Citation Nr: 22018209 Decision Date: 03/28/22 Archive Date: 03/28/22 DOCKET NO. 17-09 999 DATE: March 28, 2022 ORDER Entitlement to service connection for gastrointestinal reflux disease (GERD), to include as due to Gulf War environmental hazards is denied. Entitlement to a compensable rating for service-connected allergic rhinitis is denied. REMANDED Entitlement to service connection for joint pain, to include as due to Gulf War environmental hazards is remanded. FINDINGS OF FACT 1. The Veteran's GERD was not present in service, and is not otherwise etiologically related to service, to include exposure to Gulf War environmental hazards. 2. For the entire appeal period, the Veteran's allergic rhinitis does not result in a 50 percent blockage of both nasal passages, a complete blockage of one nasal passage, or nasal polyps. CONCLUSIONS OF LAW 1. The criteria for service connection for GERD, to include as due to Gulf War environmental hazards, have not been met. 38 U.S.C. §§ 1110, 1154, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for a compensable rating for allergic rhinitis have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.31, 4.97, Diagnostic Code 6522. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1987 to January 1988 and December 1990 to June 1991. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2016 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge at a videoconference hearing in April 2019. This matter was previously remanded by the Board in August 2019 and October 2021 for further development. Unfortunately, as explained below, the claim of entitlement to service connection for joint pain requires further development. Entitlement to service connection for gastrointestinal reflux disease (GERD), to include as due to Gulf War environmental hazards Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). "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." Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). On appeal, the Veteran contends that his gastrointestinal disorder, to include GERD, are the result of his service in the Persian Gulf. A review of the Veteran's service treatment records document that he did not receive any treatment for gastrointestinal symptoms, including GERD. During his redeployment examination, the Veteran's abdomen and viscera were found to be normal. In his report of medical history at that time, the Veteran denied any frequent indigestion, or stomach, liver, or intestinal problems. The Veteran testified that the physician he saw post-service has since passed away and medical records are unavailable. From separation until he began care at the VA, the Veteran states he used over the counter medications. A review of the VA treatment records shows a diagnosis of GERD in 2016. As an initial matter, the Board notes that the Veteran is shown to have a current gastrointestinal disability, diagnosed as GERD in this case. As there is no other diagnosis in the record and the Veteran's symptoms have all been attributed to the GERD diagnosis in this case (i.e., there are no unaccounted for gastrointestinal symptoms), the Board finds that the provisions of 38 C.F.R. § 3.317 for undiagnosed illnesses related to Persian Gulf War service are inapplicable. The Veteran described his symptoms as starting upon his return from service in the Persian Gulf. His service personnel record shows he returned from the Persian Gulf after May 10, 1991, and he separated from active duty on June 5, 1991. Further, he notes that he first sought care after separation from active duty with a private practitioner. The Veteran underwent VA examinations in May 2016, December 2019, and August 2021. Each examiner diagnosed the Veteran as having GERD. No examiner opined that the Veteran's GERD was due to service. An opinion was obtained in December 2021 that stated the Veteran's GERD was not at least as likely not due to service. The examiner's rationale was that the Veteran denied symptoms while on active duty and post service. Further the Veteran has gained significant weight since service and was a smoker, both known risk factors for GERD. Based on the foregoing evidence, the Board finds that service connection for GERD must be denied at this time. Initially, the Board notes that the Veteran has stated his symptoms started upon his return from active duty, as such, the Board is unable to find that the Veteran's GERD had its onset in service. While the Veteran contends that his current GERD is due to service, he lacks the requisite medical expertise to so render an opinion in this case. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis); see also Jones v. West, 12 Vet. App. 383, 385 (1999) (where the determinative issue is one of medical causation or a diagnosis, only those with specialized medical knowledge, training, or experience are competent to provide evidence on the issue). Instead, the Board relies on the most recent VA examiner's medical opinion that the Veteran's symptomatology did not begin during military service. The VA examiner considered the medical evidence and the Veteran's service and post-service treatment records, as well as his reports of lay history in rendering that opinion. This opinion is the most probative evidence of record, and is not shown to be refuted by any other competent evidence of record. In short, the Board cannot find that the Veteran's current GERD was incurred in or otherwise the result of military service. Accordingly, the Veteran's claim of service connection for GERD must be denied based on the evidence of record at this time. See 38 C.F.R. § 3.303. In reaching that conclusion, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the greater weight of evidence is against the Veteran's claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Increased Rating Entitlement to a compensable rating for service-connected allergic rhinitis Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the veteran working or seeking work. 38 C.F.R. § 4.2. All reasonable doubt will be resolved in the claimant's favor. 38 C.F.R. § 4.3. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. For the entire appeal period, the Veteran's allergic rhinitis has been assigned a noncompensable rating pursuant to Diagnostic Code 6522. In this regard, under Diagnostic Code 6522, a 10 percent rating is assigned for allergic rhinitis without polyps, but with greater than 50 percent obstruction of the nasal passage on both sides, or complete obstruction on one side. The next higher rating of 30 percent requires evidence of nasal polyps. 38 C.F.R. § 4.97, Diagnostic Code 6522. In every instance where the schedule does not provide a zero percent rating for a Diagnostic Code, a zero percent rating shall be assigned when the requirements for a compensable evaluation are not met. 38 C.F.R. § 4.31. The Veteran contends that a compensable rating for his allergic rhinitis is warranted as he experiences severe congestion in both nasal passages, drainage, running nose, coughing, and wheezing. Medical records show that he Veteran uses a daily inhaler, steroid injection at least twice a year, and antibiotics as necessary. At a December 2019 VA examination, there was no evidence that there was greater than 50 percent obstruction of the nasal passage on both sides, complete obstruction on either side, permanent hypertrophy of the nasal turbinates, nasal polyps, or any granulomatous conditions. The examiner further indicated that the Veteran did not have any other pertinent physical findings, complications, conditions, signs, or symptoms related to his allergic rhinitis, and such did not impact his ability to work. The May 2016 examiner noted the same findings. Based on the foregoing, the Board finds that, for the entire appeal period, the Veteran's allergic rhinitis was not manifested by greater than 50 percent obstruction of nasal passage on both sides, complete obstruction on one side, or nasal polyps, which is required for a compensable rating under Diagnostic Code 6522. Thus, in the absence of such symptomatology, a compensable rating for such disability is not warranted under such Diagnostic Code. The Board also acknowledges the Veteran's belief that his allergic rhinitis is more severe than as reflected by the currently assigned noncompensable rating. In this regard, the Board must consider the entire evidence of record when analyzing the criteria laid out in the rating schedule. While the Board recognizes that he is competent to provide statements regarding his observable symptomatology, he is not competent to provide an opinion regarding the severity of her symptomatology in accordance with the rating criteria. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). Rather, the Board finds the medical evidence in which professionals with medical expertise examined the Veteran, acknowledged his reported symptoms, and described the manifestations of such disability in light of the rating criteria to be more persuasive than his own reports regarding the severity of such condition. In conclusion, the Board finds that a compensable rating for allergic rhinitis is not warranted. In reaching such decision, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the evidence conclusively weighs against the Veteran's claim, such doctrine is not applicable, and his increased rating claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. REASONS FOR REMAND Entitlement to service connection for joint pain, to include as due to Gulf War environmental hazards is remanded. By way of history, the Veteran applied for service connection for joint pain December 2015. At that time, he claimed the onset of joint pain as June 6, 1992, one year and a day after his separation from service. A May 2016 Gulf War examination indicated the only musculoskeletal symptoms reported were elbow and forearm pain. A May 2016 elbow and forearm examination diagnosed the Veteran with elbow bursitis. The examiner noted that the Veteran's elbow condition was a diagnosed condition with a known etiology. The claim was retitled as entitlement to service connection for elbow bursitis, previously claimed as joint pain, to include as due to Gulf War environmental hazards. The Veteran testified at an April 2019 Board hearing where he descried joint pain and stiffness in his hips, shoulder, neck, back, and arms. At that hearing, the Veteran's representative indicated that a diagnosis of fibromyalgia may be appropriate. The Board notes that VA defines fibromyalgia as "a health condition that is characterized by fatigue, diffuse pain and/or stiffness, and pain in multiple 'trigger points'." Reading the Veteran's claim in the most sympathetic light, it necessarily includes a claim for service connection for fibromyalgia. Further, a VA Gulf War examination in August 2021 did not indicate any symptoms, abnormal findings, or complaints by the Veteran for any disability. An October 2021 VA examination found the Veteran's knee arthritis and shoulder strain were due to exposure in Southwest Asia, but did not explain how such a nexus existed. As such, these opinions are not sufficient. In light of the preceding, remand is necessary to address the deficiencies in the record and provide the Veteran with the necessary examinations. The matters are REMANDED for the following action: 1. Schedule the Veteran for an appropriate examination to determine the nature and etiology of his claimed condition. The examiner should review the entire claims file. The examiner should conduct all appropriate diagnostic testing. The examiner should then record all noted signs and reported symptoms, document all clinical findings, and provide a diagnosis if possible. The examiner is asked to provide responses to the following: A) Identify the Veteran's objective indications of a disability. "Objective indications" include those perceptible to an examining physician and other non-medical indicators that are capable of independent verification. 38 C.F.R. § 3.317(a)(3). Non-medical indicators include evidence such as time lost form work, the veteran having sought treatment for his symptoms, and change in the veteran's appearance, physical abilities, and mental or emotional attitude. 60 Fed. Reg. 6661, 6663 (Feb. 3, 1995). B) By history, physical examination, or laboratory testing, can the Veteran's objective indications of a disability be attributed to a known clinical diagnosis? If the signs and symptoms are not characteristic of a known clinical diagnosis, the examiner should so indicate. There is no requirement that the examiner provide a diagnosis of undiagnosed illness. C) If the Veteran's objective indications cannot be attributed to a known clinical diagnosis, is there affirmative evidence that the objective indications were not incurred during active service during the Persian Gulf War or that it was caused by a supervening condition or event that occurred since the Veteran's departure from service during the Persian Gulf War? The examiner should note that a positive response to this question requires affirmative evidence. The mere absence of evidence is not sufficient. D) If the Veteran's objective indications can be attributed to a known clinical diagnosis, is the etiology of the Veteran's condition (1) inconclusive, (2) partially understood, or (3) fully understood? This determination as to each must be based on the Veteran's specific case and cannot be based on the etiology of the disease or disability population as a whole. E) If the Veteran's objective indications can be attributed to a known clinical diagnosis, is the pathophysiology of the Veteran's condition (1) inconclusive, (2) partially understood, or (3) fully understood? This determination as to each must be based on the Veteran's specific case and cannot be based on the pathophysiology of the disease or disability population as a whole. F) If both the etiology and pathophysiology are partially understood or fully understood, then is it at least as likely as not (a 50 percent or greater probability) that the Veteran's diagnosed condition was incurred in, or is otherwise related to active service? (Continued on the next page) A complete rationale must be provided for all opinions expressed. 2. Readjudicate the claim on appeal. M. E. KILCOYNE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Uller, 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.