Citation Nr: 22013522 Decision Date: 03/09/22 Archive Date: 03/09/22 DOCKET NO. 18-40 810 DATE: March 9, 2022 ORDER Entitlement to service connection for pneumonia is denied. Entitlement to a compensable rating for right great toe hallux rigidus is denied. REMANDED Entitlement to service connection for bilateral hearing loss is remanded. Entitlement to an increased rating in excess of 10 percent for GERD is remanded. Entitlement to a separate compensable rating for irritable bowel syndrome is remanded. Entitlement to service connection for fatty liver is remanded. FINDINGS OF FACT 1. The Veteran's right hallux valgus is manifested by mild or moderate symptoms and not by severe disability equivalent to amputation of great toe. 2. The weight of competent and credible evidence is against finding that the Veteran has a current diagnosis of pneumonia and that any chronic pneumonia or lung abnormality manifested during or was caused in-service injury or disease. CONCLUSIONS OF LAW 1. The criteria for service connection for pneumonia is not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for an initial 10 percent disability rating for hallux valgus have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5281. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty as a commissioned officer in the U.S Air Force from July 1997 to August 2014. This matter came before the Board of Veterans' Appeals (Board) on appeal from a July and September 2015 and June 2018 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). In September 2021, the Veteran testified before a decision review officer (DRO) at the RO. A transcript of the hearing has been associated with the claims file. Service Connection A veteran is entitled to VA disability compensation if there is a disability resulting from personal injury suffered or disease contracted in line of duty in active service, or for aggravation of a preexisting injury suffered or disease contracted in line of duty in active service. 38 U.S.C. §§ 1110, 1131. 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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for a disease shown after service, when all of the evidence, including that pertinent to service, shows that it was incurred in-service. 38 C.F.R. § 3.303 (d). Service connection for chronic disease may be granted if manifest to a compensable degree within one year of separation from service. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "Chronic." When the disease identity is established (leprosy, tuberculosis, multiple sclerosis, etc.), there is no requirement of evidentiary showing of continuity. Continuity of symptomatology is required only where the condition noted during service (or in the presumptive period) is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303 (b). Service connection for a recognized chronic disease can also be established through continuity of symptomatology. Walker v. Shinseki, 708 F.3d 1331 (2013); 38 C.F.R. §§ 3.303 (b), 3.309. Under applicable criteria, VA shall consider all lay and medical evidence of record in a case with respect to benefits under laws administered by VA. In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in a relative equal balance for and against the claim. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Pneumonia The Veteran contends that past diagnosed pneumonia episodes in service caused a chronic respiratory disorder. However, the evidence does not show that the Veteran has a current diagnosis of pneumonia or chronic respiratory disorder. In a February 2001 STR, the Veteran had completed a 10-day course of medication and the Veteran denied shortness of breath activity. The Veteran's pneumonia had resolved. See July 2016 Medical Treatment Record-Government Facility, p.9. In a January 2007 VA treatment note, the Veteran had no cough, and his respiratory function was normal with no wheezing. See December 2014 STR-Medical, p.4. In October 2007, the Veteran reported that he was told by a physician that he should get the pneumovax every 5 years for the rest of his life due to contracting pneumonia twice in 2001. The clinician advised against doing so. See December 2014 STR-Medical, p.17. In a May 2008 post deployment reassessment summary, the Veteran listed his joints and ankles as health concerns related to his deployment, there was no mentioning of pneumonia or any other respiratory issues or other health conditions. The Veteran also denied any persistent major health concerns regarding the health effects of something he believed he may have been exposed too while deployed. The Veteran also did not check chemicals or items that he could have been exposed too. See December 2014 STR-Medical, p.24-27. In February 2011, the Veteran was admitted into the emergency room and diagnosed with pneumonia. See December 2014 STR-Medical, p.35. In April 2012, the Veteran was admitted into the emergency room and diagnosed with RUL pneumonia, with a cough and fever. When the Veteran was released, his condition had improved. See January 2015 STR, p. 8-12. In an April 2014 VA treatment note, a clinician indicated that the Veteran had 4-5 episodes of pneumonia as a child. The clinician stated that over that last year the Veteran had been having shortness of breath and wheezing when running which was consistent with exercise-induced bronchospasm. The Veteran had no history of asthma and no significant smoking history. To relieve the Veteran's symptoms, he was taking Atrovent and albuterol. The Veteran noted that he had recurrent pneumonia and bronchitis. The Veteran reported the recurrent history of pneumonia in his childhood. The Veteran did not have a diagnosis of chronic pulmonary disease and he had been asymptomatic until several years prior to the visit, when he began have respiratory infections that usually occurred in the winter months. The Veteran stated that in between the episodes he felt well and was able to run without shortness of breath. The Veteran reported that he had burn pit exposure while he served in Iraq in 2008 and dust storms. See December 2014 STR-Medical, p.69-70. In an August 2014 STR, an examiner noted normal CAT scan of the lungs without evidence of bronchiectasis or infiltrates and his airways appeared patent. See July 2016 Medical Treatment Record-Government Facility, p.2. In a May 2015 VA administrative note, the Veteran denied a history of lung disease, shortness of breath, a cough, hemoptysis, pain with breathing, or wheezing. A clinician indicated that there was no respiratory distress, there was equal chest excursion, the chest had normal diameter, breath sounds were normal, and CTA bilaterally. See May 2015 C&P, p.1,4. In May 2015, the Veteran was afforded a respiratory conditions VA examination. The examiner noted that the Veteran had a diagnosis of recurrent pneumonia with diagnosis in 2000, 2001, 2011 and 2012. The Veteran was also diagnosed with bronchitis in 2014. The examiner indicated that the Veteran was seen and tested for his respiratory condition in-service. The most recent pulmonary examinations in March and April 2014 were negative. At the time of the examination the Veteran's condition was asymptomatic. The Veteran's condition did not impact his ability to work. In a July 2016 notice of disagreement (NOD), the Veteran stated that he was diagnosed with pneumonia 5 times during service, in February and September 2001; in February 2011; in April 2012 and in February 2014. The Veteran reported that as a result he had gotten a pneumonia shot and he used an inhaler. The Veteran stated that he had to breathe through gas masks; he inhaled smelly cabin air when engine started as a fight test engineer. He also indicated that he worked in Government buildings that had mold and asbestos and experienced fire, smoke, and sandstorms while in Baghdad. The Veteran stated that he was seeking service connection of 0 percent and was concerned he could have a lung problem later. See July 2016 NOD, p.3. In an August 2016 VA treatment record, a clinician noted that there was no respiratory distress, he had a non-tender chest and the Veteran's breathes sounds were normal. In September 2021, the Veteran testified at virtual Board hearing. The Veteran stated that he had pneumonia in-service 4 to 5 times. The Veteran testified that he did not believe he had pneumonia after service and had done a great job of not getting sick. See September 2021 Hearing Transcript, p.15. The Board finds that the Veteran is not entitled to service connection for pneumonia on a direct basis. The Veteran was treated for pneumonia several times in-service; records reveal that this was resolved prior to his discharge and there are no probative medical opinions associated with the claims file which indicate the Veteran currently has pneumonia or other chronic pulmonary disease. In addition, the Veteran's remote history of pneumonia cannot be connected to any current lung condition. The Veteran has not diagnosed been diagnosed or treated for pneumonia after service and his lungs were normal at his separation examination. Furthermore, he explicitly denied in his September 2021 hearing testimony of having pneumonia since his discharge from service. While the Board acknowledges that the Veteran was treated for pneumonia several times in-service, the record reveals that this was resolved prior to his discharge and there are no probative medical opinions associated with the claims file which connect the Veteran's remote history of pneumonia and the development of any current lung condition. The Board finds that the VA treatment records, specifically the May 2015 VA medical opinion is adequate evidence, informed by review of the pertinent evidence and medical history and prepared by a competent expert, to address the questions of whether the Veteran had pneumonia etiologically linked to his service. Because the opinion adequately addresses the Veteran's case with attention to his specific medical history, the Board finds that the May 2015 VA medical opinion is most persuasive. Accordingly, entitlement to service connection for pneumonia on a direct basis is not warranted. While the Veteran may feel that his past pneumonia is the consequence of his time in-service his opinions on these complex medical matters are not competent. Medical expertise is required to establish complex theories of nexus. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The competent medical evidence indicates that the Veteran's pneumonia is less likely than not caused by his time service. In addition, the Veteran does not currently have pneumonia. Given the above, the Board finds that the weight of competent and credible evidence is against finding that a chronic respiratory disability began during active service, is otherwise related to an in-service injury or disease. Thus, the Board concludes that service connection for pneumonia, is not warranted. 38 U.S.C. § 5107 (b); Gilbert, 1 Vet. App. 49. Increased Rating Right Toe Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities. Individual disabilities are assigned separate diagnostic codes. See U.S.C. §1155; 38C.F.R. §4.1. When there is a question as to which of two evaluations applies, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for the rating. Otherwise, the lower rating will be assigned. 38C.F.R. §4.7. The Veteran's service-connected right toe hallux rigidus is currently assigned a noncompensable rating pursuant to 38 C.F.R. § 4.71a, Diagnostic Code (DC) 5281. As discussed below, the Veteran has a diagnosis of hallux rigidus, which has been associated with his right toe hallux rigidus under diagnostic code 5281 provides for a maximum, 10 percent rating for severe unilateral hallux rigidus if equivalent to amputation of great toe. 38 C.F.R. § 4.71a, DC 5281. Under Diagnostic Code 5284, a 10 percent rating is assigned for a foot injury of moderate severity; a 20 percent rating is assigned for a foot injury of moderately severe severity; a 30 percent rating is assigned for a severe foot injury; and a 40 percent rating is assigned for actual loss of use of the foot. The words "moderate" "moderately severe," and "severe," as used in the various diagnostic codes are not defined in the VA Schedule for Rating Disabilities. Rather than applying a mechanical formula, the Board must evaluate all of the evidence, to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6. It should also be noted that use of terminology such as 'severe' by VA examiners and others, although an element of evidence to be considered by the Board, is not dispositive of an issue. In May 2015, the Veteran was afforded a foot conditions VA examination. The examiner noted that the Veteran had a diagnosis of right hallux rigidus and plantar fasciitis. The Veteran described discomfort in his right great toe when he increased activity. In addition, he noted that when he would run there would be an increase plantar fasciitis discomfort. On examination, the Veteran had symptoms of hallux rigidus that were mild or moderate. The Veteran had pain on examination that led to functional loss. The Veteran did not use any assistive devices and the condition did not have a functional impact. However, the examiner found that without mere speculation he could not provide an opinion as to whether the condition could decrease range of motion or functional ability. In a July 2016 notice of disagreement (NOD), the Veteran stated that since his toe was injured, he experienced moderate discomfort to pain whenever the toe was moved or disturbed. The Veteran stated as a result he changed his stride to mitigate disturbing his right toe or right heel. The Veteran indicated that hallux rigidus by definition was arthritis of the toe joint. See July 2016 NOD, p.4. In December 2016, the Veteran was afforded another foot conditions VA examination. The examiner indicated that the Veteran had a diagnosis of hallux rigidus, right in 2010. The examiner noted that the Veteran had 1st MTP joint pain, since 2011. The Veteran reported recurrent constant, daily 1st MTP joint pain and stiffness which increased with activity of walking, running, and weight bearing that would cause right 1st MTP joint discomfort. The Veteran reported pain of the foot. The Veteran reported the pain as sharp, achy, and of moderate pain severity. The Veteran reported flare-ups that impacted the function of his foot. The Veteran reported flare-ups of worsening right 1st MTP joint pain with movement with activities of jogging and walking long distances of more than a 1 mile. The Veteran reported that he had flare-ups one time per month, which lasted approximately 2 weeks. The Veteran described flare-ups pain as a 5/10 in severity. The pain was relieved with rest, sitting and medication did not help. He denied however any functional loss or limitation, he stated that he was still able to walk and run. The Veteran did not report functional loss or functional impairment. The Veteran had pain on use of the foot and pain on accentuated use. There was no pain on manipulation of the foot. There was no indication of swelling on use. There were no characteristic callouses. There was no extreme tenderness of plantar surfaces. The Veteran had decreased longitudinal arch height of the foot on weight bearing. The Veteran had mild or moderate symptoms due to hallux rigidus which affected the right side. There was pain on physical examination, but it did not affect functional loss. The examiner noted the Veteran's report that the 1st MTP joint pain sometimes impacts his ability to walk back and forth and maneuver around in tight spaces in a work lab or environment in tight areas, but states there is no functional loss of his foot as he is still able to walk and run, but with pain. The examiner found that there was no pain, weakness, fatigability, or incoordination that significantly limited functional ability during flare-ups or when the foot was used repeatedly over a period of time. There was no use of assistive devices. The examiner stated that the Veteran's right toe, hallux rigidus was moderate. In September 2021, the Veteran attended a virtual Board hearing. The Veteran testified that his toe hurt ever since he was injured in 2012. The Veteran stated that if he moves his toe, the joint will hurt. He also stated that quite often the condition would hurt enough that it affected how he walked. The Veteran stated that sometimes he "clubbed" his foot, so he did not flex the toe joint. The Veteran stated that he would walk on his heels and not his toes. In addition, the Veteran stated that it prevented him from wearing some boots and shoes. The Veteran testified that he liked wearing looser shoes. However, the Veteran indicated that the condition had not caused him to fall. See September 2021 Hearing Transcript, p.13-14. In this case, a compensable disability rating is not warranted. The Veteran has been awarded service connection and a 30 percent rating for plantar fasciitis which contemplates some of the Veteran's functional limitations. Under DC 5281, the evidence shows that the condition was not severe and equivalent to amputation of great toe. In a July 2016 notice of disagreement, the Veteran described his symptoms as moderate. In addition, at the December 2016 VA examination, the Veteran complained of pain, especially when walking or standing for a long time or running. But the Veteran did testify in September 2021 that his condition affected how he walked, he had to walk on his heel and wore looser shoes. However, the December 2016 examiner found that the condition was medically graded as mild or moderate. Thus, it must be assumed that a finding of severe findings would have been recorded if present. See AZ v. Shinseki, 731 F.3d 1303 (Fed. Cir. 2013); cf. Buczynski v. Shinseki, 24 Vet. App. 221, 223-24 (2011). Overall, this evidence shows that the condition was not severe and equivalent to amputation of the great toe. Hence, a compensable rating is not assignable under DC 5281. Thus, the Board finds a compensable rating is most appropriate for the Veteran's right toe disability presentation. REASONS FOR REMAND Bilateral hearing loss The Veteran contends that he has bilateral hearing loss that was incurred in or caused by his time in-service. As to the Veteran's hearing loss claim, the Veteran was afforded a VA examination in May 2015, at which time he was found to not have a bilateral hearing loss disability for VA purposes. The examiner reviewed the claims file, interviewed the Veteran, and conducted an examination. Audiometric testing revealed pure tone thresholds, in decibels as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 10 5 5 20 20 LEFT 5 5 5 20 25 Speech recognition ability was 100 percent in the right ear and 100 percent in the left ear. The audiologist indicated that the audiologic findings were normal. The audiologist determined that hearing was normal bilaterally. The audiologist determined that it was not at least as likely as not that the Veteran's hearing loss was caused by or a result of service. The rationale given was that the Veteran's hearing was normal and there was no significant shift from his entrance audiogram. The Veteran reported that hearing loss impacted his ordinary conditions of daily life because he had to ask people to repeat themselves and indicated he had trouble hearing voices in noisy environments. In the Veteran's September 2021 hearing the Veteran testified that he believed his hearing had worsened since his last VA examination, which was several years ago in May 2015. At the time the Veteran did not have a disability for VA purposes. As the Veteran indicated his hearing loss has worsened, the Board concludes that a remand for a new examination is necessary as the Veteran may now have a hearing condition for VA purposes. GERD and IBS The Board finds that these claims need development before the Board adjudicates whether the benefits sought are warranted. In September 2021, the Veteran testified at virtual Board hearing. In terms of GERD, the Veteran's representative indicated that the only symptom missing from the Veteran's VA examination to increase to a 30 percent rating was dysphagia. The Veteran testified that when he swallowed it was painful (dysphagia). As a result, the Veteran stated that he would swallow water fast when he was having a GERD episode so he could get the acid down. The Veteran testified that the whole time that he had GERD, he experienced the symptom of dysphagia. However, the symptom was not noted on the Veteran's December 2016 VA examination because he did not know what dysphagia was. The Veteran and his representative requested the issue of GERD be remanded for a new examination. The Veteran's digestive system disability is currently rated by analogy to Diagnostic Code 7346. A 30 percent rating is warranted for persistent epigastric distress with dysphagia, pyrosis and regurgitation accompanied by substernal or arm or shoulder pain, productive of a considerable impairment of health. A 10 percent rating is warranted for two or more symptoms of the 30 percent evaluation of less severity. The disability is currently combined with irritable bowel syndrome that would be rated under Diagnostic Code 7319. A 30 percent rating is warranted for severe diarrhea or alternating diarrhea and constipation with more or less constant abdominal distress. Ratings under diagnostic codes 7301 to 7329, inclusive, 7331, 7342, and 7345 to 7348 inclusive will not be combined with each other. A single evaluation will be assigned under the diagnostic code which reflects the predominant disability picture, with elevation to the next higher evaluation where the severity of the overall disability warrants such elevation. 38 C.F.R. § 4.114. At the time of the Board hearing, the Veteran's IBS and GERD were combined. The Veteran contended that the conditions should be rated separately since they were both very severe conditions. The Veteran further stated that his condition severely affected his life. He testified that he would have explosive diarrhea if he ate the wrong thing and he had to locate bathrooms when he would go out. The Veteran further indicated that his condition would go from constipation to explosive diarrhea. The Veteran testified that he was always looking for a toilet and at work he had a primary toilet he used and a secondary one just in case. The Veteran did not most of his life he was good at managing the condition by being careful of what he ate or drugging himself up with prescribed medication. The Veteran stated that he did not like anyone to know about the condition, because it was embarrassing. The Veteran testified that his IBS Caused abdominal pain sometimes and he had to track his symptoms daily. He stated he did not always have diarrhea but sometimes constipation, which could be painful. The Veteran stated he was taking over the counter medication for the condition but as he aged, the Veteran stated he had the belief that it caused other issues like the rectal bleeding he had a year prior. The Veteran stated that he took the medication in moderation because he felt as though it was constricting his digestive tract. The Veteran did not know if the condition caused him to gain or lose weight but noted that if he ate vegetables, he was ok; however, if he ate fruits that would set off his symptoms. But he stated that he could not pin the symptoms of the condition down to one particular food. In a September 2021 hearing transcript, the Veteran asserted that his IBS with GERD had increased in severity since the Veteran was last examined by VA. Specifically, the Veteran contends a worsening of his disability. See September 2021. The Veteran should be provided an opportunity to report for a VA examination to ascertain the current severity and manifestations of his IBS and GERD. As such a remand is warranted. Fatty Liver The Veteran contends that his fatty liver condition was incurred in or caused by service. In a January 2007 VA treatment note, a clinician noted that the Veteran's liver and spleen were normal to palpation. See December 2014 STR-Medical, p.4. In a November 2008 VA treatment record, a clinician noted that the Veteran had upper quadrant abdominal pain that was possibly secondary to a fatty liver as shown on a CAT scan. See July 2016 Medical Treatment Record-Government Facility, p.1. In an August 2014 STR, an examiner noted decreased density of the Veteran's liver and gave a diagnosis of fatty infiltration the liver. See July 2016 Medical Treatment Record-Government Facility, p.2. In May 2015, the Veteran was afforded an intestinal conditions VA examination. The examiner indicated that he never had a diagnosis of an intestinal condition. In the Veteran's July 2016 notice of disagreement (NOD), he stated his fatty liver condition was diagnosed in-service by a CAT scan in the fall of 2008 and multiple times to the present. The Veteran stated that lab results from 2008 showed liver enzymes aspartate and alanine aminotransferase to well above the normal levels which suggested liver damage. See July 2016 NOD, p.3. As the Veteran has never been afforded a VA examination, one should be provided to determine whether the condition is a chronic functional disorder and if so whether it onset during service or was caused by any aspect of service. The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination for his bilateral hearing loss. The examiner must review the claims file including the interview and opinion by the May 2015 VA examiner and the large file of VA outpatient treatment records. 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 opinion(s) below. The examiner is asked to provide a response to the following: Is any diagnosed bilateral hearing loss disability at least as likely as not caused by service? Provide a rationale to support the opinion(s). 2. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected irritable bowel syndrome and gastroesophageal reflux. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria. The examiner must elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. To the extent possible, the examiner should identify any symptoms and functional impairments due to IBS and GERD alone and discuss the effect of the Veteran's IBS and GERD on any occupational functioning and activities of daily living. If it is not possible to provide a specific measurement, or an opinion regarding flare-ups, symptoms, or functional impairment without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). 3. Provide the Veteran with a VA examination by an appropriate physician to determine the etiology of the Veteran's any current fatty liver. The Veteran's claims file, all electronic records, and a copy of this remand must be reviewed by the examiner. All pertinent symptomatology and findings must be reported in detail. All indicated tests and studies must be accomplished. Based upon a complete review of the evidence of record, the VA examiner must state whether: It is at least as likely as not (i.e., a 50 percent probability or more) that any fatty liver disease currently diagnosed, or diagnosed during the appeal, even if currently resolved, represents chronic liver disease and if so, was it caused by, or incurred as a result of the Veteran's active-duty service. A complete rationale for all opinions must be provided. The examiner must consider and discuss all pertinent evidence in the claims file, to include the service treatment records and the Veteran's lay statements regarding in-service and post-service symptomatology. Also, the examiner is advised that the Veteran is competent to report observable symptomatology. J.W. FRANCIS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Long-Ellis, 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.