Citation Nr: 0810270 Decision Date: 03/28/08 Archive Date: 04/09/08 DOCKET NO. 05-09 603 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for intestinal pain, claimed as a gastric condition, to include claimed as due to undiagnosed illness. REPRESENTATION Veteran represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL The veteran ATTORNEY FOR THE BOARD Debbie A. Riffe, Counsel INTRODUCTION The veteran, who is the appellant, served on active duty from September 1988 to November 1995, which included a tour of duty in Southwest Asia during the Persian Gulf War. This matter is before the Board of Veterans' Appeals (Board) on appeal of a rating decision in January 2004 of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. In February 2008, the veteran appeared at a hearing before the undersigned Veterans Law Judge, who has been designated to make the final disposition of this proceeding for VA. A transcript of that hearing is associated with the claims file. At the hearing, the veteran submitted additional evidence in the form of updated VA outpatient records. This evidence was submitted with a waiver of RO initial review of this evidence, in accordance with 38 C.F.R. § 20.1304. It is noted that in a previous rating decision in January 1996, the RO denied service connection for intestinal pain. In the January 2004 rating decision, the RO determined that new and material evidence had not been received to reopen the veteran's claim of service connection for intestinal pain (claimed as a gastric condition); in the statement of the case and supplemental statements of the case, the RO denied the claim on the merits. Ordinarily, the Board must make an independent assessment as to whether new and material evidence sufficient to reopen the veteran's claim has been received under 38 U.S.C.A. § 5108. Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). However, in circumstances wherein a change in law provides a new basis for entitlement to a benefit sought for which a claim has previously been denied (i.e., through the liberalization of the requirements for entitlement to that benefit), the veteran may obtain de novo review of that prior decision without having to meet the "new and material" evidence requirement. Spencer v. Brown, 17 F.3d 368 (Fed. Cir. 1994). In the present case, as the RO did not previously consider the law pertinent to claims by Persian Gulf War veterans based on undiagnosed illnesses (i.e., 38 U.S.C.A. § 1117; 38 C.F.R. § 3.317), the Board will adjudicate the issue of service connection for intestinal pain, claimed as a gastric condition, without the veteran having to present "new and material" evidence. FINDINGS OF FACT 1. The veteran served in the Southwest Asia Theater of operations from October 1990 to April 1991. 2. There is no competent medical evidence showing that the veteran currently has intestinal pain or a gastric condition that is related to service or due to an undiagnosed illness that developed during the Persian Gulf War. CONCLUSION OF LAW Intestinal pain, or a gastric condition, is not due to disease or injury that was incurred in or aggravated by service, nor is it due to undiagnosed illness. 38 U.S.C.A. §§ 1110, 1117, 1131, 5107(b) (West 2002); 38 C.F.R. §§ 3.303, 3.317 (2007). The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented in part at 38 C.F.R § 3.159, amended VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate the claim. Duty to Notify Under 38 U.S.C.A. § 5103(a), VA must notify the claimant of the information and evidence not of record that is necessary to substantiate the claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. Under 38 C.F.R. § 3.159, VA must request that the claimant provide any evidence in the claimant's possession that pertains to the claim. Also, the VCAA notice requirements apply to all five elements of a service connection claim. The five elements are: 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 VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App. 112 (2004). The RO provided VCAA pre- and post- adjudication notice by letters, dated in February 2003 and in March 2006. The notice advised the veteran of what was required to prevail on his claim for service connection for a gastric condition to include as due to an undiagnosed illness; what specifically VA had done and would do to assist in the claim; and what information and evidence the veteran was expected to furnish. The veteran was informed that VA would obtain service records, VA records, and records of other Federal agencies, and that he could submit other records not in the custody of a Federal agency, such as private medical records, or with his authorization VA would obtain any such records on his behalf. He was asked to submit any evidence, which would include any evidence in his possession, that pertained to the claim. The notice included the provisions for the effective date of the claim and for the degree of disability assignable. As for content of the VCAA notice, the document substantially complied with the specificity requirements of Quartuccio v. Principi, 16 Vet. App. 183 (2002) (identifying evidence to substantiate a claim and the relative duties of VA and the claimant to obtain evidence), of Charles v. Principi, 16 Vet. App. 370 (2002) (identifying the document that satisfies VCAA notice); of Pelegrini v. Principi, 18 Vet. App. 112 (2004) (38 C.F.R. § 3.159 notice); and of Dingess v. Nicholson, 19 Vet. App. 473 (notice of the elements of service connection claim). To the extent that the VCAA notice about the degree of disability assignable was provided after the initial adjudication, the timing of the notice did not comply with the requirement that the notice must precede the adjudication. The procedural defect was cured as after the RO provided substantial content-complying VCAA notice the claim was readjudicated as evidenced by the supplemental statement of the case, dated in February 2007. Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007) (Timing error cured by adequate VCAA notice and subsequent readjudication without resorting to prejudicial error analysis.). Duty to Assist Relevant to its obligation to assist a claimant, VA has also made reasonable efforts to identify and obtain relevant records in support of the claim. 38 U.S.C.A. § 5103A (a), (b) and (c). The veteran was afforded a hearing before the undersigned Veterans Law Judge in February 2008. The RO has obtained the veteran's service medical records, VA medical records, and private medical records identified by the veteran, such as those from Scott & White Hospital and Clinic, dated from 1998. He has not identified any other pertinent evidence for the RO to obtain on his behalf. Further, VA has not conducted medical inquiry in an effort to substantiate the claim. 38 U.S.C.A. § 5103A(d). Further development in this respect is not required for the following reasons. While there are records of treatment for complaints of intestinal pain during service, there is no competent evidence of persistent or recurrent symptoms relative to the gastrointestinal system from the time of service to the present and there is no competent evidence of a current diagnosis referable to the gastrointestinal system. In short, the evidence does not indicate that a disability manifested by intestinal pain may be associated with service. Under these circumstances, a medical examination or medical opinion is not required for the service connection claim under 38 C.F.R. § 3.159(c)(4). As there is no indication of the existence of additional evidence to substantiate the claim, no further assistance to the veteran is required to comply with the duty to assist. REASONS AND BASES FOR FINDINGS AND CONCLUSION Principles of Service Connection Service connection may be established for a disability resulting from personal injury suffered or disease contracted in the line of duty or for aggravation of preexisting injury suffered or disease contracted in the line of duty. 38 U.S.C.A. §§ 1110, 1131. Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service, or if preexisting such service, was aggravated by service. This may be accomplished by affirmatively showing inception or aggravation during service. 38 C.F.R. § 3.303(a). Service connection may also be granted for disability shown after service, when all of the evidence, including that pertinent to service, shows that it was incurred in service. 38 C.F.R. § 3.303(d). In order to establish service connection, there must be (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) medical 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). Subject to various conditions, service connection may be granted for a disability due to undiagnosed illness of a veteran who served in the Southwest Asia Theater of operations during the Persian Gulf War. Among the requirements are that there are objective indications of a qualifying chronic disability, which means a chronic disability resulting from an undiagnosed illness, a medically unexplained chronic multisymptom illness defined by a cluster of signs or symptoms (i.e., chronic fatigue syndrome, fibromyalgia, irritable bowel syndrome, or any other illness specified by the Secretary), or any diagnosed illness specified by the Secretary. 38 U.S.C.A. § 1117 (West 2002); 38 C.F.R. § 3.317 (2007); 68 Fed. Reg. 34541 (June 10, 2003). Signs or symptoms which may be manifestations of undiagnosed illness or medically unexplained chronic multisymptom illness include, but are not limited to fatigue, signs and symptoms involving the skin, headache, muscle pain, joint pain, neurological signs or symptoms, neuropsychological signs or symptoms, signs and symptoms involving the respiratory system, sleep disturbances, gastrointestinal signs or symptoms, cardiovascular signs or symptoms, abnormal weight loss, and menstrual disorders. The illness must become manifest either during active service in the Southwest Asia theater of operations during the Persian Gulf War, or to a degree of 10 percent or more, under the appropriate diagnostic code of 38 C.F.R. Part 4, not later than December 31, 2011. 38 U.S.C.A. § 1117; 38 C.F.R. § 3.317; 71 Fed. Reg. 75669-75671 (December 18, 2006). Further, by history, physical examination, and laboratory tests, the disability cannot be attributed to any known clinical diagnosis. There must be objective signs that are perceptible to an examining physician and other non-medical indicators that are capable of independent verification. There must be a minimum of a 6-month period of chronicity. There must be no affirmative evidence that relates the undiagnosed illness to a cause other than being in the Southwest Asia Theater of operations during the Persian Gulf War. 38 U.S.C.A. § 1117; 38 C.F.R. § 3.317. If signs or symptoms have been medically attributed to a diagnosed rather than undiagnosed illness, the Persian Gulf War presumption of service connection does not apply. 38 C.F.R. § 3.317; VAOPGCPREC 8-98 (August 3, 1998), published at 63 Fed. Reg. 56,703 (1998). During the pendency of this appeal, the law affecting compensation for disabilities occurring in Persian Gulf War veterans was amended. 38 U.S.C.A. §§ 1117, 1118 (West 2002). These changes were applied retroactively, effective on March 1, 2002. Essentially, these changes revised the term "chronic disability" to "qualifying chronic disability," and included an expanded definition of "qualifying chronic disability" to include (a) an undiagnosed illness, (b) a medically unexplained chronic multi-symptom illness (such as chronic fatigue syndrome, fibromyalgia, and irritable bowel syndrome) that is defined by a cluster of signs or symptoms, or (c) any diagnosed illness that the Secretary determines, in regulations, warrants a presumption of service connection. 38 U.S.C.A. § 1117(a)(2)(B) (West 2002). Therefore, adjudication of the veteran's Persian Gulf service connection claims in the present case must include consideration of both the old and the new criteria. The veteran was notified of the amendments to the new criteria in the supplemental statement of the case dated in February 2007. Analysis The veteran claims that the onset of intestinal pains was during service. In an initial application for disability benefits received in November 1995, he indicated that he was hospitalized twice for such pains. In a claim received in November 2002, he indicated that his gastric condition began in 1991 and 1993. He testified that his intestinal pain symptoms persisted after service discharge, but that he has not been worked up fully for it for a couple of years and his pains have not been so severe that he has required hospitalization. He described his pains as a "balled up feeling" in his stomach, and stated that when he was last worked up for his condition after service he underwent testing on his lower gastrointestinal tract. Service department records show that the veteran's active service included a tour of duty in the Southwest Asia Theater of operations during the Persian Gulf War from October 1990 to April 1991. Service medical records show that at the time of a Southwest Asia demobilization/redeployment medical evaluation in June 1991, the veteran denied experiencing any stomach or abdominal pain. On a report of medical history in June 1991, it was noted that the veteran had spent three days in Darnall Army Hospital that month with complaints of chest and stomach pains (there was no documentation in the records). He was to follow up on sick call on an as-needed basis. In December 1993, the veteran complained of pain after physical training. The diagnosis was abdominal wall pain. Two CT scans of the abdomen in December 1993 did not show any acute abdominal pathology and were within normal limits. The veteran had been admitted to the hospital for a day in December 1993, and the discharge diagnosis was ileus of unknown etiology. In January 1994, the veteran returned with complaints of vague abdominal/pelvic/back pain. An upper gastrointestinal series in January 1994 identified no significant abnormalities. At the time of the veteran's separation physical examination in September 1995, there were no current complaints or clinical findings referable to the abdomen. On a report of medical history, the veteran indicated that he had had stomach or intestinal trouble. He stated that he was treated at Darnall Army Hospital twice for an intestinal virus. He stated that he was presently in good health and not taking any medications. After service, medical records from Scott & White Hospital and Clinic dated beginning in 1998 do not show treatment for intestinal pain or a chronic gastrointestinal condition. Records dated in June 1998 and July 1998 indicate that the veteran had a history of abdominal pain that necessitated hospitalization during service, and that on examination he described occasional abdominal discomfort. In June 1998, the diagnosis was that of an essentially normal examination. In July 1998, there was no diagnosis furnished, but an examination conducted a week later showed that the abdomen was completely within normal limits with perhaps a little mild tenderness in the right lower quadrant. The impression at that time was probable mild prostatitis. Service medical records dated in July 1999 indicate that the veteran underwent a physical examination for purposes of Chapter 2/enlistment. In a report of medical history at that time, the veteran denied having stomach or intestinal trouble. He indicated that he was in good health and not taking any medications. On a physical examination at that time, the abdomen was clinically evaluated as normal. In medical records from Scott & White Hospital and Clinic dated in October 2001, the veteran was seen with a complaint of persistent right lower quadrant abdominal discomfort; the impression was prostatitis. In response to the RO's February 2003 letter, notifying the veteran about the evidence needed to establish service connection for disabilities based on Gulf War service, the veteran in a February 2003 statement described various symptoms related to his service in Desert Storm, none of which related to intestinal pain or a gastric condition. At the time of a VA Gulf War examination in October 2003, there were no complaints, clinical findings, or diagnosis pertinent to intestinal pain or a gastric disability. In January 2004, the veteran was seen at the VA emergency room, mainly because he was unable to sleep but had some pain in his right side that was worse with movement. On examination, pain was reproducible in the lateral abdominal musculature with movement. The assessment included myofacial pain. Subsequent VA outpatient records do not show complaints or treatment for intestinal pain or a gastric condition. Rather, the records show that the veteran had a medical history of such ailments as hiatal hernia and benign prostatic hypertrophy. In January 2006, a record indicated that he had gastroesophageal reflux disease (GERD), which was stable. As the record now stands, there is no satisfactory proof, on any clinical record, that the veteran has a current diagnosis of a disability manifested by intestinal pain or a stomach/gastric disorder. In that regard, based on the statements and testimony of the veteran, the Board is not considering his GERD, which was diagnosed on a 2006 VA outpatient record and for which the veteran took medication, as part of the claimed gastric disorder. This is so because the veteran did not describe any reflux problem as related to his claimed gastrointestinal problems, or specify that this upper gastrointestinal condition was part of his claimed intestinal and/or stomach condition. His statements and testimony pertained to the stomach and lower gastrointestinal tract. He may, however, file a claim for VA disability compensation on account of GERD at any time. In the absence of medical evidence of a current intestinal or stomach/gastric disorder, service connection cannot be granted. 38 U.S.C.A. §§ 1110, 1131; 38C.F.R. § 3.303. A condition or injury occurred in service alone is not enough; there must be a current disability resulting from that condition or injury. Chelte v. Brown, 10 Vet. App. 268, 271 (1997). In the absence of proof of a present disability, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The provisions of an undiagnosed illness, pertinent to a veteran of the Persian Gulf War under 38 U.S.C.A. § 1117 and 38 C.F.R. § 3.317(a)(1), are applicable to this case, where the veteran served in Southwest Asia from October 1990 to April 1991 and claims episodes of intestinal pain that began after Desert Storm. As the occasional episodes of abdominal discomfort after service were identified by Scott & White Hospital and Clinic with the known clinical diagnosis of prostatitis (a non-gastrointestinal condition), it does not constitute an undiagnosed illness due to the veteran's Gulf War service. 38 U.S.C.A. § 1117; 38 C.F.R. § 3.317(a). Further, there must be objective evidence of gastrointestinal signs or symptoms, which may be manifestations of undiagnosed illness, for a minimum of a 6-month period of chronicity. Aside from the fact that there is no current medical evidence of intestinal pain or a gastric condition, there is no medical evidence from the time of service to the present showing that the veteran's claimed intestinal pain and gastric condition is actually chronic. In short, the application of 38 U.S.C.A. § 1117; 38 C.F.R. § 3.317 does not serve to support the veteran's claim. To the extent that the veteran relates intestinal pain or his gastric condition to service, where as here the determinative issue involves a question of a medical causation, competent medical evidence is required to substantiate the claim. A layperson is competent to identify a medical condition where the condition is a simple one, such as a broken leg as opposed to a form of cancer, but a lay person is not qualified through education, training, and expertise to offer an opinion on medical causation, which is not capable of lay observation. 38 C.F.R. § 3.159; Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). In this case, the veteran is competent to describe intestinal pain during and after service. However, his statements and testimony are not competent evidence on the question of medical causation. The question in this case involves medical knowledge of accepted medical principles pertaining to the history, manifestation, clinical course, and character of a gastrointestinal condition, and the veteran's lay observations do not suffice as competent medical evidence. As the Board may consider only independent medical evidence to support its findings as to a question involving medical causation, which are not capable of lay observation, and as there is no favorable medical evidence to support the claim as articulated above, the preponderance of the evidence is against the claim of service connection for intestinal pain, claimed as a gastric condition, and the benefit-of-the-doubt standard of proof does not apply. 38 U.S.C.A. § 5107(b). ORDER Service connection for intestinal pain, claimed as a gastric condition, to include claimed as due to undiagnosed illness, is denied. ____________________________________________ George E. Guido Jr. Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs