04/30/21 DOCKET NO. 16-25 727 DATE: April 30, 2021 ORDER Entitlement to service connection for a right ear disorder is denied. Entitlement to service connection for a left knee disorder is denied. Entitlement to service connection for a right knee disorder is denied. Entitlement to service connection for a left ankle disorder is denied. Entitlement to service connection for a right ankle disorder is denied. Entitlement to service connection for a low back disorder is denied. Entitlement to service connection for an acid reflux disorder, diagnosed as gastrointestinal reflux disease (GERD), is granted. REMANDED Entitlement to service connection for a sleep disorder, to include insomnia, is remanded. FINDINGS OF FACT 1. The Veteran does not have a current right ear disorder. 2. The Veteran does not have a current left knee or right knee disorder. 3. The Veteran does not have a current left ankle or right ankle disorder. 4. The Veteran does not have a current low back disorder that is related to service or any event of service. 5. The most probative evidence of record demonstrates that the Veteran’s acid reflux disorder, diagnosed as GERD, began during his active service and has existed since that time. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a right ear disorder have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. 2. The criteria for entitlement to service connection for a left knee disorder have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. 3. The criteria for entitlement to service connection for a right knee disorder have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. 4. The criteria for entitlement to service connection for a left ankle disorder have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. 5. The criteria for entitlement to service connection for a right ankle disorder have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. 6. The criteria for entitlement to service connection for a low back disorder have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. 7. The criteria for entitlement to service connection for acid reflux disorder, diagnosed as GERD, have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1996 to March 1997 and from September 2005 to December 2010. The case is on appeal from a rating decision issued in May 2013. The Veteran offered testimony before the undersigned at a Board hearing in June 2019. The hearing transcript is of record. This case was previously before the Board in December 2019. On remand, by rating decisions dated in July 2020 and November 2020, service connection for a left wrist disorder, temporomandibular joint dysfunction, right ear hearing loss, and tinnitus were granted. The appeal in this regard has been resolved. Grantham v. Brown, 114 F. 3d 1156 (Fed. Cir. 1997). The Board also finds that there has been compliance with the December 2019 remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). In this regard, the Board notes that VA examinations have been conducted and additional medical records from the Naval Hospital in Yokosuka, Japan, have been obtained. Laws and regulations Service connection may 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(a). To establish a right to compensation for a present disability, a Veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service- the so-called “nexus” requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may be granted for any disease initially diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In addition, service connection for certain chronic diseases may be established on a presumptive basis by showing that the condition manifested to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C. §§ 1101, 1112, 1113, 1131, 1137; 38 C.F.R. §§ 3.307, 3.309(a); Fountain v. McDonald, 27 Vet. App. 258, 271-72 (2015). Although the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. If chronicity in service is not established, a showing of continuity of symptoms after discharge may support the claim. 38 C.F.R. §§ 3.303(b), 3.309 (2020); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In the absence of proof of a current disability there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Pain alone, however, can serve as a disability for VA compensation purposes if the pain results in functional impairment that affects earning capacity. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). The requirement of a current disability is satisfied when the Veteran has a disability at the time he files his service connection claim or during the pendency of that claim, even if the disability resolves prior to the adjudication of the claim. McClain v. Nicholson, 21 Vet. App. 319 (2007). However, when the record contains a recent diagnosis of disability prior to the Veteran’s filing of a claim for benefits based on that disability, the report of the diagnosis is relevant evidence that the Board must address in determining whether a current disability existed at the time of the claim was filed or during its pendency. Romanowsky v. Shinseki, 26 Vet. App. 289 (2013). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). 1. Entitlement to service connection for a right ear disorder. At the June 2019 Board hearing the Veteran indicated that he had ruptured his right ear drum twice during service but had not sought treatment. As a result of the ruptures during service he experienced decreased hearing, ringing in the ears, pain with variations in pressure changes, and some disorientation. The Board notes that service connection is in effect for right ear hearing loss and tinnitus. However, the record fails to show that the Veteran currently has any other separate right ear disorder, to include at the time of the claim was filed or during the pendency of the claim. The Board acknowledges that an August 2008 Naval Hospital treatment record indicates that the Veteran complained of problems with his ear during changes in air pressure, and the record notes that the Veteran’s right tympanic membrane appeared abnormal. It is also acknowledged that the Veteran complained of right ear hearing loss on his October 2010 service separation examination. Nonetheless, a March 2013 VA ear conditions examination indicated that the Veteran’s right tympanic membrane was normal. Additionally, VA examination dated in October 2020 noted that the Veteran’s right external ear, right ear canal, and right tympanic membrane were all normal. The examiner noted that the Veteran had no right ear pertinent findings, conditions, or symptoms to support a diagnosis. While the Board is cognizant of the Veteran’s appellate assertions, as a layperson he is not competent to diagnose a right ear disability. As such, the Board finds that there is no right ear disorder (other than right ear hearing loss and tinnitus). In the absence of proof of a present disability there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. at 225. Accordingly, service connection for a right ear disorder is not warranted. 2. Entitlement to service connection for a left knee disorder. 3. Entitlement to service connection for a right knee disorder. 4. Entitlement to service connection for a left ankle disorder. 5. Entitlement to service connection for a right ankle disorder. At the Board hearing the Veteran indicated that he had current problems with his ankles and knees which he attributed to walking and running on steel while aboard ship during service. However, the record fails to show that the Veteran has a current bilateral knee or ankle disorder or any impairment in earning capacity resulting from pain, to include at the time of the claim was filed or during the pendency of the claim. The Veteran’s service treatment records (STRs) are negative for any complaints or diagnoses relating to the knees or ankles. The Veteran denied that he had any knee, foot, or leg trouble on his October 2010 separation examination. At a February 2020 VA knees examination, the Veteran indicated that he had bilateral knee pain and grinding in the knees. The pain in his knees caused difficulty with sleeping and was 3/10 at rest. He would take Acetaminophen and occasionally use a heating pad. Physical examination revealed normal range of motion of the knees with no pain noted on examination. Muscle strength testing of the knees was 5/5, and bilateral X-rays were normal. There was no functional loss of either the left or right knee. The Veteran’s knees did not impact the Veteran’s ability to perform any occupational tasks. At a February 2020 VA ankles examination, the Veteran indicated that during service he had run with heavy gear and participated in power lifting, both of which had aggravated his ankles. The Veteran’s current complaints included ankle pain of 2/10. Physical examination revealed normal range of motion of the ankles with no pain noted on examination. Muscle strength testing of the ankles was 5/5, and bilateral X-rays were normal. There was no functional loss of either the left or right ankle, and the Veteran’s ankles did not impact his ability to perform any occupational tasks. Accordingly, the Board finds that the evidence does not support a finding of a current knee or ankle disability. Contrary to the Veteran’s appellate assertions, there is no knee or ankle diagnosis, and the evidence does not show that any knee or ankle knee pain causes functional impairment of earning capacity. Further, as a layperson the Veteran is not competent to diagnose any such disability. In the absence of proof of a present disability there can be no valid claim. Brammer, supra. Accordingly, service connection is not warranted. 6. Entitlement to service connection for a low back disorder. At the Board hearing the Veteran indicated that he had low back problems related to lifting heavy objects during service. After reviewing the record, the Board finds that the record fails to show a current low back disorder or lower back pain that causes functional impairment of earning capacity, to include at the time of the claim was filed or during the pendency of the claim. The Veteran’s STRs do include the October 2010 service separation examination report revealing that the Veteran indicated that he had occasional pain in the lower spine. However, a March 2013 VA examination noted no low back disability. Additionally, although private treatment records dated in April 2017 indicate that the Veteran sought chiropractic care for his low back pain, the records do not indicate that the Veteran’s low back pain caused functional impairment of earning capacity. At a February 2020 VA spine examination, the Veteran indicated that during service he had experienced a sudden onset of pain in his low back while power lifting nearly 500 pounds. The Veteran’s current complaints included constant low back pain of 3/10 that could increase to 7/10. However, physical examination revealed normal range of motion of the thoracolumbar spine with no pain noted on examination. No swelling, muscle atrophy, or neurologic abnormalities were noted. Also, even though lumbar spine X-rays revealed questionable mild disc space narrowing at L4-L5 level, “not definitive” was also noted and no confirmed thoracolumbar spine diagnosis was made. There was no functional loss of the low back and the Veteran’s low back pain did not impact the Veteran’s ability to perform any occupational tasks. Accordingly, the Board finds that the Veteran does not have a current low back disability. Also, although the Veteran has complained of low back pain, such has not resulted in functional impairment that affects his earning capability. Further, as a layperson the Veteran is not competent to diagnose any such disability. In the absence of proof of a present disability there can be no valid claim. Brammer, supra. Alternatively, even when assuming, without conceding, the presence of a current low back disability given the February 2020 x-ray report noting questionable mild disc space narrowing at L4-L5 level, but “not definitive,” there is no competent or credible evidence creating a nexus between the Veteran’s claimed disorder and service or any event of service. In fact, the February 2020 VA examiner found that a nexus to service had not been established, as no chronic condition was noted during service or since service. Moreover, without medical expertise, the Veteran is not competent to etiologically relate any claimed disorder to service or any event of service. The evidence weighs against the claim in this regard as well. Accordingly, service connection is not warranted. 7. Entitlement to service connection for acid reflux disease. At his June 2019 Board hearing the Veteran indicated that during service he consulted with the medic about his acid reflux and was told to use antacids, which he bought over-the-counter, and has continued to use. Records dated in September 2008 from a Navy Hospital noted “GI problems, GERD” symptoms. The Veteran’s October 2010 service separation examination report reveals that the Veteran indicated that he had occasional severe acid reflux. At an October 2020 VA esophageal conditions examination, the Veteran indicated that he was watching his diet and experiencing reflux flares (reflux and regurgitation) once a month. The diagnosis was gastroesophageal reflux disease (GERD). The examiner stated that the Veteran’s GERD was not related to his active service. The Board finds that the evidence of record supports a finding of service connection for GERD. First, there is current disability, as noted on the October 2020 VA examination. Second, the Board finds that there was in-service disease. The Veteran complained of acid reflux problems at the time of his separation from his second period of service, and the Veteran has provided competent testimony regarding such symptoms during service. Third, the Board finds that the evidence of record supports a finding that the Veteran’s GERD has existed since active service or shortly thereafter. See Holton, 557 F.3d at 1366; 38 C.F.R. § 3.303(d). The Veteran has provided competent and credible testimony of gastrointestinal disability since service. See Washington, 19 Vet. App. at 368; Caluza v. Brown, 7 Vet. App. 498, 511 (1995). The Veteran is competent to state that he has had stomach problems since service, and the Veteran’s contentions in this regard are credible. See Caluza, 7 Vet. App. at 511. Although the October 2020 VA examiner stated that the Veteran’s GERD was not likely related to service, the Board observes that the examiner incorrectly stated that the Veteran had no STRs indicating any acid reflux problems. Further, the examiner did not address the Veteran’s competent and credible statements of acid reflux problems since service. The Board thus finds that the Veteran’s lay statements are sufficient to establish etiology or continuity of symptomatology. Accordingly, service connection for GERD is warranted. REASONS FOR REMAND 8. Entitlement to service connection for a sleep disorder. As for the issue of service connection for sleep disability (insomnia), remand is required to obtain an adequate opinion. Where VA provides the veteran with an examination, the examination must be adequate. Barr v. Nicholson, 21 Vet. App. 303 (2007). A medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008). In a February 2020 VA mental disorders examination, the Veteran was diagnosed with insomnia, and the examiner appeared to provide a negative nexus opinion concerning the Veteran’s insomnia. In doing so, however, the examiner provided a confusing rationale with conditional language. The examiner noted the Veteran’s sleep disorder was not related to service stressors, though it could be related to service due to the sleeping (berth area) condition. Based on the foregoing, a clarifying opinion must be obtained. It is also noted that the Veteran’s representative indicated that the Veteran did not undergo a sleep study; thereby, indicating that additional development is needed in this regard as well. The matters are REMANDED for the following action: 1. Contact the appropriate VA Medical Center and obtain and associate with the claims file all outstanding records of treatment on and after November 2020. 2. Contact the Veteran and afford him the opportunity to identify by name, address and dates of treatment or examination any relevant non-VA medical records. Subsequently, and after securing the proper authorizations where necessary, make arrangements to obtain all the records of treatment or examination from all the sources listed by the Veteran which are not already on file. 3. After any additional records are associated with the claims file, provide the Veteran with an appropriate examination to determine the etiology of his sleep disorder, to include insomnia. The entire claims file must be made available to and be reviewed by the examiner. Any indicated tests and studies must be accomplished, to include a sleep study if deemed necessary, and all clinical findings must be reported in detail and correlated to a specific diagnosis. An explanation for all opinions expressed must be provided. The examiner must provide an opinion regarding whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s sleep disorder, to include insomnia, had its onset in, or is otherwise caused by, the Veteran’s military service. A rationale for any opinion reached must be provided. The examiner must consider the evidence of record, to include the Veteran’s lay statements. C. CRAWFORD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board David Nelson 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.