Citation Nr: 21027641 Decision Date: 05/06/21 Archive Date: 05/06/21 DOCKET NO. 08-26 497 DATE: May 6, 2021 ORDER Entitlement to service connection for treatment purposes under 38 U.S.C. Chapter 17 for gastroesophageal reflux disease (GERD) is denied. Entitlement to service connection for treatment purposes under 38 U.S.C. Chapter 17 for residuals of a fall, to include back injury, hand injury and feet injury, is denied. REMANDED Entitlement to total disability evaluation based on individual unemployability, due to service-connected disabilities (TDIU), is remanded. FINDINGS OF FACT 1. The objective medical evidence shows GERD was not incurred in active service and is not caused by an event, injury or illness during active service. 2. The objective medical evidence shows residuals of a fall, to include back injury, hand injury and feet injury, were not incurred in active service and are not caused by an event, injury or illness during active service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for treatment purposes under 38 U.S.C. Chapter 17 for GERD have not been met. 38 U.S.C. § 5107 (2012); 38C.F.R. §§ 3.102, 3.303 (2020). 2. The criteria for entitlement to service connection for treatment purposes under 38 U.S.C. Chapter 17 for residuals of a fall, to include back injury, hand injury and feet injury, have not been met. 38 U.S.C. § 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had honorable active service in the United States Navy from August 1977 to October 1, 1981. The Veteran had a second period of active service from October 2, 1981 to May 1986 and was discharged under other than honorable conditions due to "Misconduct -Commission of a Serious Offense." Service Connection Generally, service connection may be granted for disability arising from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). 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). Service connection for a disability requires evidence of: (1) The existence of a current disability; (2) the existence of the disease or injury in service; and(3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). See also Hickson v. West, 12 Vet. App. 247, 253 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996). The health-care and related benefits authorized by Chapter 17 of Title 38 U.S.C. shall be provided to certain former service persons with administrative discharges under other than honorable conditions for any disability incurred or aggravated during active military, naval or air service in line of duty. 38 C.F.R. § 3.360 (a). With certain exceptions, such benefits shall be furnished for any disability incurred or aggravated during a period of service terminated by a discharge under other than honorable conditions. Specifically, they may not be furnished for any disability incurred or aggravated during a period of service terminated by a bad conduct discharge or when one of the bars listed in §3.12 (c) applies. 38C.F.R. § 3.360 (b). In making determinations of health-care eligibility the same criteria will be used as is now applicable to determinations of service incurrence and in line of duty when there is no character of discharge bar. 38 C.F.R. § 3.360 (c). In this case, VA determined that the Veteran's discharge for the period of active service from October 1981 to May 1986 was considered to be under other than honorable conditions dishonorable for VA purposes, pursuant to 38 C.F.R. § 3.12 (d)(4), but the Veteran was entitled to health care under 38 C.F.R. Chapter 17 for any disabilities determined to be service-connected. 1. Entitlement to service connection for treatment purposes under 38 U.S.C. Chapter 17 for GERD. The service treatment records (STRs) for the Veteran's first period of active service show a September 1981 diagnosis of gastritis. In February 1983, during the second period of active service, the Veteran was assessed with enteritis. There are otherwise no complaints, treatment or diagnoses of GERD. The post-active-service record shows a state correctional facility treatment note from March 2008, noting the Veteran's history of GERD. A note from July 2008 states the Veteran requested aspirin for an unrelated condition because his doctor told him that ibuprofen would aggravate his GERD. In May 2017, the Veteran was afforded a VA examination for esophageal conditions, in which the examiner stated an undated diagnosis of GERD. He opined that GERD was less likely than not (less than 50 percent probability) related to or caused by his diagnosis of gastritis in September 1981. He explained in his rationale that gastritis presents symptoms below the diaphragm and GERD presents above the diaphragm, so it would not be possible to confuse the two conditions. The May 2017 VA examiner noted that "the same could be said for enteritis, which showed up after the Veteran's honorable service was over." However, in its December 2018 Remand, the Board found the May 2017 VA opinion inadequate, as there is "very little rationale to accompany the opinion reached." Moreover, the May 2017 VA examiner based his opinion for enteritis on the fact that the Veteran's enteritis showed up after the Veteran's honorable service. As the Veteran may be entitled to service connection for treatment purposes, the Board concluded the examiner's statement of when the Veteran was diagnosed with enteritis is "of no importance." The Board further concluded that, because the May 2017 VA examiner failed to provide an adequate opinion discussing the etiology of the Veteran's GERD, a new VA examination and medical opinion was required As directed by the Board in its Remand, the Veteran underwent a second VA examination for esophageal conditions in August 2019, in which the VA examiner diagnosed GERD. He noted the Veteran's reports of in-service onset and development of heartburn, reflux and regurgitation and reflux while in service, with persistent symptoms post-service, particularly after eating certain food, difficulty sleeping and ineffective medication. Although the August 2019 VA examiner rendered a positive opinion for service connection, he merely set forth the findings of the STRs and did not otherwise provide any explanation by way of a rationale. In July 2020, the AOJ deferred its decision and returned the file to the VA examiner for an addendum opinion, noting the STRs show one episode of gastritis in 1981 and an episode of enteritis in 1983, no diagnosis of GERD, then a post-service diagnosis of GERD many years after service, but no diagnosis of gastritis and no enteritis, the May 2017 VA examiner did not find GERD related to service, and the August 2019 VA examiner himself gave a positive nexus opinion, but his "rationale" basically reiterates the STR findings. Regarding this conflicting and defective evidence, the AOJ clarified for the August 2019 VA examiner that the questions to be addressed are "is the current diagnosis of GERD [] due to or related to the gastritis of 1981; or is the GERD due to or related to the enteritis of 1983[?] If due to either, or both, what is the reasons and bases? If not, are the episodes of gastritis in 1981 and enteritis of 1983 considered acute and transitory with no relation to the post service Dx [diagnosis] of GERD? If no relation, can you provide a likely etiology of the GERD?" In the November 2020 addendum opinion which followed, the VA examiner opined "GERD is a separate condition of unknown etiology. The GERD is less likely than not due to or related to the gastritis of 1981 and less likely than not related to the enteritis of 1983. The episodes of gastritis in 1981 and enteritis of 1983 [are] considered acute and transitory with no relation to the post service Dx of GERD. Etiology of GERD is unknown." The record shows no evidence of GERD in service. The other issues of gastritis and enteritis were acute and transitory, they resolved and they are disorders unrelated to GERD. Therefore, subsequent medical evidence cannot establish a relationship or nexus between the Veteran's current disability and symptoms of gastroenterological disease during active during service. 2. Entitlement to service connection for treatment purposes under 38 U.S.C. Chapter 17 for residuals of a fall, to include back injury, hand injury and feet injury. The STRs show a March 1978 laceration injury to the Veteran's right wrist. The Veteran was examined after an automobile accident in December 1980, but with no mention of his back. X-rays and examination showed normal motion and there were no indications of a back injury. In April 1981, the Veteran sustained an injury to his left thumb when he struck it with a hammer. In July 1981, the Veteran sustained trauma to his left hand when it was crushed against a tree. In May 1982, the Veteran dropped an outboard motor on the tip of his left-ring finger, sustaining a fracture at the terminal tuft. In October 1982, the Veteran lacerated his right forearm when he fell onto a sheet metal rack, leading to an infection. There was no report or finding of a back injury due to the fall. In September 1982, the Veteran was assessed with post-spinal back pain after undergoing a spinal tap in conjunction with a vasectomy. The April 1986 separation examination shows a normal finding for spine and other musculoskeletal segments. The post-active-service record shows in July 1996 the Veteran reported arthritis in his hands and wrists. He presented in January 2008 with complaints of back pain. March 2008 x-rays of the back revealed disc narrowing of 75 percent at L5-S1. Back pain and hand pain were also noted in February 2010. In a May 2017 VA examination for hand and finger, the VA examiner did not make a diagnosis, but stated the Veteran does not have a current diagnosis associated with any claimed condition. He noted the Veteran's reports of previous injuries to his hands, but that day's testing produced normal results in both hands and available imaging studies showed only indications of the in-service left-ring-finger fracture. A May 2017 VA examination for elbow and forearm shows the VA examiner again made no diagnosis for the same reason stated in the hand examination. He added that the Veteran "denied any problems with his elbows or forearms to me personally." Testing results were normal. There were no available imaging studies. The May 2017 VA examiner opined that hand, finger, elbow, and forearm chronic conditions were less likely than not (less than 50 percent probability) incurred in or caused by active service. He explained in his rationale, "While he had some minor finger fractures, there are no current medical disabilities related to his 4 years and 2 months of Honorable Duty. I do opine that there is no current disability related to his hands, fingers, elbows or forearms." In his May 2017 VA examination for thoracolumbar-spine conditions, the VA examiner stated a 1980 diagnosis of contusion to the spine and made his own diagnosis of mild to moderate lumbosacral degenerative disc disease and spondylosis. He noted the Veteran's reports that his back disorder was due to the in-service December 1980 motor vehicle accident and his in-service fall on a sheet-metal rack increased his back pain. Available imaging studies showed mild-to-moderate multilevel degenerative changes. Although the May 2017 VA examiner rendered no opinion on service connection, upon request, he produced an October 2017 VA addendum opinion, in which he opined that, as the Veteran injured his back twice on active duty and as the Veteran reported that his back pain was much worse after the second back injury in October 1982, the Veteran should be service connected for treatment purposes. However, he was requested to produce another addendum opinion in November 2017, which would address specific questions based on the record. The examiner opined that the Veteran's back disorder is less likely than not incurred in or caused by the Veteran's motor vehicle accident in December1980, by back pain after the September 1982 spinal tap and/or the October 1982 fall on a sheet metal rack during service. He added there is no nexus between the Veteran's in-service injuries and his current back disorder, there [are] no objective medical records or medical literature evidence to indicate otherwise, there is no causal pathophysiologic relationship, and the Veteran's greatest risk factor for his disorder is his age. However, in its December 2018 Remand, the Board found the October 2017 and November 2017 VA addenda opinions inadequate, as there is "very little rationale to accompany the opinions reached." Specifically, the October 2017 VA examiner's opinion, although positive, failed to provide an adequate rationale as to why the Veteran's first back injury during honorable service was not the cause of the Veteran's current back disability. The November 2017 VA examiner's opinion was inadequate due to its conclusory rationale, as he simply noted, as stated above, no nexus or causal pathophysiologic relationship to the in-service events, but did not consider or discuss the Veteran's contentions or in-service back injuries. As directed by the Board, new opinions were produced in August 2019. However, the AOJ determined that these were inadequate because the opinions needed to be based on review of the actual evidence and provide adequate reasons and bases. There was no discussion of probative and contemporaneous evidence and the opinions appear to be based on reported history. On request by the AOJ, the VA examiner produced a November 2020 addendum opinion, in which he opined the current diagnosis of degenerative disc disease and spondylolisthesis is at least as likely as not due to or related to the December 1980 motor vehicle accident and the October 1982 fall and less likely than not due to or related to the September 1982 spinal tap, as the current diagnosis and symptoms are consistent with the documented condition during service and with the reports of symptoms since service, as there is no "interval illness or condition" to account for the diagnosis. However, the AOJ determined this opinion, too, was inadequate and asked for specific clarification as to "how is there a current chronic back issue due to either, or both of the claimed events when the probative records did not show this. Is the diagnosis and/or opinion based on the veterans reported history only? Or is there something in the STRs to show injury or in the post service records. How can the back issue be due to two different events?" Another addendum opinion was then rendered in December 2020, in which the VA examiner opined, "Based on the current guideline above noting veterans period of service from 08-10-77 to 10-01-81[,] [t]he claimed back condition Degenerative Disc Disease L4-L5 with Spondylolisthesis Grade I was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. There is not enough medical record evidence to support the claimed back condition was incurred in or caused by service." Arthritis is included among those diseases which may be eligible for presumptive service connection as "chronic diseases" under 38 C.F.R. § 3.309 (a). The May 2017 diagnosis and imaging studies showing degenerative disc disease, thereby indicating arthritis. However, there are no in-service findings of arthritis and the subsequent medical evidence does not show arthritis manifested to a compensable degree within 1 year of separation from active service. Moreover, looking to the possibility of continuity of symptomatology establishing a nexus between an in-service back injury and current arthritis associated with degenerative disc disease as a current chronic disease, once again arthritis was never identified in service, and putting aside the lack of medical evidence of any treatment for arthritis at that time, it is otherwise impossible to establish continuity of symptomatology by relating the Veteran's reported in-service back injury to the May 2017 current diagnosis of degenerative disc disease of the spine, particularly after approximately 19 years after separation from active service. Consequently, the presumption of service connection for arthritis as a chronic disease, associated with lumbar-spine disorder, is not available to the Veteran. The record does not provide medical evidence of a current disability of the hands or feet, as well as the elbows and forearms, nor is there evidence establishing a causal relationship or nexus between the Veteran's current lumbar-spine disorder and the documented in-service incidents and accidents. Lastly, the Board has carefully considered the Veteran's numerous and detailed lay statements, submitted in the period of March 2008 through November 2020 as correspondence, Statements in Support of Claim and statements accompanying his March 2010 Notice of Disagreement and June 2011 Veterans Appeals Form 9, as well as his reports to treatment providers and examiners, as they appear throughout the record. The Board is well aware that lay persons are competent to report on matters observed or within their personal knowledge. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). Therefore, the Veteran is competent to provide statements of symptoms which are observable to his senses. Nonetheless, the Veteran's lay evidence must in turn be weighed against other evidence, as all relevant evidence of varying kinds must be considered. As they pertain to the disorders discussed in this decision, the Veteran has consistently contended that his back, upper extremity, feet, and GERD disorders were each incurred in active service or caused by events and injuries during active service. However, for the reasons discussed at length above, the medical evidence of record does not bear out that relationship to active service as the Veteran asserts it. Moreover, the Board does not have the expertise to determine that question or whether in fact there are current disabilities as claimed. It is not permitted to make its own unsubstantiated medical conclusions. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). Therefore, the Board has looked to the findings of the numerous VA examinations and opinions, reviewed and scrutinized by the Board and the AOJ and, when necessary, after clarification and correction by the medical professionals who produced them in the period from May 2017 through December 2020. The Board therefore assigns more probative weight to their findings and opinions, as their examinations and testing were conducted during in-person sessions with the Veteran, they thoroughly reviewed his medical history and their findings, for the reasons stated above, exhibit sound clinical conclusions. See generally Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008) (noting that the central issue in assessing the adequacy of an opinion is whether the examiner was informed of the relevant facts in rendering a medical opinion). For the foregoing reasons and based on the objective medical evidence, the Board finds the preponderance of the evidence is against the claims for service connection for treatment purposes only under 38 U.S.C. Chapter 17, as GERD was not treated or diagnosed during the period of active service. The evidence of record does not support a causal relationship of residuals of a fall, to include back injury, hand injury and feet injury, to the same period of active service. The Board has considered the benefit-of-the-doubt doctrine; however, the Board does not perceive an approximate balance of positive and negative evidence. As the preponderance of the evidence is against the claims, the doctrine is not applicable and the claims must be denied. 38 U.S.C. § 5107 (b); 38 C.F.R. § 4.3. REASONS FOR REMAND Entitlement to TDIU. In the Veteran's June 2019 correspondence statement, he states the authorities at the state correction facility in which he is incarcerated have determined he cannot work, he has been put in a special unit called "medical squad 04" and they have labeled him as "unemployable." He asserts if the Texas criminal justice system says he unemployable, VA should make the same determination. He further asserts his unemployability is due to the 2 claimed disorders now on appeal, as well as other claimed disorders not presently before the Board. He requests consideration for a total disability evaluation based on individual unemployability. Thus, the Veteran has raised the issue of TDIU. As TDIU is not a separate claim for benefits and can involve an attempt to obtain an appropriate rating for a disability or disabilities as part of the initial adjudication of a claim, the claim is appropriate in conjunction with the service connection claims on appeal. However, the Board cannot establish its jurisdiction until after initial adjudication by the AOJ. The matters are REMANDED for the following action: After any additional notification and/or development deemed warranted, to include the issuance of VCAA notice and an instruction to the Veteran to complete and submit a Veteran's Application for Increased Compensation Based on Unemployability (VA Form 21-8940), adjudicate the issue of entitlement to TDIU. If any benefit sought on appeal is denied, the Veteran and his representative should be provided a Supplemental Statement of the Case. An appropriate period of time should be allowed for response before the case is returned to the Board. MICHAEL D. LYON Veterans Law Judge Board of Veterans' Appeals Attorney for the Board P. Franke, Associate 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.