Citation Nr: 0811633 Decision Date: 04/09/08 Archive Date: 04/23/08 DOCKET NO. 04-25 064 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for chronic allergic rhinitis, to include as secondary to the veteran's service- connected pulmonary tuberculosis. 2. Entitlement to service connection for hiatal hernia with reflux esophagitis and sphincter narrowing/scarring, to include as secondary to the veteran's service-connected pulmonary tuberculosis. 3. Entitlement to service connection for gastritis, to include as secondary to the veteran's service-connected pulmonary tuberculosis. 4. Entitlement to service connection for ulcer disease, to include as secondary to the veteran's service-connected pulmonary tuberculosis. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL Appellant and his spouse ATTORNEY FOR THE BOARD W. Preston, Associate Counsel INTRODUCTION The veteran served on active duty from July 1954 to October 1957. This case comes before the Board of Veterans' Appeals (Board) on appeal of a rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In a November 2002 rating decision, the RO characterized its adjudication as a denial of the veteran's claim to reopen a claim for service connection for rhinitis. In a December 2002 rating decision, the RO characterized its adjudications as a denial of the veteran's claims to reopen claims for service connection for hiatal hernia and gastritis. It is true that a November 1975 rating decision denied entitlement to service connection for rhinitis, hiatal hernia, and chronic gastritis. However, the veteran initiated an appeal with the submission of a notice of disagreement later in 1975. The originating agency did not issue a Statement of the Case in response to this notice of disagreement. Therefore, the November 1975 rating decision with respect to these disabilities did not become final. The veteran and his wife testified at a Travel Board hearing before the undersigned Veterans Law Judge in February 2008. A transcript of the hearing is of record. At the February 2008 Travel Board hearing, the veteran withdrew his claims of entitlement to service connection for diverticulitis, onychomycosis, and sinusitis. In a statement that VA received in July 2004, the veteran withdrew claims of entitlement to service connection for chronic obstructive pulmonary disorder. During the pendency of the veteran's appeal, an April 2004 rating decision granted the veteran entitlement to service connection for vestibular dysfunction as secondary to his service-connected pulmonary tuberculosis. The Board notes that statements dated in December 2002 from Thurman Gillespy, Jr., M.D., and James R. Shoemaker, D.O., indicate that the veteran has ataxia and that it is related to the veteran's vestibular dysfunction. In the Board's opinion, these reports raise the issue of entitlement to service connection for ataxia, to include as secondary to the veteran's now service-connected vestibular dysfunction. Accordingly, this matter is referred to the RO for appropriate action. A motion to advance this case on the docket due to advanced age was granted by the Board in March 2008. See 38 U.S.C.A. § 7107 (West 2002); 38 C.F.R. § 20.900(c) (2007). FINDINGS OF FACT 1. Chronic allergic rhinitis is etiologically related to the veteran's active service and his service-connected pulmonary tuberculosis. 2. Reflux esophagitis and sphincter narrowing/scarring is etiologically related to the veteran's active service and his service-connected pulmonary tuberculosis. 3. Gastritis is etiologically related to the veteran's active service and his service-connected pulmonary tuberculosis. 4. Ulcer disease is etiologically related to the veteran's active service and his service-connected pulmonary tuberculosis. CONCLUSIONS OF LAW 1. The requirements for service connection for chronic allergic rhinitis have been met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002): 38 C.F.R. §§ 3.303, 3.310 (2007). 2. The requirements for service connection for hiatal hernia with reflux esophagitis and sphincter narrowing/scarring have been met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002): 38 C.F.R. §§ 3.303, 3.310 (2007). 3. The requirements for service connection for gastritis have been met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002): 38 C.F.R. §§ 3.303, 3.310 (2007). 4. The requirements for service connection for ulcer disease have been met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002): 38 C.F.R. §§ 3.303, 3.310 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS As a preliminary matter, the Board notes that the record reflects that the veteran has been provided all required notice. In addition, the Board has determined that the evidence currently of record is sufficient to substantiate the veteran's claims. Therefore, no further development of the record is required under 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2007) or 38 C.F.R. § 3.159 (2007). Legal Criteria Service connection is granted for disability resulting from disease or injury incurred in or aggravated by active duty. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2007). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as opposed to merely isolated findings or a diagnosis including the word "chronic." When the fact of chronicity in service (or during any applicable presumptive period) is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b). Service connection may be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Direct service connection may not be granted without medical evidence of a 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 disease or injury. See Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff'd, 78 F.3d 604 (Fed. Cir. 1996) (table)]. Service connection may be granted for disability which is proximately due to or the result of service-connected disability. 38 C.F.R. § 3.310(a). Additional disability resulting from the aggravation of a nonservice-connected disability by a service-connected disability is also compensable under 38 C.F.R. § 3.310(a). Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). Service connection on a secondary basis may not be granted without medical evidence of a current disability and medical evidence of a nexus between the current disability and a service-connected disability. See Wallin v. West, 11 Vet. App. 509, 512-514 (1998). 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 (West 2002); 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), citing Gilbert, 1 Vet. App. at 54. Analysis The veteran contends that service connection is warranted for the disabilities at issue because they are due to his service-connected pulmonary tuberculosis or were incurred in service. Service medical records include diagnoses of chronic rhinitis in April 1957, July 1957, and August 1957. The report of examination for separation in September 1957 also included a diagnosis of chronic rhinitis. A document of record date- stamped December 1957 recommended the veteran to a Physical Evaluation Board for consideration of temporary retirement in connection with diagnoses of pulmonary tuberculosis and chronic rhinitis. Service medical records include an April 1957 note of gastric irritation in connection with streptomycin treatment for pulmonary tuberculosis. Service medical records are negative for evidence of hiatal hernia with reflux esophagitis and sphincter narrowing/scarring and ulcer disease. The veteran himself testified during his February 2008 Travel Board hearing that he was initially diagnosed with hiatal hernia with reflux esophagitis in 1973. A letter dated in July 1973 from Brunildo A. Herrero, M.D., of the Watson Clinic in Lakeland, Florida, indicates that an upper gastrointestinal series showed a very definite hiatal hernia. As to the issue of gastritis, a September 1975 VA examination report reflects a diagnosis of chronic gastritis, albeit only by history and as inactive. However, a statement from Mark A. Riner, M.D., received in March 1999 shows that the veteran was diagnosed with gastritis with histology pending and diagnosed with sliding hiatal hernia. VA treatment records commencing in February 2002 reflect diagnoses of rhinitis. Treatment records from John R. Cangemi, M.D., dated in August 1994 and March 1997 and received in December 2002, show diagnoses of esophageal reflux. A letter from Edward T. McLaughlin, M.D., dated in November 2002, also reflects a diagnosis of chronic allergic rhinitis. An April 2003 VA X- ray study of the upper GI system showed gastroesophageal reflux. An esophagogastroduodenoscopy conducted at the Mayo Clinic in Jacksonville, Florida, in April 2004 disclosed that the veteran's stomach was remarkable for a fair amount of erythema and edema, particularly within the antrum. The edema and erythema from the stomach persisted through the duodenum, which was examined through to the third position. A final diagnosis of chronic duodenitis, non-specific, was given. The report of the only VA examination of the veteran's gastrointestinal symptoms, dated in September 1975, concludes with the examiner's opinion that he could see no possibility that the veteran's present symptoms were "due to his treatment for service-connected tuberculosis." The September 1975 examiner referred to X-rays from the Watson Clinic but neglected to address Dr. Herrero's aforementioned diagnosis of "a very definite hiatal hernia," which was then of record. Consideration of the evidence of record as a whole leads the Board to find that service connection is warranted. First, the Board observes that the veteran's testimony at his Travel Board hearing in February 2008 was credible; additionally, the veteran's very cogent testimony presented a coherent layperson's roadmap of the evidence permitting the Board readily to discern that the weight of the evidence is in favor his claims. Moreover, the medical evidence adequately supports the proposition that the veteran's claimed disabilities are related to his service-connected pulmonary tuberculosis. The veteran has submitted an affidavit, dated in May 2004, from William B. Ferguson, M.D., who affirmed that he had been in regular contact with the veteran for 44 years and was an Internist and retired United States Public Health Service Chief of Medicine experienced in treating tuberculosis. Dr. Ferguson had never examined the veteran, he wrote, but he had occasion to observe him with his medically trained eye for many years and knew in depth about the veteran's reported symptoms. More significantly, Dr. Ferguson opined based on his own extensive experience in treating tuberculosis that the complex of the veteran's claimed disorders here on appeal, to include chronic allergic rhinitis, hiatal hernia with reflux esophagitis and sphincter narrowing/scarring, gastritis, and ulcer disease, were consistent with the veteran's in-service treatment with Streptomycin and PAS [Aminosalicylic Acid]. Allergic reactions resulting in rhinitis, extreme hack coughing resulting in the stomach protruding into the thorax (allowing gastric acid reflux and burning/narrowing of the esophagus), and damage to the muscusoa of the digestive tract, he explained in detail, were all likely to have resulted from the surgery and chemotherapy administered in service for the veteran's pulmonary tuberculosis. The Board notes that the veteran's service medical records confirm this treatment for pulmonary tuberculosis. The Board finds Dr. Ferguson's reasoning more persuasive in light of the fact of his expertise in treating tuberculosis and the fact that he provided reasons for his conclusions instead of summarily dismissing the veteran's contentions as had the 1975 VA examiner. In the Board's opinion, the evidence supportive of the claims is at least in equipoise with that against the claims. Accordingly, the veteran is entitled to service connection for chronic allergic rhinitis, hiatal hernia with reflux esophagitis and sphincter narrowing/scarring, gastritis, and ulcer disease, as secondary to the veteran's service-connected pulmonary tuberculosis, minimal, inactive. ORDER Entitlement to service connection for chronic allergic rhinitis is granted. Entitlement to service connection for hiatal hernia with reflux esophagitis and sphincter narrowing/scarring is granted. Entitlement to service connection for gastritis is granted. Entitlement to service connection for ulcer disease is granted. ____________________________________________ Shane A. Durkin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs