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