Citation Nr: 22016117 Decision Date: 03/21/22 Archive Date: 03/21/22 DOCKET NO. 18-01 571 DATE: March 21, 2022 ORDER Service connection for a gastrointestinal disability manifested by stomach lining disorder characterized as gastrointestinal (GI) burning and reflux is granted. REMANDED Entitlement to a rating in excess of 30 percent for right hip strain with limitation of flexion is remanded. Entitlement to a rating in excess of 20 percent for right hip strain with limitation of abduction is remanded. Entitlement to a rating in excess of 10 percent for right hip strain with limitation of extension is remanded. Entitlement to a rating in excess of 10 percent for right knee strain with limitation of flexion is remanded. Entitlement to a rating in excess of 20 percent for right knee strain with instability is remanded. FINDING OF FACT Resolving all doubt in the Veteran's favor, the Veteran's stomach lining disorder, characterized as GI burning and reflux, had its onset in service. CONCLUSION OF LAW The criteria for service connection for a gastrointestinal disability manifested by stomach lining disorder, characterized as GI burning and reflux, have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the Army from May 1992 to November 1992 and from January 1998 to March 2004, including service in Southwest Asia. His awards and decorations include, among others, Infantryman Badge, Air Assault Badge and Army Commendation Medal (3rd Award). These matters come before the Board of Veterans' Appeals (Board) on appeal from an August 2014 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In January 2022, the Veteran testified at a hearing before the undersigned Veterans Law Judge (VLJ). Service connection for a stomach lining disorder characterized as GI burning and reflux is granted. The Veteran reports that a stomach lining disorder characterized as GI burning and reflux began while on active duty and has been present since then. More specifically, he testified before the undersigned that, due to his repeated orthopedic injuries incurred landing on his side as a paratrooper, he began taking took Motrin for pain. He started taking the Motrin in service for the pain; the GI problems started in service and have continued to the present time. He has taken Tums for his stomach 'all the time' since that time. After a review of the evidence of record, the Board finds that service connection for a stomach lining disorder characterized as GI burning and reflux is warranted. To establish service connection for a claimed disorder, the following criteria must be met: (1) medical evidence of a current disability; (2) evidence of an in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and current disability. 38 C.F.R. § 3.303; see also, Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); Hickson v. West, 12 Vet. App. 247, 253 (1999). Service connection may be granted for a disability resulting in a disease or injury that is incurred in or aggravated by active-duty military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may be established by credible lay evidence and medical evidence provided by the Veteran or otherwise. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. The existence of a current disability is the cornerstone of a claim for VA disability compensation. 38 U.S.C. § 1110. Even in the absence of a diagnosed disability, evidence of functional limitations due to symptoms can meet this requirement. Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018). Specifically, in Saunders v. Wilkie, the Federal Circuit found that the term "disability," as used in 38 U.S.C. § 1110, refers to the functional impairment of earning capacity, not the underlying cause of said disability, and held that pain alone can serve as a functional impairment and therefore qualify as a disability. To establish the presence of a disability pursuant to Saunders, there must be competent evidence specific to the claimant tending to show that his or her impairment rises to a level to affect earning capacity, which may include showing manifestations of a similar severity, frequency, and duration as those VA has determined by regulation would cause impaired earning capacity in an average person. Wait v. Wilkie, 33 Vet. App. 8, 17 (U.S. 2020). The Board finds current disability reflected in findings in a report of VA stomach conditions examination dated in June 2014. Although the examiner's assessment was no diagnosis, they observed that the current symptoms included reflux and the Veteran's report of burning and reflux. A non-VA treatment note dated in July 2013 includes an assessment that he should stop Ibuprofen due to GI side effects. First, given the functional impairment imposed by the Veteran's stomach lining condition, as described in the medical record as well as at the hearing, the requirement for service connection that a current disability be present is satisfied. See Saunders, 886 F.3d 1356. Indeed, the Veteran's stomach lining/GI complaints are similar in severity, frequency, and duration to symptoms VA has enumerated in diagnostic criteria to include criteria related to the GI system. See, generally, 38 C.F.R. § 4.114, Diagnostic Codes 6303-6308. Second, there is evidence of the condition in service. The Veteran was treated for orthopedic problems in service. In March 2001, he was taking NSAIDS for orthopedic pains. He has reported in connection with this claim that he worries that his GI pains are related to NSAIDs he has taken since service for his right knee and hip pain. Third, there is evidence of a nexus between the current stomach lining disorder and service. The June 2014 VA examiner opined that the Veteran's GI complaints are attributable to taking NSAIDs for the right hip and right knee problems. Significantly, it is the Veteran's testimony that the GI problems have been present since service. On balance, the evidence shows that the Veteran's gastrointestinal disability manifested by a stomach lining disorder characterized as GI burning and reflux is related to service, thus, service connection is warranted. See Flynn v. Brown, 6 Vet. App. 500, 503 (1994) (noting that "the element of cause and effect has been totally by-passed in favor of a simple temporal relationship between the incurrence of the disability and the period of active duty"); see also 38 C.F.R. § 3.303 (a) (Service connection connotes many factors but basically it means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces). Here, the Board find the Veteran's assertions as to GI symptoms since service to be consistent with the record, candid and not facially incredible. Collectively, the evidence shows that the Veteran's current stomach lining disorder characterized as GI burning and reflux had its onset in service and has been present since service. The 2014 VA examiner also supports the connection between the stomach problems and NSAIDs in the general discussion of the examination report. Again, the Veteran's credible testimony establishes there have been symptoms of the stomach lining disorder since service. Here, the competent and credible evidence is approximately balanced as to whether service connection for a stomach lining disorder characterized as GI burning and reflux is warranted. The benefit of the doubt doctrine applies. 38 U.S.C. § 5107(b), Lynch v. McDonough, __ F.4th __, No. 2020-2067, 2021 U.S. App. LEXIS 37312 (Fed. Cir. Dec. 17, 2021). As such, service connection is warranted. REASONS FOR REMAND 1. Entitlement to a rating in excess of 30 percent for right hip strain with limitation of flexion is remanded. 2. Entitlement to a rating in excess of 20 percent for right hip strain with limitation of abduction is remanded. 3. Entitlement to a rating in excess of 10 percent for right hip strain with limitation of extension is remanded. 4. Entitlement to a rating in excess of 10 percent for right knee strain with limitation of flexion is remanded. 5. Entitlement to a rating in excess of 20 percent for right knee strain with instability is remanded. The Veteran testified before the undersigned that the manifestations of his right knee and hip disorders are getting worse and indeed are worse than currently rated. He stated he now "waddles" when he walks and moves slowly. His co-workers make comments about his movement which he perceives as related to the right hip and right knee conditions. He feels he is too young to always be "looking for elevators," but this is the situation he is in. He described sharp pain in the right knee/hip when he turns the wrong way, stating it feels like a lightning bolt. He is unsure if he has "locking" of the right knee. He reported he has flare-ups of both the right knee and right hip. He has good and bad days, and cold weather makes it worse. He reported he had pain with range of motion during a prior examination, but he had to push through the pain. The Veteran underwent VA knee and hip examination in July 2014, prior to the issuance of the rating decision and the Statement of the Case, and then again in September 2019. It is relevant to note that the U.S. Court of Appeals for Veteran's Claims (the Court) has issued the decisions in Correia v. McDonald, 28 Vet. App. 158, 166 (2016) and Sharp v. Shulkin, 29 Vet. App. 26 (2017) concerning the adequacy of VA orthopaedic examinations. The Court in Correia held that the final sentence of 38 C.F.R. § 4.59 requires that VA examinations include joint testing for pain on both active and passive motion, in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. In Sharp, the Court held that before a VA examiner opines that he or she cannot offer an opinion as to additional functional loss during flare-ups without resorting to speculation based on the fact that the examination was not performed during a flare, the examiner must "elicit relevant information as to the veteran's flares or ask him to describe the additional functional loss, if any, he suffered during flares and then estimate the veteran's functional loss due to flares based on all the evidence of record, including the veteran's lay information, or explain why she could not do so." Recently, in Chavis v. McDonough, 34 Vet. App. 1 (2021), the Court held that in the absence of a medical diagnosis of ankylosis, a claimant may still receive benefits associated with ankylosis based on the functional equivalent of ankylosis (i.e., the claimant's symptoms sufficiently resemble ankylosis despite the absence of a formal diagnosis). In short, if a claimant's functional loss "is the functional equivalent of ankylosis," a higher rating may be warranted on that basis. Id. at 11. Considering all of the above, VA must afford the Veteran a contemporaneous examination to evaluate the nature, extent and severity of the service-connected right hip and right knee disabilities. See Snuffer v. Gober, 10 Vet. App. 400, 403 (1997) (VA regulations specifically require the performance of a new medical examination when evidence indicates that there has been a material change in a disability). The matters are REMANDED for the following action: 1. Obtain outstanding records of the Veteran's treatment. 2. Notify the Veteran that he may submit additional lay statements from himself and from other individuals who have first-hand knowledge as to the nature, extent and severity of his right knee and right hip disability symptoms and the impact of the conditions on his ability to work. The Veteran should be provided an appropriate amount of time to submit this lay evidence. 3. Schedule the Veteran for a VA examination to determine the current nature and severity of his right knee and right hip disabilities, to include all orthopedic and neurological manifestations present. All necessary tests should be performed. All findings should be reported in detail. Please identify all manifestations of the right knee and hip disabilities. The examiner is also asked to note whether there is ankylosis of either the knee or hip, and if so, to what degree, or if there is functional ankylosis. The examiner should provide a detailed rationale for any opinion expressed. If an opinion cannot be rendered without resorting to speculation, the examiner should state why that is so. STEVEN D. REISS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N. Rippel, 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.