Citation Nr: 0631095 Decision Date: 10/03/06 Archive Date: 10/10/06 DOCKET NO. 03-04 110 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUE Entitlement to service connection for a gastrointestinal disability. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Eric S. Leboff, Counsel INTRODUCTION The veteran had active service from January 1984 until September 2000. This matter comes before the Board of Veterans' Appeals (BVA or Board) from a November 2001 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO) in Washington, D.C. Subsequent to the November 2001 rating action, the claims file has been transferred to the RO in Roanoke, Virginia. FINDING OF FACT The competent evidence does not demonstrate that the veteran's currently diagnosed irritable bowel syndrome and sensitive gastrocolic reflex was causally related to active service. CONCLUSION OF LAW A gastrointestinal disability was not incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2005). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2005); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2005). Duty to Notify Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2005); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper VCAA notice 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; (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in her or his possession that pertains to the claim in accordance with 38 C.F.R. § 3.159(b)(1). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004); see also Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, No. 05-7157 (Fed. Cir. Apr. 5, 2006). Further regarding notice, on March 3, 2006, the United States Court of Appeals for Veterans Claims (Court) issued its decision in the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Court in Dingess/Hartman holds that the VCAA notice requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a "service connection" claim. As previously defined by the courts, those five elements include: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. Upon receipt of an application for "service connection," therefore, the Department of Veterans Affairs (VA) is required to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating or is necessary to substantiate the elements of the claim as reasonably contemplated by the application. This includes notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. In the present case, VA satisfied its duty to notify by means of an April 2004 letter from the agency of original jurisdiction (AOJ) to the appellant. The letter informed the appellant of what evidence was required to substantiate the claim and of his and VA's respective duties for obtaining evidence. He was asked to provide pertinent evidence in his possession to VA. Such notice did not inform the veteran as to the law pertaining to disability evaluations or effective dates. However, because the instant decision denies the veteran's service connection claim, no disability evaluation or effective date will be assigned. As such, there can be no possibility of any prejudice to the veteran. Regarding the timing of notice, in Pelegrini v. Principi, 18 Vet. App. 112 (2004), the U.S. Court of Appeals for Veterans Claims held, in part, that a VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim for VA benefits. In the present case, the unfavorable AOJ decision that is the basis of this appeal was decided prior to the issuance of appropriate VCAA notice. Here, the Board finds that any defect with respect to the timing of the VCAA notice requirement was harmless error. Although the notice was provided to the appellant after the initial adjudication, the case was readjudicated thereafter, and the appellant has not been prejudiced thereby. The content of the notice provided to the appellant fully complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) regarding VA's duty to notify. Not only has the appellant been provided with every opportunity to submit evidence and argument in support of his claim and to respond to VA notices, but the actions taken by VA have essentially cured the error in the timing of notice. Further, the Board finds that the purpose behind the notice requirement has been satisfied because the appellant has been afforded a meaningful opportunity to participate effectively in the processing of his claim. For these reasons, it is not prejudicial to the appellant for the Board to proceed to finally decide this appeal. Duty to assist With regard to the duty to assist, the claims file contains the veteran's service medical records and reports of VA post service treatment and examination. Additionally, the claims file contains lay statements from the veteran's friends and co-workers. Moreover, the claims file contains the veteran's own statements in support of his claim, to include testimony provided at a May 2005 hearing before the undersigned. The Board has carefully reviewed such statements and concludes that he has not identified further evidence not already of record. The Board has also perused the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the veteran's claim. Based on the foregoing, the Board finds that all relevant facts have been properly and sufficiently developed in this appeal and no further development is required to comply with the duty to assist the veteran in developing the facts pertinent to his claim. Essentially, all available evidence that could substantiate the claim has been obtained. There is no indication in the file that there are additional relevant records that have not yet been obtained. Discussion The Board has reviewed all of the evidence in the veteran's claims folder. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Indeed, the Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim. The veteran is claiming entitlement to service connection for a gastrointestinal disability. At the outset, the Board notes that the veteran had active service in the Southwest Asia theater of operations during the Persian Gulf War. As such, the provisions of 38 C.F.R. § 3.317, pertaining to undiagnosed illnesses, apply. Specifically, under 38 C.F.R. § 3.317, a Persian Gulf veteran shall be service-connected for objective indications of qualifying chronic disability resulting from an illness manifested by one or more presumptive signs or symptoms that began during active military service and cannot be attributed to any known clinical diagnosis. See 38 C.F.R. § 3.317. A qualifying chronic disability means a chronic disability resulting from an undiagnosed illness; medically unexplained chronic multi-symptom illnesses that are defined by a cluster of signs or symptoms such as chronic fatigue syndrome, fibromyalgia or irritable bowel syndrome; or any other illness that the Secretary determines warrants a presumption of service connection. 38 C.F.R. § 3.317. For the purposes of 38 C.F.R. § 3.317, the term "medically unexplained chronic multi-symptom illness" means a diagnosed illness without conclusive pathophysiology or etiology, that is characterized by overlapping symptoms and signs and had features such as fatigue, pain, disability out of proportion to physical findings, and inconsistent demonstration of laboratory abnormalities. In addition, signs or symptoms which may be manifestations of undiagnosed illness or medically unexplained chronic multi symptom illness include, but are not limited to the following: fatigue, signs or symptoms involving skin, headache, muscle pain, joint pain, neurologic signs or symptoms, neuropsychological signs or symptoms, signs or symptoms involving the respiratory system (upper or lower), sleep disturbances, gastrointestinal signs or symptoms, cardiovascular signs or symptoms, abnormal weight loss, or menstrual disorders. See 38 C.F.R. § 3.317(a)(6). In the present case, the evidence of record does not establish that the veteran's gastrointestinal disability constitutes a qualifying chronic disability under 38 C.F.R. § 3.317. Indeed, the veteran does not have an undiagnosed illness of the gastrointestinal system. To the contrary, the competent evidence, to include VA examinations in May 2004 and February 2006, show assessments of irritable bowel syndrome. Moreover, there is no demonstration that such irritable bowel syndrome is a symptom of a medically unexplained chronic multi-symptom illness. Therefore, the requirements for a grant of presumptive service connection under 38 C.F.R. § 3.317 have not been satisfied. Having ruled out service connection due to undiagnosed illness, the Board will now address the issue of direct service connection. According to the law, service connection is warranted if it is shown that a veteran has a disability resulting from an injury incurred or a disease contracted in the line of duty, or for aggravation of a preexisting injury or disease in active military service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2005). Service connection may also be granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service. See 38 C.F.R. § 3.303(d). "Generally, to prove service connection, a claimant must submit (1) medical evidence of a current disability, (2) medical evidence, or in certain circumstances lay testimony, of in-service incurrence or aggravation of an injury or disease, and (3) medical evidence of a nexus between the current disability and the in-service disease or injury." Pond v. West, 12 Vet. App. 341, 346 (1999). Where the determinative issue involves a medical diagnosis, competent medical evidence is required. This burden typically cannot be met by lay testimony because lay persons are not competent to offer medical opinions. Espiritu v. Derwinski, 2 Vet. App. 492, 494-95 (1992). As previously noted, VA examination in May 2004 and February 2006 reflect diagnoses of irritable bowel syndrome. A July 2004 VA clinical report also indicated sensitive gastrocolic reflex. Therefore, the Board finds that a current disability is established, satisfying the first element of a service connection claim. The Board will now consider the second element of a service connection claim, that of in-service incurrence. In this regard, the service medical records show complaints of nausea, vomiting and diarrhea in May 1984. The diagnosis was "acute gastrointestinal illness, enteritis." He was seen again in October 1984 with similar symptoms. Enteritis was again diagnosed. The service medical records again show complaints of nausea and vomiting in July 1985, but this was due to a head injury. Next, the veteran complained of vomiting and nausea in April 1988. At that time, he was believed to have a viral infection. Nausea was further noted in a September 1988 in- service treatment record, though the chief complaint at that time was arthritic pain in the legs. Also in service, an upper GI series performed in April 1989 showed normal findings. A periodic examination conducted in September 1992 was also normal. The service medical records next show complaints of nausea, vomiting and diarrhea in August 1997. The diagnosis was acute gastroenteritis. Nausea was further noted in a March 1998 in-service treatment report. Finally, an undated service medical record indicated the possibility that the veteran had diverticulitis. As described above, the in-service medical evidence reveals numerous complaints and treatment for gastrointestinal symptomatology including nausea, vomiting and diarrhea. However, such evidence does not establish that a chronic gastrointestinal disability was incurred in active service. Rather, each instance of treatment is found to relate to acute illness that later resolved. Indeed, while the veteran's symptoms were similar in each instance of treatment, the cause of such symptoms varied. For example, the veteran's complaints of nausea and vomiting in 1985 were associated with a head injury and his gastrointestinal complaints in April 1988 were associated with a transitory viral infection. As the etiology of the veteran's stomach complaints changed throughout service, it cannot be found that such symptoms were manifestations of a single, chronic gastrointestinal disability. In finding that the service medical records fail to show a chronic gastrointestinal disability, the Board also relies on the fact that there were long gaps between treatment and diagnoses in service. For example, following an assessment of enteritis in 1984, no further diagnoses follow until 1997, well over a decade later. Moreover, an upper GI series performed in April 1989 was normal, as was a September 1992 examination. Such normal findings in between the dates of treatment for gastrointestinal symptomatology strongly suggests that such symptoms arose from independent acute illnesses rather than from a chronic disability. Finally, the veteran's gastroenteritis in 1997 was noted to be "acute," rather than chronic. For all the reasons discussed above, the service medical records do not establish the existence of a chronic gastrointestinal disability. However, this does not preclude a grant of service connection. Indeed, service connection may also be granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service. See 38 C.F.R. § 3.303(d). However, the post-service evidence does not lead to the conclusion that the veteran's currently diagnosed irritable bowel syndrome was incurred in active service, as will be explained below. The post-service records show that, upon VA examination in October 2000, one month following discharge, an upper GI series was normal. The veteran raised no gastrointestinal complaints at that time. Moreover, VA outpatient treatment reports dated in 2001 showed a soft and nontender abdomen, with no masses or organomegaly. Again, gastrointestinal complaints were not raised in these treatment reports. In fact in an April 2001 VA record, the veteran denied gastrointestinal pain, nausea, vomiting, diarrhea, melena or bleeding. VA outpatient treatment records dated in 2002 and 2003 show that the veteran was taking prescription medication for upset stomach and indigestion. However, these records do not show complaints or treatment relating to a gastrointestinal disability. Indeed, it is not until April 2004 that the veteran raised complaints of stomach pain. The assessment at that time was suspected diverticulitis. Diagnostic tests were performed in June 2004 and the veteran was diagnosed with irritable bowel syndrome and sensitive gastrocolic reflex, as noted in a July 2004 VA clinical record. A May 2004 VA examination also contained a diagnosis of irritable bowel syndrome. In sum, the post-service medical records do not show treatment referable to a gastrointestinal disability until 2004, four years after the veteran's separation from service. Indeed, the veteran's current gastrointestinal disability was not diagnosed until 2004, 4 years following discharge from active duty. In the absence of demonstration of continuity of symptomatology since service, this is too remote from service to be reasonably related to service. Moreover, no competent evidence of record finds otherwise. In this regard, a VA examiner reviewed the claims file in February 2006 and observed that the service medical records showed a finding of diverticulitis. However, the examiner noted that subsequent examinations, including a colonoscopy, failed to reveal any diverticular disease. He explained that diverticulitis should not disappear unless surgically corrected. Therefore, the VA examiner was unable to state with any certainty that the veteran's current gastrointestinal problems of irritable bowel syndrome and acid reflux originated during his period of active duty. As discussed above, the VA examiner in February 2006 could not find, based on the evidence of record, that the veteran's currently diagnosed gastrointestinal disability was casually related to active service. Moreover, no other competent evidence finds such a causal relationship. The Board acknowledges the veteran's testimony provided at a May 2005 hearing before the undersigned. At that time, the veteran stated that his gastrointestinal problems arose in service. (Transcript "T," at 3.) He added that, following service, he continued to have symptoms such as diarrhea. (T. at 4.) The veteran commented that he had been exposed to chemicals during his time in the Persian Gulf. While the veteran believes that his currently diagnosed gastrointestinal disability resulted from his service in the Persian Gulf, he has not been shown to possess the requisite training or credentials needed to render a competent opinion as to medical causation. As such, his lay opinion does not constitute competent medical evidence and lacks probative value. See Routen v. Brown, 10 Vet. App. 183, 186 (1997), aff'd, 142 F.3d 1434 (Fed. Cir. 1988); YT v. Brown, 9 Vet. App. 195, 201 (1996); Espiritu v. Derwinski, 2 Vet. App. 492, 494-95 (1992). The Board acknowledges lay statements from the veteran's friends and acquaintances received in 2004. Such statements indicate that the veteran presently suffers from stomach problems. Furthermore, in a May 2004 communication written by an Army Administrative Technician, it was noted that the veteran had gastrointestinal problems at the time he was undergoing his medical board process for separation from service. Such evidence does not substantiate the veteran's claim here. Indeed, the fact of in-service and current gastrointestinal problems has already been established. However, the lay statements are not probative as to the issue of causation. See Espiritu, 2 Vet. App. 492, 494-95. Without competent evidence showing that the current gastrointestinal disability is causally related to the intermittent in-service complaints, the claim must fail. In conclusion, the evidence of record fails to establish that the veteran's currently diagnosed irritable bowel syndrome and sensitive gastrocolic reflex was causally related to active service. As the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). ORDER Service connection for a gastrointestinal disability is denied. ____________________________________________ U. R. POWELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs