Citation Nr: 0812759 Decision Date: 04/17/08 Archive Date: 05/01/08 DOCKET NO. 06-09 358 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Manila, the Republic of the Philippines THE ISSUE 1. Entitlement to service connection for a peptic ulcer disorder. 2. Entitlement to service connection for anemia (claimed as a condition manifested by headaches, body weakness and dizziness). 3. Entitlement to service connection for hypertension (claimed as a condition manifested by headaches, body weakness and dizziness). ATTORNEY FOR THE BOARD Ann-Monique Clark, Associate Counsel INTRODUCTION The veteran had Recognized guerilla service from January 1945 to October 1945, as well as service from October 1945 to May 1946 with the Regular Philippine Army. This matter comes before the Board of Veterans' Appeals (BVA or Board) from a rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Manila, the Republic of the Philippines. The Board notes that the rating decision on appeal only addresses the issues of service connection for a peptic ulcer disorder and service connection for headaches. A subsequent statement of the case issued in February 2006 and supplemental statement of the case issued in April 2007 addressed three issues which include (1) service connection for a peptic ulcer disorder (2) service connection for anemia (condition manifested by headaches, body weakness and dizziness) and (3) service connection for hypertension (condition manifested by headaches, body weakness and dizziness). To avoid any prejudice that may have resulted from the veteran's reliance of the issues as reflected on the statement of the case and the supplemental statement of the case, the Board will consider the above three issues as included in those documents. It is additionally noted that in his substantive appeal, the veteran had requested a hearing before a Veterans Law Judge sitting at the RO. Such a hearing was scheduled for August 2007, but the evidence of record indicates that he failed to report. As such, his hearing request is considered withdrawn. See 38 C.F.R. § 20.702(d). FINDINGS OF FACT 1. The veteran has no recognized prisoner of war (POW) status. 2. A peptic ulcer disorder was not demonstrated during service or for over twenty five years thereafter. 3. Anemia was not demonstrated during service or for over twenty five years thereafter. 4. Hypertension was not demonstrated during service or for over twenty five years thereafter. 5. No competent evidence relates a peptic ulcer disorder, anemia, or hypertension to active service. CONCLUSIONS OF LAW 1. A peptic ulcer disorder was not incurred in or aggravated by service, nor may it be presumed to have been incurred therein. 38 U.S.C.A. §§ 1110, 1111, 5103(a), 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.309(a), 3.309(c) (2007). 2. Anemia was not incurred in or aggravated by active duty service, nor may it be presumed to have been incurred therein. 38 U.S.C.A. §§ 1110, 1111, 5103(a), 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.309(a), 3.309(c) (2007). 3. Hypertension was not incurred in or aggravated by active duty service, nor may it be presumed to have been incurred therein. 38 U.S.C.A. §§ 1110, 1111, 5103(a), 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.309(a), 3.309(c) (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board has reviewed all of the evidence in the veteran's claims folder. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Indeed, the Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim. The veteran is claiming entitlement to service connection for a peptic ulcer disorder, anemia, and hypertension. Under the relevant laws and regulations, direct 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 (West 2002). If a chronic disease is shown in service, subsequent manifestations of the same chronic disease at any later date, however remote, may be service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b) (2007). However, continuity of symptoms is required where a condition in service is noted but is not, in fact, chronic or where a diagnosis of chronicity may be legitimately questioned. 38 C.F.R. § 3.303(b) (2007). Further, 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 U.S.C.A. § 1113(b) (West 2002); 38 C.F.R. § 3.303(d) (2007). The Board must determine whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either case, or whether the preponderance of the evidence is against the claim, in which case, service connection must be denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). In considering in-service incurrence, the Board initially notes that the service medical records fail to demonstrate any complaints or treatment referable to a peptic ulcer disorder, anemia or hypertension. In fact, an affidavit signed by the veteran in February 1946 indicates no wounds or illness. Regarding the post-service evidence, the record contains one letter from a private physician received in September 2005, which states that the veteran has received treatment for a peptic ulcer disorder, anemia, and hypertension since 1974. However, this is approximately 30 years following the veteran's active service in the 1940s. In this regard, the Board notes that evidence of a prolonged period without medical complaint, and the amount of time that elapsed since military service, can be considered as evidence against the claim. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). In the veteran's December 2005 notice of disagreement, he stated that he was suffering from disabilities that he incurred while in active duty. In this regard, the Board notes that he is competent to give evidence about what he experienced; for example, he is competent to discuss his current pain and other experienced symptoms. See, e.g., Layno v. Brown, 6 Vet. App. 465 (1994). Furthermore, lay evidence concerning continuity of symptoms after service, if credible, is ultimately competent, regardless of the lack of contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). However, even if the veteran's statements can be construed as alleging continuity of symptoms since active service, the absence of documented complaints or treatment for several years following military discharge is more probative than his current recollection as to symptoms experienced in the distance past. Therefore, continuity has not here been established, either through the competent evidence or through his statements. Next, the Board finds that there is no medical evidence causally relating the currently-reported peptic ulcer disorder, anemia, and hypertension, to active service. Of note, a letter from a private physician received in September 2005, certifies that the veteran has suffered from a peptic ulcer disorder, anemia and hypertension since 1974. That physician further stated that such conditions were brought about by post traumatic stress disorder (PTSD) acquired during the World War II. However, the veteran is not service-connected for PTSD. Moreover, as already explained, there was no evidence of peptic ulcer disorder, anemia or hypertension until 1974, as this doctor acknowledged. Therefore, to the extent the physician is opining that those disorders were incurred in service, such opinion lacks probative value as it is inconsistent with the evidence of record. Although the veteran contends his disorders relate to service, his opinion alone cannot create the link between his current symptoms and experiences during service. Where the determinative issue involves a medical diagnosis, competent medical evidence is required. This burden typically cannot be met by lay testimony because lay persons are not competent to offer medical opinions. Espiritu v. Derwinski, 2 Vet. App. 492, 494-95 (1992). Next, the Board has considered whether presumptive service connection for chronic disease is warranted in the instant case. Under 38 C.F.R. § 3.309(a), peptic ulcers, anemia, and hypertension are regarded as chronic diseases. However, in order for the presumption to operate, such disease must become manifest to a degree of 10 percent or more within 1 year from the date of separation from service. See 38 C.F.R. § 3.307(a)(3). As the evidence of record fails to establish any clinical manifestations of a peptic ulcer disorder, anemia or hypertension within the applicable time period, the criteria for presumptive service connection on the basis of a chronic disease have not been satisfied. The Board additionally notes that the veteran contends to have been a POW. Status as a former POW allows for service connection to be presumed for certain diseases, including peptic ulcer disease and atherosclerotic heart disease and hypertensive vascular disease and their complications. 38 U.S.C.A. § 1112(b) (West 2002 & Supp. 2007); 38 C.F.R. § 3.309(c) (2007). An Affidavit for Philippine Army Personnel indicates that, after participating in several ambushes against Japan, the veteran was captured and maltreated by the enemy. However, when the veteran filed a claim for VA benefits in 1969, he made no mention of POW status. An administrative decision issued in August 2005 by the RO determined that the veteran could not be recognized as a former POW. The RO considered two separate affidavits from confirmed POW's stating that the veteran had also been held captive by enemy forces, POW microfiche, certification from the Office of the Adjutant General and the veteran's claims file in making their decision. After reviewing all of this information the RO made a determination that the veteran was not a POW. Although the Board finds that the affidavits provide support in favor of the veteran's alleged POW status, it is noted that the affiant's memory as to what occurred almost fifty years ago is less probative than the absence of military records confirming POW status. There is no dispute that the affiants were POW's, as there is written documentation confirming their status. The evidence however fails to reflect that the veteran was a POW as well. Again, while the Affidavit for Philippine Army Personnel suggests POW status, the fact that the veteran made no mention of such status when filing a claim in 1969 diminishes the probative weight of the affidavit. Based on the above, a reasonable basis does not exist to question the findings of the administrative decision regarding the veteran's POW status. Manibog v. Brown, 8 Vet. App. 465 (1996); Duro v. Derwinski, 2 Vet. App. 530 (1992); 38 C.F.R. § (y)(1) (2007). Thus, the Board must conclude that the veteran is not a former POW and the presumptions applicable to such status regarding service connection do not apply. 38 C.F.R. §§ 3.307(a)(5), 3.309(c). In sum, because of the absence of chronic disorders noted in service, the prolonged period without medical complaint of peptic ulcers, anemia, or hypertension, the amount of time that elapsed since military service, and the absence of a medical nexus between his current complaints and active duty, the evidence does not support a grant of service connection for peptic ulcers, anemia or hypertension. Finally, as provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2007). Proper notice from VA must inform the claimant of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in her or his possession that pertains to the claim in accordance with 38 C.F.R. § 3.159(b)(1). Quartuccio v. Principi, 16 Vet. App. 183 (2002). This notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In addition, the notice requirements of the VCAA apply to all five elements of a service-connection claim, including: (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. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. VCAA notice errors are presumed prejudicial unless VA shows that the error did not affect the essential fairness of the adjudication. To overcome the burden of prejudicial error, VA must show (1) that any defect was cured by actual knowledge on the part of the claimant; (2) that a reasonable person could be expected to understand from the notice what was needed; or, (3) that a benefit could not have been awarded as a matter of law. See Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007). Here, the VCAA duty to notify was satisfied by way of a letter sent to the veteran in June 2005 that fully addressed all four notice elements and was sent prior to the initial RO decision in this matter. The letter informed him of what evidence was required to substantiate the claims and of his and VA's respective duties for obtaining evidence. He was also asked to submit evidence and/or information in his possession to the RO. There is no allegation from the veteran that he has any evidence in his possession that is needed for full and fair adjudication of these claims. Under these circumstances, the Board finds that the notification requirements of the VCAA have been satisfied as to both timing and content. With respect to the Dingess requirements, in September 2007, the RO provided the veteran with notice of what type of information and evidence was needed to establish disability ratings, as well as notice of the type of evidence necessary to establish an effective date. With that letter, the RO effectively satisfied the remaining notice requirements with respect to all issues on appeal. Therefore, adequate notice was provided to the veteran prior to the transfer and certification of his case to the Board and complied with the requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b). Next, VA has a duty to assist the veteran in the development of the claim. This duty includes assisting him in the procurement of service medical records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. In determining whether the duty to assist requires that a VA medical examination be provided or medical opinion obtained with respect to a veteran's claim for benefits, there are four factors for consideration. These four factors are: (1) whether there is competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) whether there is evidence establishing that an event, injury, or disease occurred in service, or evidence establishing certain diseases manifesting during an applicable presumption period; (3) whether there is an indication that the disability or symptoms may be associated with the veteran's service or with another service-connected disability; and (4) whether there otherwise is sufficient competent medical evidence of record to make a decision on the claim. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4). With respect to the third factor above, the Court of Appeals for Veterans Claims has stated that this element establishes a low threshold and requires only that the evidence "indicates" that there "may" be a nexus between the current disability or symptoms and the veteran's service. The types of evidence that "indicate" that a current disability "may be associated" with military service include, but are not limited to, medical evidence that suggests a nexus but is too equivocal or lacking in specificity to support a decision on the merits, or credible evidence of continuity of symptomatology such as pain or other symptoms capable of lay observation. McLendon v. Nicholson, 20 Vet. App. 79 (2006). In this case, the veteran's service medical records and all identified and authorized post-service medical records relevant to the issues on appeal have been requested or obtained. Further, the veteran requested and was provided with a personal hearing at the RO in August 2007. It is noted that the veteran did not attend this scheduled hearing. Moreover, given the absence of in-service evidence of chronic manifestations of the disorders on appeal, no evidence of the disorders for many years after separation, and no competent evidence of a nexus between service and the veteran's claims, a remand for a VA examination would unduly delay resolution. ORDER Service connection for a peptic ulcer disorder is denied. Service connection for anemia (condition manifested by headaches, body weakness and dizziness) is denied. Service connection for hypertension (condition manifested by headaches, body weakness and dizziness) is denied. ____________________________________________ ERIC S. LEBOFF Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs