Citation Nr: 22011002 Decision Date: 02/25/22 Archive Date: 02/25/22 DOCKET NO. 14-22 376 DATE: February 25, 2022 ORDER Entitlement to service connection for an upper-gastrointestinal (GI) disorder, to include hiatal hernia, is denied. Entitlement to service connection for a left shoulder disorder is denied. Entitlement to service connection for a right hand disorder is denied. Entitlement to service connection for a thoracolumbar spine (low back) disorder is denied. Entitlement to service connection for a left knee disorder is denied. Entitlement to service connection for a bilateral or unilateral ankle disorder is denied. FINDINGS OF FACT 1. An upper-GI disorder is not related to service. 2. A left shoulder disorder is not related to service or to a service-connected disability. 3. A right hand disorder is not related to service. 4. A low back disorder is not related to service. 5. A left knee disorder is not related to service. 6. A bilateral or unilateral ankle disorder is not related to service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for an upper-GI disorder are not met. 38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310. 2. The criteria for entitlement to service connection for a left shoulder disorder are not met. 38 U.S.C. §§ 1101, 1112, 1113, 1131, 1137, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.310. 3. The criteria for entitlement to service connection for a right hand disorder are not met. 38 U.S.C. §§ 1101, 1112, 1113, 1131, 1137, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.310. 4. The criteria for entitlement to service connection for a low back disorder are not met. 38 U.S.C. §§ 1101, 1112, 1113, 1131, 1137, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.310. 5. The criteria for entitlement to service connection for a left knee disorder are not met. 38 U.S.C. §§ 1101, 1112, 1113, 1131, 1137, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.310. 6. The criteria for entitlement to service connection for a bilateral or unilateral ankle disorder are not met. 38 U.S.C. §§ 1101, 1112, 1113, 1131, 1137, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant is a veteran (the Veteran) who had active duty service from March 1984 to February 1987. This appeal comes before the Board of Veterans' Appeals (Board) from a February 2021 Order of the United States Court of Appeals for Veterans Claims (Veterans Court). The appeal originated from a March 2011 rating decision of the RO in Detroit, Michigan, and from a January 2015 rating decision of the VA Evidence Intake Center in Newnan, Georgia, on behalf of the RO in Detroit, Michigan. In August 2017, the Veteran presented testimony at a Board hearing, chaired by the undersigned Veterans Law Judge, and accepted such hearing in lieu of an in-person hearing before a Member of the Board. See 38 C.F.R. § 20.700(e). The Veteran was informed of the basis for the RO's denial of his claims, and he was informed of the information and evidence necessary to substantiate each claim. A transcript of the hearing is associated with the claims file. 38 C.F.R. § 3.103. These matters were previously before the Board, and adjudicated in a decision dated March 2018. In that decision, the Board denied each claim. The Veteran appealed that decision to the Veterans Court. In an Order dated January 2019, pursuant to a Joint Motion for Remand, the Veterans Court vacated the Board's March 2018 decision and remanded these claims back to the Board for development consistent with the Joint Motion. In June 2020, the Board again denied each claim. The Veteran appealed that decision to the Veterans Court. In an Order dated February 2021, pursuant to a Joint Motion for Remand, the Veterans Court vacated in part the Board's June 2020 decision and remanded these claims back to the Board for development consistent with the Joint Motion. The parties agreed that the Board's dismissal of entitlement to restoration of a 20 percent rating for a right shoulder disability and denial of a rating higher than 20 percent for the right shoulder disability since January 14, 2012, should not be disturbed. In April 2021, the Board remanded this appeal for additional evidentiary development. The appeal has since been returned to the Board for further appellate action. Although originally part of the appeal, the agency of original jurisdiction granted service connection for a right knee disorder in November 2021, effective the date of claim, May 26, 2010. As that is the full benefit sought on appeal with respect to that issue, the appeal is resolved. Service ConnectionLaw and Regulations VA law provides that, for disability resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service, during a period of war, or other than a period of war, the United States will pay to any veteran thus disabled and who was discharged or released under conditions other than dishonorable from the period of service in which said injury or disease was incurred, or preexisting injury or disease was aggravated, compensation, except if the disability is a result of the veteran's own willful misconduct or abuse of alcohol or drugs. 38 U.S.C. §§ 1110, 1131. Entitlement to service connection on a direct basis requires (1) evidence of current nonservice-connected disability; (2) evidence of in-service incurrence or aggravation of disease or injury; and (3) evidence of a nexus between the in-service disease or injury and the current nonservice-connected disability. 38 C.F.R. § 3.303(a); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Saunders v. Wilkie, 886 F.3d 1356 (2018). Service connection on a secondary basis requires (1) evidence of a current nonservice-connected disability; (2) evidence of a service-connected disability; and (3) evidence establishing that the service-connected disability caused or aggravated the current nonservice-connected disability. 38 C.F.R. § 3.310. For specific enumerated diseases designated as "chronic" there is a presumption that such chronic disease was incurred in or aggravated by service even though there is no evidence of such chronic disease during the period of service. In order for the presumption to attach, the disease must have become manifest to a degree of 10 percent or more within one year of separation from active duty. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). Presumptive service connection for the specified chronic diseases may alternatively be established by way of continuity of symptomatology under 38 C.F.R. § 3.303(b). However, the United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that the theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic in 38 C.F.R. § 3.309(a) Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Generally, lay evidence is competent with regard to identification of a disease with unique and readily identifiable features which are capable of lay observation. See Barr v. Shinseki, 21 Vet. App. 303, 311 (2007). A lay person may speak to etiology in some limited circumstances in which nexus is obvious merely through observation, such as sustaining a fall leading to a broken leg. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir 2007). Lay persons may also provide competent evidence regarding a contemporaneous medical diagnosis or a description of symptoms in service which supports a later diagnosis by a medical professional. However, a lay person is not competent to provide evidence as to more complex medical questions, i.e., those which are not capable of lay observation. Lay statements are not competent evidence regarding diagnosis or etiology in such cases. See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (concerning rheumatic fever); Jandreau, at 1377, n. 4 ('sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer'); 38 C.F.R. § 3.159(a)(2). After the evidence has been assembled, it is the Board's responsibility to evaluate the entire record. 38 U.S.C. § 7104(a). 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, 4.3. A VA claimant need only demonstrate that there is an approximate balance of positive and negative evidence in order to prevail. Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the preponderance of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), Gilbert at 54. Entitlement to service connection for an upper-GI disorder. Entitlement to service connection for a left shoulder disorder. Entitlement to service connection for a right hand disorder. Entitlement to service connection for a low back disorder. Entitlement to service connection for a left knee disorder. Entitlement to service connection for a bilateral ankle disorder. The service entrance examination contains normal findings for the claimed disorders. The Veteran reported a history of food dyscrasia (a nonspecific term that refers to a disease or disorder). The Veteran was treated for left hand complaints on September 10, 1984. A bruise was noted. A December 3, 1985, acute medical care note reveals complaint of nausea and vomiting after eating certain foods. A July 30, 1986, acute medical care note reveals complaint of left knee pain. He reported a rucksack run the previous day. He reported a 4 to 5 month history of symptoms. On examination, there was no gross deformity, no edema, no guarding, and no pain to palpation. A February 3, 1987, acute medical care note reveals complaint of back pain. The Veteran reported no recent trauma. In a copy of this examination submitted by the Veteran, he hand-wrote on the form that he had a severe back injury from falls and marches uphill. The Veteran was separated from active duty service on February 19, 1987. He filed the current claim in May 2010, 23 years later. An August 13, 2010, upper-GI and small bowel series reveals a hiatal hernia with reflux at the gastroesophageal junction. A September 8, 2010, X-ray of the right hand reveals a tiny metallic density of the soft tissue palmar aspect of the second and third metacarpal. A September 8, 2010, X-ray of the left knee showed osteoarthritis. A September 14, 2010, X-ray of the left ankle is negative. The right ankle had a small calcaneal spur. A September 14, 2010, X-ray of the spine reveals that the sacro-coccygeal segments were in normal alignment without fracture. Sacroiliac joints had normal appearance. There was a moderate degree of degenerative change with bony spurs and narrowing of the disc space and degenerative change of facet joints at L5-S1. A September 24, 2010, X-ray of the lumbar spine reveals moderate spondylosis with degenerative disc disease at L5-S1. A September 2010 VA examination reveals the Veteran's complaint that he had been having pain in the abdomen and discomfort in the left upper abdominal area almost daily for the last 3 years. The pain was mostly related to eating. The Veteran stated that he was not taking any specific medications. The examiner opined that the possible inflammatory changes of the jejunum and duodenum were not likely related to service. The rationale was that the Veteran was treated only once in service for abdominal symptoms and that no chronic intestinal condition was noted. There were no chronic intestinal conditions noted in the civilian medical records immediately after he came out of the service. The September 2010 examiner also noted that the Veteran reported pain in both knee joints for the last nearly 23 years. The Veteran denied any direct injuries to the knee joints. The examiner diagnosed degenerative joint disease involving both knee joints, which was not likely related to an in-service right knee condition, but was most likely related to early degenerative process of aging. The September 2010 examiner noted that the Veteran said he had been having low back pain since his active military service. The Veteran denied any direct injuries to the lower back bones. The examiner diagnosed degenerative disc disease involving the lumbar spine, which was not likely related to a low back condition in active military service, but was most likely related to early degenerative process of aging. The examiner reasoned that, although there is documentation of low back pain secondary to running in service, there were no chronic low back conditions subsequently. There is no chronic low back condition in the civilian medical records immediately after he left active military service. A November 27, 2010, MRI of the low back reveals mild central stenosis due to short pedicles compounded by a large bulge at L5-S1 which contributes to moderate to severe foraminal stenosis. A June 7, 2011, emergency department discharge summary (referred to elsewhere as dVISTA record) reveals that the Veteran was treated for complaint of back pain. No opinion was rendered regarding a relationship between the back pain and service or a service-connected disability. An October 24, 2011, VA Primary Care Note reveals an intermediate grade partial thickness interstitial tear within the supraspinatus insertion far distally associated with mild peritendineum-bursitis and outlet stenosis of the left shoulder. A January 2012 VA Examination of the right shoulder includes a diagnosis of a right shoulder rotator cuff tear. Although the left shoulder was evaluated in that examination, no diagnosis was rendered for the left shoulder. A February 2012 VA examination reveals a diagnosis of GERD. According to the Veteran, since the time of military service he was having stomach pain mostly in the left upper abdomen associated with nausea. He thought the food that he was eating in the military was messing up his stomach. Since that time, he was having symptoms of left upper abdomen discomfort, mostly after he eats, sometimes associated with nausea. The examiner opined that GERD was not related to the remote and transient symptoms of nausea, vomiting, and dyscrasia in service. At the Board hearing, the Veteran testified that he had two falls, one in basic training, off of the obstacle course, and another when he was working in a watchtower and had a slip and fall injury, tumbling down, and sustaining injuries of both shoulders, knees, and his back. He also testified that the ankles and knees were more of a wear-and-tear injury. As to why he did not report several of the injuries in service, the Veteran reported that it was the culture at the time, and that he was a naive soldier that was trying to stay and finish his term of service, and he didn't want to be put out for anything that was going to hamper that. In the January 2019 Joint Motion, the parties found that the medical evidence was largely inadequate when the Board denied these claims in March 2018. Specifically, the parties found that the February 2012 VA examination was inadequate with respect to the GERD claim; a September 2010 opinion was inadequate with respect to the back and knee claims; the Board failed to provide examinations regarding the right hand and bilateral ankles; and the Board provided inadequate reasons and bases for its finding that the Veteran did not have a left shoulder disability. Regarding all issues, the parties agreed that there were outstanding VA treatment records that must be obtained. In August 2019, the Board remanded the appeal with instructions to obtain outstanding treatment records and to provide medical opinions regarding each of the service connection claims. A January 2020 VA esophageal examination reveals a diagnosis of GERD with date of diagnosis in 2009. The condition was found to have no impact on the Veteran's occupational function. The examiner opined that GERD was less likely as not related to service. The rationale was that there was no injury or disease in service related to GERD. A January 2020 VA knee examination determined that the Veteran had degenerative arthritis. However range of motion was normal. Muscle strength was full. There was no muscle atrophy. There was no subluxation or lateral instability; and there were no meniscal conditions. There was no impact on occupational function. The examiner opined that the condition was less likely than not related to service. The rationale was that the Veteran did not incur an injury or disease of the left knee in service. A January 2020 VA ankle examination determined that the Veteran has no current diagnosis. Range of motion was full. Muscle strength was full. There was no muscle atrophy. There was no impact on occupational function. The examiner opined that the condition was less likely than not related to service. The rationale was that the Veteran did not incur an injury or disease of the knees in service. A January 2020 VA back examination determined that the Veteran had a mild sprain. However range of motion was normal. Muscle strength was full. There was no muscle atrophy. There was no impact on occupational function. The examiner opined that the condition was less likely than not related to service. The rationale was that the Veteran did not incur an injury or disease of the knees in service. A January 2020 VA shoulder examination determined that the Veteran had a rotator cuff tear on the left shoulder in 2011. While range of motion was decreased, this did not contribute to functional loss. Muscle strength was full. There was no muscle atrophy. There was no impact on occupational function. The examiner opined that the condition was less likely than not related to service. The rationale was that the Veteran did not incur an injury or disease related to the right shoulder disorder in service. A January 2020 VA hand examination determined that the Veteran does not have a current hand disorder; that he was treated in service for a bruise, but there were no residuals. Range of motion was normal. Muscle strength was full. There was no muscle atrophy. There was no impact on occupational function. The examiner opined that the condition was less likely than not related to service. The rationale was that the Veteran did not incur an injury or disease associated with the right hand in service. A VA esophageal conditions examination in September 2021 reveals a diagnosis of hiatal hernia. No other esophageal condition was diagnosed. There was no impact of the condition on the Veteran's ability to work. The examiner opined that the hiatal hernia was less likely than not (less than 50 percent probability) related to service. The rationale was that the Veteran was diagnosed with hiatal hernia in 2009, many years after leaving service. After review of the evidence, the examiner could not locate any documented evidence of hiatal hernia or its treatment during service or in civilian record immediately after leaving service. A VA ankle examination in September 2021 reveals a diagnosis of degenerative arthritis other than traumatic. There was no impact of the condition on the Veteran's ability to work. The examiner opined that the ankle disorder was less likely than not (less than 50 percent probability) related to service. The rationale was that degenerative disease is natural a process of ageing, appropriate for his age. The examiner could not locate any documented evidence of serious injury or chronic condition of the bilateral ankles during service or in civilian record immediately after leaving service. This is consistent with the Veteran's description of wear and tear injuries. A VA back examination in September 2021 reveals a diagnosis of degenerative arthritis. There was no impact of the condition on the Veteran's ability to work. The examiner opined that the low back disorder was less likely than not (less than 50 percent probability) related to service. The rationale was that the Veteran is having degenerative disease of the lumbosacral spine many years after leaving service. Degenerative disease is a natural process of ageing, appropriate for his age. The Veteran had acute low back sprain treated and resolved while in service. The examiner could not locate any documented evidence of serious injury or chronic condition of the low back during service or in civilian records immediately after leaving service. Immediate post military records within one year of discharge are silent for a back condition. A VA hand and finger examination in September 2021 reveals a diagnosis of old first metacarpal fracture. There was no impact of the condition on the Veteran's ability to work. The examiner opined that the right hand disorder was less likely than not (less than 50 percent probability) related to service. The rationale was that the Veteran was found to have x-ray findings of old first metacarpal fracture in 2011 many years after leaving service. The examiner could not locate any documented evidence of serious injury or chronic condition of right hand during service or in civilian record immediately after leaving service. Immediate post military records within one year of discharge silent for right hand condition. A VA shoulder examination in September 2021 reveals a diagnosis of rotator cuff tear. There was no impact of the condition on the Veteran's ability to work. The examiner opined that the left shoulder disorder was less likely than not (less than 50 percent probability) related to service. The rationale was that the Veteran was found to have MRI findings of left shoulder rotator cuff tear in 2011 many years after leaving service. Even considering his claim that he fell and injured his left shoulder while in service, this was most likely of acute nature and resolved while in service. The examiner could not locate any documented evidence of serious injury or chronic condition of left shoulder during service or in civilian record immediately after leaving service. Immediate post military records within one year of discharge silent for left shoulder condition. A VA knee examination in September 2021 reveals a diagnosis of degenerative arthritis. There was no impact of the condition on the Veteran's ability to work. The examiner opined that the Veteran is having chondromalacia due to degenerative disease of the left knee in 2011 many years after leaving service. Degenerative disease is a natural process of ageing, appropriate for his age. The examiner could not locate any documented evidence of serious injury or chronic condition of left knee during service or in the civilian record immediately after leaving service. Immediate post-military records within one year of discharge are silent for the condition. In November 2021, the examiner also opined that the left shoulder disorder was less likely than not (less than 50 percent probability) caused or aggravated by the service-connected right shoulder disability. The rationale was that anatomically it is independent of the right shoulder and not related to the service-connected right shoulder condition. Also the Veteran's current condition of left shoulder is a natural progression of the disease and there is no evidence of aggravation. After a review of all of the evidence, the Board finds that the criteria for entitlement to service connection for the claimed upper-GI disorder, left shoulder disorder, right hand/finger disorder, low back disorder, left knee disorder, and bilateral ankle disorder, are not met. The Board has obtained multiple medical opinions regarding these claims, and each finds no relationship between any of the claimed disorders and an injury or disease in service. While the Veteran has arthritis of the claimed joints, such did not become manifest to a degree of 10 percent or more within a year of service. The Veteran does not have a peptic ulcer. Hiatal hernia and GERD are not presumptive chronic diseases. VA has satisfied its duty to assist by obtaining examinations and medical opinions regarding each claim. The medical opinions were accompanied by complete file review and a review of medical treatises, as described by the examiner. Each opinion is accompanied by a rationale which references the evidence and generally accepted medical principals. Despite being informed that he could submit evidence in furtherance of his claims, the Veteran has not submitted any medical opinion that conflicts with those obtained by VA. The Board has considered the Veteran's lay statements regarding etiology. However, relating a current degenerative disease process, such as arthritis, to temporally remote events in service, is not the equivalent of relating a broken bone to a concurrent injury to the same body part (Jandreau, at 1377). The issue is medically complex, as it requires knowledge and understanding of the causes of arthritis, to include the natural ageing process, as found in this case. Similarly, establishing the cause of digestive tract disorders is not a lay observable event. Therefore, these matters are outside the competence of a layperson. Accordingly, the Veteran's lay statements are unpersuasive as to an etiologic relationship between any of the claimed disorders and service, or in the case of the left shoulder, a service-connected disability. See King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2012). In sum, the Board finds that the claimed upper-GI disorder, left shoulder disorder, right hand disorder, low back disorder, left knee disorder, and bilateral ankle disorder, are not related to service or to a service-connected disability. In light of these findings of fact, the Board concludes that service connection for the claimed disorders is not warranted. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the evidence weighs against each claim, that doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 53-56. (Signature on Next Page) JONATHAN B. KRAMER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board L. Cramp 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.