Citation Nr: 1401094 Decision Date: 01/09/14 Archive Date: 01/23/14 DOCKET NO. 06-29 261 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUE Entitlement to service connection for a gastrointestinal disorder other than peptic ulcer disease with duodenal ulcer. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD N. Holtz, Associate Counsel INTRODUCTION In September 1981, the Board of Veterans' Appeals (Board) held that the Veteran had honorable active service from December 1965 to December 14, 1967. Basic entitlement to VA benefits based on service from December 15, 1967 to October 1969 was barred based on the character of the appellant's service during that term. In a March 1985 decision, the Board denied entitlement to service connection for peptic ulcer disease on the grounds that it was neither incurred in service nor could it be presumed to have been so incurred. In June 1988, the Board denied entitlement to service connection for peptic ulcer disease on the grounds that a new factual basis had not been submitted to reopen the claim. In March 1991, the RO declined to reopen the claim because new and material evidence had not been submitted. An appeal was not perfected. In a January 2000 decision, the Board determined that new and material evidence had not been received, and reopening of the claim was not in order. The Veteran appealed to the United States Court of Appeals for Veterans Claims (Court). In March 2001, the Court vacated the January 2000 Board decision and remanded the case for compliance with the Veterans Claims Assistance Act of 2000 (VCAA). Thereafter, in July 2001, the Board remanded the case to the RO. After completion of appropriate development the Board, in a February 2002 decision, again found that new and material evidence had not been received in order to reopen the service connection claim. The Veteran appealed the Board's February 2002 decision to the Court, and in February 2003, the Court vacated and remanded the case for further explanation regarding compliance with the VCAA. Subsequently, in an August 2003 decision, the Board again determined that new and material evidence had not been received, and that reopening of the claim was not in order. The Veteran did not appeal. Hence, the August 2003 Board decision is final. 38 U.S.C.A. § 7105 (West 2002). This matter comes before the Board of Veterans Appeals (Board) on appeal from a November 2005 decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. In July 2006, a Decision Review Officer hearing was held; a transcript of those proceedings is associated with the claims file. In December 2007, the Board determined that new and material evidence had not been submitted to reopen a claim of entitlement to service connection for peptic ulcer disease with duodenal ulcer. At that time, the Board acknowledged that the Veteran was claiming entitlement to service connection for Helicobacter pylori (H. pylori). The Board noted that H. pylori was not a disease but a type of bacteria. Hence, the Board found that the claim was not a new claim, but one which fell within the underlying claim to reopen. The Veteran appealed the December 2007 decision. In October 2009, the Court issued a Memorandum Decision finding that the Board did not provide an adequate statement of reasons or bases for its rejection of the new evidence. Accordingly, the Court vacated the Board's December 2007 decision and remanded the matter for further proceedings consistent with its decision. In May 2010, the Board determined that new and material evidence had been received to reopen the claim of entitlement to service connection for peptic ulcer disease. The Board then considered the claim on its merits and denied entitlement to service connection for peptic ulcer disease with duodenal ulcer. The Veteran appealed the Board's May 2010 decision to the Court. In March 2011, the parties filed a Joint Motion for Vacatur and Partial Remand. The parties noted that recent VA medical records disclosed several different gastrointestinal diagnoses thought to account for the Veteran's various symptoms, to include diverticular disease, hiatal hernia, chronic duodenal ulcer, dyspepsia and gastroesophageal reflux disease. Per VA regulations, this is to be expected in cases of gastrointestinal disability. See 38 C.F.R. § 4.113 (2013). By Order dated in May 2011, the motion for remand filed by the parties was granted. The Board's finding that new and material evidence had been received to reopen the claim of entitlement to service connection was not disturbed. In September 2011, the Board denied entitlement to service connection for peptic ulcer disease with duodenal ulcer. The issue of entitlement to service connection for a gastrointestinal disorder other than peptic ulcer disease with duodenal ulcer was remanded for additional development. Following a VA examination, that issue was again remanded in December 2012, to consider whether a gastrointestinal disorder was secondary to an acquired psychiatric disorder; at the time of the remand, the Veteran had a pending claim for service connection for a psychiatric disorder. The Veteran was denied service connection for a psychiatric disorder in April 2013. He submitted a notice of disagreement with the denial in May 2013, and VA issued him a statement of the case on the issue. In September 2013, he withdrew his appeal for service connection for a psychiatric disorder, prior to submitting a substantive appeal. See 38 C.F.R. § 20.204(c) (2013). As the psychiatric disorder claim is no longer pending, the Board may proceed with the adjudication of the appeal concerning a gastrointestinal disorder other than peptic ulcer disease with duodenal ulcer. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2013). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDING OF FACT The preponderance of the evidence is against finding that the Veteran currently has a gastrointestinal disorder, to include gastroesophageal reflux disease, that is related to his initial period of active service or events therein. CONCLUSION OF LAW A gastrointestinal disorder other than peptic ulcer disease with duodenal ulcer, to include gastroesophageal reflux disease, was not incurred in or aggravated during active service. 38 U.S.C.A. §§ 1101, 1110, 1112, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION VA's Duties to Notify and Assist The requirements of 38 U.S.C.A. §§ 5103 and 5103A have been met with regard to the issue decided. There is no issue as to providing an appropriate application form or completeness of the application. VA notified the Veteran in December 2010 of the information and evidence needed to substantiate and complete a claim, to include notice of what part of that evidence is to be provided by the claimant and what part VA will attempt to obtain, as well as notice of how disability ratings and effective dates are determined. The claim was subsequently readjudicated. VA has also fulfilled its duty to assist the Veteran in obtaining identified and available evidence needed to substantiate a claim. The claims file contains service records, VA medical center records, and private records. VA provided the Veteran with a medical examination to address the etiology of his current gastrointestinal disorders in December 2011. Information in the claims file indicates that the Veteran is currently receiving benefits from the Social Security Administration. On review, however, Social Security benefits were awarded based on the appellant's age and not disability. There is no indication that these records are relevant to the issue decided. See Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2010) (holding that VA has an obligation to secure Social Security Administration records only if there is a reasonable possibility that the records would help to substantiate the claim). In Bryant v. Shinseki, 23 Vet. App. 488 (2010) (per curiam), the Court held that 38 C.F.R. § 3.103(c)(2) requires that the VA employee who is conducting a hearing fulfill two duties to comply with the above regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. At the hearing, the Veteran's representative questioned the Veteran in such a way as to elicit information regarding any potentially applicable evidence that had not already been associated with the claims file. The questioning and the Veteran's responses clearly indicate that he had actual knowledge of the information necessary to substantiate his claim, which, at the time, was a claim to reopen service connection for a gastrointestinal disorder. That claim has since been fully granted, as the Veteran's appeal was reopened in May 2010 by the Board. As such, the Board finds that the RO fully complied with the Bryant requirements. In sum, there is no evidence of any VA error in notifying or assisting the Veteran that reasonably affects the fairness of this adjudication with regard to the issue decided herein. See 38 C.F.R. § 3.159. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Service connection generally requires credible and competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. See Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). In evaluating a claim, the Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1335 (2006). The evaluation of evidence generally involves a three-step inquiry. First, the Board must determine whether the evidence comes from a "competent" source. 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). Thus, a layperson is competent to report on the onset and continuity of his symptomatology. Layno v. Brown, 6 Vet. App. 465, 470 (1994) (providing that a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis if (1) the medical issue is within the competence of a layperson, (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. See Kahana v. Shinseki, 24 Vet. App. 428, 433 (2011). For instance, a lay person may speak to etiology in those limited circumstances where a nexus is obvious merely through observation, such as a fall leading to a broken leg. Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). If the evidence is competent, the Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007) (observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible). 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. Caluza v. Brown, 7 Vet. App. 498, 511-12 (1995). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). [In relating the evidence in this case, the Board notes that although the Veteran was denied service connection for peptic ulcer disease with duodenal ulcer in September 2011, and that issue is no longer on appeal, a complete adjudication of the present matter requires consideration of all of the evidence of gastrointestinal symptomatology, and that there is some overlap between the evidence concerning the denied peptic ulcer disease with duodenal ulcer claim, and the present appeal.] Service treatment records show that the Veteran was seen in March 1966 with complaints of post-prandial abdominal cramps for two weeks. He reported a two day history of some cramping pain in the lower abdomen. He had some associated nausea and emesis the evening prior. A specific diagnosis was not noted. The Veteran was prescribed Donnatal and Dulcolax. The Veteran is not eligible for VA compensation benefits based on his second period of service. This does not mean, however, that treatment records pertaining to this period are not for consideration. Basically, these records are considered as being post-service. On review, they do not show a diagnosed ulcer or continuing treatment related to the March 1966 visit. On discharge examination in August 1969, no relevant abnormalities were noted; an August 1969 report of medical history, completed by the Veteran, denied stomach and intestinal complaints. A private medical record dated in December 1971 shows the Veteran was seen with complaints of epigastric pain for two weeks. A physical examination record from the Veteran's employer dated in January 1974 shows that he was treated in 1972 by a private provider for a nervous stomach. He denied stomach problems on the January 1974 report, as well as an earlier, August 1972 report for his employer. In December 1974, the Veteran was admitted to a private hospital with complaints of extreme weakness, abdominal cramps, and the passage of dark stools. He reported epigastric pain for the past three or four months. He stated that his general health had been good and other than having measles, chicken pox, and an occasional cold, he had no sicknesses of any consequence. The final diagnoses were duodenal ulcer with acute hemorrhage, and secondary anemia. An upper gastrointestinal study showed a normal esophagus at that time. VA records from April 1984 show that the Veteran was hospitalized for peptic ulcer disease with upper gastrointestinal bleeding. At that time, he reported a past history of peptic ulcer disease that was first diagnosed in 1974 and that he had taken antacids intermittently. An April 1984 upper gastrointestinal series did not indicate a hiatal hernia. In April 1987, the Veteran was admitted to a VA Medical Center for acute upper gastrointestinal bleeding probably secondary to peptic ulcer disease and secondary anemia. A previous history of peptic ulcer disease for at least 12 years was noted. Subsequent records show continued complaints. During an October 1987 RO hearing, the Veteran testified that he experienced symptoms of abdominal pain, cramping, nausea, and vomiting for approximately one year prior to going to the dispensary during active duty. He said that he was provided antacids during the remainder of his service that alleviated his symptoms. He said that his service separation examination had been rushed, and they told him what to sign and what not to sign. He reported having symptoms several times a month between 1969 and 1974. In March 1988, the Veteran reported problems with his stomach "every now and then." In April 2001, the Veteran was admitted to a VA medical center for complaints of black tarry stools and epigastric pain. Endoscopy was performed and biopsy was reportedly positive for H. pylori. The endoscopy results showed a hiatal hernia. Discharge diagnoses were duodenal ulcer and diverticulosis. The Veteran underwent a VA examination in October 2001. The claims folder and service records were reviewed. The examiner noted that the Veteran was seen in March 1965 or 1966 for post-prandial abdominal cramping and that this was the only entry he could find in the military records concerning abdominal complaints. The Veteran was treated and apparently had no further trouble, and there were no further entries. The examiner noted that the March 1966 symptomatology was not one ordinarily associated with peptic ulcer disease. The examiner further noted that according to service records, the Veteran's pain was not epigastric but was in the lower abdomen. Diagnosis was peptic ulcer disease, status post bleed. It was noted that no surgery had been performed and the Veteran was presently symptom free. The examiner noted that the etiology of the most recent episode in April 2001 appeared to be H. pylori. The Veteran underwent a VA examination in December 2011 to determine the nature and etiology of any non-ulcer gastrointestinal disorders. The examiner diagnosed the Veteran with a duodenal ulcer, as well as gastroesophageal reflux disease. The examiner opined that gastroesophageal reflux disease was not related to his active duty service, including the single in-service treatment for gastrointestinal symptoms. The examiner noted no evidence of continuing gastrointestinal symptoms in the Veteran's military records. Current treatment records continue to show a present diagnosis of gastroesophageal reflux disease. In various statements and at the July 2006 Decision Review Officer hearing, the Veteran reported that his stomach problems began during service and he continued to self-medicate until his bleeding ulcer in 1974. VA medical records show continued treatment for various disabilities including a chronic duodenal ulcer. A statement from the Veteran's ex-wife indicates that she was married to the appellant from 1966 to 1979 and during that time he had stomach problems. At times the pain was so severe he could not eat or sleep and he would grab and hold his stomach and say that he was in a lot of pain. A July 2006 statement from the Veteran's mother relates the Veteran's epigastric pain to his peptic ulcer disease. Analysis Initially, the Board concedes that the Veteran has a current diagnosis of gastroesophageal reflux disease. There is also competent evidence, as reflected in the service medical records, of in-service treatment for gastrointestinal symptoms. Thus, as two of the three prongs for service connection are met, there must only be competent evidence that the current disability is related to his in-service symptoms, or otherwise that the disease began during service. Holton, 557 F.3d at 1366. The preponderance of the evidence, however, does not support the Veteran's claim, as the service treatment records do not show a diagnosis of gastroesophageal reflux disease, or any symptoms which have subsequently been linked to the gastroesophageal reflux disease diagnosis, and there is no other competent, credible evidence that the current gastroesophageal reflux disease diagnosis is otherwise related to service. While he does have a long history of post-service gastrointestinal symptoms, those symptoms are associated, per the medical records, with the non-service-connected peptic ulcer disease and duodenal ulcer. Despite numerous studies and examinations for gastrointestinal symptoms after service, the Veteran did not receive a gastroesophageal reflux disease diagnosis until an upper endoscopy was performed in April 2001. In between service and the ultimate diagnosis of gastroesophageal reflux disease, two upper gastrointestinal studies, one in December 1974, and the other in April 1984, both failed to reveal a hiatal hernia. The December 1974 analysis specifically noted a "normal esophagus." The only medical opinion of record, that of the December 2011 examiner, is against a finding that the current disability began during service or is otherwise related to service, including the in-service gastrointestinal symptoms. The Board finds that the December 2011 opinion is probative and that it addressed all relevant evidence favorable to the Veteran's claim (that being his in-service treatment for gastrointestinal symptoms). See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302 (2008) (holding that to be probative, a medical opinion must be factually accurate, fully articulated, and based on sound reasoning). Importantly, the Board acknowledges that the December 2011 examiner, after considering the Veteran's in-service gastrointestinal treatment, relied solely on the lack of subsequent medical records of gastrointestinal complaints in reaching his conclusion. The examiner did not address the Veteran's lay statements, made in conjunction with his appeal, of continued symptomatology in and since service. While that fact might in other circumstances require an addendum opinion to address the Veteran's lay contentions, such is not necessary in this case, because, as discussed below, although there are some competent lay statements of record regarding continuing symptomatology, those statements are not credible. The law is clear that the Veteran and other laypersons are competent to report on what they have observed, including the appellant's gastrointestinal symptomatology. Kahana, 24 Vet. App. at 433. Thus, the statements that merely relate observable symptomatology are considered competent. Id. Laypersons are not, however, competent to identify the specific medical etiology of gastrointestinal pain in complicated situations such as this, where the Veteran has multiple gastrointestinal disorders. Jandreau, 492 F.3d at 1376-77. In the Veteran's case, he is not competent to opine that his alleged continuous gastrointestinal symptomatology is related to an undiagnosed gastroesophageal reflux disease as opposed to his long history of peptic ulcer disease and duodenal ulcer. Id. Further, regarding the competent lay statements of record addressing the existence of gastrointestinal symptomatology, the mere competency of the lay statements is not enough to make them probative; those statements must also be credible. Barr, 21 Vet. App. at 308. In this case, the Board finds that the Veteran's statements of continued gastrointestinal symptoms are not credible. On reports of medical history completed in March 1967 and August 1969, the Veteran specifically denied having or having had frequent indigestion, or stomach, liver, or intestinal trouble. At his August 1969 separation examination the Veteran's abdomen and viscera were reported as normal on clinical evaluation. Findings related to stomach or gastrointestinal complaints were not documented. On post-service employment forms completed in August 1972 and January 1974, the Veteran denied having a stomach or duodenal ulcer, or any trouble with the stomach, intestines, or bowels. Additionally, when hospitalized in December 1974, the Veteran did not report a significant history of stomach problems dating back to service. Rather, he reported a three to four month history of epigastric pain. The fact that the Veteran now suggests a contrasting history, while asserting a claim for benefits, weighs heavily against his credibility, as the Board finds that a patient's report of history to a treatment provider is highly probative evidence with regard to history. The findings on examination in August 1969, December 1974, and April 1984, as well as the information the Veteran provided on the August 1969 report of medical history and subsequent reports concerning his medical history to his employer, also weigh heavily against the credibility of the appellant's reports of post-service continuity of symptoms related to gastroesophageal reflux disease. The Board acknowledges the Veteran's testimony at the October 1987 RO hearing that he did not mention anything at separation because they were "rushing him out of the service." Even assuming the Veteran was rushed, he managed to complete the report of medical history, and checking "yes" would have taken no more time than checking "no" to the questions of whether he had frequent indigestion or stomach trouble. In making this statement, the Veteran is asserting that he lied when completing his report of medical history upon separation from service, further calling into question his credibility. Further, the absence of documented complaints for several years following his initial period of service weighs against the credibility of his assertions. See Pond v. West, 12 Vet. App. 341, 346 (1999). The Board considered the statements from the Veteran's mother and ex-wife. While they are competent to render their observations, given the findings pertaining to the Veteran's lack of credibility, the Board finds that those statements, submitted in conjunction with the appeal, are tainted; the Board assigns these statements minimal probative value. The Board has also considered the Veteran's December 2005 statement, wherein he states that his ex-wife is now a nurse. The Board observes that her statement is not on letterhead and gives no indication that she is a health care professional. Even assuming such, the statement merely recites her observations and in no way provides a diagnosis or renders a medical opinion regarding etiology. Thus, as the Veteran was not diagnosed with gastroesophageal reflux disease until many years after service, and the most probative evidence of record, the December 2011 medical opinion, is against a nexus between the current diagnosis and the appellant's active duty, the preponderance of the evidence is against the claim of entitlement to service connection for a gastrointestinal disorder other than peptic ulcer disease with a duodenal ulcer. As such, the doctrine of reasonable doubt is not for application. See 38 C.F.R. § 3.102. ORDER Entitlement to service connection for a gastrointestinal disorder other than peptic ulcer disease with duodenal ulcer is denied. ____________________________________________ REBECCA FEINBERG Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs