Citation Nr: 0728800 Decision Date: 09/13/07 Archive Date: 09/25/07 DOCKET NO. 06-19 031 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for hiatal hernia with gastroesophageal reflux disease. 2. Entitlement to service connection for post-traumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD Anthony M. Flamini, Associate Counsel INTRODUCTION The veteran had active service from October 1963 to March 1964 and from May 1968 to August 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The veteran testified before the undersigned at a Board videoconference hearing in July 2007. A transcript of that hearing has been associated with the claims folder. FINDINGS OF FACT 1. There is no evidence of hiatal hernia with gastroesophageal reflux disease or other chronic gastric disorder in service or for many years thereafter and no competent evidence of a nexus between the veteran's current hiatal hernia and his period of active service. 2. The veteran is currently diagnosed as having PTSD as a result of experiences in Vietnam. 3. There is credible supporting evidence that the veteran's non-combat related stressor, enemy attacks on various base camps where the veteran was stationed during his tour of duty, actually occurred. CONCLUSIONS OF LAW 1. Service connection for hiatal hernia with gastroesophageal reflux disease is not established. 38 U.S.C.A. §§ 1101, 1110, 1112, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2006). 2. Service connection for PTSD is established. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.304(f) (2006). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may be demonstrated either by showing direct service incurrence or aggravation or by using applicable presumptions, if available. Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). Direct service connection requires evidence of a current disability with a relationship or connection to an injury or disease or some other manifestation of the disability during service. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000).. A disorder may be service connected if the evidence of record reveals that the veteran currently has a disorder that was chronic in service or, if not chronic, that was seen in service with continuity of symptomatology demonstrated thereafter. 38 C.F.R. § 3.303(b); Savage v. Gober, 10 Vet. App. 488, 494-97 (1997). Evidence that relates the current disorder to service must be medical unless it relates to a disorder that may be competently demonstrated by lay observation. Savage, 10 Vet. App. at 495-97. 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, as distinguished from merely isolated findings or a diagnosis including the word "chronic." 38 C.F.R. § 3.303(b). Disorders diagnosed after discharge may still be service connected if all the evidence, including pertinent service records, establishes that the disorder was incurred in service. 38 C.F.R. § 3.303(d). Some chronic diseases are presumed to have been incurred in service, although not otherwise established as such, if manifested to a degree of ten percent or more within one year of the date of separation from service. 38 U.S.C.A. § 1112(a)(1); 38 C.F.R. § 3.307(a)(3); see 38 U.S.C.A. § 1101(3) and 38 C.F.R. § 3.309(a) (listing applicable chronic diseases, including peptic ulcer). Where the determinative issue involves medical causation or a medical diagnosis, there must be competent medical evidence to the effect that the claim is plausible; lay assertions of medical status do not constitute competent medical evidence. Grottveit v. Brown, 5 Vet. App. 91, 93 (1993); Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. 38 U.S.C.A. § 5107(b). Hiatal Hernia with Gastroesophageal Reflux Disease The veteran claims entitlement to service connection for hiatal hernia with gastroesophageal reflux disease. The report of the August 2006 VA esophagus examination diagnosed the veteran with hiatal hernia and gastroesophageal reflux disease with Barrett's esophagus. This evidence is sufficient to establish a current disability. However, although the veteran claims he was treated for an aggravated stomach while stationed at Fort Bragg, North Carolina in 1968, service medical records revealed no diagnosis or treatment for a chronic gastric disorder. Furthermore, the reports of the August 1969 physical examination and medical history at separation were negative for findings of a gastric disorder or history of related symptoms. In fact, the veteran explicitly indicated that he never had frequent indigestion or any stomach, liver or intestinal problem on his August 1969 report of medical history. Although the veteran claims his gastric condition and acid reflux continued to bother him in the decades following separation from service, he did not seek professional treatment for and was not diagnosed with a gastric condition until 1985, 16 years after the his separation from service. Thus, the Board finds insufficient evidence to warrant service connection for chronic disability in service or for continuous symptoms of a disorder first seen in service. 38 C.F.R. § 3.303(b); Savage, 10 Vet. App. at 494-97. Similarly, there is no basis to presume the in- service incurrence of hiatal hernia with gastroesophageal reflux disease or other chronic gastric disorder. 38 U.S.C.A. § 1112(a)(1); 38 C.F.R. § 3.307(a)(3). Moreover, there is simply no competent evidence of record that establishes a relationship between the current diagnoses and the veteran's period of service. Boyer, 210 F.3d at 1353; Maggitt, 202 F.3d at 1375. To the contrary, the August 2006 VA examiner opined that it is less likely as not that the veteran's hiatal hernia and gastroesophageal reflux disease was caused by or a result of service. Although the veteran believes that his conditions are related to service, his personal, lay opinion as to the etiology of his conditions is not competent medical evidence required to establish service connection. Grottveit, 5 Vet. App. at 93. In summary, the Board finds that the preponderance of the evidence is against service connection for hiatal hernia with gastroesophageal reflux disease. 38 U.S.C.A. § 5107(b). That is, in the absence of competent evidence that the veteran has a current disability that is related to service, the claim cannot be granted. In adjudicating this claim, the Board has considered the doctrine of reasonable doubt. As the U.S. Court of Appeals for Veterans Claims (Court) has written: A unique standard of proof applies in decisions on claims for veterans' benefits. Unlike other claimants and litigants, pursuant to 38 U.S.C. § 3007(b) [now 38 U.S.C.A. § 5107(b)], a veteran is entitled to the "benefit of the doubt" when there is an approximate balance of positive and negative evidence. Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Citing to the Supreme Court of the United States, the Court in Gilbert noted that the standard of proof is to instruct the fact-finder in the "'degree of confidence our society thinks we should have in the correctness of a factual conclusion for a particular type of adjudication.'" This burden "'reflects not only the weight of the private and public interest affected, but also a societal judgment about how the risk of error should be distributed between the litigants.'" Id. (citations omitted). As currently codified, the law defines the "benefit of the doubt" doctrine as: When, after consideration of all evidence and material of record in this case before the Department with respect to benefits under laws administered by the Secretary, there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination in the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b). The Court noted that under this standard, when the evidence supports the claim or is in relative equipoise, the appellant prevails. Where the "fair preponderance of the evidence" is against the claim, the appellant loses and the benefit of the doubt rule has no application. Gilbert, 1 Vet. App. at 56. "A properly supported and reasoned conclusion that a fair preponderance of the evidence is against the claim necessarily precludes the possibility of the evidence also being in an approximate balance." Id. at 58. The Court has further held that where there is "significant evidence in support of the appellant's claim," the Board must provide a "satisfactory explanation" as to why the evidence is not in equipoise. Williams v. Brown, 4 Vet. App. 270, 273 (1993). Considering the particular facts of this case as discussed above, it is clear that the preponderance of the evidence weighs against the claim and there is no reasonable doubt to be resolved in the veteran's favor. Post-Traumatic Stress Disorder (PTSD) Service connection for PTSD requires medical evidence diagnosing the condition in accordance with VA regulations; a link, established by medical evidence, between current symptoms and an in-service stressor; and credible supporting evidence that the claimed in-service stressor occurred. If the evidence establishes that the veteran engaged in combat with the enemy and the claimed stressor is related to that combat, in the absence of clear and convincing evidence to the contrary, and provided that the claimed stressor is consistent with the circumstances, conditions, or hardships of the veteran's service, the veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor. 38 C.F.R. § 3.304(f). See 38 U.S.C.A. § 1154(b) and 38 C.F.R. § 3.304(d) (pertaining to combat veterans); Cohen v. Brown, 10 Vet. App. 128 (1997). If the veteran did not engage in combat with the enemy, or the veteran did engage in combat but the alleged stressor is not combat related, the veteran's lay testimony, by itself, is not sufficient to establish the occurrence of the alleged stressor. Instead, the record must contain credible supporting evidence which corroborates the veteran's testimony or statements. Cohen, 10 Vet. App. at 147; Moreau v. Brown, 9 Vet. App. 389, 395 (1996). In this case, the report of the October 2006 VA PTSD examination indicates that psychological assessment supports a diagnosis of PTSD. Furthermore, the examiner opines that the veteran's PTSD is most likely caused by combat experience in Vietnam. Thus, the remaining issue is whether there is credible evidence that the claimed in-service stressors actually occurred. To answer this question, the Board must first determine whether the veteran engaged in combat with the enemy. The veteran's service record indicates that he served as an assistant gunner and cannoneer with Battery A, 3rd Battalion of the 197th Artillery. He had service in Vietnam from September 1968 to August 1969, although his service records contain no evidence of medals or citations indicating that the veteran engaged in combat with the enemy. The veteran has described several stressors. His first claimed stressor occurred in March 1969 in Phu Loi when a firebase airstrip the veteran was assigned to protect was hit by enemy mortars several times. The veteran also describes other occasions when his battalion came under attack by enemy mortars and rockets. A Record of Proceedings Under Article 15 indicates that the veteran was stationed at Fire Support Base Thunder III in July 1969. Information provided by the U.S. Armed Services Center for Research of Unit Records (USASCRUR) explains that the combat unit record information indicates that Battery A, 3rd Battalion of the 197th Artillery was located at various base camps in Vietnam during the veteran's tour of duty. Such locations included Landing Zone (LZ) Joe, Fire Support Base Thunder III, and LZ Dottie. USASCRUR indicates that each of these bases were subjected to enemy attacks while the veteran's battery was stationed at them, including an August 1969 offensive against LZ Dottie that included a mortar and sapper attack. The Board finds this evidence sufficient to verify the veteran's in-service stressor as the Battalion's Command History confirms the occurrence of the attacks. There is no information to suggest that the veteran was not present. Therefore, the stressor is verified. Pentecost v. Principi, 16 Vet. App. 124, 127-128 (2002). Accordingly, the Board finds that the evidence supports service connection for PTSD. 38 U.S.C.A. § 5107(b). The Duty to Notify and the Duty to Assist Review of the claims folder reveals compliance with the duty to notify. 38 U.S.C.A. § 5103(a). That is, by letters dated January 2003 and April 2006, as well as in the June 2006 statement of the case, the RO advised the veteran of the evidence needed to substantiate his claim and explained what evidence it was obligated to obtain or to assist the veteran in obtaining and what information or evidence the veteran was responsible for providing. In addition, the June 2006 statement of the case includes the text of the regulation that implements the notice and assistance provisions from the statute. Although the veteran did not receive specific notice informing him to submit all relevant evidence in his possession prior to the March 2004 rating decision, Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004), the veteran was instructed to submit all evidence pertaining to his claims by letter dated April 2006. Accordingly, the Board finds that the RO has provided all required notice. 38 U.S.C.A. § 5103(a), 38 C.F.R. § 3.159(b)(1); see Quartuccio v. Principi, 16 Vet. App. 183 (2002). During the pendency of this appeal, on March 3, 2006, the Court issued a decision in the consolidated appeal of Dingess v. Nicholson, 19 Vet. App. 473 (2006), which held that the notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. 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. The Court held that upon receipt of an application for a service- connection claim, 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) require VA 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. Additionally, this notice must include notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. In the present appeal, the veteran was provided with such notice by letters dated April 2006, May 2006, and June 2006. The Board further finds that any deficiency in the notice to the veteran or the timing of these notices is harmless error. See Overton v. Nicholson, 20 Vet. App. 427, 435 (2006) (finding that the Board erred by relying on various post- decisional documents to conclude that adequate 38 U.S.C.A. § 5103(a) notice had been provided to the appellant, the Court found that the evidence established that the veteran was afforded a meaningful opportunity to participate in the adjudication of his claims, and found that the error was harmless, as has been found in this case). With respect to the duty to assist, the RO has obtained all available service records, VA outpatient treatment records, private medical records, and multiple VA examinations. See 38 U.S.C.A. § 5103A(d). In addition, the veteran provided additional records as well as lay evidence in the form of his own written statements, written statements from his brothers, and personal testimony at his July 2007 Board videoconference hearing. By correspondence dated January 2007, the veteran indicated he had no additional evidence to substantiate his claims. As there is no indication of further outstanding evidence, the Board is satisfied that the duty to assist has been met. 38 U.S.C.A. § 5103A. ORDER Service connection for hiatal hernia with gastroesophageal reflux disease is denied. Subject to the law and regulations governing the payment of monetary benefits, service connection for PTSD is granted. ____________________________________________ C. W. SYMANSKI Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs