Citation Nr: 1101336 Decision Date: 01/11/11 Archive Date: 01/20/11 DOCKET NO. 03-13 047 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boise, Idaho THE ISSUES 1. Entitlement to service connection for alcoholism, as secondary to service-connected anxiety disorder. 2. Entitlement to service connection for acid reflux disease. 3. Entitlement to service connection for intestinal problems. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARINGS ON APPEAL Appellant ATTORNEY FOR THE BOARD L. J. Vecchiollo, Counsel INTRODUCTION The Veteran served on active duty from March 1977 to April 1984. This matter came before the Board of Veterans' Appeals (Board) on appeal from a February 2002 rating decision from the Boise, Idaho, Department of Veterans Affairs (VA) Regional Office (RO). A hearing before a hearing officer at the RO was conducted in December 2003. In October 2004, to support his claim, the Veteran testified at a hearing at the RO chaired by a Veterans Law Judge who is no longer employed at the Board. In a July 2007 letter, the Board informed the Veteran that the individual who presided at the October 2004 hearing, who would ordinarily have participated in making the final determination of the claim, was no longer employed by the Board and that the Veteran had the right to a hearing before another Veterans Law Judge. In a response dated in July 2007, the Veteran stated that he did not want another hearing. The case has therefore, been reassigned. The Board remanded the claim in December 2005, January 2008, and June 2009 for further development and consideration. The June 2009 decision also granted service connection for anxiety disorder and denied service connection for post-traumatic stress disorder (PTSD). FINDINGS OF FACT 1. The Veteran's alcohol abuse, which has been in remission, was not incurred in service; there is no competent or credible evidence of a nexus between the post-service diagnosis of alcoholism and service-connected anxiety disorder. 2. Acid reflux disease, claimed as secondary to service- connected anxiety disorder, was not present in service, is not related to service, or to any service- connected disease or injury. 3. Intestinal problems, claimed as secondary to service- connected anxiety disorder, were not present in service, are not related to service, or to any service- connected disease or injury. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for alcohol abuse have not been met. 38 U.S.C.A. §§ 105, 1110, 5103, 5103A, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.1, 3.301, 3.303, 3.310 (2010). 2. The criteria for entitlement to service connection for acid reflux disease have not been met. 38 U.S.C.A. §§ 105, 1110, 5103, 5103A, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.1, 3.301, 3.303, 3.310 (2010). 3. The criteria for entitlement to service connection for intestinal problems have not been met. 38 U.S.C.A. §§ 105, 1110, 5103, 5103A, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.1, 3.301, 3.303, 3.310 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist 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). 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 S.Ct. 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). 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). 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 S.Ct. 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). The RO provided the appellant with notice in September 2009, subsequent to the initial adjudication. While the notice was 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 readjudicated in subsequent supplemental statements of the case, following the provision of notice. The appellant has not alleged any prejudice as a result of the untimely notification, nor has any been shown. 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; 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. VA has obtained service treatment records, assisted the appellant in obtaining evidence, afforded the appellant physical examinations, obtained medical opinions as to the etiology and severity of disabilities, and afforded the appellant the opportunity to give testimony before the Board. All known and available records relevant to the issues on appeal have been obtained and associated with the appellant's claims file; and the appellant has not contended otherwise. VA has substantially complied with the notice and assistance requirements and the appellant is not prejudiced by a decision on the claim at this time. II. Analysis The Veteran maintains that, due to his service-connected anxiety disorder, he self medicated with alcohol which caused his alcoholism, acid reflux disease, and intestinal problems. Service connection may be granted for any current disability that is the result of a disease contracted or an injury sustained while on active duty service. 38 U.S.C.A. §§ 1110; 38 C.F.R. § 3.303(a). Service connection may also be granted for a disease diagnosed after discharge, where all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). The elements of a valid claim for service connection are as follows: (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) competent evidence of a nexus between the claimed in-service disease or injury and the current disability. Hickson v. West, 12 Vet. App. 247, 253 (1999). 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). If there is no evidence of a chronic condition during service, or an applicable presumption period, then a showing of continuity of symptomatology after service is required to support the claim. 38 C.F.R. § 3.303(b). Evidence of a chronic condition must be medical, unless it relates to a condition to which lay observation is competent. Savage v. Gober, 10 Vet. App. 488, 495-98 (1997). If service connection is established by continuity of symptomatology, there must be medical evidence that relates a current condition to that symptomatology. Id. Generally speaking, compensation shall not be paid if the disability was the result of the veteran's own willful misconduct or abuse of alcohol or drugs. 38 U.S.C.A. §§ 105, 1110; 38 C.F.R. §§ 3.1(n), 3.301(c). There can be service connection for compensation purposes for an alcohol abuse disability acquired as secondary to, or as a symptom of, a service-connected disability. However, a veteran can only prevail if able to "adequately establish that their alcohol or drug abuse disability is secondary to or is caused by their primary service-connected disorder." Allen v. Principi, 237 F.3d 1368, 1381 (Fed. Cir. 2001). Such compensation would only result "where there is clear medical evidence establishing that the alcohol or drug abuse disability is indeed caused by a veteran's primary service- connected disability, and where the alcohol or drug abuse disability is not due to willful wrongdoing." Id. The simple drinking of alcoholic beverage is not of itself willful misconduct. However, the deliberate drinking of a known poisonous substance or under conditions which would raise a presumption to that effect will be considered willful misconduct. If, in the drinking of a beverage to enjoy its intoxicating effects, intoxication results proximately and immediately in disability or death, the disability or death will be considered the result of the person's willful misconduct. Organic diseases and disabilities which are a secondary result of the chronic use of alcohol as a beverage, whether out of compulsion or otherwise, will not be considered of willful misconduct origin. 38 C.F.R. § 3.301(C)(2). The Veteran claimed service connection for alcoholism in July 2001. He essentially contends that the alcohol abuse began in service. He also stated that he was treated for intestinal problems in service in 1980. The Veteran's service treatment records are negative for any findings, complaints or treatment of intestinal problems or acid reflux. On the history section of his February 1984 separation examination report, he checked "no" to the questions regarding whether he ever had or currently had frequent indigestion and stomach or intestinal trouble. A February 1984 separation examination was negative for any abdominal conditions. A VA examination was conducted in December 2009. The examiner opined that the Veteran's alcoholism was not caused by his service-connected anxiety disorder. The examiner stated that the Veteran has had his anxiety disorder since service with no remission, however, he has been sober the past 22 years. the examiner reasoned that, if the Veteran's anxiety disorder caused his alcoholism, he would not have been able to remain sober the past 22 years. Therefore, service connection for alcohol abuse is not warranted. As the Veteran's alcohol abuse is not a service-connected disability, service connection for acid reflux disease and intestinal problems on a secondary basis is not warranted. Regarding service connection for acid reflux disease and intestinal problems on a direct basis, Hickson elements (2) and (3) have not been met; and the claims fail on these bases. The Veteran genuinely believes that his alcohol abuse, acid reflux disease, and intestinal problems were incurred in service or caused by his service-connected anxiety disorder. The Veteran is competent to comment on his symptoms. However, as a layperson, lacking in medical training and expertise, the Veteran cannot provide a competent opinion on a matter as complex as the etiology of his disabilities and his views are of no probative value. And, even if his opinion was entitled to be accorded some probative value, it is far outweighed by the detailed opinion provided by the medical professional who reviewed the Veteran's claims file and provided the reasons for his opinion. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) (competent testimony "can be rejected only if found to be mistaken or otherwise deemed not credible"); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). Any claims of continuity of symptomatology regarding his disabilities are outweighed by the report of the separation examination and medical history in 1984. See Curry v. Brown, 7 Vet. App. 59, 68 (1994) (contemporaneous records are entitled to more probative weight than the recollections of the Veteran and others of events which occurred years or even decades after discharge from service and made in the context of a claim for benefits; and one is usually more truthful when providing information for the purposes of medical diagnosis and treatment than when one is providing information for the purpose of receiving monetary compensation.) A veteran's delay in asserting a claim can constitute negative evidence that weighs against the claim. See Shaw v. Principi, 3 Vet. App. 365 (1992). The Veteran did not initiate this claim until 2001, almost 17 years after service. The earliest evidence of record of the presence the disabilities is many years after separation from service in the 1990's. This period without treatment is evidence that there has not been a continuity of symptomatology from any incident of service, and it weighs heavily against the claim on a direct basis. See generally Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000) (aggravation in service may be rebutted by the absence of medical treatment for the claimed condition for many years after service). There is no competent evidence of record that the current disabilities are related to service. The preponderance of the evidence is against the claims; there is no doubt to be resolved; and service connection is not warranted. ORDER Entitlement to service connection for alcohol abuse is denied. Entitlement to service connection for acid reflux disease is denied. Entitlement to service connection for intestinal problems is denied. ____________________________________________ RONALD W. SCHOLZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs