Citation Nr: 21031185 Decision Date: 05/20/21 Archive Date: 05/20/21 DOCKET NO. 17-28 561 DATE: May 20, 2021 ORDER Entitlement to service connection for eosinophilic esophagitis (also claimed as esophageal stricture) is denied. REMANDED Entitlement to service connection for a neck disorder is remanded. Entitlement to service connection for vision changes is remanded. Entitlement to service connection for left ear hearing loss is remanded. A disability rating higher than 20 percent for Raynaud's syndrome is remanded. FINDING OF FACT The Veteran's eosinophilic esophagitis did not have its onset during his period of active duty and did not otherwise result from injury or disease incurred during service. CONCLUSION OF LAW The criteria for service connection for eosinophilic esophagitis are not met. 38 U.S.C. §§ 101(21), (24), 1131, 5103, 5103A, 5107(b); 38 C.F.R. §§ 3.6, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1985 to June 1995 and from March 2014 to May 2014 and is currently serving in the Air National Guard. In February 2021, he testified at a virtual hearing held before a Veterans Law Judge (VLJ). A transcript of the hearing is of record. Service Connection The Veteran is seeking service connection for eosinophilic esophagitis. 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)). Certain chronic diseases are subject to presumptive service connection if manifest to a compensable degree within one year from separation from service even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1112, 1113; 38 C.F.R. §§ 3.307 (a)(3), 3.309(a). Continuity of symptomatology may also provide a basis for a grant of service connection for those diseases defined as "chronic" by VA. 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). 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). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, any reasonable doubt is resolved in favor of the Veteran. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. eosinophilic esophagitis The Veteran seeks service connection for eosinophilic esophagitis. At his February 2021 hearing, he testified that he did not have any kind of esophageal problems prior to service and that he initially developed problems swallowing in 1990 during his period of active duty and that it has worsened since then. Service treatment records show no significant signs or symptoms suggestive of eosinophilic esophagitis during his period of active duty from 1985 to 1995. The Board notes that after the Veteran's active duty service ended, he continued to serve as a member of the Air National Guard. There is no official documentation of any periods of active duty training (ADT) or inactive duty training (IDT), however, the Veteran has not asserted that his claimed eosinophilic esophagitis developed during his National Guard service and he has not identified a specific injury or instance of medical attention for esophagitis during this service. See February 2021 hearing transcript (Tr.) at pg. 11. Although the Veteran claims to have experienced swallowing problems since service, post-service treatment records do not show a diagnosis of eosinophilic esophagitis until 2013 when he was evaluated for dysphagia (problems swallowing). Eosinophilic esophagitis was diagnosed via biopsy after EGD (esophagogastroduodenoscopy) study in July 2013. See clinical records from Sky Lakes Gastroenterology. These records do not suggest that any pertinent symptomatology originated during service and there is no other evidence of record to suggest its presence prior to the indicated date of diagnosis. The Veteran submitted a medical opinion from a private physician suggesting the eosinophilic esophagitis was likely a result of severe allergies after exposures while on active duty. See medical opinion from M. Rushton, M.D., dated February 1, 2017. Unfortunately, this opinion, while supportive of the claim, is limited in terms of its ultimate probative value as the physician did not explain what evidence supported this conclusion and did not reference specific clinical data or evidence to support it. See Sklar v. Brown, 5 Vet. App. 140 (1993) (the probative weight of a medical opinion may be reduced if the examiner fails to explain the basis for an opinion) and Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998) (the failure of a physician to provide a basis for his or her opinion affects the weight or credibility of the evidence); Bloom v. West, 12 Vet. App. 1985 (1999) (holding that the value of a physician's statement is dependent, in part, upon the extent to which it reflects "clinical data or other rationale to support his opinion."). Also, because there is no indication that the examiner reviewed actual service treatment records, the opinion is based largely on the Veteran's description of events as opposed to the contemporaneous evidence documenting those events. Curry v. Brown, 7 Vet. App. 59, 68 (1994) (contemporaneous evidence has greater probative weight than a history reported by the Veteran). In this case, the private opinion is inadequate and does not assist the Board or the Veteran in resolving this claim and thus cannot serve as the basis of a grant of service connection. A VA examination has not been provided to address the Veteran's claimed disability. However, since service and post-service treatment records provide no basis to grant this claim, and in fact provide evidence against it, the Board finds no basis to obtain a VA examination or medical opinion. Duenas v. Principi, 18 Vet. App. 512, 519 (2004) (indicating that, generally, VA is not obligated to provide an examination for a medical nexus opinion based on unsubstantiated lay statements alone). This is especially true where a particular condition is not readily amenable to mere lay diagnosis or probative comment regarding etiology. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007). In Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010), the Federal Circuit Court held that, when determining whether a VA examination and opinion are required under 38 U.S.C. § 5103A(d)(2), the law requires competent evidence of a disability or persistent or recurrent symptoms of a disability, but does not require competent evidence of a nexus, only that the evidence indicates an association between the disability and service or a service-connected disability. But the Federal Circuit Court went on to clarify in Waters that a Veteran's conclusory generalized statement that a service illness caused their present medical problems was not enough to entitle them to a VA medical examination, since all Veterans could make such a statement, and such a theory would eliminate the carefully drafted statutory standards governing the provision of medical examinations and require VA to provide such examinations as a matter of course in virtually every disability case. More importantly, the Veteran's account of esophageal problems during service, and continuously since then, are not supported by the record. See Macarubbo v. Gober, 10 Vet. App. 388 (1997) (holding that the credibility of lay evidence can be affected and even impeached by inconsistent statements, internal inconsistency of statements, inconsistency with other evidence of record, facial implausibility, bad character, interest, bias, self-interest, malingering, desire for monetary gain, and witness demeanor). The objective contemporaneous medical records stand in sharp contrast to the Veteran's lay reports and are more probative as to the circumstances surrounding the onset of his esophageal problems rather than his inconsistent history reported many years thereafter. See Curry, 7 Vet. App. 59. Accordingly, the preponderance of the evidence is against the claim, and there is no reasonable doubt to be resolved. 38 U.S.C. § 5107(b). REASONS FOR REMAND neck disorder The Veteran seeks service connection for a neck disorder to include as secondary to his service-connected lumbar spine disability. In the alternative he argues that his neck pain began following bicycle accident in January 1988 during his period of active duty from 1985 to 1990 - the same incident in which he injured his service-connected lumbar spine. See February 2021 hearing transcript (Tr.) at page. 5. Service treatment records confirm the Veteran was seen in January 1988 for lower back strain and muscle spasm after falling. At that time, his complaints and findings were solely confined to the left leg and right shoulder with no mention of the neck. In June 2017, a VA examiner diagnosed cervical degenerative arthritis and determined that it was not related to or the result of his service-connected lumbar strain disability. The examiner noted that there was no physiological explanation to infer that muscle spasm of the thoracic spine was linked in any way to cervical spondylosis as both conditions are independent entities. See Neck (Cervical Spine) Conditions Disability Benefits Questionnaire (DBQ), dated June 26, 2017. However, the examiner did not address the likelihood that the cervical degenerative arthritis is causally related to the Veteran's in-service bike accident. When VA undertakes to provide an examination or opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds the VA medical opinion is inadequate and that an addendum opinion is necessary to properly address the theory of entitlement to service connection for a neck disorder on a direct basis. vision change The Veteran seeks service connection for vision changes. At his February 2021 hearing, he testified that he developed vision changes as a result of a jet fuel splash in 1995 during service. He was not hospitalized but did receive some medical treatment for conjunctivitis. Service treatment records confirm an incident in 1995 where the Veteran was treated for conjunctivitis after hydraulic fluid splash to the eyes. The Veteran underwent a VA eye examination in October 2014. The examiner determined there was no current diagnosis related to the eyes, noting that the Veteran never had any serious eye injury or illness. Although the VA examiner indicated a full review of all medical evidence of record, they seemed to overlook pertinent service records documenting the Veteran's eye splash injury in 1995. Given the examiner's failure to fully address the evidence as documented in the claims file, they were not informed of all the relevant facts when rendering the opinion. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 303 (2008). Accordingly, the Board finds that a new VA examination should be obtained. left ear hearing loss The Veteran seeks service connection for left ear hearing loss. The most recent VA audiogram examination in February 2017 showed the Veteran's degree of left ear hearing loss was not considered disabling for VA purposes per 38 C.F.R. § 3.385. At his recent February 2021 Board hearing the Veteran testified that his left ear hearing has worsened since that examination. Thus, in view of the possibility that there may now be left ear hearing loss for VA purposes, the Veteran should be afforded a current audiological examination. Raynaud's syndrome The Veteran currently has a 20 percent rating for Raynaud's Syndrome. He testified at his February 2021 hearing his disability had worsened with increased/daily symptoms since the last examination in 2017, therefore an additional examination is appropriate. VAOPGCPREC 11-95 (April 7, 1995); Snuffer v. Gober, 10 Vet. App. 400 (1997). By this remand, the Board makes no finding, express or implied, concerning the credibility of any statements on file. The matters are REMANDED for the following action: 1. Return the file to the VA examiner who provided the June 2017 VA Neck Conditions opinion, if available for an addendum opinion. Otherwise, provide the record to another examiner who will have an opportunity to review the complete file. The need for an additional examination is left to the discretion of the medical professional offering the addendum opinion. In that case, an examination should be scheduled. The examiner should state whether it is at least as likely as not (50 percent or better probability) that the Veteran's cervical degenerative arthritis is related to the documented January 1988 bicycle accident. If cervical degenerative arthritis cannot be regarded related to service, the examiner should explicitly indicate so and provide an appropriate explanation. In providing this opinion the examiner must discuss: a) the objective medical findings in the service treatment records, documenting the 1998 bicycle accident and b) the Veteran's February 2021 testimony that he injured his neck in this accident. The opinion should be accompanied by a clear rationale consistent with the evidence of record. The examiner must explain the underlying rationale for all opinions expressed, citing to supporting factual data/medical literature, as considered necessary. If the examiner cannot render an opinion without resorting to mere speculation, an explanation for why an opinion cannot be rendered should be provided. 2. Schedule the Veteran for a VA eye examination. The electronic claims file should be made available for review in connection with this examination. Any appropriate evaluations, studies, and testing deemed necessary by the examiner should be conducted, and the results included in the examination report. The examiner should identify all current eye disorders. The examiner should state whether it is at least as likely as not (50 percent or better probability) that any currently diagnosed eye disorder is related to the documented February 1995 hydraulic fluid splash and subsequent conjunctivitis. The opinion should be accompanied by a clear rationale consistent with the evidence of record. The examiner must explain the underlying rationale for all opinions expressed, citing to supporting factual data/medical literature, as considered necessary. If the examiner cannot render an opinion without resorting to mere speculation, an explanation for why an opinion cannot be rendered should be provided. 3. Schedule the Veteran for a VA audiological examination. The electronic claims file should be made available for review in connection with this examination. Any appropriate evaluations, studies, and testing deemed necessary by the examiner should be conducted, and the results included in the examination report. If bilateral hearing loss for VA purposes is present, the examiner should provide an opinion as to whether it is at least as likely as not that such hearing loss is etiologically related to service. 4. Schedule an appropriate examination to evaluate the severity of the Veteran's Raynaud's syndrome. All necessary studies and tests must be conducted. (Continued on the next page) In determining the severity of the Raynaud's syndrome and whether it results in characteristic attacks, the examiner is to explicitly consider and discuss the Veteran's lay statements regarding his symptoms. Note: Characteristic attacks consist of sequential color changes of the digits of one or more extremities lasting minutes to hours, sometimes with pain and paresthesia and precipitated by exposure to cold or by emotional upsets. Thomas H. O'Shay Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Bryant, Jeana R 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.