Citation Nr: 22018329 Decision Date: 03/28/22 Archive Date: 03/28/22 DOCKET NO. 16-28 706 DATE: March 28, 2022 ORDER Service connection for right ankle disability is denied. Service connection for a gastrointestinal disorder to include gastroesophageal reflux disease (GERD) and chronic constipation is denied. FINDINGS OF FACT 1. The evidence of record persuasively weighs against finding that the Veteran has had a right ankle disability at any time during or approximate to the pendency of the claim. 2. The evidence of record persuasively weighs against finding that the Veteran's GERD and chronic constipation began during active service, or are otherwise related to an in-service injury or disease. CONCLUSIONS OF LAW 1. The criteria for service connection for a right ankle disability are not met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for GERD and chronic constipation are not met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 1970 to December 1971. This case is before the Board of Veterans' Appeals (Board) on appeal from a May 2013 Regional Office (RO) rating decision. In that rating decision, the RO denied entitlement to service connection for a right ankle condition and GERD. The Veteran's notice of disagreement (NOD) was received in September 2013. The RO issued a statement of the case (SOC) in April 2016. The Veteran's VA Form 9, substantive appeal to the Board, was received in May 2016. In May 2019, the Veteran testified at a video conference hearing at the RO before the undersigned Veterans Law Judge sitting in Washington, DC. A transcript of his testimony is associated with the claims file. In October 2019 and November 2021, the Board remanded the case to the RO for further development and adjudicative action. Service Connection Establishing service connection generally requires medical evidence or, in certain circumstances, lay evidence of the following: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) nexus between the claimed in-service disease and the present disability. 38 C.F.R. § 3.303. Pursuant to 38 C.F.R. § 3.303(b), a claimant may establish the second and third elements by demonstrating continuity of symptomatology for specific chronic disabilities listed in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). 1. Entitlement to service connection for right ankle disability. The Veteran asserts that he injured his right ankle during a parachute jump in service and has had intermittent symptoms of pain and stiffness from service to the present. 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 an in-service injury, event, or disease. The Board concludes that the Veteran does not have a current diagnosis of right ankle disability at any time during the pendency of the claim or recent to the filing of the claim that is related to an event, injury, or disease during service. See 3.303; Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). In this regard, VA and private treatment records do not show that the Veteran was diagnosed with a right ankle disability. VA treatment records dated in November 2012 and December 2012 document that the Veteran the Veteran had intermittent right ankle pain as a result of an injury to his ankle from a parachute jump during active duty. Diagnosis of a right ankle disability associated with the intermittent right ankle pain was not provided. An April 2013 VA examiner determined that the Veteran had normal joints of the right ankle. The examiner revealed some reduced range of motion on plantar flexion and dorsiflexion of the right ankle. The examiner noted that there was no objective evidence of painful motion on the exam. A December 2019 VA examiner noted that the Veteran reported right ankle stiffness. He denied pain with range of motion or with palpation. The Veteran had no loss in strength with plantarflexion or dorsiflexion. X-rays of the right ankle in 2013 had normal pathology. The examiner stated that the Veteran's left ankle had the exact same range of motion measurements as the right. Therefore, the examiner was unable to render a diagnosis of other than normal to the right ankle. A January 2022 VA examiner also determined that the Veteran did not have a current diagnosis associated with the claimed right ankle condition. Active range of motion was of the right ankle was normal. The examiner explained there were no objective findings of an ankle condition and there was no objective evidence on exam to support any diagnosis at this time. Accordingly, the Veteran does not have a current diagnosis of a right ankle disability. "Pain alone, without an accompanying diagnosis of a present disease, can qualify as a disability" if it "reaches the level of a functional impairment of earning capacity." Saunders v. Wilkie, 886 F.3d 1356, 1367-69 (Fed. Cir. 2018). However, the medical and lay evidence of record does not reflect that the Veteran's right ankle pain and intermittent stiffness results in any functional impairment of earning capacity. The claims file also does not show that the Veteran provided lay statements that his right ankle symptoms cause any functional impairment of earning capacity. VA examiners in April 2013, December 2019, and January 2022 determined that the Veteran's right ankle symptoms did not impact his ability to perform any type of occupational task (such as standing, walking, lifting, and sitting). Furthermore, there is no medical evidence the Veteran's lay statements of right ankle pain and stiffness are related to an injury, event, or disease in service. See Sanchez-Benitez v. Principi, 259 F.3d 1356, 1362 (Fed. Cir. 2001) (holding a claim based on "pain alone" fails "when there is no sufficient factual showing that the pain derives from an in-service disease or injury."). Specifically, the Veteran's service treatment records reveal that the Veteran sought treatment for his injured right ankle. It was observed that his right ankle was tender and swollen. X-rays were negative. The October 1971 separation examination reveals that his lower extremity was evaluated as normal and a right ankle disorder was not documented in the summary of defects and diagnoses section. Furthermore, a December 2019 VA examiner provided the opinion that the Veteran's right ankle condition is less likely as not caused by or a result of the Veteran's service in the military. The examiner explained that the Veteran's service treatment records show an incident with a right ankle sprain while at Fort Benning, otherwise no additional right ankle problems are reported in the service treatment records. Upon examination, the Veteran had decreased range of motion and stiffness of the bilateral ankles. He had normal strength in the right ankle joint. An x-ray was performed that showed no joint abnormality in April 2013. A review of the literature stipulates that reduced ankle strength and range of motion can occur with age. Thus, the claimed condition is less likely than not incurred in or caused by the claimed in-service injury, event, or illness and more likely a natural progression of aging. As it was unclear if the examiner considered the Veteran's lay statements as to the onset and continuous nature of his right ankle symptoms, the Board sought an addendum medical opinion. A January 2022 VA examiner provided the opinion that the Veteran's claimed right ankle condition was less likely than not incurred in or caused by the claimed in-service injury, event or illness. The examiner explained that although the Veteran complained of right ankle pain and swelling in October 1970, x-rays were negative and there were no further restrictions or complaints relating to the ankle found in the records, indication lack of chronicity. The examiner stated that all lay assertions were considered in formulating this opinion, but that the lack of documentation indicates lack of chronicity. The medical opinions provided by the December 2019 and January 2022 VA examiners are probative, because they are based on an accurate medical history and provided an explanation that contains clear conclusions and supporting data. Furthermore, the January 2022 VA examiner also considered the Veteran's lay statements in formulating the medical opinion. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Thus, the persuasive and probative medical evidence shows that the Veteran's current right ankle symptoms are not related to the documented in-service injury of the right ankle. Although the Veteran is competent to report his right ankle symptoms, the question of whether these symptoms are due to a disease or injury relates to an internal medical process that extends beyond an immediately observable cause-and-effect relationship that is of the type that the courts have found to be beyond the competence of witnesses. Compare Jandreau v. Nicholson, 492 F.3d 1372, 1376 (Fed. Cir. 2007) (lay witness capable of diagnosing dislocated shoulder); Barr v. Nicholson, 21 Vet. App. 303, 308-09 (2007) (lay person competent to identify varicose veins); Falzone v. Brown, 8 Vet. App. 398, 403 (1995) (lay person competent to testify to pain and visible flatness of his feet); with Clemons v. Shinseki, 23 Vet. App. 1, 6 (2009) ("It is generally the province of medical professionals to diagnose or label a mental condition, not the claimant"); Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (unlike varicose veins or a dislocated shoulder, rheumatic fever is not a condition capable of lay diagnosis); Jandreau, 492 F.3d at 1377, n. 4 ("sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer"). Thus, the Veteran's own assertions as to the etiology of his right ankle symptoms are not competent. In this case, the Veteran contends that he has had recurrent right ankle pain and stiffness since service; however, the lack of treatment following service, when considered along with the examiners' opinions which also rely on the objective findings as to the current severity of symptoms and pathophysiology of the Veteran's right ankle in relation to the years since service, outweighs the Veteran's lay statements. In other words, the claim is not denied solely due to the lack of documented treatment for many years following service discharge. In conclusion, the evidence of record persuasively weighs against finding that the Veteran has a current diagnosis of a right ankle disorder. Congress specifically limits entitlement for service-connected disease or injury to cases where an in-service disease or injury has resulted in a disability. Accordingly, the Veteran's claim of entitlement to service connection for a right ankle disorder is not warranted. 2. Entitlement to service connection for a gastrointestinal disorder to include GERD and chronic constipation. The Veteran contends that his GERD was caused by or related to active military service. Specifically, he asserts that he experienced symptoms of GERD during active military service with recurrent symptoms since service to the present. 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 an in-service injury, event, or disease. While the Veteran has current diagnoses of GERD, gastritis, and chronic constipation, the evidence of record persuasively weighs against finding that the Veteran's diagnoses of GERD, gastritis, and chronic constipation began during service or is otherwise related to an in-service injury, event, or disease. 38 U.S.C. §§ 1110, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a), (d). Turning to the evidence of record, VA treatment records show that the Veteran has a current diagnosis of GERD and gastritis. VA examinations dated in December 2019 and January 2002 reveal that the Veteran was diagnosed with GERD. The January 2022 VA examiner also diagnosed the Veteran with chronic constipation. Thus, the medical evidence reflects current diagnoses of the claimed disability. The Veteran's service treatment records show that the Veteran was not treated for or diagnosed with GERD or chronic constipation during active service. There is documentation that in the Veteran sought treatment for upset stomach. He experienced nausea and vomiting for three days and a burning sensation. The Veteran was diagnosed with gastritis. The October 1971 separation examination reveals that his abdomen, viscera, anus, and rectum were evaluated as normal. GERD and/or chronic constipation was not documented in the summary of defects and diagnoses section. The first medical evidence of complaints of gastrointestinal problems was in August 1998 when the Veteran sought treatment at a private clinic for stomach problems and cramping. The assessment was probably GERD. Accordingly, the medical evidence shows that the Veteran was first complained of and was diagnosed with GERD approximately 27 years after discharge from active duty service. The first diagnosis of gastritis after service was in December 2012, approximately 41 years after discharge. The first medical evidence of a diagnosis of chronic constipation was in 2022, approximately 52 years after discharge from service. The Veteran testified at the May 2019 Board hearing that he experienced symptoms of GERD since service. While the Veteran is competent to report having experienced gastrointestinal symptoms since service, he is not competent to provide a diagnosis in this case or determine that these symptoms were manifestations of GERD. The issue is medically complex, as it requires special medical knowledge and the ability to interpret diagnostic medical testing, as well as internal medical processes. See Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Further, the claims file contains a negative opinion with respect to the issue of whether the Veteran's current diagnoses of GERD, gastritis, and chronic constipation had its onset in or is caused by or related to active military service. Specifically, after reviewing the claims file, a December 2019 VA examiner provided the opinion that the Veteran's claimed condition was less likely than not incurred in or cause by the claimed in-service injury, event, or illness. The examiner asserted that the during service the condition was acute only. There is no evidence of chronicity of care during service or one year after service. The Veteran sought treatment once during service for an upset stomach and was diagnosed with gastritis. The Veteran was then discharged from service one month later and the exit examination is silent for gastritis or upset stomach. The examiner explained that gastritis is a common term given to a group of conditions with one thing in common: inflammation of the lining of the stomach. The inflammation of gastritis is most often the result of infection. Due to the fact the service treatment record is silent one month after the initial diagnosis, the gastritis diagnosed during service was an acute condition. A January 2022 VA examiner provided the medical opinion that the Veteran's it is less likely than not that the Veteran's GERD and chronic constipation were incurred in or caused by the claimed in-service injury, event, or illness. The examiner explained that although the Veteran has numerous complaints located in the records regarding abdominal pain, these complaints are not present in the record until August 1998. There were no complaint or treatment found regarding GERD during the Veteran's in-service period. It is less likely than not hat the Veteran's GERD, which developed 27 years after service, is due to service. The Veteran's lay statements were considered in formulating this opinion. Chronic constipation is also less likely than not due to service as there is no in-service complaints. These medical opinions are probative, because they are based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). In this case, the Veteran contends that he has had gastrointestinal symptoms since service; however, the lack of treatment following service, when considered along with the opinions of the examiners which also rely on the objective findings as to the current severity of symptoms and pathophysiology of GERD, gastritis, and chronic constipation in relation to the years since service, outweighs the Veteran's lay statements. Thus, the claim is not denied solely due to the lack of treatment for years following service discharge. The only competent evidence regarding a whether any nexus exists between the Veteran's current GERD, gastritis, and chronic constipation and his active duty service are the opinions of the December 2019 and January 2022 VA examiners, which definitively concluded that the Veteran's current GERD, gastritis, and chronic constipation are less likely than not related to the Veteran's military service. The medical opinions are considered probative, based upon a complete review of the Veteran's entire claims file and supported by detailed rationale. Accordingly, the opinions carry significant weight. The Veteran has not provided any competent medical or lay evidence to rebut these opinions or otherwise diminish its probative weight. See Wray v. Brown, 7 Vet. App. 488, 492-93 (1995). Consequently, more probative weight is given to December 2019 VA medical opinion than the Veteran's lay statements. Based on the foregoing, the evidence of record persuasively weighs against finding that the Veteran's current GERD, gastritis, and chronic constipation had their onset in service or are otherwise related to active military service. Accordingly, entitlement to service connection for a gastrointestinal disorder to include GERD, gastritis, and chronic constipation is not warranted. L. B. CRYAN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. Berry, 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.