Citation Nr: 0306886 Decision Date: 04/10/03 Archive Date: 04/14/03 DOCKET NO. 98-05 459A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in No. Little Rock, Arkansas THE ISSUE Entitlement to service connection for a gastrointestinal disability secondary to service-connected post-traumatic headaches. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Robert C. Scharnberger, Associate Counsel INTRODUCTION The veteran served on active duty from April 1964 to April 1967 and from November 1990 to July 1991. This case comes before the Board of Veterans' Appeals (the Board) on appeal from a November 1997 rating decision of the North Little Rock, Arkansas, Department of Veterans Affairs (VA) Regional Office (RO). FINDINGS OF FACT 1. All evidence necessary for an equitable adjudication of the veteran's claim has been obtained by the RO. 2. The veteran's gastrointestinal disability is not causally related to a service-connected disability, and is not related to Tylenol taken for his service- connected headaches. CONCLUSION OF LAW A gastrointestinal disability is not proximately due to or the result of service connected post-traumatic headaches. 38 C.F.R. § 3.310 (2002). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Background As an initial matter, the Board notes that there has been a significant change in the law during the pendency of this appeal. On November 9, 2000, the President signed into law the Veterans Claims Assistance Act of 2000 (VCAA), 38 U.S.C.A. § 5100 et seq. (West 2002); see 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2002). This law eliminated the concept of a well-grounded claim, redefined the obligations of VA with respect to the duty to assist, and imposed on VA certain notification requirements. First, VA has a duty to notify the veteran of any information and evidence needed to substantiate and complete a claim. 38 U.S.C.A. §§ 5102 and 5103 (West 2002); 38 C.F.R. § 3.159(b) (2002); see Quartuccio v. Principi, 16 Vet. App. 183 (2002) (holding that both the statute, 38 U.S.C. § 5103(a), and the regulation, 38 C.F.R. § 3.159, clearly require the Secretary to notify a claimant which evidence, if any, will be obtained by the claimant and which evidence, if any, will be retrieved by the Secretary). Second, VA has a duty to assist the veteran in obtaining evidence necessary to substantiate the claim. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159(c) (2002). The November 1997 rating decision, the February 1998 Statement of the Case (SOC), and the September 1999 and April 2000 Supplemental Statements of the Case (SSOCs), advised the veteran of the laws and regulations pertaining to his claim for service connection. These documents informed the veteran of the evidence of record and explained the reasons and bases for denial. The veteran was specifically informed that service connection for a gastrointestinal disability was being denied because the evidence did not show it was linked to service, or that it was related to medication taken for a service-connected disability. The SOC and SSOCs made it clear to the veteran that in order to prevail on his service connection claim, he needed to present medical evidence that his condition was linked to service or was linked to a service connected disability. In a March 2002 letter, the veteran was told to send the Board any additional evidence he had concerning his appeal. The Board sent the veteran a letter dated in October 2002 stating that the veteran needed to report for an examination and that the Board would obtain additional medical records. The RO obtained the veteran's service medical records and VA outpatient treatment records. The Board obtained additional VA treatment records. The veteran was provided a VA examination in September 1999 and a second VA examination in November 2002. A February 2003 letter, the veteran was told that VA intended to use the new VA examination report in its decision and was told that he could submit additional evidence or argument in response. He responded that he had no additional evidence or argument to present. There is no indication that there is more information or medical evidence to be found with respect to the veteran's claim. Accordingly, the Board finds that VA has satisfied its duty to notify and to assist and that under the circumstances of this case, a remand would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to requirements in the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran are to be avoided). II. Service connection for a gastrointestinal disability In general, service connection will be granted for disability resulting from injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2002). If a condition noted during service is not determined to be chronic, then generally a showing of continuity of symptomatology after service is required for service connection. 38 C.F.R. § 3.303(b) (2002). 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 was incurred in service. 38 C.F.R. § 3.303(d) (2002). To grant service connection, it is required that the evidence shows the existence of a current disability, an inservice disease or injury, and a link between the disability and the inservice disease or injury. Watson v. Brown, 4 Vet. App. 309, 314 (1993). This principle has been repeatedly reaffirmed by the United States Court of Appeals for the Federal Circuit, which recently stated that "a veteran seeking disability benefits must establish . . . the existence of a disability [and] a connection between the veteran's service and the disability". Boyer v. West, 210 F.3d 1351, 1353 (Fed.Cir. 2000). A disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. When service connection is established for a secondary condition it shall be considered as part of the original condition. 38 C.F.R. § 3.310(a) (2002). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) caused by or (b) aggravated by a service connected disability. 38 C.F.R. § 3.310(a) (2002); Allen v Brown, 7 Vet. App. 439 (1995) (en banc). The veteran does not claim and the record does not show that his gastrointestinal disability is directly related to service. There is no evidence in the service medical records that show any gastrointestinal disability diagnosed in service. There are no treatment notes or examination reports which suggest a direct link to service. Therefore, direct service connection is not warranted for a gastrointestinal disability. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2002). However, the veteran is not seeking direct service connection for his gastrointestinal disability. He is claiming that his psychiatric disability should be considered as secondary to his service connected post-traumatic headaches. Specifically, the veteran claims that his gastrointestinal disability is due to ibuprofen that he says he took for his headaches. The veteran has established service connection for post-traumatic headaches, and a 10 percent disability evaluation has been assigned. The veteran also has degenerative joint disease of the knees and the cervical spine, but service connection is not in effect for these disabilities. The VA outpatient treatment notes dated from October 1994 to September 2000 do indicate that the veteran was suffering from a gastrointestinal disability. A VA treatment note dated in September 1996 indicates the veteran had "pain in his tonsil area" when swallowing, A treatment note dated in April 1998 indicates a diagnosis of dyspepsia. The VA outpatient treatment notes also establish that the veteran was taking ibuprofen for his knees and was taking Tylenol for his headaches. A treatment note dated in April 1997 indicates that the veteran was told to take ibuprofen for his degenerative joint disease of the knees. VA treatment notes dated in September 1995, and October 1994 indicate that the veteran was taking Tylenol for his headaches. The veteran underwent a VA examination in September 1999. The veteran told the examiner that he has taken ibuprofen for his musculoskeletal complaints and that when he takes ibuprofen he will have episodes of nausea and heartburn and will occasionally have diarrhea. The examiner provided a diagnosis of gastritis secondary to ibuprofen therapy. VA outpatient treatment notes dated from September 2000 to August 2002 do not show any link between medication for headaches and any gastrointestinal disability. The veteran underwent a VA examination in November 2002. The veteran stated that he had developed daily headaches and that the pain was decreased with aspirin and Tylenol use. The veteran complained of abdominal discomfort/burning in his stomach with decreased swallowing capabilities. The veteran stated he had been taking Motrin (ibuprofen) for his osteoarthritic pain in his knees and shoulders. The examiner stated that the veteran underwent an Esophagogastroduodenoscopy study in November 2001 that revealed erosive esophagitis and Peptic Ulcer Disease. The examiner provided a diagnosis of Peptic Ulcer Disease with erosive esophagitis. The examiner also indicated his medical opinion that the erosive esophagitis and Peptic Ulcer Disease are secondary to his chronic Motrin (ibuprofen) usage for his osteoarthritis of the knees and shoulders. The examiner indicated it was his opinion that the headache disorder and use of Tylenol did not cause the gastrointestinal disability. The Board finds that the evidence does not show that the veteran's gastrointestinal disability is either caused by or aggravated by his service connected post-traumatic headaches, or medication taken for his headaches. The VA examiners in September 1999 and November 2002 both indicated that the gastrointestinal disability was due to ibuprofen use. The VA examiner in November 2002 specifically offered his opinion that Tylenol taken for headaches was not causing the gastrointestinal disability. The record is clear that the veteran takes Tylenol for headaches, and ibuprofen for arthritis. The VA treatment notes indicate that, and the veteran stated that at his two VA examinations. Therefore the Board finds that there is not a causal relationship between the veteran's gastrointestinal disability and his service connected post-traumatic headaches or medication taken for the headaches. 38 C.F.R. § 3.310(a) (2002); Allen, 7 Vet. App. 439. The Board notes the veteran's belief that there is a relationship between Tylenol use and his gastrointestinal disability, but as a layperson, the veteran is not competent to testify to a medical diagnosis or etiology. See, Espiritu v. Derwinski, 2 Vet. App. 492 (1992). ORDER Service connection for a gastrointestinal disability, secondary to service-connected post-traumatic headaches, is denied. ____________________________________________ THOMAS J. DANNAHER Veterans Law Judge, Board of Veterans' Appeals IMPORTANT NOTICE: We have attached a VA Form 4597 that tells you what steps you can take if you disagree with our decision. We are in the process of updating the form to reflect changes in the law effective on December 27, 2001. See the Veterans Education and Benefits Expansion Act of 2001, Pub. L. No. 107-103, 115 Stat. 976 (2001). In the meanwhile, please note these important corrections to the advice in the form: ? These changes apply to the section entitled "Appeal to the United States Court of Appeals for Veterans Claims." (1) A "Notice of Disagreement filed on or after November 18, 1988" is no longer required to appeal to the Court. (2) You are no longer required to file a copy of your Notice of Appeal with VA's General Counsel. ? In the section entitled "Representation before VA," filing a "Notice of Disagreement with respect to the claim on or after November 18, 1988" is no longer a condition for an attorney-at-law or a VA accredited agent to charge you a fee for representing you.