Citation Nr: 18160608
Decision Date: 12/27/18	Archive Date: 12/27/18

DOCKET NO. 15-23 305A
DATE:	December 27, 2018
ORDER
Service connection for gout is denied.
Service connection for essential tremor is denied.
REMANDED
Service connection for a left shoulder condition is remanded.
Service connection for a cervical spine condition is remanded.
Service connection for a back condition is remanded.
Service connection for a left upper extremity condition, to include pain and numbness, is remanded.
Service connection for a gall bladder condition is remanded.
Service connection for diverticulitis is remanded.
Service connection for gastroesophageal reflux disease (GERD) with dyspepsia is remanded.
FINDINGS OF FACT
1. The Veteran’s currently diagnosed gout was not incurred in service and is not otherwise related to service.
2. The Veteran’s currently diagnosed essential tremor was not incurred in service and is not otherwise related to service.
CONCLUSIONS OF LAW
1. The criteria for service connection for gout have not been met.  38 U.S.C. 
§§ 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2017).
2.  The criteria for service connection for essential tremor have not been met.  38 U.S.C. §§ 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2017).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The Veteran, who is the appellant in this case, served on active duty from January 1976 to February 1984.
This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a May 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota.
The Veteran testified at a May 2017 Travel Board hearing before the undersigned Veterans Law Judge.  A copy of the hearing transcript is associated with the claims file.
The Veteran has another appeal before the Board.  Because that appeal involves an issue dependent on different law and facts, it is the subject of a separate decision. See BVA Memorandum No. 01-18-04; VA Purplebook 01-18-v1.0.0.
The Board notes that the June 2015 statement of the case listed two separate issues involving the cervical spine (neck).  As these issues involve the same body part and general functional impairment, the Board has combined these into a single issue of entitlement to service connection for a cervical spine condition.
Service Connection
Service connection will be granted for a disability resulting from a disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303 (a). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease incurred in service. 38 C.F.R. 
§ 3.303(d). 
Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a causal link (“nexus”) between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). 
Gout (arthritis) and essential tremor (an organic disease of the nervous system) are considered by VA to be a “chronic diseases” listed under 38 C.F.R. § 3.309 (a); therefore, the presumptive service connection provisions based on “chronic” in-service symptoms and “continuous” post-service symptoms under 38 C.F.R. 
§ 3.303 (b) apply.  Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).  Where the evidence shows a “chronic disease” in service or “continuity of symptoms” after service, the disease shall be presumed to have been incurred in service.  Where there is a chronic disease shown as such in service or within the presumptive period under § 3.307 so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes.  38 C.F.R. 
§ 3.303(b).  This rule does not mean that any manifestation in service will permit service connection. For the showing of “chronic” disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time.  If a condition noted during service is not shown to be chronic, then generally, a showing of “continuity of symptoms” after service is required for service connection.  38 C.F.R. 
§ 3.303(b).
Service connection may also be established with certain chronic diseases, including gout and essential tremor, based upon a legal presumption by showing that the disorder manifested itself to a degree of 10 percent disabling or more within one year from the date of separation from active service.  Such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of active service.  38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). 
While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time.  As discussed below, the Veteran’s gout and essential tremor did not manifest within one year from the date of his separation from active service.  Therefore, the one-year presumption does not apply.
In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material favorable to the claimant.  Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990).  Competency of evidence differs from weight and credibility.  Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted.  Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994). 
When considering whether lay evidence is competent, the Board must determine, on a case-by-case basis, whether a veteran’s particular disability is the type of disability for which lay evidence may be competent.  Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007).  A veteran is competent to report observable symptoms because this requires only personal knowledge, not medical expertise, as it comes to a claimant through the senses. See Layno, 6 Vet. App. 465, 469.  Lay testimony is competent to establish the presence of observable symptoms, where the determination is not medical in nature and is capable of lay observation.  Barr v. Nicholson, 21 Vet. App. 303 (2007).  Lay evidence may establish a diagnosis of a simple medical condition, a contemporaneous medical diagnosis, or symptoms that later support a diagnosis by a medical professional.  Jandreau, 492 F.3d 1372, 1377. 
When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied.  38 U.S.C. § 5107(b); 38 C.F.R. § 3.102.
1. Service connection for gout.
The Veteran essentially maintains that his gout is related to service.  
Initially, the Board finds that the Veteran has been diagnosed with gout.  See December 2009 and February 2013 VA treatment records.
However, the Board finds that the Veteran’s gout was not incurred in service and is not otherwise related to service.  The Veteran does not contend, and the evidence does not reflect, that the Veteran’s gout began during service.  To the contrary, the Veteran testified during the May 2017 Board hearing that he had suffered from gout for approximately nine or ten years.  The Board notes that the medical evidence reflects that the Veteran was first diagnosed with gout in December 2009.  See December 2009 VA treatment record.  See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (lengthy period of absence of medical complaints for condition can be considered as one factor in resolving claim).  The Board notes that the Veteran has not made any specific arguments as to why he thinks his gout is related to service.  
The remaining evidence of record, to include post-service VA treatment records, has been carefully reviewed for any indication or suggestion that the gout may be connected to the Veteran’s service in any way.  However, the evidence of record does not suggest that gout was incurred in service or is otherwise related to service in any way.
For these reasons, the Board finds that the competent and probative evidence of record does not establish a link between the Veteran’s currently diagnosed gout and service.  Accordingly, the Board finds that a preponderance of the evidence is against the claim for service connection, and the claim must be denied.  Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application.  See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 
2. Service connection for essential tremor.
The Veteran essentially maintains that his essential tremor is related to service.  
Initially, the Board finds that the Veteran has been diagnosed with an essential tremor.  See October 2013 VA treatment record.
However, the Board finds that the Veteran’s essential tremor was not incurred in service and is not otherwise related to service.  The Veteran does not contend, and the evidence does not reflect, that the Veteran’s essential tremor began during service.  To the contrary, the medical evidence reflects that the Veteran was first diagnosed with a benign essential tremor in September 2008.  See September 2008 and October 2013 VA treatment records.  See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (lengthy period of absence of medical complaints for condition can be considered as a factor in resolving claim).  The Board notes that the Veteran has not made any specific arguments as to why he thinks his essential tremor is related to service, and a March 2015 VA treatment record indicated that the Veteran stated that his treating neurologist does not know what causes the tremor.
The remaining evidence of record, to include post-service VA treatment records, has been carefully reviewed for any indication or suggestion that the Veteran’s essential tremor may be connected to his service in any way.  However, the evidence of record does not suggest that the essential tremor was incurred in service or is otherwise related to service in any way.
For these reasons, the Board finds that the competent and probative evidence of record does not establish a link between the Veteran’s currently diagnosed essential tremor and service.  Accordingly, the Board finds that a preponderance of the evidence is against the claim for service connection, and the claim must be denied.  Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application.  See 38 U.S.C. § 5107; 38 C.F.R. 
§ 3.102. 
REASONS FOR REMAND
1. Service connection for a left shoulder condition is remanded.
The Veteran has a current diagnosis of left shoulder arthritis.  See July 2012 VA x-ray record.  He reported injuring his shoulder during service.  See May 2017 hearing transcript.  To date, VA has not obtained a competent medical examination and opinion addressing this claim.  Accordingly, a VA examination is necessary prior to further adjudication.  See McClendon v. Nicholson, 20 Vet. App. 79 (2006).
2. Service connection for a cervical spine condition is remanded.
The Veteran has current diagnoses of cervical spondylosis and cervical degenerative disc disease.  See July 2012 VA x-ray and MRI reports.  He reported injuring his spine during service.  See May 2017 hearing transcript.  To date, VA has not obtained a competent medical examination and opinion addressing this claim.  Accordingly, a VA examination is necessary prior to further adjudication.  See McClendon v. Nicholson, 20 Vet. App. 79 (2006).
3. Service connection for a back condition is remanded.
The Veteran reports experiencing back pain.  See December 2004 and February 2013 VA treatment records.  Pain alone, even without an underlying pathology or diagnosis, can constitute a disability under VA law where that pain results in functional impairment.  Saunders v. Wilkie, 886 F.3d 1356 (2018) (holding that a “disability” under 38 U.S.C. § 1110 refers to functional impairment of earning capacity; pain need not be connected to a diagnosed condition to function as an impairment and qualify for compensation).  The Veteran also reported injuring his back during service.  See May 2017 hearing transcript.  To date, VA has not obtained a competent medical examination and opinion addressing this claim.  Accordingly, a VA examination is necessary prior to further adjudication.  See McClendon v. Nicholson, 20 Vet. App. 79 (2006).
4. Service connection for a left upper extremity condition, to include pain and numbness, is remanded.
In light of the November 2012 VA MRI report indicating that the Veteran’s neck pain is progressive with radiation of pain and numbness in the shoulder and arm, the Board finds that it must defer consideration of service connection for a left upper extremity condition, to include pain and numbness, because this claim is inextricably intertwined with the claim for service connection for a cervical spine condition. See Smith (Daniel) v. Gober, 236 F.3d 1370, 1373 (Fed. Cir. 2001) (Where the facts underlying separately claims are “intimately connected,” the interests of judicial economy and avoidance of piecemeal litigation require that the claims be adjudicated together); see also Harris v. Derwinski, 1 Vet. App. 180 (1991) (issues are inextricably intertwined if one claim could have significant impact on the other).
 
5. Service connection for a gall bladder condition is remanded.
The Veteran’s gallbladder was removed in April 2005.  See April 2005 VA treatment record.  He reported having pain in his side during service.  See May 2017 hearing transcript.  To date, VA has not obtained a competent medical examination and opinion addressing this claim.  Accordingly, a VA examination is necessary prior to further adjudication.  See McClendon v. Nicholson, 20 Vet. App. 79 (2006).
6. Service connection for diverticulitis is remanded.
The Veteran has a current diagnosis of diverticulitis.  See February 2010 VA treatment record.  He contends that the diverticulitis is related to the food and rations he eat while in the military.  See May 2017 hearing transcript.  To date, VA has not obtained a competent medical examination and opinion addressing this claim.  Accordingly, a VA examination is necessary prior to further adjudication.  See McClendon v. Nicholson, 20 Vet. App. 79 (2006).
7. Service connection for GERD is remanded.
The Veteran has a current diagnosis of GERD.  See February 2013 VA treatment record.  He contends that the GERD is related to the food and rations he eat while in the military.  See May 2017 hearing transcript.  To date, VA has not obtained a competent medical examination and opinion addressing this claim.  Accordingly, a VA examination is necessary prior to further adjudication.  See McClendon v. Nicholson, 20 Vet. App. 79 (2006).
In addition, the Veteran contends that his GERD is related to his diverticulitis, as they are both gastrointestinal issues.  Therefore, the Board finds that it must defer consideration of the issue of entitlement to service connection a GERD, as this claim is inextricably intertwined with the issue of entitlement to service connection for diverticulitis.  See Smith (Daniel) v. Gober, 236 F.3d 1370, 1373 (Fed. Cir. 2001) (Where the facts underlying separately claims are “intimately connected,” the interests of judicial economy and avoidance of piecemeal litigation require that the claims be adjudicated together); see also Harris v. Derwinski, 1 Vet. App. 180 (1991) (issues are inextricably intertwined if one claim could have significant impact on the other).
The matters are REMANDED for the following action:
1. Schedule the Veteran for VA examinations to determine the nature and cause(s) of any left shoulder condition, cervical spine conditions, back condition, gall bladder condition, diverticulitis, and GERD. 
The entire claims file, including a copy of this Remand Order, should be made available to, and be reviewed by, the VA examiner(s).  All appropriate tests, studies, and consultation should be accomplished and all clinical findings should be reported in detail.
After examination of the Veteran and review of the claims file, each examiner should:
a) Indicate all left shoulder conditions, cervical spine conditions, back conditions, gall bladder conditions, diverticulitis, and GERD currently diagnosed.
b) For EACH current claimed disability, provide an opinion as to whether it at least as likely as not (i.e., 50 percent or greater probability) had its onset during service or is otherwise related to service.
A detailed rationale should be provided for the opinions rendered.  If the examiner(s) cannot provide the requested information without resort to speculation, he or she must state the reasons why, and if an additional clinical evaluation is necessary to render the requested information, then that opportunity should be made available.
2. Then, readjudicate the issues on appeal.

 
VICTORIA MOSHIASHWILI
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	M. Thomas, Associate Counsel