Citation Nr: 0814121 Decision Date: 04/29/08 Archive Date: 05/08/08 DOCKET NO. 04-14 182 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for a stomach disability, including as secondary to the service-connected post traumatic stress disorder (PTSD). REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD H. Seesel, Associate Counsel INTRODUCTION The veteran had active service from May 1969 until August 1970, including a tour of duty in the Republic of Vietnam from November 1969 until August 1970. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from January 2003 and April 2003 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The Board first considered this appeal in February 2007 and remanded the claim for additional development. The RO/Appeals Management Center (AMC) completed all requested development, but continued the denial of benefits sought. As such, this matter is properly returned to the Board for appellate consideration. The appeal initially included claims for entitlement to service connection for PTSD, hearing loss and tinnitus. During the pendency of the appeal, the RO granted service connection for these claims. Because the appellant has not filed a notice of disagreement pertaining to these rating determinations, they are not before the Board for appellate review. See 38 U.S.C.A. § 7105(a); see Godfrey v. Brown, 7 Vet. App. 398, 408-10 (1995)(Pursuant to 38 U.S.C. § 7105, a Notice of Disagreement initiates appellate review in the VA administrative adjudication process; and the request for appellate review is completed by the claimant's filing of a substantive appeal (VA Form 1-9 Appeal) after an SOC is issued by VA). FINDING OF FACT The veteran is not shown to have a currently diagnosed stomach disability. CONCLUSION OF LAW The criteria for entitlement to service connection for stomach problems have not been met. 38 U.S.C.A. §§ 1110, 1112, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.310 (2007). REASONS AND BASES FOR FINDING AND CONCLUSION As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (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). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA must inform the claimant of any information and 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). This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the U.S. Court of Appeals for Veterans Claims held that, upon receipt of an application for a service-connection claim, 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating, or is necessary to substantiate, each of the five elements of the claim, including notice of what is required to establish service connection and that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Here, the VCAA duty to notify was satisfied by way of letters sent to the veteran dated in September 2002, September 2003, December 2003 and October 2007 that fully addressed all notice elements. VA has a duty to assist the veteran in the development of the claim. This duty includes assisting the veteran 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. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). As was noted in the introduction section of this decision, the matter on appeal was previously before the Board in February 2007 and remanded the claim for additional development. The veteran has therefore had the benefit further evidentiary and procedural development as ordered by the Board to fully and fairly adjudicate his claim. The RO has obtained the service medical records, VA outpatient treatment records and private medical records. The veteran was also afforded a VA examination in support of his claim. Significantly, neither the veteran nor his representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. In fact, in December 2007, the veteran advised the RO that he had no additional evidence to submit. Hence, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). The Merits of the Claim The veteran seeks service connection for a stomach disability, including as secondary to the service-connected post traumatic stress disorder (PTSD). Having carefully considered the claim in light of the record and the applicable law, the Board is of the opinion that the preponderance of the evidence is against the claim and the appeal will be denied. Service connection will be granted if it is shown that a veteran has a disability resulting from an injury or disease contracted in the line of duty, or for aggravation of a preexisting injury or disease contracted in the line of duty in the active military, naval or air service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. That an injury incurred in service alone is not enough. There must be chronic disability resulting from that injury. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). In addition, service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that a disease was incurred in service. 38 C.F.R. § 3.303(d). Generally, to prove service connection, the record must contain: (1) medical evidence of a current disability, (2) medical evidence, or in certain circumstances, lay testimony of an inservice incurrence or aggravation of an injury or disease, and (3) medical evidence of a nexus between the current disability and the inservice disease or injury. Pond v. West, 12 Vet. App. 341 (1999); Caluza v. Brown, 7 Vet. App. 498 (1995). The law provides that secondary service connection shall be awarded when a disability is "proximately due to or the result of a service-connected disease or injury." 38 C.F.R. § 3.310(a). See Libertine v. Brown, 9 Vet. App. 521, 522 (1996); Harder v. Brown, 5 Vet. App. 183, 187 (1993). Additional disability resulting from the aggravation of a non-service-connected condition by a service-connected condition is also compensable under 38 C.F.R. § 3.310(a). Allen v. Brown, 7 Vet. App. 439, 448 (en banc). Establishing service connection on a secondary basis therefore requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) caused by or (b) aggravated by a service connected disability. VA outpatient treatment records include a prior medical history of gastroesophageal reflux disease. However, during the veteran's first visit to the VA in November 2002, the physician indicated GERD by the veteran's history. Clinical examination at that time revealed the veteran denied abdominal pain, nausea and vomiting, diarrhea. The veteran did report gastrointestinal upset. There was no pain or palpation or organomegaly of the abdomen. No diagnosis concerning the stomach or gastrointestinal system was rendered at this time. In this regard, the connection between what a physician said and the layman's account of what the physician purportedly said, filtered as it was through a layman's sensibilities, is simply too attenuated and inherently unreliable to constitute "medical" evidence. See Franzen v. Brown, 9 Vet. App. 235 (1996); Robinette v. Brown, 8 Vet. App. 69 (1995). As such the veteran's report of a prior diagnosis of GERD is not competent medical evidence of a current disability. Additionally, the veteran was afforded a VA examination in November 2007 to specifically assess whether or not he had a current disability of the stomach. During this examination, the veteran indicated he did not know what the diagnosis was for his stomach condition. The examiner noted that the claims file included an upper GI performed in August 2004 that was normal and a negative test of H. pylori. A February 2006 colonoscopy revealed sigmoid diverticulosis and internal hemorrhoids. A July 2007 record indicated the veteran denied gastrointestinal symptoms. The veteran explained he had previously been informed he had a nervous stomach. He related that his abdomen was sore to the touch, particularly in the left lower quadrant. The pain worsened with back pain. He also found spicy foods made him vomit and therefore avoided spicy food. He denied hematemesis or persistent vomiting. He denied significant diarrhea, constipation, colic, distention or melena. He described a little constipation in the past but indicated that it stopped when he began taking the correct supplements. He denied active treatment for the condition. Clinical examination revealed the abdomen was soft and rotund with normal bowel sounds. There was no significant tenderness, masses or organomegaly. No inguinal masses, adenopathy, hernias or muscle wall abnormalities were noted. There was minimal reported tenderness of the left midline lower areas that was not inconsistent with a fatty apron pulling down due to abdominal growth. The examiner concluded there were no significant findings to support abdominal or intestinal diagnoses. The examiner did report benign incidental findings of internal hemorrhoids and diverticulosis that were not rare for the veteran's age. Under these circumstances, for the Board to conclude that the veteran has a stomach disorder that had its origin during service would be speculation, and the law provides that service connection may not be granted on a resort to speculation or remote possibility. 38 C.F.R. § 3.102; Obert v. Brown, 5 Vet. App. 30, 33 (1993). Simply put, in the absence of a present disability that is related to service, a grant of service connection is clearly not supportable. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The veteran was advised of the need to submit medical evidence demonstrating a current disorder and a nexus between a current disorder and service by way of letters from the RO to him, but he has failed to do so. A claimant has a responsibility to present and support a claim for benefits under laws administered by the VA, 38 U.S.C.A. § 5107(a), and the veteran was clearly advised in the letters of the need to submit medical evidence of a current disorder and a relationship between a current disorder and an injury, disease or event in service. While the veteran is clearly of the opinion that he has a current stomach disorder that is related to service, as a layperson, the veteran is not competent to offer an opinion that requires specialized training, such as the diagnosis or etiology of a medical disorder. Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). Accordingly, service connection for a stomach disorder is not established in the absence of competent medical evidence of a current disorder and competent medical evidence demonstrating a relationship between a current disorder and service. ORDER Service connection for a stomach disorder is denied. ____________________________________________ JONATHAN B. KRAMER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs