Citation Nr: 21029426 Decision Date: 05/13/21 Archive Date: 05/13/21 DOCKET NO. 13-27 744 DATE: May 13, 2021 ORDER Entitlement to service connection for stomach problems is denied. Entitlement to service connection for migraines is denied. REMANDED Entitlement to a rating in excess of 10 percent for a low back condition is remanded. FINDINGS OF FACT 1. The Veteran's stomach condition is not causally or etiologically due to service. 2. The Veteran's migraine condition is not causally or etiologically due to service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for stomach problems have not been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.303. 2. The criteria for entitlement to service connection for migraines have not been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from August 1981 through August 1985. These matters originally came before the Board of Veteran's Appeals (Board) from June 2011 and January 2013 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The Board remanded these claims in January 2018 to obtain addendum opinions. The Veteran had a hearing in February 2017. Unfortunately, the hearing transcript is not available. The VA has sent the Veteran correspondence on multiple occasions, most recently in December 2020, offering a new hearing. The Veteran has not responded, and therefore there have been no additional hearings. Service Connection Generally, to establish service connection 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." Davidson v. Shinseki, 581 F.3d 1313, 131516 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303 (d). Service connection may also be granted for certain chronic diseases if manifested to a degree of 10 percent or more within one year of separation from active service. 38 U.S.C. §§ 1101, 1112, 1113 (2012); 38 C.F.R. §§ 3.307, 3.309. If there is no evidence of a chronic condition during service or the applicable presumptive period, then a showing of continuity of symptomatology after service may serve as an alternative method of establishing the second and/or third element of a service connection claim. See 38 C.F.R. § 3.303(b); Savage v. Gober, 10 Vet. App. 488 (1997). VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. 38 U.S.C. § 1154 (a). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (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. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). 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 Veteran. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; see Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). 1. Entitlement to service connection for stomach problems. VA treatment records show the Veteran has a current diagnosis of GERD/dyspepsia. Service treatment records show the Veteran was treated for abdominal pain, constipation, and diarrhea. The Veteran was afforded VA examinations in April 2011 and April 2018. At the April 2011 examination, the examiner considered the Veteran's reports of abdominal pain and diagnosed him with superficial abdominal muscle pain syndrome, but determined this was not related to his in-service complaints of stomach pain due to constipation. However, the Veteran was diagnosed with GERD/ dyspepsia in 2011, therefore the Board remanded the claim for an addendum opinion to consider the new diagnosis. At the April 2018 examination, the examiner considered the Veteran's diagnosis of GERD/ dyspepsia, his in-service gastrointestinal complaints, and multiple complaints of abdominal pain. She opined that the Veteran's GERD/dyspepsia was less likely than not related to service. She reasoned that the Veteran's in-service gastrointestinal symptoms, specifically his abdominal pain, were due to constipation, and that while his post-service treatment records show multiple reports of abdominal pain, they do not show a diagnosis of constipation. Additionally, the examiner believed that any diagnosis of constipation now would not be related to his diagnosis of constipation in service over 30 years ago. The Board finds that the April 2018 VA opinion is adequate and dispositive of the nexus question presented in this case because it is based on a review of the file, examination of the Veteran, consideration of the Veteran's contentions, and supported by a rationale based on sound medical principles. The only other opinion is from the Veteran. He believes his current stomach condition is due to service because he had multiple stomach related issues, including abdominal pain, constipation, and diarrhea during service. The Board recognizes that there are instances in which a layperson may be competent to offer testimony on medical matters, such as describing symptoms observable to the naked eye or even diagnosing simple conditions. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Board finds, however, that the question posed by this claim is of such complexity as to require that individuals who provide competent medical evidence on this matter possess a level of expertise that a layperson simply does not possess. There is also no persuasive medical evidence or persuasive credible lay evidence that the Veteran's claimed disorder manifested to a compensable degree within a year of his separation from service or had its onset in service and continued ever since service. Although the Veteran was diagnosed with GERD/dyspepsia in 2011, treatment records show the Veteran has frequently denied weight loss, constipation, diarrhea, nausea, and vomiting. The only consistent complaint is abdominal pain. The Veteran reported in 2011 that he has had this pain daily for about 10 years. However, abdominal pain and gastrointestinal issues were not present at the time of his separation exam in July 1985. Also, as mentioned above, the April 2018 examiner opined that the Veteran's abdominal pain during service was due to constipation, while his current abdominal pain is not due to constipation, therefore making the symptoms unrelated. While the Veteran contends that the symptoms he has experienced over the years are part of a continuing disease process of symptoms experienced in service, the medical expert has determined that this in fact is not the case. Therefore, service connection based on presumptive service connection for a chronic disease or based on a theory of continuity of symptomatology is not warranted. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt rule does not apply. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Therefore, service connection cannot be granted based on the Veteran's stomach problems. 2. Entitlement to service connection for migraines. VA treatment records show the Veteran has a current diagnosis of nonspecific temporal headaches. Service treatment records show the Veteran suffered head trauma with loss of consciousness in September 1984. The Veteran was afforded VA examinations in April 2011 and April 2018. At the April 2011 examination, the examiner determined the Veteran's current headaches were not related to service because there were no complaints of headaches in his service treatment records. However, the examiner did not discuss the Veteran's in-service head injury, therefore the Board remanded the claim for an addendum opinion. At the April 2018 examination, the examiner opined that the Veteran's current headaches were less likely than not related to service, including his in-service head injury. She reasoned that although he had one instance of head pain and a head injury noted in his service treatment records, his separation exam in 1985 did not note any head related issues, including headaches. Additionally, the Veteran was diagnosed with his current headache condition in 2011, many years after service, and that VA treatment records since the diagnosis have shown the headaches have resolved. The examiner also discussed the Veteran's head injury in service, and reasoned that the Veteran's current headaches were not the result of this in-service injury because there is evidence his mild TBI had resolved, and he denied residuals, including headaches, at his TBI examination in 2012. The Board finds that the April 2018 VA opinion is adequate and dispositive of the nexus question presented in this case because it is based on a review of the file, examination of the Veteran, consideration of the Veteran's contentions, and supported by a rationale based on sound medical principles. The only other opinion is from the Veteran. He believes his current headaches are due to his head injury in service. The Board recognizes that there are instances in which a layperson may be competent to offer testimony on medical matters, such as describing symptoms observable to the naked eye or even diagnosing simple conditions. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Board finds, however, that the question posed by this claim is of such complexity as to require that individuals who provide competent medical evidence on this matter possess a level of expertise that a layperson simply does not possess. There is also no persuasive medical evidence or persuasive credible lay evidence that the Veteran's claimed disorder manifested to a compensable degree within a year of his separation from service or had its onset in service and continued ever since service. The Veteran's service treatment records only show one instance of head related pain in addition to his head injury with loss of consciousness in 1984. Additionally, the Veteran denied recurrent/severe headaches, and his neurological exam was normal on the 1985 separation exam. Also, as mentioned above, the April 2018 examiner opined that his current headaches were not related to his TBI in service, because there is evidence it resolved without residuals. The main period of complaints of headaches were between 2011 and 2018, at which time they seem to have resolved. While the Veteran contends that the symptoms he has experienced over the years are part of a continuing disease process of symptoms experienced in service, the medical expert has determined that this in fact is not the case. Therefore, service connection based on presumptive service connection for a chronic disease or based on a theory of continuity of symptomatology is not warranted. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt rule does not apply. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Therefore, service connection cannot be granted based on the Veteran's migraines. REASONS FOR REMAND Entitlement to a rating in excess of 10 percent for a low back condition is remanded. In reviewing the adequacy of the existing VA examination reports, certain range of motion testing must be conducted whenever possible in cases of joint disabilities. 38 C.F.R. § 4.59; Correia v. McDonald, 28 Vet. App. 158 (2016). "[T]he joints involved should be tested for pain on both active and passive motion, in weight-bearing and non-weight-bearing and, if possible, with the range of the opposite undamaged joint." Correia, 28 Vet. App. 158. An additional relevant opinion pertaining to flare-ups was also issued by the Court in Sharp v. Shulkin, 29 Vet. App. 26 (2017). Also, the VA must analyze the evidence of pain, weakened movement, excess fatigability, or incoordination and determine the level of associated functional loss in light of 38 C.F.R. § 4.40, which requires the VA to regard as "seriously disabled" any part of the musculoskeletal system that becomes painful on use. DeLuca v. Brown, 8 Vet. App. 202 (1995). The Board found that the October 2012 VA examination does not comply with Correia, and remanded for a new examination in January 2018. However, the new VA examination conducted in September 2020 does not comply with DeLuca. The active and passive motion, and weight-bearing and non-weight-bearing were all included in the examination. However, the examiner noted the Veteran had pain on forward flexion and extension during the initial range of motion testing, pain on passive motion, and pain with weight-bearing, but did not specifically indicate the degree at which pain occurred. As such, a remand is necessary to afford the Veteran another VA examination for his service-connected low back condition. The matters are REMANDED for the following action: 1. Obtain all VA treatment records not currently associated with the claims file. 2. Schedule a new examination to evaluate the severity of the Veteran's service-connected low back condition. The claims folder must be made available to and reviewed by the examiner. The examiner should note in the examination report that the claims folder has been reviewed. All indicated studies, including x-rays should be performed. In reporting the results of range of motion testing, the examiner should identify any objective evidence of pain, AND at what degree of motion he demonstrates such objective evidence (e.g., 0 to 130 degrees with pain at 115 degrees). The examiner should record the results of range of motion testing for pain on active motion, passive motion, weight-bearing, and non-weight-bearing in light of Correia. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. The examiner should also express an opinion concerning whether there would be additional functional impairment on repeated use or during flare-ups assessed in terms of the degree of additional range of motion loss. In regard to flare-ups (pursuant to Sharp v. Shulkin), if the Veteran is not currently experiencing a flare-up, based on relevant information elicited from the Veteran, review of the file, and the current examination results regarding the frequency, duration, characteristics, severity, and functional loss regarding his flares, the examiner is requested to provide an estimate of the Veteran's functional loss due to flares expressed in terms of the degree of additional range of motion lost, or explain why the examiner cannot do so. [The Board recognizes the difficulty in making such determinations but requests that the examiner provide his or her best estimate based on the examination findings and statements of the Veteran.] TANYA SMITH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Papacalos, 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.