Citation Nr: 22012528 Decision Date: 03/04/22 Archive Date: 03/04/22 DOCKET NO. 17-40 609 DATE: March 4, 2022 ORDER New and material evidence has been received, and the application to reopen a claim of entitlement to service connection for a left shoulder disability is granted. New and material evidence has been received, and the application to reopen a claim of entitlement to service connection for a right shoulder disability is granted. As new and material evidence has not been received, the application to reopen a claim of entitlement to service connection for a nervous condition, claimed as a nervous twitch, is denied. New and material evidence has been received to reopen a claim of entitlement to service connection for an irregular heartbeat disability, and to that extent only the claim is granted. Entitlement to service connection for cervical dystonia is granted. Entitlement to service connection for gastritis is granted. Entitlement to service connection for a left thumb disability is denied. Entitlement to service connection for a right thumb disability is denied. Entitlement to service connection for a disability manifested by a balance problem is denied. REMANDED Entitlement to service connection for an irregular heartbeat disability is remanded. Entitlement to service connection for esophagitis is remanded. Entitlement to service connection for irritable bowel syndrome (IBS) is remanded. Entitlement to service connection for gastroesophageal reflux disease (GERD) is remanded. Entitlement to service connection for a right shoulder disability. Entitlement to service connection for a left shoulder disability. FINDINGS OF FACT 1. A January 2005 rating decision denied service connection for a right shoulder and left shoulder disability. The Veteran was informed of the adverse decision and of his appellate rights by letter in February 2005. The Veteran did not timely perfect an appeal, and the decision became final. 2. The evidence received since the January 2005 rating decision pertaining to a right shoulder and left shoulder disability is new and material. 3. A January 2005 rating decision denied service connection for a nervous condition, claimed as a nervous twitch. The Veteran was informed of the adverse decision and of his appellate rights by letter in February 2005. The Veteran did not timely perfect an appeal, and the decision became final. 4. The evidence received since the January 2005 rating decision pertaining to a nervous condition, claimed as a nervous twitch is new, but not material. 5. A January 2005 rating decision denied service connection an irregular heartbeat. The Veteran was informed of the adverse decision and of his appellate rights by letter in February 2005. The Veteran did not timely perfect an appeal, and the decision became final. 6. The evidence received since the January 2005 rating decision was not of record at the time of the decision and is material. 7. Resolving reasonable doubt in the Veteran's favor, cervical dystonia is at least as likely as not related to service. 8. Resolving reasonable doubt in the Veteran's favor, gastritis is related to complaints of abdominal pain and loose stools during service. 9. The evidence of record persuasively weighs against finding that a left thumb disability began during active service or is otherwise related to any event, injury, or disease during service. 10. The evidence of record persuasively weighs against finding that a right thumb disability began during active service or is otherwise related any event, injury, or disease during service. 11. The evidence of record persuasively weighs against finding that the Veteran has had a diagnosed with a disability manifested with balance problems at any time during or approximate to the pendency of the claim. CONCLUSIONS OF LAW 1. New and material evidence has been received to reopen a claim of entitlement to service connection for a right shoulder disability. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 2. New and material evidence has been received to reopen a claim of entitlement to service connection for a left shoulder disability. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 3. New and material evidence has not been received to reopen a claim of entitlement to service connection for a nervous condition, claimed as a nervous twitch. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 4. New and material evidence has been received to reopen a claim of entitlement to service connection for an irregular heartbeat disability. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 5. The criteria for service connection for cervical dystonia are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 6. The criteria for service connection for gastritis are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 7. The criteria for service connection for a left thumb disability are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 8. The criteria for service connection for a right thumb disability are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 9. The criteria for service connection for a disability manifested by balance issues are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1976 to June 1982. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2014 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin. In May 2021, the Veteran participated in a hearing before the undersigned Veterans Law Judge. A hearing transcript is of record. New and Material Evidence A claimant may reopen a finally adjudicated claim by submitting new and material evidence. New evidence means existing evidence not previously submitted to agency decision makers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened and must raise a reasonable possibility of substantiating the claim. There is a low threshold to raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a); Shade v. Shinseki, 24 Vet. App. 110 (2010); Evans v. Brown, 9 Vet. App. 273 (1996); Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). New and material evidence received prior to the expiration of the appeal period will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. 38 C.F.R. § 3.156(b). A January 2005 rating decision denied service connection for cervical dystonia, nervous system twitch, irregular heartbeat, gastritis, and a bilateral shoulder disability. The Veteran was informed in writing of the adverse decision and his appellate rights in February 2005. The Veteran did not submit a notice of disagreement with the decision. New and material evidence pertaining to the issue of entitlement to service connection for cervical dystonia, nervous system twitch, irregular heartbeat, gastritis, and a bilateral shoulder disability was not received by VA or constructively in VA possession within one year of written notice to the Veteran of the January 2005 rating decision. Therefore, that decision became final. 38 C.F.R. § 3.156(b). Service Connection Service connection may be established for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. To establish service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to any event, injury, or disease during service. 1. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for a right shoulder disability 2. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for a left shoulder disability A January 2005 rating decision denied service connection for right and left shoulder disabilities because the evidence of record at the time did not show a diagnosed disability. The service medical records also did not show complaints of, treatment for, or a diagnosis of any right or left shoulder disability. A May 2006 VA medical treatment record assessed tendonitis rotator cuff and adhesive capsulitis of shoulder. In a May 2017 VA examination, the examiner noted a 2015 diagnosis of ankylosis of the glenohumeral articulations for both shoulders. The examiner opined that the claimed disability was less likely than not due to active service, to include the Veteran's military occupational specialty as a mechanic. The rationale provide was that although the Veteran reported heavy lifting in-service, the diagnosed right disability did not begin until 2005 and the left shoulder in 2015. "With the Vet having left military in 1982 there cannot be considered any nexus relationship chronologically with any symptoms she might have had in the military." At the May 2021 videoconference hearing, the Veteran testified that after doing work in service, she often felt like her arms were dragging the ground and that she had gone to a doctor for treatment. The Veteran denied seeking treatment while on active duty. The Veteran also denied getting treatment within one year of separation from service. The Veteran testified that she was not diagnosed with "frozen shoulder" until around 2006 and that is also around the time she started to seek treatment. The additional evidence received since the January 2005 rating decision is new because it was not considered at the time of the previous final decision. That new evidence is also material because it document a diagnosis of right and left shoulder disabilities. The basis of the previous final denial was the lack of showing of a current disability. Therefore, that evidence creates a reasonable possibility of an allowance of the claim. The threshold for reopening a claim is low. Shade v. Shinseki, 24 Vet. App. 110, 118 (2010). As new and material evidence has been received, the Board finds that the application to reopen the claim for service connection for a right shoulder and left shoulder disabilities is granted. To that extent only, the claim is allowed. 3. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for a nervous condition, claimed as a nervous twitch A January 2005 rating decision denied service connection for a nervous twitch because service medical records did not show complaints, treatment, or a diagnosis for a nervous twitch. The decision found that there was no indication of a currently diagnosed disability. Medical treatment records have been received since the denial of the claimed disability, but none of them pertain to any nervous condition or twitch. At the May 2021 videoconference hearing, the Veteran testified about a twitch as it pertained to cervical dystonia and neck pain. The Veteran stated that she experiences a head twitch in addition to cervical dystonia. The Veteran testified that there was no injury or event that she associates with the claimed nervous system problem. When asked about if the nervous condition claim was separate from the cervical dystonia claim, the Veteran testified that the claimed disability was cervical dystonia. While the additional evidence received since the January 2005 rating decision is new, the Board finds that new evidence is not material because it does not substantiate nor raise the reasonable possibility that the claim is related to active service. The May 2021 testimony also appears to indicate that the Veteran is pursuing cervical dystonia and considers the nervous condition to be cervical dystonia. The evidence does not show any additional nervous twitch disability. The claim for service connection for cervical dystonia is addressed separately. The Board acknowledges that the threshold for reopening a claim is low, but it is a threshold nonetheless and as described no new and material evidence has been added since the January 2005 rating decision. Shade v. Shinseki, 24 Vet. App. 110, 118 (2010). As new and material evidence has not been received, the Board finds that the application to reopen the claim for service connection for a nervous condition, claimed as a nervous twitch must be denied. 4. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for an irregular heartbeat disability A January 2005 rating decision denied service connection for an irregular heartbeat because there was no evidence of record demonstrating a current disability. The service medical records show a complaint of an irregular heartbeat and chest pain in January 1979. The service separation examination noted that complaints of a "pounding heart" were not contributed to any particular etiology. A December 2010 private treatment record notes a complain of an irregular heartbeat which the Veteran reported being present since 1986. The attending physician noted a past medical history of arrhythmia. At the time of the original denial, the decision found that the Veteran did not have a diagnosed disability. The Veteran now has a diagnosed disability which is new and material to the claim of entitlement to service connection for an irregular heartbeat. Accordingly, the Board finds that the evidence received since the January 2005 rating decision is both new and material, and the claim is reopened. To that extent only, the claim is allowed. 5. Entitlement to service connection for cervical dystonia The Veteran contends that she is entitled to service connection for cervical dystonia because the claimed disability is the result of asbestos exposure in service. The service medical records show a January 1981 complaint and treatment for a stiff neck. The service separation examination did not note any neck disability at separation from service. A September 2012 private treatment record noted a 1989 diagnosis of cervical dystonia. In a June 2014 VA examination, it was noted that the Veteran had a diagnosis of cervical dystonia, spastic torticollis, cervical strain, and degenerative arthritis of the neck. The examiner opined that the claimed disability was at least as likely as not related to active service. The rationale provided was that the service complaints coincided with the current claim. More specifically, the examiner referenced the Veteran's complaint of neck pain in service. The examiner also noted that the Veteran's clinical history was consistent for neck pain and muscle spasms which started in-service. In a separate June 2014 VA medical opinion, an examiner opined that the claimed disability was less likely than not the result of active service. The rationale provided was that service medical records documented a three day complaint of neck pain that was likely acute in nature. The examiner noted that the separation examination was negative for any neck problems. "Cervical dystonia most commonly begins in middle age, between 30-60 years old which is consistent with the onset of the veterans [sic] symptoms in 1989 (age 32)." The Board concludes that the Veteran has a current disability that is at least as likely as not related to complaints of neck pain and spasms. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). Both VA examiners provided rationales to support their medical opinions. The Board finds those opinions to be equally persuasive and finds the evidence to be in relative equipoise regarding whether cervical dystonia is related to service. Accordingly, resolving reasonable doubt in favor of the Veteran, the Board finds that service connection for cervical dystonia is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 6. Entitlement to service connection for gastritis The Veteran contends that she is entitled to service connection for gastritis because the claimed disability is the result of active service. The Board concludes that the Veteran has a current disability that began during active service. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). The service medical records show complaints of abdominal pain with associated vomiting, loose stools, and menstrual cramps. The Veteran was diagnosed with gastroenteritis in November 1981 and at the service separation examination, she indicated that she had for indigestion. In a June 2014 VA medical opinion, the examiner opined that the Veteran's gastritis was at least as likely as not related to active service. The rationale provided was that the service medical records documented evidence of gastrointestinal symptoms and diagnosed gastroenteritis. The examiner noted that the "Veteran's clinical history is consistent or complaints of chronic diarrhea, nausea, vomiting, abdominal cramps." Upon review of the record, the Board finds the evidence to at least be in equipoise as to whether the Veteran's current gastritis arose in service. Accordingly, resolving reasonable doubt in favor of the Veteran, the Board finds that service connection for gastritis is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 7. Entitlement to service connection for a left thumb disability 8. Entitlement to service connection for a right thumb disability The Veteran contends that he is entitled to service connection for left thumb and right thumb disability because the claimed disabilities are the result of active service. The Board concludes that, while the Veteran has a diagnosis of arthritis of the left thumb and right thumb, the evidence of record persuasively weighs against finding that it began during active service, or is otherwise related to an in-service injury, event, or disease. In a May 2017 VA examination, the Veteran reported onset of the claimed disabilities in 2007. The Veteran reported that her military job involved work as an aerospace ground mechanic, with heavy lifting. The examiner opined that the claimed disabilities were not related to active service. In support of the opinion, the examiner noted that the Veteran reported onset in 2007 and was diagnosed nearly 25 years after separation from service. "Current problem is age related and would be considered mild to moderate in severity." While the Veteran believes left and right thumb disabilities are related to her work as a mechanic in-service, the Board finds that the evidence of record persuasively weighs against find that any current right or left thumb disability is related to service or any event, injury, or disease during service. The Veteran is competent to report pain in the thumbs. However, the Board finds that the May 2017 VA examiner opinion is the most persuasive evidence in this case. That examiner found that the thumb disabilities were less likely related to service and more likely to be age related. The Board finds that opinion persuasive because the examiner has medical training, review the medical history, and examined the Veteran. Accordingly, the Board finds that the weight of the competent and probative evidence is against the claim. The Board finds that the evidence is not in relative equipoise and there is not reasonable doubt to be resolved in favor of the Veteran. Therefore, the claim for service connection for right and left thumb disabilities must be denied. 9. Entitlement to service connection for a disability manifested by balance problems The Veteran asserts that she is entitled to service connection for a balance problem because the alleged disability began in service. At a May 2021 Board hearing, the Veteran testified that she did not seek treatment for a balance problem while in service. The Veteran described the balance problem as a symptom of cervical dystonia that became noticeable in 1988. Service connection for cervical dystonia has been established by this decision. The Board concludes that the Veteran does not have a current diagnosis of a balance disability and has not had one at any time during the pendency of the claim or recent to the filing of the claim. Romanowsky v. Shinseki, 26 Vet. App. 289 (2013); McClain v. Nicholson, 21 Vet. App. 319 (2007). Medical records do not note a diagnosis of any balance disability. While the Veteran believes she has a current diagnosis of a balance disability, she is not competent to provide a diagnosis in this case because the record does not show that she has medical training. While balance issues may be observed by a lay person, diagnosing a disability manifested by balance problems is a medical issue. The issue is medically complex, as it requires specialized medical education and the ability to interpret complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Board finds that the evidence does not show that that Veteran has been diagnosed with any disability manifested by balance issues. To the extent that there are balance issues related to cervical dystonia, those would be a symptom of that disability, and not a separate disability. The evidence does not show any separate balance disability. The presence of a current disability is a requirement to establish service connection. The Board finds that the evidence is not in relative equipoise and there is no reasonable doubt to be resolved in favor of the Veteran. Therefore, the claim for service connection for a disability manifested by balance problems must be denied. REASONS FOR REMAND 1. Entitlement to service connection for irregular heartbeat disability To date the Veteran has not received a VA examination to determine the etiology of a diagnosed irregular heartbeat disability. There were findings in service and current findings. Therefore, remand is necessary for examination with etiology opinion. 2. Entitlement to service connection for esophagitis 3. Entitlement to service connection for GERD 4. Entitlement to service connection for IBS The Veteran contends that she is entitled to service connection for esophagitis, GERD, and IBS because the claimed disabilities are related active service. The service medical records show that the Veteran received treatment for glossitis, which is an inflammation of the tongue. The service medical records also show that the Veteran received treatment for acute gastroenteritis in 1976, 1980, and 1981. A complaint of diarrhea was noted on two of the three noted visits. Remarks from the January 1982 service separation examination noted indigestion that was likely due to the Veteran's diet. At a May 2021 hearing, the Veteran testified that she believes that her throat was burned following her pregnancy in 1979. The Veteran linked that to GERD and testified that later it was IBS while serving at an Air Force Base. The Veteran stated that she continued to get treatment for GERD, IBS, and esophagitis. The Veteran testified that she has experienced the symptoms since separation from service. In a June 2014 VA medical opinion, the examiner opined that it was less likely than not that the GERD, IBS, and esophagitis were related to active service. The rationale provided was that while service medical records showed treatment for the tongue, gastritis was not identified. The examiner also noted that the claimed disability was not present until years following separation from service. The examiner stated that, "GERD and esophagitis are serious conditions with more specific symptoms and therefore a single complaint of indigestion, or occasional treatment for gastroenteritis, a common illness, do not provide a nexus for the more serious conditions in service." The June 2014 VA examiner did not take into account the Veteran's reports of continuity of symptomatology during and since separation from service. Therefore, further VA examination is necessary to appropriately address the Veteran's reports of continuity of symptomatology since service complaints with symptoms related to the claimed disabilities. This decision has also established service connection for gastritis and the examination should consider whether GERD, IBS, or esophagitis was caused or aggravated by service-connected gastritis. 5. Entitlement to service connection for a right shoulder disability. 6. Entitlement to service connection for a left shoulder disability. A January 2005 rating decision denied service connection for right and left shoulder disabilities. A May 2006 VA medical treatment record assessed tendonitis rotator cuff and adhesive capsulitis of shoulder. In a May 2017 VA examination, the examiner noted a 2015 diagnosis of ankylosis of the glenohumeral articulations for both shoulders. The examiner opined that the claimed disability was less likely than not due to active service, because the diagnosed right shoulder disability did not begin until 2005 and the left shoulder disability in 2015. The examiner did not consider the Veteran's lay statements regarding shoulder symptoms since service. Therefore, the opinion is incomplete and further examination of the shoulders is needed to obtain an etiology opinion. Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for a VA examination of the shoulders to determine the etiology of any right and left shoulder disabilities. The examiner must review the claims file, and should note that review in the report. The examiner should provide the rationale for opinions provided. The examiner should provide the following: (a.) Diagnose all right and left shoulder disabilities found on examination or in the medical history. (b.) Opine whether it is at least as likely as not (50 percent or greater probability) that any right or left shoulder disability is related to service or any event, injury, or disease in service, to include work as a mechanic. (c.) Opine whether it is at least as likely as not (50 percent or greater probability) that any right or left shoulder arthritis manifested to a compensable degree within one year following separation from service. 2. Schedule the Veteran for a VA examination for an irregular heartbeat disability. The examiner must review the claims file, and should note that review in the report. If a diagnosis cannot be provided, but the Veteran's condition manifests in symptoms that cause functional impairment, then the examiner should consider them a disability for the purpose of providing the requested opinions below. The examiner is asked to provide a response to the following: (a.) Opine whether it is at least as likely as not that the Veteran has an irregular heartbeat that represents a disability. If any irregular heartbeat is found to not constitute a disability, explain that finding. (b.) Opine whether it is at least as likely as not (50 percent or greater probability) that any irregular heartbeat is related to service, including in-service complaints of chest pain and an irregular heartbeat. Provide a rationale to support the opinion. Address the Veteran's lay reports of continuity of symptomatology. (c.) In providing the requested opinion, consider the Veteran's description of symptoms during and since service. If there is any medical reason to accept or reject the proposition that the Veteran's reported injury and symptoms in service and thereafter represented the onset of the current disability, that should be noted. State whether the Veteran's reports of symptoms align with how the currently diagnosed disability is known to develop or are generally inconsistent with medical knowledge or implausible. 3. Schedule the Veteran for a VA digestive examination for esophagitis, GERD, and IBS. The examiner must review the claims file, and should note that review in the report. If a diagnosis cannot be provided, but the Veteran's condition manifests in symptoms that cause functional impairment, then the examiner should consider them a "disability" for the purpose of providing the requested opinions below. The examiner is asked to provide a response to the following: (a.) Diagnose all digestive disabilities found, to specifically include esophagitis, GERD, and IBS. If a diagnosis of esophagitis, GERD, or IBS is not warranted, explain that finding, and reconcile the diagnoses with the other evidence of record. (b.) Opine whether it is at least as likely as not (50 percent or greater probability) that esophagitis, GERD, or IBS is related to service, or to complaints and findings in service of indigestion, gastroenteritis, and tongue inflammation? Provide a rationale to support the opinion. The examiner should address the Veteran's lay reports of continuity of symptomatology during and since service. (c.) Opine whether it is at least as likely as not (50 percent or greater probability) that esophagitis, GERD, or IBS is proximately due to, the result of, or caused by the service-connected disabilities or treatment or medication for the service-connected disabilities, to include cervical dystonia and gastritis. (d.) Opine whether it is at least as likely as not (50 percent or greater probability) that esophagitis, GERD, or IBS has been aggravated (increased in severity beyond the natural progress of the disorder) by the service-connected disabilities or treatment or medication for the service-connected disabilities, to include cervical dystonia and gastritis, (e.) In providing the requested opinion, consider the Veteran's description of symptoms during and since service. If there is any medical reason to accept or reject the proposition that the Veteran's reported injury and symptoms in service and thereafter represented the onset of the current disability, that should be noted. State whether the Veteran's reports of symptoms align with how the currently diagnosed disability is known to develop or are generally inconsistent with medical knowledge or implausible. Harvey P. Roberts Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Cross, 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.