Citation Nr: 0941122 Decision Date: 10/28/09 Archive Date: 11/04/09 DOCKET NO. 02-06 057 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to service connection for peptic ulcer disease. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARINGS ON APPEAL Appellant ATTORNEY FOR THE BOARD S. Richmond, Counsel INTRODUCTION The Veteran had active military service from December 1987 to August 1989. This matter comes to the Board of Veterans' Appeals (Board) from a June 2000 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas, which denied service connection for an ulcer. The RO had previously denied this claim in December 1999 and the Veteran did not appeal this decision. In March 2000, the RO obtained the Veteran's service treatment records, which were considered during the June 2000 rating decision. Thus, the claim was reconsidered on the merits, rather than evaluated as a claim to reopen based on new and material evidence. See 38 C.F.R. § 3.156(c). The Veteran testified before a Veterans Law Judge (VLJ) at a Board video conference hearing at the RO in September 2002. In April 2004, the Board remanded this case for additional development. The VLJ who conducted the September 2002 hearing subsequently retired and the Veteran elected to have another hearing; so the case was remanded for this purpose in August 2006. In November 2006, the Veteran testified before the undersigned VLJ at a Board hearing at the RO. Transcripts of both hearings are of record. The Board remanded the case again in February 2007 because the RO had not followed the directives of the April 2004 remand. FINDING OF FACT The first diagnosis of peptic ulcer disease of record is nine years after service; and the preponderance of the evidence shows that the Veteran's present peptic ulcer disease is not related to her service. CONCLUSION OF LAW The criteria for service connection for peptic ulcer disease are not met. 38 U.S.C.A. §§ 1131, 1133, 5103, 5103A, 5107 (West 2002 & Supp. 2008); 38 C.F.R. §§ 3.159, 3.102, 3.303, 3.307, 3.309 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSION Notice and Assistance Upon receipt of a complete or substantially complete application, VA must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 U.S.C.A. § 5103(a). The notice requirements apply to all five elements of a service connection claim: 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. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The notice must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App.112 (2004). The notice requirements may be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). During the course of this appeal, the RO has provided the Veteran multiple notice letters dated in March 2003, April 2004, March 2006, and March 2007, subsequent to the initial adjudication. While these notice letters were not provided prior to the initial adjudication, the claimant has had the opportunity to submit additional argument and evidence, and to meaningfully participate in the adjudication process. The claim was subsequently readjudicated in supplemental statements of the case dated from April 2006 to September 2009, following the provision of notice. The notification substantially complied with the specificity requirements of Dingess v. Nicholson, 19 Vet. App. 473 (2006) identifying the five elements of a service connection claim; and Quartuccio v. Principi, 16 Vet. App. 183 (2002), identifying the evidence necessary to substantiate a claim and the relative duties of VA and the claimant to obtain evidence. In any event, the Veteran has neither alleged nor demonstrated any prejudice with regard to the content or timing of the notices. See Shinseki v. Sanders, 129 U.S. 1696 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination); see also Mayfield v. Nicholson, 444 F.3d 1328, 1333-34 (Fed. Cir. 2006). VA has obtained service treatment records, assisted the Veteran in obtaining evidence, afforded the Veteran physical examinations, obtained a medical opinion as to the etiology of the peptic ulcer disability, and afforded the Veteran the opportunity to give testimony before the Board. The Veteran has indicated that she was treated in Germany during her service but these records are not included with her service treatment records. The RO contacted the National Personnel Records Center (NRPC) to obtain these records and the NPRC responded that it needed the name of the hospital and specific dates of treatment to conduct a search. The RO notified the Veteran of the NPRC's response and requested the necessary information; but the Veteran did not respond to this inquiry with the necessary information. The Veteran also indicated that she had private treatment for her ulcer dating back to 1991. The RO attempted to obtain these records but the request was returned due to invalid mailing address. The Veteran was notified of the RO's attempts but did not respond. The RO has made reasonable efforts to obtain all available records and any further attempts at this point would be futile. All known and available records relevant to the issues on appeal have been obtained and associated with the Veteran's claims file. VA has substantially complied with the notice and assistance requirements and the Veteran is not prejudiced by a decision on the claim at this time. Analysis The Veteran seeks service connection for peptic ulcer disease. She testified in her hearings that she was diagnosed with this condition in service, specifically while she was stationed in West Germany. She indicated that they did an endoscopy to determine whether she he had an ulcer and they found one the size of a pin point; then later when they did it again, it was the size of a dime. She stated that she has been self-medicating with Pepcid AC over-the-counter medicine since then, as she cannot afford prescription medication. In seeking VA disability compensation, a veteran generally seeks to establish that a current disability results from disease or injury incurred in or aggravated by service. 38 U.S.C.A § 1131. "Service connection" basically means that the facts, shown by the evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. This may be accomplished by affirmatively showing inception or aggravation during service or through the application of statutory presumptions. Where chronicity of a disease is not shown in service, service connection may yet be established by showing continuity of symptomatology between the currently claimed disability and a condition noted in service. A veteran may also establish service connection if all of the evidence, including that pertaining to service, shows that a disease first diagnosed after service was incurred in service. 38 C.F.R. § 3.303. Certain chronic diseases, including peptic ulcers, shall be granted service connection although not otherwise established as incurred in or aggravated by service if manifested to a compensable degree within one year after service in a period of war or following peacetime service on or after January 1, 1947, provided the rebuttable presumption provisions of § 3.307 are also satisfied. See 38 U.S.C.A. § 1133; 38 C.F.R. §§ 3.307, 3.309(a). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the 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.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The service treatment records are negative for any complaints regarding the stomach or any findings of an ulcer. The medical evidence after service shows that a June 1995 VA radiology report on the abdomen was normal. The first diagnosis of peptic ulcer disease was in February 1998. The February 1998 private treatment report notes that it was a follow-up examination and that the Veteran could not eat and had stomach pain that woke her up at night. She indicated that she had been having ulcer problems for six months. She had not been treated. March 2002 private treatment records show that clinical evaluation was positive for helicobacter pylori immunoglobulin G. She was treated with Pepcid AC as needed and instructed to avoid alcohol, spicy or greasy foods, and to stop smoking. An April 2001 VA medical record also shows a diagnosis of gastroesophageal reflux disease (GERD). A medical opinion was provided in July 2008 to determine whether there was any relationship between the Veteran's peptic ulcer disease and service. The July 2008 VA examiner indicated that the claims file was reviewed. The Veteran indicated that she drove trucks and refueled aircraft in the military and worked in medical billing and coding after leaving the service. She worked in a warehouse assembling pots and pans more recently. She had a "moderate" alcohol habit, drinking once per week, a six-pack on Friday night. She smoked one pack per three days having started 15 years ago. Her current medications included Prevacid, Pepcid, and Imodium, as needed. She reported that she first had a burning sensation, nausea, and vomiting in 1986. The burning was in the epigastric area and stress worsened the symptoms. She indicated that she had a physical and an esophagogastroduodenoscopy (EGD) conducted in Germany and was found to have peptic ulcer disease. She was put on medication including antacids, but could not recall the names of medications. Her symptoms were partially relieved but the Veteran could not remember if she was seen again or had a medication change. The examiner indicated that she could not find any documentation in the military medical records of treatment for GERD, abdominal pain, or ulcers. There was no evidence of any testing for gastrointestinal conditions while in service. The examiner noted that the documentation did not include the Veteran's separation examination. X-ray examination of the abdomen showed normal bowel gas pattern, no obstruction, ileus, or free air. The examiner found that the Veteran's peptic ulcer disease was mild and that it was at least as likely as not that the Veteran's peptic ulcer disease was not related to her service. The rationale was that after reviewing the claims file, there was no documentation in the military service records of the Veteran being treated for peptic ulcer disease. The first documented treatment for gastrointestinal symptoms was in the 1990's. The medical evidence in this case is against the Veteran's claim. The first diagnosis of peptic ulcer disease is in 1998, which is nine years after service. Thus, service connection is not warranted on a presumptive basis under 38 C.F.R. §§ 3.307, 3.309. Additionally, there is no medical evidence of continuity of symptomatology of this disability from service or during the nine years before this disability was shown. See Savage v. Gober, 10 Vet. App. 488 (1997). Although the Veteran indicated that she was diagnosed with peptic ulcer disease in service, this is not reflected in the service treatment records. In fact, the Veteran stated on a 1998 record that she had only been having symptoms for six months. The Veteran genuinely believes that her peptic ulcer disease was incurred in service. While the Veteran is competent to testify regarding her symptoms, as a layperson, lacking in medical training and expertise, the Veteran cannot provide a competent opinion on a matter as complex as the etiology or diagnosis of peptic ulcer disease and her views are of no probative value. And, even if her opinion was entitled to be accorded some probative value, it is far outweighed by the opinion provided by the medical professional, who found that there was no relationship between the Veteran's peptic ulcer disease and her service. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The preponderance of the evidence is against the service connection claim for peptic ulcer disease; there is no doubt to be resolved; and service connection is not warranted. Gilbert v. Derwinski, 1 Vet. App. at 57-58. ORDER Entitlement to service connection for peptic ulcer disease is denied. ____________________________________________ RONALD W. SCHOLZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs