Citation Nr: 1760257
Decision Date: 12/27/17 Archive Date: 01/02/18

DOCKET NO. 14-08 829 ) DATE
)
)

On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas

THE ISSUES

1. Whether new and material evidence has been submitted to reopen the claim of entitlement to service connection for a traumatic brain injury (TBI) and/or residuals thereof.

2. Entitlement to service connection for residuals of a TBI and/or residuals thereof.

3. Entitlement to service connection for a right ankle disorder.

4. Entitlement to service connection for bilateral lower extremity radiculopathy.

5. Entitlement to service connection for an esophageal disorder, to include esophageal dysmotility and gastroesophageal reflux disease (GERD).

REPRESENTATION

Appellant represented by: Military Order of the Purple Heart of the U.S.A.

ATTORNEY FOR THE BOARD

J. Meyer, Associate Counsel

INTRODUCTION

The Veteran served on active duty from September 1986 to June 1994.

This matter is before the Board of Veterans’ Appeals (Board) on appeal from the February 2012 and May 2013 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas.

FINDINGS OF FACT

1. In a June 2007 rating decision, the claim of entitlement to service connection for a TBI and/or residuals thereof, was denied because it was not caused by or related to service.

2. The evidence added to the record since the June 2007 rating decision relates to an unestablished fact that is necessary to substantiate the claim of service connection for a TBI.

3. The Veteran does not have a diagnosis of a TBI and/or residuals thereof.

4. It is at least as likely as not that the Veteran’s right ankle disorder is related to active duty service.

5. It is at least as likely as not that the Veteran’s bilateral lower extremity radiculopathy is related to active duty service.

6. It is less likely than not that the Veteran’s esophageal disorder is related to active duty service

CONCLUSIONS OF LAW

1. The June 2007 rating decision that denied the Veteran’s claim for entitlement to service connection for a TBI and/or residuals thereof, is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.1103 (2017).

2. As the evidence received subsequent to the June 2007 rating decision is new and material, the requirements to reopen the claim for entitlement to service connection for a TBI and/or residuals thereof, have been met. 38 U.S.C. §§ 5108, 7105 (2012); 38 C.F.R. § 3.102, 3.156 (2017).

3. The criteria for entitlement to service connection for a TBI and/or residuals thereof, have not been met. 38 U.S.C. §§ 1110, 1131, 5103(a), 5103A (2012); 38 C.F.R. §§ 3.159, 3.303, 3.304, 3.307, 3.309 (2017).

4. The criteria for entitlement to service connection for a right ankle disorder have been met. 38 U.S.C. §§ 1110, 1131, 5103(a), 5103A (2012); 38 C.F.R. §§ 3.159, 3.303, 3.304, 3.307, 3.309 (2017).

5. The criteria for entitlement to service connection for bilateral lower extremity radiculopathy have been met. 38 U.S.C. §§ 1110, 1131, 5103(a), 5103A (2012); 38 C.F.R. §§ 3.159, 3.303, 3.304, 3.307, 3.309 (2017).

6. The criteria for entitlement to service connection for an esophageal disorder, to include esophageal dysmotility and GERD have not been met. 38 U.S.C. §§ 1110, 1131, 5103(a), 5103A (2012); 38 C.F.R. §§ 3.159, 3.303, 3.304, 3.307, 3.309 (2017).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

New and Material Evidence

In order for evidence to be sufficient to reopen a previously disallowed claim, it must be both new and material. If the evidence is new, but not material, the inquiry ends and the claim cannot be reopened. See Smith v. West, 12 Vet. App. 312, 314 (1999); Manio v. Derwinski, 1 Vet. App. 140 (1991).

Under the relevant regulation, “new” evidence is defined as evidence not previously submitted to agency decision-makers. “Material” evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. If it finds that the submitted evidence is new and material, VA may then proceed to evaluate the merits of the claim on the basis of all evidence of record, but only after ensuring that the duty to assist the veteran in developing the facts necessary for the claim has been satisfied. See Elkins v. West, 12 Vet. App. 209 (1999).

The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is low, and consideration is not limited to whether the newly submitted evidence relates specifically to the reason the claim was last denied. Rather, consideration should include whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the Secretary’s duty to assist or through consideration of an alternative theory of entitlement. See Shade v. Shinseki, 24 Vet. App. 110, 117-18 (2010).

In this case the Veteran is claiming entitlement to service connection for a TBI and/or residuals thereof. The Veteran’s claim has been previously denied by the RO in June 2007 on the basis that his TBI and/or residuals thereof, was not incurred in or related to service. He did not appeal that decision, nor did he submit any new and material evidence within a year of receiving it. See Buie v. Shinseki, 24 Vet. App. 242 (2011). This represents the last final denial of the claim.

After a review of the evidence submitted since the June 2007 rating decision became final, the Board determines that the claim should be reopened. The evidence now includes new medical evidence, including a VA examination, which raises the possibility that his TBI and/residuals thereof is related to his active duty service. Not only is this evidence “new” in that it was not of record prior to the last final denial of the claim, it is also “material,” as it relates to an unestablished fact necessary to support the claims. Namely, it shows that there may be a nexus between the Veteran’s TBI and his active duty service. Therefore, the claim should be reopened on this basis.

Service Connection

The Veteran is seeking entitlement to service connection for a TBI/residuals thereof, a right ankle disorder, an esophageal disorder, and bilateral upper extremity radiculopathy.

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, 1131 (2012). 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, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498, 505 (1995).

Certain chronic diseases are subject to presumptive service connection if manifest to a compensable degree within one year from separation from service even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. §§ 1112, 1113; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). Moreover, for such chronic diseases, an alternative method of establishing the second and third Shedden/Caluza element is through a demonstration of continuity of symptomatology if the disability claimed qualifies as a chronic disease listed in 38 C.F.R. § 3.309(a); See 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2014). Moreover, evidence of continuous symptoms since active duty is a factor for consideration as to whether a causal relationship exists between an in-service injury or incident and the current disorder as is contemplated under 38 C.F.R. § 3.303(a).

Service connection may only be granted for a current disability; and therefore, if a claimed condition is not shown, there may be no grant of service connection. 38 U.S.C. § 1110 (2012); Rabideau v. Derwinski, 2 Vet. App. 141 (1992) (Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability). “In the absence of proof of a present disability there can be no valid claim.” Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992).

Right Ankle Disorder and Bilateral Lower Extremity Radiculopathy

The Veteran’s service treatment records reflect that the Veteran had chronic right lower leg/ankle pain due to an ankle contusion and sprain from falling into a hole and “stress changes” due to physical activity during active service. Further, the Veteran’s separation examination reflects bilateral ankle complaints at discharge. Next, the post-service medical evidence, in conjunction with the Veteran’s credible statements, indicates that the Veteran continued to have problems consistent with a right ankle disability after service.

While the evidence includes negative opinions by a January 2011 VA examiner – specifically, that the Veteran’s right ankle disorder is not related to active service – these opinions are based almost entirely on the lack of medical documentation recording the Veteran’s complaints. However, the examiner failed to discuss or address the Veteran’s continuing complaints or right lower leg pain after service, including those complaints recorded in his 1994 VA application for compensation benefits. As such, the opinions from the examiner are less probative.

With respect to bilateral lower extremity radiculopathy, the Board notes that the Veteran’s service treatment records report symptoms related to lower extremity pain throughout service. Moreover, the Veteran’s credible statements made during and after active service regarding his lower extremity symptoms such as chronic pain, numbness, tingling, tenderness, and limitation of motion, are sufficient to establish continuity of symptomatology.

The medical evidence of record includes opinions from VA examiners in April 2012 and March 2013 which indicate that the Veteran had lower extremity symptoms such as pain, numbness, weakness, tingling, and tenderness from his service-connected back disorder. Similarly, the VA treatment records report that the Veteran had lower extremity radiculopathy associated with his service-connected back condition. Specifically, the September 2015 VA treatments records document that the Veteran had radiculopathy due to his chronic back disability. The Board notes that the while the March 2013 VA examiner did not report current radicular pain, the overwhelming medical evidence indicates that the Veteran had lower extremity radicular pain that was related to his service-connected back disability.

Therefore, in resolving all doubt in the Veteran’s favor, the weight of the medical evidence is at least in equipoise that his right ankle disorder and bilateral lower extremity radiculopathy were related to active duty. As such, service-connection for these disorders is granted.

TBI and Esophageal Disorder

Based on the evidence of record, the Board finds that service connection is not warranted for the Veteran’s TBI/residuals thereof and esophageal disorder.

The Veteran’s service treatment records indicate that the Veteran had numerous complaints of abdominal symptoms during service, including cramping and diarrhea due to acute gastritis or a bacterial/viral infection which subsequently resolved during service. Further, there were no symptoms related to an esophageal disorder noted in service. Moreover, the Veteran’s January 1994 separation examination and report of medical history did not reveal any signs, symptoms, complaints, or a diagnosis of an esophageal disorder. In fact, the Veteran specifically denied any symptoms related to an esophageal disorder.

The post-service medical evidence does not report complaints, symptoms, or a diagnosis of an esophageal disorder until approximately 2011- over 15 years after service. As such, continuity of symptoms is not shown based on the clinical evidence.

With respect to the Veteran’s TBI and residuals thereof, while the service treatment records report that the Veteran sustained a head injury and temporary headaches after an in-service vehicle accident, there was no evidence that the Veteran had a TBI/ and/or chronic residuals. Of note, the Veteran’s January 1994 mental health evaluation prior to separation from service is silent for any complaints, symptoms, or a diagnosis related to a TBI and/or residuals thereof. Further, the post-service medical evidence does not reflect that the Veteran has a TBI and/or residuals. Specifically, the March 2013 VA examiner did not find any evidence of a TBI or residuals, including manifestations such as headaches, dizziness, numbness, or other related physical/cognitive symptoms. Moreover, the examiner noted that while the Veteran sustained a “minor head injury,” he did not have loss of consciousness and did not report any residual symptoms.

Similarly, the Veteran’s treatment records failed to document a TBI. Of note, while the Veteran’s 2015-2016 VA treatment records report evidence of headaches, there is no indication that he had a TBI and/or that his headaches were related to service. Therefore, service connection for a TBI and/or residuals thereof, is not for application because the evidence does not indicate that a TBI or residuals exist. See 38 U.S.C. § 1110 (2012); Rabideau v. Derwinski, 2 Vet. App. 141 (1992); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992).

As part of this claim, the Board recognizes the statements from the Veteran regarding his history of headaches and esophageal symptoms since service. In this regard, while the Veteran is not competent to make a diagnosis related to these disorders, as they may not be diagnosed by their unique and readily identifiable features, and thus requires a determination that is “medical in nature,” he is nonetheless competent to testify about the presence of observable symptomatology, which may provide sufficient support for a claim of service connection, if credible, regardless of the lack of contemporaneous medical evidence. Jandreau v. Nicholson, 492 F.3d 1372, 1376 (Fed. Cir. 2007); See Barr v. Nicholson, 21 Vet. App. 303, 307 (2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006).

Nevertheless, the Board determines that the Veteran’s reported history of continued symptomatology since active service, while competent, is nonetheless not probative in establishing continuity of symptomology. As an initial matter, the large gap in treatment for his disorders weighs against the Veteran’s claims. Further, the Veteran’s treatment records contradict his assertions that his symptoms have persisted since service. Specifically, the Veteran’s esophageal complaints are inconsistent with his January 1994 service treatment records. Moreover, the Veteran denied headaches in his March 2013 VA examination. Lastly, the Board notes that the Veteran filed a claim for VA benefits over 15 years prior to filing the claims on appeal. Therefore, the fact that the Veteran was aware of the VA benefits system and sought out a claim for other benefits, but made no reference to the disorders he now claims, weighs heavily against his credibility.

Next, service connection may also be granted when the evidence establishes a medical nexus between active duty service and current complaints. In this case, the Board finds that the weight of the competent evidence does not attribute the Veteran’s claimed disorders to active service, despite his contentions to the contrary.

As discussed, aside from complaints of headaches, the Veteran does not have a currently diagnosed TBI. Further, to the extent the Veteran experiences headaches and related symptoms, there is no indication in the medical evidence that they are related to a previous TBI and/or active service. As such, the objective medical evidence is not sufficient to otherwise demonstrate a nexus between the Veteran’s headaches and active duty service.

With regard to his esophageal disorder, the January 2011 VA examiner opined that his esophageal disorder, diagnosed as esophageal dysmotility, was less likely than not related to service, including as due to his bouts of gastritis and abdominal complaints. In support, the examiner determined that the Veteran’s in-service complaints were related to a temporary and acute condition due to a viral/bacterial infection and/or a food intolerance. As such, these in-service gastrointestinal conditions and are not related to and/or cause an esophageal disorder.

Additionally, the Veteran has not provided sufficient evidence, including private opinions and/or medical evidence to establish a nexus between his headache and esophageal disorders and active service.

In arriving at this conclusion, the Board has also considered the statements made by the Veteran relating his disorders to active service. The Federal Circuit has held that “[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.” Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (quoting Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007)).

In this case, however, the Veteran is not competent to provide testimony regarding a diagnosis and/or etiology of his TBI and esophageal disorder. See Jandreau, 492 F.3d at 1377, n.4. Because these disabilities are not diagnosed by unique and readily identifiable features, they do not involve a simple identification that a layperson is competent to make. Therefore, the unsubstantiated statements regarding the claimed diagnosis and etiology of the Veteran’s disabilities are found to lack competency

As a result, the Board concludes that the preponderance of the evidence is against the claim for service connection for a TBI/residuals and an esophageal disorder, and there is no doubt to be otherwise resolved. Therefore, the claim for service connection must be denied. 38 U.S.C. § 5107(b) (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

VA Duty to Notify and Assist

The Board has given consideration to the Veterans Claims Assistance Act of 2000 (VCAA), which includes an enhanced duty on the part of VA to notify a veteran of the information and evidence necessary to substantiate claims for VA benefits. 38 U.S.C. §§ 5103, 5103A (2012); 38 C.F.R. § 3.159 (2017). The VCAA also redefines the obligations of VA with respect to its statutory duty to assist veterans in the development of their claims. 38 U.S.C. §§ 5103, 5103A.

Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C. § 5103(a) (2012); 38 C.F.R. § 3.159(b) (2017); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004).

In this case, the Veteran was provided notice letters informing him of both his and VA’s obligations. Moreover, there is no indication of a failure to notify. See Scott v. McDonald, 789 F.3rd 1375 (Fed. Cir. 2015). Therefore, additional notice is not required and any defect in notice is not prejudicial.

With respect to the duty to assist, VA must obtain “records of relevant medical treatment or examination” at VA facilities. 38 U.S.C. § 5103A(c)(2). All records pertaining to the conditions at issue are presumptively relevant. See Moore v. Shinseki, 555 F.3d 1369, 1374 (Fed. Cir. 2009); Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2010). In addition, where the Veteran “sufficiently identifies” other VA medical records that he or she desires to be obtained, VA must also seek those records even if they do not appear potentially relevant based upon the available information. Sullivan v. McDonald, 815 F.3d 786, 793 (Fed. Cir. 2016) (citing 38 C.F.R. § 3.159(c)(3)).

The Board finds that all necessary assistance has been provided to the Veteran. Indeed, all VA treatment records and relevant private treatment records have been obtained. The Veteran has also been provided with VA examinations. Upon review of the examination reports, the Board observes that the examiners reviewed the Veteran’s past medical history, recorded his current complaints and history, conducted appropriate evaluations, and rendered appropriate diagnoses and opinions consistent with the remainder of the evidence of record. The VA examination reports are therefore adequate for the purpose of rendering a decision on appeal. 38 C.F.R. § 4.2 (2017); Barr v. Nicholson, 21 Vet. App. 303 (2007).

Overall, no further notice or assistance is required to fulfill VA’s duty to assist in the development of the above-cited claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff’d, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002).

ORDER

New and material evidence having been received, the application to reopen a previously denied claim of entitlement to service connection for a TBI is granted, and the claim is reopened.

Service connection for a TBI and/or residuals thereof, is denied.

Service connection for a right ankle disorder is granted.

Service connection for bilateral lower extremity radiculopathy is granted.

Service connection for an esophageal disorder, to include esophageal dysmotility and GERD, is denied.

____________________________________________
B.T. KNOPE
Veterans Law Judge, Board of Veterans’ Appeals

Department of Veterans Affairs

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