Citation Nr: 22015076 Decision Date: 03/16/22 Archive Date: 03/16/22 DOCKET NO. 16-46 784 DATE: March 16, 2022 ORDER Service connection for bilateral foot disability is denied. Service connection for gastroesophageal reflux disease (GERD) is denied. Service connection for headaches is denied. REMANDED Entitlement to a rating in excess of 10 percent for nephrolithiasis is remanded. FINDINGS OF FACT 1. The most probative evidence does not relate the Veteran's bilateral foot disability to active service. 2. The most probative evidence does not relate the Veteran's GERD to active service. 3. The most probative evidence does not relate the Veteran's headaches to active service. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral foot disability have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for GERD have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 3. The criteria for service connection for headaches have not been met. 38 U.S.C. §§ 1110, 1112, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Army from September 2006 to January 2008. These matters come before the Board of Veterans' Appeals (Board) from February 2013 and December 2015 rating decisions of an agency of original jurisdiction (AOJ) of the Department of Veterans Affairs (VA). In January 2021, the Veteran testified at a hearing before the undersigned. A transcript of the hearing is associated with the claims file. In June 2021, the Board remanded the Veteran's case for additional development. The Veteran's claim for service connection for posttraumatic stress disorder (PTSD) was granted by a December 2021 rating decision. Because that claim has been granted in full, it is no longer before the Board. The remaining matters have been returned to the Board for review. Duty to Notify and Assist VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.159, 3.326(a). These duties have been satisfied in this case. Appropriate notice was provided in January 2013, August 2015, and August 2021. See Stegall v. West, 11 Vet. App. 268 (1998). The RO associated the Veteran's service and VA and private outpatient treatment records with the claims file. All released or submitted private treatment records have been associated with the claims file. In August 2021, the Veteran was asked to complete releases for VA to obtain private records on his behalf, but he did not submit any releases. He stated that his prior doctor was deceased. The Board's remand directive was completed. In June 2021, the Board remanded the Veteran's claim for PTSD and requested that his service personnel records be obtained. There were no additional records found pertaining to the Veteran. The Veteran was provided adequate VA medical examinations and opinions for the matters on appeal. The examiner acknowledged the Veteran's reported chronic symptoms since service, reviewed the claims file, cited evidence reviewed, and provided reasoning for the opinions reached. The opinions comply with the Board's remand directives. Neither the Veteran nor his agent have raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016). Service Connection Under the relevant laws and regulations, 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. Generally, the evidence 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. Shedden v. Principi, 391 F.3d 1163, 1166-67 (Fed. Cir. 2004). Service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that a disease was incurred in service. 38 C.F.R. § 3.303(d). Some chronic diseases may be presumed to have been incurred in service, if they become manifest to a degree of ten percent or more within the applicable presumptive period. 38 U.S.C. §§ 1101(3), 1112(a); 38 C.F.R. §§ 3.307(a), 3.309(a). For those listed chronic conditions, a showing of continuity of symptoms affords an alternative route to service connection. 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F. 3d 1331 (Fed. Cir. 2013). Headaches, as an organic disease of the nervous system, are a listed condition, with a presumptive period of one year from separation from service. There is no evidence of headaches within one year of separation from active service and presumptive service connection is not warranted. Service connection for bilateral foot disability The Veteran contends that his bilateral foot disability is related to active service. He contends that he was diagnosed with flat feet during active service. Service treatment records (STRs) do not reflect any findings of flat feet or complaints related to the Veteran's feet. A December 2007 report of medical history shows that the Veteran denied swollen or painful joints and denied experiencing foot trouble. The accompanying report of medical examination shows that the Veteran's feet were clinically evaluated as normal. In 2008, the Veteran was provided a general VA medical examination. There were no complaints concerning his feet. In November 2021, the Veteran was provided a VA examination for his feet. The report shows diagnoses of flat feet, Morton's neuroma, and hallux valgus. The Veteran stated that he had flat feet in 2006 during active service. He was having pain with standing for long periods of time. The Veteran reported that he was using an insert in 2006 by a podiatrist and saw a podiatrist in 2016 who diagnosed him with flat feet with the beginning of Morton's neuroma. He stated that he wore insoles in his shoes because he felt like he was stepping on rocks. He had pain every day in the bottom of his feet. The Board recognizes that the Veteran is competent to report foot pain. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). However, the Board finds that the Veteran is not credible concerning his foot symptoms during service. STRs show that the Veteran's feet were evaluated as normal and he denied foot trouble on separation from active service. Though he claims that he was treated with orthotics during service, the records do not show the use of orthotics. The post-service records do not reflect any foot abnormalities until years after separation from active service. Further, the Board finds that the Veteran is not competent to otherwise relate his foot disability to his service without the requisite medical expertise or knowledge. Kahana v. Shinseki, 24 Vet. App. 428 (2011). The Board assigns greater probative value to the VA examiner's opinion. The Board finds that the weight of the evidence is against the claim for service connection for a bilateral foot disability. STRs do not reflect complaints or treatment for foot pain, there is no evidence of any foot disability for years after separation from service, and the Veteran did not report any symptoms on separation from active service. In addition, the VA examiner provided a negative nexus opinion. The claim is denied. Service connection for GERD VA medical treatment records show diagnoses of GERD, demonstrating a current disability. STRs do not reflect any findings of GERD. The Veteran was seen on multiple occasions for left flank pain and abdominal pain, for which he was diagnosed with kidney stones. He was also seen for nausea, vomiting, and diarrhea, diagnosed as gastroenteritis. Post-service, 2012 VA treatment records reflect diagnoses of GERD. The Veteran stated that he had used over-the-counter medications in the past. In January 2021, the Veteran testified that he had stomach issues during active service. He stated that he received treatment numerous times beginning in 2006/2007. The Veteran stated that he was given Zantac and Pepcid. He reported that he had the problem continuously during service and stated that he had heartburn to a degree that he felt he could not breathe. In November 2021, the Veteran was provided a VA examination. The report shows a diagnosis of GERD. The examiner provided a negative nexus opinion. The examiner noted the Veteran's report that his condition began in 2007 and was seen at sick call several times for this condition. The examiner stated that the STRs did not reflect his visit to sick call but was seen often for abdominal pain due to the history of his kidney condition. On one of his visits in April 2007, the Veteran visited the emergency department with abdominal pain that caused him to vomit and have nausea. He was ordered Compazine which is a medication that can help with nausea and vomiting but not to treat GERD. In December 2007, the report of medical history showed that the Veteran denied that he had any condition related to heartburn. There were no STRs to report his claim. VA records showed treatment of his GERD starting from his visit in October 2012 which states that he was using over-the-counter medications prior to that. The Board recognizes the Veteran's statements that he had symptoms of GERD during service and experienced them since service. While the Veteran is competent to describe symptoms such as stomach trouble and heartburn, the Veteran is not competent to ascribe his symptoms to a particular diagnosis. While the STRs show reports of flank and abdominal pain, there is no evidence of any gastrointestinal disability; he was diagnosed with kidney stones. Even where gastrointestinal symptoms like nausea and vomiting were found, such was related to non-digestive causes; the Veteran appeared to have a cold, flu, or similar infection. His cough and congestion irritated his stomach, and that symptom was treated to permit him to keep down stronger cough medicine. Further, the Veteran's separation report of medical examination does not reflect any gastrointestinal symptoms and the Veteran did not report any at separation. The Veteran is not considered competent to relate his GERD to active service, as he does not have the requisite medical expertise or knowledge to provide such an opinion concerning the complex medical issue of the etiology of GERD. The Board attributes greater probative value to the VA examiner's opinion. In light of the above, the Board finds that the weight of evidence does not support a grant of service connection for GERD. STRs do not reflect any findings of GERD, the Veteran denied stomach trouble at separation from active service, there is no evidence of GERD until years after separation from service, and the VA examiner provided a negative nexus opinion. The Veteran's claim is denied. Service connection for headaches Initially, the Board notes that the November 2021 VA examination report shows a diagnosis of migraine headaches. STRs do not reflect findings of headaches. The December 2007 report of medical history shows that the Veteran denied frequent or severe headaches and denied experiencing a head injury. The accompanying report of medical examination shows that the Veteran's head was clinically evaluated as normal. In January 2021, the Veteran testified that he hit his head when he fell off of a truck during active service. He stated that he experienced headaches during service and continued to experience headaches. The Veteran stated that he received treatment prior to 2014. In November 2021, the Veteran was provided a VA examination for headaches. The report shows a diagnosis of migraine headaches. The Veteran stated that his headaches started in 2007 with sensitivity to light and sound. He also had nausea and vomiting. He stated that they happened intermittently. While in service, the Veteran stated that he was given Ibuprofen and Toradol. He was also given Phernigan. He stated that he fell and hit his head on the bumper of the trunk. However, the examiner stated that the STRs showed that he landed on his buttocks. The Veteran denied losing consciousness and reported headaches for an hour. Currently, he had some minor headaches. He gets irritable and has headaches two to four times per month. He was currently on Imitrex for the headaches. The examiner provided a negative nexus opinion, noting that the STRs did not contain complaints of headaches and VA records showed no treatment of headaches. The examiner noted the Veteran's statement that during his fall in 2007, he also hit his head. The Veteran stated that he had a couple of episodes of headaches while in service and was treated with medication. The examiner found that the VA records showed no continuity of care for his migraine headaches since service though the Veteran continued to have headaches today. Here, the Board finds that the weight of the evidence is against a grant of service connection for headaches. Though the Veteran is competent to report the symptoms of headaches, the Board finds that he is not credible concerning the onset of his headaches. The Veteran has reported that he experienced headaches in service after a fall, used medication, and continued to experience headaches since that time. However, the STRs do not show that the Veteran had a fall resulting in a head injury, and do not reflect that the Veteran was prescribed medication for headaches. In fact, on separation from service, the Veteran denied experiencing a head injury and denied frequent or severe headaches. The Veteran is not competent to otherwise relate his headaches to active service and the Board assigns greater probative value to the VA examiner's opinion. Accordingly, the claim is denied. REASONS FOR REMAND Entitlement to a rating in excess of 10 percent for nephrolithiasis is remanded. In June 2021, the Board remanded the Veteran's claim for additional development, to include a new VA examination. The examiner was asked to address the Veteran's voiding symptoms. In November 2021, the Veteran was provided a VA examination for his nephrolithiasis, but was not provided a VA examination concerning his voiding dysfunction. The examination report does not contain the requisite findings for the Board to evaluate the Veteran's nephrolithiasis. Remand for a new VA examination is required. In Rice v. Shinseki, 22 Vet. App. 447 (2009), the U.S. Court of Appeals for Veterans' Claims (Court) held that entitlement to a total disability rating based on individual unemployability (TDIU) claim may be considered part and parcel of an increased rating claim. The Court found that when entitlement to a TDIU is raised during the adjudicatory process of the underlying disability, it is part of the claim for benefits for the underlying disability. There is no indication in the record that the Veteran is unemployed, and he has not alleged unemployability. Accordingly, the Board finds that Rice is not applicable and a need for consideration of TDIU is not inferred as part of the claim for an increased rating. The matters are REMANDED for the following action: 1. Schedule the Veteran for a new VA examination to evaluate the current severity of his nephrolithiasis. The claims file must be reviewed. The report must address the manifestations of the claimed voiding dysfunction. 2. Then, readjudicate the remanded claim. If the benefit sought remains denied, issue a supplemental statement of the case and, after appropriate time for response, return the matter to the Board. WILLIAM H. DONNELLY Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Seay, 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.