Citation Nr: 1222114	
Decision Date: 06/25/12    Archive Date: 07/02/12

DOCKET NO. 08-14 018	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Huntington, West Virginia


THE ISSUE

Entitlement to service connection for peptic ulcer disease.


REPRESENTATION

Appellant represented by:	Robert W. Legg, Attorney at Law


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

S. Higgs, Counsel


INTRODUCTION

The Veteran served on active duty from October 1974 to October 1976 and from November 1977 to November 1980.
 
This matter comes to the Board of Veterans' Appeals (Board) on appeal from a rating decision dated in November 2006 by the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia, as confirmed and continued by a rating decision dated in April 2007.

A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal.

The Veteran provided testimony at a September 2008 hearing before a Veterans Law Judge no longer at the Board. A transcript of the hearing is associated with the claims file.

In a Board decision and remand dated in October 2008 the Board reopened the Veteran's claim for service connection and returned the claim to the RO for further development and adjudication. In a decision dated in February 2011 the Board denied the Veteran's claim. 

A November 2011 Order of the Court of Appeals for Veterans Claims (Court) granted a Joint Motion for Remand of the parties and vacated the Board's February 2011 decision in this matter. 

The Veteran has submitted additional evidence along with a waiver of initial consideration by the RO. Thus, the Board will consider the additional evidence in conjunction with this appeal. See 38 C.F.R. § 20.1304(c).

Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2011). 38 U.S.C.A. § 7107(a)(2) (West 2002).


FINDING OF FACT

The Veteran has current disability due to peptic ulcer disease, which is shown by lay testimony to have continued from active service forward and by medical opinion evidence to be related to symptoms experienced by the Veteran during active service and to have begun during active service.


CONCLUSION OF LAW

The criteria for service connection for peptic ulcer disease are met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2011).


REASONS AND BASES FOR FINDING AND CONCLUSION

In this decision the Board finds that the Veteran has current disability due to peptic ulcer disease, which is shown by lay testimony to have continued from active service forward and by medical opinion evidence to be related to symptoms experienced by the Veteran during active service. Accordingly, the Board grants service connection for peptic ulcer disease.

The Board will discuss the relevant law it is required to apply. This includes statutes enacted by Congress and published in Title 38, United States Code ("38 U.S.C.A."); regulations promulgated by VA under the law and published at Title 38 of the Code of Federal Regulations ("38 C.F.R."); and the precedential rulings of the Court of Appeals for the Federal Circuit (as noted by citations to "Fed. Cir.") and the Court of Appeals for Veterans Claims (as noted by citations to "Vet. App.").

The Board is bound by statute to set forth specifically the issue under appellate consideration and its decision must also include separately stated findings of fact and conclusions of law on all material issues of fact and law presented on the record, and the reasons or bases for those findings and conclusions. 38 U.S.C.A. § 7104(d); see also 38 C.F.R. § 19.7 (implementing the cited statute); Vargas-Gonzalez v. West, 12 Vet. App. 321, 328 (1999); Gilbert v. Derwinski, 1 Vet. App. 49, 56-57 (1990) (Board's statement of reasons and bases for its findings and conclusions on all material facts and law presented on the record must be sufficient to enable the claimant to understand the precise basis for the Board's decision, as well as to facilitate review of the decision by courts of competent appellate jurisdiction; the Board must also consider and discuss all applicable statutory and regulatory law, as well as the controlling decisions of the appellate courts).

The Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The evaluation of evidence generally involves a 3-step inquiry. First, the Board must determine whether the evidence comes from a "competent" source. The Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303 at 308 (2007) (observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible). The third step of this inquiry requires the Board to weigh the probative value of the proffered evidence in light of the entirety of the record. 

Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a). Lay evidence may be competent and sufficient to establish a diagnosis of a condition when:

(1) a layperson is competent to identify the medical condition (i.e., when the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer);

(2) the layperson is reporting a contemporaneous medical diagnosis, or;

(3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. 

Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007); see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009) (where widow seeking service connection for cause of death of her husband, the Veteran, the Court holding that medical opinion not required to prove nexus between service connected mental disorder and drowning which caused Veteran's death). 

In ascertaining the competency of lay evidence, the Courts have generally held that a layperson is not capable of opining on matters requiring medical knowledge. Routen v. Brown, 10 Vet. App. 183 (1997). In certain instances, however, lay evidence has been found to be competent with regard to a disease with "unique and readily identifiable features" that is "capable of lay observation."  See, e.g., Barr v. Nicholson, 21 Vet. App. 303 (2007) (concerning varicose veins); see also Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007) (a dislocated shoulder); Charles v. Principi, 16 Vet. App. 370 (2002) (tinnitus); Falzone v. Brown, 8 Vet. App. 398 (1995) (flatfeet). Laypersons have also been found to not be competent to provide evidence in more complex medical situations. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (concerning rheumatic fever). 

Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also include statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1).

After determining the competency and credibility of evidence, the Board must then weigh its probative value. In this function, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. See Madden v. Brown, 125 F.3d 1447 (Fed Cir. 1997) (holding that the Board has the "authority to discount the weight and probative value of evidence in light of its inherent characteristics in its relationship to other items of evidence"); Caluza v. Brown, 7 Vet. App. 498, 511-512 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (per curiam) (table). 

The standard of proof to be applied in decisions on claims for veterans' benefits is set forth at 38 U.S.C.A. § 5107 (West 2002). A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. See 38 C.F.R. § 3.102. When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). 


Duty to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000), defines the obligations of VA with respect to the duty to assist and includes an enhanced duty to notify a claimant as to the information and evidence necessary to substantiate a claim for VA benefits. 

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, 5103 (West 2002); 38 C.F.R. § 3.159(b). Second, VA has a duty to assist the Veteran in obtaining evidence necessary to substantiate a claim. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159(c). 

As discussed below, sufficient evidence is of record to grant the claim on appeal. Therefore, no further notice or development is needed with respect to this matter. 


Merits of the Claim

Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131. 

Service connection may 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).

Generally, in order to prevail on the merits on the issue of service connection, there must be medical evidence of current disability; medical or, in certain circumstances lay, evidence of in-service incurrence or aggravation of a disease or injury; and medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); Hickson v. West, 12 Vet. App. 247, 253 (1999).

Service connection may also be established by chronicity and continuity of symptomatology. See 38 C.F.R. § 3.303(b). Continuity of symptomatology may establish service connection if a claimant can demonstrate that (1) a condition was "noted" during service; (2) there is postservice evidence of the same symptomatology; and (3) there is medical or, in certain circumstances, lay evidence of a nexus between the present disability and the postservice symptomatology. Barr v. Nicholson, 21 Vet. App. 303, 307 (2007) (citing Savage v. Gober, 10 Vet. App. 488, 495-96 (1997)). "[S]ymptoms, not treatment, are the essence of any evidence of continuity of symptomatology." Savage, 10 Vet. App. at 496.

Lay statements may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability, or symptoms of disability, susceptible of lay observation. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007).

In cases where records once in the hands of the government are lost, the Board has a heightened obligation to explain its findings and conclusions and to consider carefully the benefit-of-the-doubt rule. O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). This increases the VA's obligation to evaluate and discuss in its decision all of the evidence that may be favorable to the veteran. Russo v. Brown, 9 Vet. App. 46, 51 (1996).

A November 1977 service treatment record indicates that upon the Veteran's entry into his second three-year period of active service, clinical evaluation of his abdomen and viscera was normal.

An August 27, 1980, service treatment record shows that the Veteran complained of right lower quadrant pain for the past day. The pain was increased with movement. There was no indication of diarrhea, constipation, or anorexia. Urine and stool were normal. On physical examination there was no hyperactivity and no rigidity. The Veteran complained of tenderness to palpation of the right lower quadrant. There was rebound tenderness of the right lower quadrant and the left lower quadrant. Examination was positive for cough reflex. The left lower quadrant pain radiated to the right. An annotation from the treating clinician indicates that the Veteran was to be referred for further medical treatment.

Records of subsequent treatment and in-service hospitalization, by the Veteran's account for symptoms of what was later diagnosed as peptic ulcer disease, have apparently been lost or destroyed. However, the Veteran was able to provide a copy of an order dated in October 1980 from a ship's commanding officer directing that the Veteran be hospitalized at the Naval Regional Medical Center in Jacksonville, Florida. The indicated "proceed on or about" date is August 29, 1980, two days after the Veteran reported and was treated for his abdominal pain.

An October 1980 service discharge examination indicates that clinical evaluation of the abdomen and viscera was normal. No mention is made of the August 1980 episode of abdominal pain or the subsequent hospitalization at the Naval Regional Medical Center.

In December 1981 the Veteran received VA treatment and hospitalization for abdominal pain. He was diagnosed with acute appendicitis, was hospitalized for six days, and underwent an appendectomy. 

Also in December 1981 the Veteran submitted a claim for service connection for peptic ulcer disease. 

At a VA examination in February 1982 the Veteran was noted to have begun experiencing the onset of upper abdominal cramps, pain and burning in 1979, during active service. He was indicated to have been provided antacids during service to relieve the symptoms. It was further noted that during service in 1980 the Veteran, while on board ship, had acute lower abdominal pain. By history, he was immediately evacuated to the U.S. Naval Hospital in Jacksonville, Florida, with the impression of acute appendicitis; but after two to three days he was feeling better and no surgery was performed. By history, he returned to his usual duties and was normal except for upper chronic gastrointestinal distress, which he again relieved with antacids, and was discharge from service in November 1980.

Additional VA records of treatment from the 1980s and 1990s have apparently been lost or destroyed. In the claims file are a very brief one-page July 1991 VA Medical Center (VAMC) admission report with a diagnosis of rule out kidney stones in July 1991 and a very brief one-page October 1993 VAMC admission report for peptic ulcer disease, but the underlying VA records of treatment have not been located.

An October 1998 private hospitalization report indicates that the Veteran was admitted for a perforated pyloric ulcer. He underwent an exploratory laparotomy, a vagatomy, and a high neck pyloroplasty.

An October 1998 private hospital report indicates that the Veteran was admitted for perforation of viscus, probably upper GI tract. The admission report states that exploration was needed. 

At a VA examination in September and October 2010, including an upper GI study, it was noted that there was a large amount of reflux to the proximal esophagus. By history it was noted that the Veteran was diagnosed with peptic ulcer disease in 1982 and was treated until 1999, when he had a perforated ulcer. The course of his illness was said to be progressively worse. Response to treatment was fair. At the VA examination, results of gastric biopsy were noted to be consistent with chronic inflammation, and included organisms noted to be suggestive of H. Pylori. 

The October 2010 VA examiner opined that the Veteran's in-service symptoms were not consistent with classic ulcer symptoms or overlap symptoms. The examiner further noted that he could not find actual medical documentation of chronic symptoms or treatment from the 1970s to 1999. (The Board notes in this regard that the examiner apparently overlooked the October 1993 VA record of hospitalization for peptic ulcer disease; that the private 1998 record of surgery for peptic ulcer disease was not yet associated with the claims file at the time of the October 2010 VA examination; and that from a review of the claims file it is nearly certain that relevant service treatment records and VA records of treatment from the 1980s and 1990s have been lost or destroyed.)

In May 2012 a private physician expressly disagreed with the October 2010 VA examiner's opinion. He indicated he had reviewed the Veteran's available medical records and recounted the Veteran's medical history in a manner consistent with what is reflected in the claims file. He made specific reference to relevant medical records from active service forward in supporting his opinion, and cited medical texts and treatises in support of his opinions. He noted that H. pylori was not understood to cause peptic ulcer disease during the Veteran' period of active service, and that this was not commonly accepted until a groundbreaking medical article supporting this conclusion was published in 1984.

The May 2012 private physician wrote that the Veteran's in-service symptoms were in fact consistent with peptic ulcer disease, and expressed puzzlement that the VA examiner would have found otherwise. The private physician cited to a portion of an authoritative medical article, in which it was stated that peptic ulcers can present with any of the three dyspeptic symptoms patterns, with the listed sets of symptoms including "ulcer-like or acid dyspepsia (burning pain; epigastric hunger-like pain; relief with food, antacid, and/or antisecretory agents." 

The May 2012 private physician asserted that these were in fact the symptoms the Veteran presented with in service. He asserted that the Veteran developed abdominal symptoms that were unexplained during his military service; that those symptoms continued after his service; and that after his discharge, more advanced testing revealed that the cause of those symptoms was peptic ulcer disease. He concluded that the Veteran's peptic ulcer disease began during active military service.

The Board finds the May 2012 private physician's supporting opinion to be more fully reasoned, with clearer support from pertinent medical evidence in the claims file and medical literature, and therefore of more probative weight, than the October 2010 VA examiner's opinion. The private physician has filled in some gaps by history as related by the Veteran or as indicated in other records of treatment, as is reasonable where it is clear that certain relevant service department and VA records of treatment have been lost or destroyed; this inevitably leaves some room for doubt and uncertainty. However, as a foundation, there is a documented reporting of in-service abdominal symptoms in August 1980 and a service department record of the Veteran being removed from his ship and hospitalized soon thereafter. 

The Board finds that, after reviewing all evidence of record, it is at least as likely as not that the Veteran has current disability due to peptic ulcer disease that began during active service. This conclusion is supported both by the Veteran's lay testimony as to chronic and continuing symptoms from active service forward and by the May 2012 private physician's favorable medical nexus opinion. Accordingly, entitlement to service connection for peptic ulcer disease is warranted.



ORDER

Entitlement to service connection for peptic ulcer disease granted.




____________________________________________
Vito A. Clementi
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs