Citation Nr: 0814743 Decision Date: 05/05/08 Archive Date: 05/12/08 DOCKET NO. 05-34 174 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUES 1. Entitlement to service connection for a low back disorder. 2. Entitlement to service connection for acid reflux. 3. Whether new and material evidence has been received to reopen the claim of entitlement to service connection for duodenal ulcer. 4. Entitlement to a compensable evaluation for service- connected residuals of a ventral hernia. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD G.A. Wasik, Counsel INTRODUCTION The veteran had active duty service from October 1942 to October 1945. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA). In October 2005, the veteran requested to attend a hearing to be conducted by a Veteran's Law Judge at his local RO. In July 2007, the veteran indicated that he was withdrawing his request for a Board hearing. In October 2005, the veteran withdrew claims of entitlement to service connection for defective vision, a dental disability, prostate cancer and a heart condition. The issues are no longer in appellate status. See Hamilton v. Brown, 4 Vet. App. 528 (1993) (en banc), aff'd, 39 F.3d 1574 (Fed. Cir. 1994) (holding that the Board is without the authority to proceed on an issue if the veteran indicates that consideration of that issue should cease); see also 38 C.F.R. § 20.204. The RO, in an April 2003 rating, found that new and material evidence had not been submitted to reopen a claim for service connection for a duodenal ulcer, to include acid reflux. Because the October 1989 and prior final decisions did not specifically deny service connection for acid reflux, the Board is considering service connection for acid reflux on a de novo basis, without reference to any prior decision. Accordingly, it is listed as a separate issue. In April 2008, the veteran's motion to advance this case on the Board's docket due to age pursuant to 38 C.F.R. § 20.900(c) was granted. FINDINGS OF FACT 1. The preponderance of the competent evidence of record demonstrates that there is no etiological link between any currently existing low back disability and the veteran's active duty service. 2. The preponderance of the competent evidence of record demonstrates that there is no etiological link between any currently existing acid reflux and the veteran's active duty service or a service-connected disability. 3. An October 1989 rating decision denied service connection for a duodenal ulcer; the veteran did not appeal the denial which became final. 4. Some of the evidence received since the October 1989 rating decision bears directly or substantially upon the issue of entitlement to service connection for duodenal ulcer, is not duplicative or cumulative in nature and is so significant that it must be considered in order to fairly decide the merits of the claim. 5. The preponderance of the competent evidence of record demonstrates that there is no etiologic link between any currently existing duodenal ulcer and the veteran's active duty service or a service-connected disability. 6. The service-connected residuals of a ventral hernia are asymptomatic. CONCLUSIONS OF LAW 1. A low back disability was not incurred or aggravated in active service. 38 U.S.C.A. §§ 1101, 1110 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2007). 2. Acid reflux was not incurred or aggravated in active service and is not related to the service-connected disability of the residuals of a ventral hernia. 38 U.S.C.A. §§ 1101, 1110 (West 2002); 38 C.F.R. §§ 3.303, 3.304, 3.310 (2007). 3. The October 1989 rating decision, which denied entitlement to service connection for duodenal ulcer disease, is final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 20.1103 (2007). 4. The evidence received subsequent to the October 1989 rating decision is new and material, and the claim for service connection for duodenal ulcer is reopened. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2007). 5. Duodenal ulcer was not incurred in or aggravated during active service and is not related to the service-connected disability of the residuals of a ventral hernia, and may not be presumed to have been so incurred. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 310 (2007). 6. The criteria for assignment of a compensable evaluation for service-connected residuals of a ventral hernia have not been met. 38 U.S.C.A. §§ 1155, 5107(b) (West 2002); 38 C.F.R. § 4.7, Diagnostic Codes 7339, 7802, 7803, 7804, 7805 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duty to Assist 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). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her 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 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 Court held that, upon receipt of an application for a service- connection claim, 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) also require VA to notify a claimant that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. For an increased-compensation claim, section § 5103(a) requires, at a minimum, that the Secretary notify the claimant that, to substantiate a claim, the claimant must provide, or ask the Secretary to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on the claimant's employment and daily life. Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008). Further, if the Diagnostic Code under which the claimant is rated contains criteria necessary for entitlement to a higher disability rating that would not be satisfied by the claimant demonstrating a noticeable worsening or increase in severity of the disability and the effect that worsening has on the claimant's employment and daily life (such as a specific measurement or test result), the Secretary must provide at least general notice of that requirement to the claimant. Additionally, the claimant must be notified that, should an increase in disability be found, a disability rating will be determined by applying relevant Diagnostic Codes, which typically provide for a range in severity of a particular disability from noncompensable to as much as 100 percent (depending on the disability involved), based on the nature of the symptoms of the condition for which disability compensation is being sought, their severity and duration, and their impact upon employment and daily life. As with proper notice for an initial disability rating and consistent with the statutory and regulatory history, the notice must also provide examples of the types of medical and lay evidence that the claimant may submit (or ask the Secretary to obtain) that are relevant to establishing entitlement to increased compensation-e.g., competent lay statements describing symptoms, medical and hospitalization records, medical statements, employer statements, job application rejections, and any other evidence showing an increase in the disability or exceptional circumstances relating to the disability. In Kent v. Nicholson, 20 Vet. App. 1, 10 (2006), the Court held that VA must notify a claimant of the evidence and information that is necessary to reopen the claim and VA must notify the claimant of the evidence and information that is necessary to establish entitlement to the underlying claim for the benefit sought by the claimant. The VCAA requires, in the context of a claim to reopen, the Secretary to look at the bases for the denial in the prior decision and to respond with a notice letter that describes what evidence would be necessary to substantiate that element or elements required to establish service connection that were found insufficient in the previous denial. In the present case, the appellant was not provided with proper notification regarding his ulcer claim. The Board finds, however, that, to the extent the veteran was not provided proper notice regarding Kent, any prejudice was harmless because, as set out below, the Board has determined that new and material evidence has been received and reopened the claim. A pre-adjudicatory RO letter dated in February 2003 advised the veteran of the types of evidence and/or information deemed necessary to substantiate his service connection and increased rating claims. In addition to advising him of the relative evidentiary duties between himself and VA in developing his claims, he was notified that he could submit evidence showing that his service-connected disability had worsened. Additional VCAA notice was provided in January 2006. This letter specifically advised the veteran to submit all pertinent evidence and/or information in his possession to the agency of original jurisdiction. In May 2007, the veteran was provided with notification complying with Dingess, supra. In Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007), the United States Court of Appeals for the Federal Circuit (Federal Circuit) held that any error by VA in providing the notice required by 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b)(1) is presumed prejudicial, and that once an error is identified as to any of the four notice elements the burden shifts to VA to demonstrate that the error was not prejudicial to the appellant. The Federal Circuit stated that requiring an appellant to demonstrate prejudice as a result of any notice error is inconsistent with the purposes of both the VCAA and VA's uniquely pro-claimant benefits system. Instead, the Federal Circuit held in Sanders that all VCAA notice errors are presumed prejudicial and require reversal unless VA can show that the error did not affect the essential fairness of the adjudication. To do this, VA must show that the purpose of the notice was not frustrated, such as by demonstrating: (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. Although not specifically discussed by the court, some other possible circumstances that could demonstrate that VA error did not prejudice the claimant include where the claimant has stated that he or she has no further evidence to submit, or where the record reflects that VA has obtained all relevant evidence. The veteran was not provided with proper notice regarding his increased rating claim. However, the veteran's submissions document that he is aware that he had to demonstrate an increase in symptomatology in order to warrant an increased rating. In February 2002, he reported that his condition had worsened. An October 2005 statement referenced problems with a weak abdomen which is one of the pertinent rating criteria for evaluation of his increased rating claim. The August 2005 statement of the case included the specific rating criteria found in Diagnostic Code 7339, the diagnostic code under which his disability is rated. Overall, the veteran and his representative have demonstrated actual knowledge of the evidentiary requirements for the service connection and increased rating claims on appeal. On the facts of this case, the Board finds that the notice errors have not affected the essential fairness of the adjudications and have not resulted in any prejudicial harm to the veteran. VA has a duty to assist the veteran in the development of the claims. 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 veteran. See Bernard, supra. The RO has obtained VA and private treatment records and arranged for suitable VA examinations. 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 claims that has not been obtained. Hence, no further notice or assistance to the veteran is required to fulfill VA's duty to assist him in the development of the claims. 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). Service connection criteria Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110; 38 C.F.R. §§ 3.303, 3.304. In addition, service connection may 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 C.F.R. § 3.303(d). Where a veteran served continuously for 90 days or more during a period of war, or during peacetime service after December 31, 1946, and duodenal ulcer becomes manifest to a degree of 10 percent or more within one year from date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. A claim for service connection generally requires competent evidence of a current disability; proof as to incurrence or aggravation of a disease or injury in service, as provided by either lay or medical evidence, as the situation dictates; and competent evidence as to a nexus between the in-service injury or disease and the current disability. Cohen v. Brown, 10 Vet. App. 128, 137 (1997); Layno v. Brown, 6 Vet. App. 465 (1994). The Court has consistently held that, under the law cited above, "[a] determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or disease incurred in service." Watson v. Brown, 4 Vet. App. 309, 314 (1993). This principle has been repeatedly reaffirmed by the Federal Circuit, which has stated, "a veteran seeking disability benefits must establish . . . the existence of a disability [and] a connection between the veteran's service and the disability." Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To do so, the Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence that it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the appellant. See Masors v. Derwinski, 2 Vet. App. 181 (1992). VA regulations also provide that disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. 38 C.F.R. § 3.310. When aggravation of a veteran's non-service-connected condition is proximately due to or the result of a service-connected condition, the veteran shall be compensated for the degree of disability over and above the degree of disability existing prior to the aggravation. Allen v. Brown, 7 Vet. App. 439 (1995). The term "disability" refers to impairment of earning capacity, and that such definition mandates that any additional impairment of earning capacity resulting from an already service-connected condition, regardless of whether or not the additional impairment is itself a separate disease or injury caused by the service-connected condition, shall be compensated. After considering all information and lay and medical evidence of record in a case 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 benefit of the doubt will be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. The benefit of the doubt rule is inapplicable when the evidence preponderates against the claim. Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). Entitlement to service connection for a low back disorder The Board finds that service connection is not warranted for a low back disorder. The service medical records were silent as to complaints of, diagnosis of or treatment for low back problems. Physical examination of the bones and joints was negative in June 1945. Physical examination of the musculoskeletal system was determined to be normal at the time of the October 1945 service separation examination. There is no competent evidence of record documenting the presence of a low back disorder for many years after the veteran's discharge from active duty. No pertinent complaints or diagnoses were recorded at the time of a December 1946 VA examination. The first evidence of the presence of any low back problems was dated many years after the veteran's discharge. A March 1989 VA X-ray examination of the spine was interpreted as revealing scoliosis and mild hypertrophic spurring at L4. The examiner was unable to identify any evidence of acute abnormality. The disability was not linked to active duty service. There is no competent evidence of record which links a currently existing low back disorder to the veteran's active duty service. In September 1989, a private physician, T. E. T., M.D., noted that the veteran had a past medical history which included degenerative disease of the back. The physician did not link the back disorder to the veteran's active duty service. At the time of a March 2006 VA examination, the veteran reported that he had back and neck pain for over 20 years. The duration was intermittent with movement. He denied a history of injury to the spine. X- rays of the lumbar spine were interpreted as being normal. The pertinent diagnosis was lumbar back strain and cervical neck strain. Again, the disability was not linked to the veteran's active duty service. There is competent evidence of record which indicates that the currently existing low back disorder was not linked to the veteran's active duty service. A VA spine examination was conducted in March 2007. The veteran reported that he drove an ambulance during WWII and frequently picked up causalities off the battlefield. The veteran related his low back problem to this heavy lifting during service. He reported he had problems with low back pain and stiffness for many years since service. He denied any particular injury. He had progressive problems over the last few years. The pertinent diagnoses from the examination were chronic lumbosacral spine strain, chronic cervical spine strain with history of whiplash injury not related to military service, and apparent lumbar osteoporosis with compression deformity noted at L1. The examiner noted that his review of the claims file did not reveal any particular indication of documented ongoing problems with the lower back until fairly recently. Therefore, in his opinion, the current chronic lumbosacral spine strain and apparent lumbar osteoporosis were not as likely as not a direct result of his active military service. The only evidence of record which links a currently existing low back disorder to the veteran's active duty service is the veteran's own allegations. As a lay person, however, the veteran is not competent to make a medical diagnosis or to relate a medical disorder to a specific cause. See Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). His opinion as to the existence and etiology of a low back disability is of low probative value. Furthermore, the examiner who conducted the March 2007 VA spine examination noted the veteran's allegations of problems with his back since active duty but, despite this reported history, found there was no link. The Board places greater probative value on the opinion of the examiner who conducted the March 2007 VA examination over the veteran's lay assertions. Competent medical evidence is more probative than competent lay evidence. The veteran has alleged that he injured his back in combat. In the case of any veteran who engaged in combat with the enemy in active service with a military, naval, or air organization of the United States during a period of war, campaign, or expedition, the Secretary shall accept as sufficient proof of service-connection of any disease or injury alleged to have been incurred in or aggravated by such service satisfactory lay or other evidence of service incurrence or aggravation of such injury or disease, if consistent with the circumstances, conditions, or hardships of such service, notwithstanding the fact that there is no official record of such incurrence or aggravation in such service, and, to that end, shall resolve every reasonable doubt in favor of the veteran. Service-connection of such injury or disease may be rebutted by clear and convincing evidence to the contrary. The reasons for granting or denying service-connection in each case shall be recorded in full. 38 U.S.C.A. § 1154(b). In the current case, the veteran's participation or lack thereof in combat does not change the outcome of this decision. The provisions of 38 U.S.C.A. § 1154(b) do not allow a combat veteran to establish service connection with lay testimony alone. Rather, the statute relaxes the evidentiary requirements for determining what happened during service and is used only to provide a factual basis for a determination that a particular disease or injury was incurred or aggravated in service, not to link the service problem etiologically to a current disability. Gregory v. Brown, 8 Vet. App. 563, 567 (1996). The case on appeal does not revolve around whether an in-service back injury occurred during active duty. The examiner who conducted the March 2007 VA examination did not base the negative nexus opinion on the basis of there being no in-service back injury. Rather, the opinion was based on a lack of overall documentation of the presence of a back injury until fairly recently. The examiner did not discount that the veteran may have injured his back while on active duty. The examiner just found that there was no link between the current back problems and the veteran's active duty service. The veteran's participation in combat does not change the outcome of this decision. After reviewing the totality of the relevant evidence, the Board is compelled to conclude that the preponderance of such evidence is against entitlement to service connection for a back disorder. It follows that there is not a state of equipoise of the positive evidence with the negative evidence to permit a favorable determination pursuant to 38 U.S.C.A. § 5107(b). Entitlement to service connection for acid reflux In March 2002, the veteran submitted a claim for service connection for acid reflux. The Board finds that service connection is not warranted for acid reflux. The service medical records were silent as to complaints of, diagnosis of or treatment for acid reflux. No pertinent abnormalities were noted on the October 1945 service separation examination. There is no competent evidence of record documenting the presence of acid reflux for many years after the veteran's discharge from active duty. At the time of a December 1946 VA examination, the veteran reported that he had abdominal and epigastric cramps usually after meals. The problem reportedly began in 1945. It was noted that the veteran's condition was markedly aggravated by consumption of alcohol. Acid reflux was not diagnosed. A private physician wrote in August 1962 that the veteran had had problems with his stomach for a long time. A gastrointestinal series revealed a duodenal ulcer. Gastroesophageal reflux was not diagnosed at that time. The first competent evidence of record documenting the presence of reflux is dated in 2001. Private medical records dated in November 2001 and December 2001 include assessments of gastroesophageal reflux disease. In October 2001, an esophagogastroduodenoscopic (EGD) examination was performed due to complaints of dysphagia. The impressions were dysphagia and hiatal hernia. At the time of an April 2003 VA examination, no pertinent complaints were recorded. A VA examination was conducted in March 2006. A history of esophageal dilation which was performed in October 2001 was noted. The veteran reported problems swallowing food and medication and also monthly vomiting. Acid reflux was not included as a diagnosis at the time of the March 2006 VA examination. The Board finds that the preponderance of the competent evidence of record indicates that the currently existing acid reflux is not etiologically linked to the veteran's active duty service or to a service-connected disability. There is some evidence of record which links current acid reflux to the veteran's active duty service. A private physician, C.B.A., M.D., wrote in November 2003, that the veteran had chronic gastrointestinal problems including gastroesophageal reflux disease. The veteran reported he developed a ventral hernia during active duty which was repaired in 1945 and that he had had reflux since his hernia repair in 1945. The physician wrote that surgical intervention can contribute to small intestine dysfunction with adhesive disease. The physician opined that, whether or not small intestine dysfunction with adhesive disease contributes to the veteran's chronic reflux and peptic ulcer disease is not clear but certainly could be a factor. The Board finds, however, that more probative weight should be afforded the report of a March 2007 VA examination. A VA stomach examination was conducted in March 2007. The examiner noted that there was an apparent history of stomach problems since the veteran's military service. The main complaints were frequent indigestion with dyspepsia, nausea and generalized cramping pain. The examiner noted September 2001 medical records with a history of gastroesophageal reflux with peptic stricture of the esophagus. The examiner also referenced the lay statements and the veteran's reports of stomach problems since active duty. The examiner diagnosed chronic gastroesophageal reflux disease with dysphagia status post esophageal dilation in 2001. Based on the fact that an upper gastrointestinal examination conducted in December 1946 did not reveal any significant reflux, it was the examiner's opinion that the history of chronic gastroesophageal reflux disease with dysphagia was not as likely as not a direct result of the veteran's active duty service. The Board places greater probative weight on the opinions of etiology included in the report of the March 2007 VA examination over the opinions included in the letter from the private physician dated in November 2003. The Board may appropriately favor the opinion of one competent medical authority over another. See Owens v. Brown, 7 Vet. App. 429, 433 (1995); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). The examiner who prepared the March 2007 VA examination report had access to and had reviewed the evidence in the veteran's claims file while the private physician who prepared the November 2003 letter did not. The Court has held that post service reference to injuries sustained in service, without a review of service medical records, is not competent medical evidence. Grover v. West, 12 Vet. App. 109, 112 (1999). Furthermore, the examiner provided reasons and bases for his opinion which is anchored by citations to clinical evidence of record. The examiner noted that testing conducted in December 1946 failed to document the presence of reflux. The physician who prepared the November 2003 letter provided an opinion as to the possibility of problems due to repair of the ventral hernia but he did not cite to any evidence indicating that the veteran experienced small intestine dysfunction with adhesive disease in the post- service clinical records. The examiner who conducted the March 2007 VA examination specifically noted that the medical evidence of record fails to document the presence of small intestine dysfunction with adhesive disease. The Court has held that a bare conclusion, even one reached by a health care professional, is not probative without a factual predicate in the record. Miller v. West, 11 Vet. App. 345, 348 (1998). In addition, an examination that does not take into account the records of prior medical treatment is neither thorough nor fully informed. Green v. Derwinski, 1 Vet. App. 121, 124 (1991). A medical opinion based on speculation, without supporting clinical data or other rationale, does not provide the required degree of medical certainty. Bloom v. West, 12 Vet. App. 185, 187 (1999). Also, a medical opinion is inadequate when unsupported by clinical evidence. Black v. Brown, 5 Vet. App. 177, 180 (1995). Finally, a medical opinion based on an inaccurate factual premise is not probative. Reonal v. Brown, 5 Vet. App. 458, 461 (1993). In the current case, the opinion included in the November 2003 letter is based on the presence of small intestine dysfunction with adhesive disease which is not supported by any clinical evidence of record. The physician who prepared the November 2003 letter noted the existence of chronic reflux. It is not apparent to the Board upon what the physician was basing his opinion as to the chronic existence of acid reflux. Medical records from the physician which are associated with the claims file are dated from May 1998 to March 2002. All seven records dated prior to November 2001 fail to include references to acid reflux. This includes a record dated in June 2001 wherein the veteran complained of abdominal discomfort, epigastric pain and decreased appetite. Thereafter, two records dated in November 2001 and December 2001 include impressions of gastroesophageal reflux disease (November 2001) and controlled gastroesophageal reflux (December 2001). The last record from the physician, dated in March 2002, again fails to include any references to gastroesophageal reflux. The Board finds due to the discrepancy between the private physician's clinical records which do not document chronic acid reflux and his November 2003 letter which indicates that the veteran had had chronic gastroesophageal reflux for a long period of time, the Board places reduced probative value on the opinion as to the existence and etiology of gastroesophageal reflux disease. The only other evidence which indicates that the veteran currently has acid reflux which is due to his active duty service or to a service-connected disability is the veteran's own allegations. As a lay person however, the veteran is not competent to make a medical diagnosis or to relate a medical disorder to a specific cause. See Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). While the veteran is competent to report on gastrointestinal symptomatology he experienced while on active duty and thereafter, he is not competent to diagnose the cause of the gastrointestinal distress nor is he competent to provide an opinion as to the etiology of his gastrointestinal distress. The Board finds that the preponderance of the competent evidence of record does not support a finding that the veteran currently experiences acid reflux which was etiologically linked to his active duty service or to a service-connected disability. It follows that there is not a state of equipoise of the positive evidence with the negative evidence to permit a favorable determination pursuant to 38 U.S.C.A. § 5107(b). Whether new and material evidence has been received to reopen the claim of entitlement to service connection for duodenal ulcer disease The veteran is claiming entitlement to service connection for duodenal ulcer disease. The claim was originally denied in September 1962. The RO determined that there was no evidence of record to indicate service incurrence of aggravation of a duodenal ulcer nor any evidence to show the existence of a duodenal ulcer within the regulatory presumptive period following his discharge from service. The veteran was informed of the denial September 1962. He did not appeal the denial which became final. 38 U.S.C.A. § 7105(c). Thereafter, the veteran continued to submit claims of entitlement to service connection pertaining to an ulcer. The claims were denied by the RO and also by the Board. Claims were denied by the RO in June 1963, December 1974, and May 1989. The Board denied the claim in an August 1985 decision. All of these decisions were final. 38 U.S.C.A. § 7105(c) The last time the claim of entitlement to service connection for a duodenal ulcer was denied was in an October 1989 RO decision. The veteran was informed of the decision via correspondence dated in November 1989. He did not appeal the denial of service connection of duodenal ulcer which became final. 38 U.S.C.A. § 7105(c) In March 2002, the veteran submitted a claim of entitlement to service connection for acid reflux. The RO has also interpreted this as an attempt to reopen the claim of entitlement to service connection for ulcer disease. Under pertinent law and VA regulations, VA may reopen and review a claim that has been previously denied if new and material evidence is received since the last final decision. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a); Evans v. West, 12 Vet. App. 22 (1998). The definition of "new and material evidence" as set forth in 38 C.F.R. § 3.156(a) was revised, effective August 29, 2001. This new regulation provides: A claimant may reopen a finally adjudicated claim by submitting new and material evidence. New evidence means existing evidence not previously submitted to agency decision makers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 66 Fed. Reg. 45630 (2001) (codified as amended at 38 C.F.R. § 3.156(a)). This latest definition of new and material evidence only applies to a claim to reopen a finally decided claim received by the VA on or after August 29, 2001. Id. As the appellant submitted his latest application to reopen the claim for service connection for a low back disability in March 2002, the revised version of § 3.156 is applicable in this appeal. Furthermore, for purposes of the "new and material" evidence analysis, the credibility of the evidence is presumed. Justus v. Principi, 3 Vet. App. 510, 512-13 (1992). The RO last denied the claim in October 1989 at which time it determined the evidence did not establish that a duodenal ulcer was incurred or aggravated by service nor did one become manifest to a compensable degree within one year of discharge. The Board finds that new and material evidence has been received to reopen the claim of entitlement to service connection for duodenal ulcer. Subsequent to the October 1989 denial, the veteran has submitted a November 2003 statement from C.B.A., M.D. The private physician wrote that the veteran had chronic gastrointestinal problems including gastroesophageal reflux. The veteran reported that he performed a lot of heavy lifting during WWII and developed ventral and inguinal hernias. The physician noted that, since the veteran's ventral hernia repair in 1945, the veteran had reflux. The physician found that surgical intervention can contribute to small intestine dysfunction with adhesion disease "and whether or not that is a current contributing problem to [the veteran's] chronic reflux and peptic ulcer disease it [sic] not clear but certainly it could be a contributing factor." The physician also noted that the veteran's other medical problems which were chronic were not related to the veteran's military experience. The Board finds that this evidence is new and material. It is new as it was not of record at the time of the prior final denial in October 1989. It is also material in that if provides some evidence the currently existing peptic ulcer disease was incurred as a result of active duty service or due to a service-connected disability. The Board notes that, for purposes of reopening claims, the credibility of the evidence is presumed. As new and material evidence has been received, the Board finds that the claim of entitlement to service connection for duodenal ulcer disease has been reopened. The Board will adjudicate the claim on a de novo basis. The Board finds that service connection is not warranted for a duodenal ulcer. The preponderance of the competent evidence of record demonstrates that a duodenal ulcer was not present during active duty nor was a duodenal ulcer diagnosed until many years after the veteran's discharge. Furthermore, the preponderance of the competent evidence of record indicates that a duodenal ulcer was not etiologically linked to the veteran's active duty service or to a service- connected disability. The service medical records were silent as to complaints of, diagnosis of or treatment for ulcer disease. No pertinent abnormalities were noted at the time of the October 1945 service separation examination. There is no competent evidence documenting the existence of an ulcer for many years after the veteran's discharge. A VA gastrointestinal examination was conducted in December 1946. The veteran complained of abdominal and epigastric discomfort which was not directly related to food. An upper gastrointestinal series was conducted which did not reveal an ulcer. An ulcer was not diagnosed. The first competent evidence of the presence of an ulcer was in 1962. In August 1962, a private physician, P.W.S., M.D., wrote that the veteran was hospitalized in July 1962. At that time, a routine examination revealed that the veteran had difficulty with his stomach for a long time. Routine gastrointestinal series examination was noted to reveal a large duodenal ulcer with no obstruction. In July 1974, a private physician, J.C.M., M.D., wrote that, according to the records of Dr. P.S., the veteran had duodenal ulcer disease at least as early as 1962. In September 1989, a private physician, T. E. T., M.D., noted that the veteran's past medical history included a peptic ulcer. The preponderance of the competent evidence of record indicates that the veteran does not currently have a duodenal ulcer. The report of an October 2001 private EGD was interpreted as revealing a normal appearing duodenum. The most recent competent evidence of record is the report of the March 2007 VA stomach examination. A duodenal ulcer was not found at that time. The Board notes that, in November 2003, Dr. C.B.A., M.D., wrote that the veteran had chronic gastrointestinal upset including gastroesophageal reflux disease. The physician noted that repair of the ventral hernia could contribute to small intestine dysfunction with adhesive disease and seemed to indicate that this could contribute to a current problem with chronic reflux and peptic ulcer disease. It is not apparent to the Board upon what basis the physician was concluding that the veteran had peptic ulcer disease. Medical records from the physician dated from 1998 to 2002 are completely silent as to the presence of peptic ulcer disease or any other type of ulcer. The failure of the physician's records to include any reference at all to the presence of peptic ulcer disease significantly undercuts the probative value of this opinion. The Board finds that the preponderance of the competent evidence of record indicates that the veteran does not currently experience duodenal ulcer disease. Furthermore, the Board finds that, even if it conceded that the veteran currently experiences duodenal ulcer disease, the preponderance of the competent evidence of record indicates that the ulcer disease was not due to the veteran's active duty service or to a service-connected disability. As noted above, in November 2003, C.B.A., M.D. wrote that the veteran had chronic gastrointestinal upset including gastroesophageal reflux. The veteran reported that he performed a lot of heavy lifting during WWII and developed ventral and inguinal hernias. The author noted that, since the veteran's ventral hernia repair in 1945, he had reflux. The physician noted that surgical intervention can contribute to small intestine dysfunction with adhesion disease "and whether or not that is a current contributing problem to [the veteran's] chronic reflux and peptic ulcer disease it [sic] not clear but certainly it could be a contributing factor." The physician also noted that the veteran's other medical problems which were chronic were not related to the veteran's military experience. The Board finds that the probative value of the November 2003 letter is outweighed by the report of a VA stomach examination which was conducted in March 2007. The examiner had access to and had reviewed the evidence included in the claims file. The examiner noted the veteran's contention linking ulcer disease to the heavy lifting he performed during military service in WWII. The examiner also noted that the veteran was relating his ulcer problem to his service-connected ventral hernia repair. The examiner noted an apparent history of chronic reflux disease and the veteran reported he had stomach problems since military service. The veteran's main complaints were frequent indigestion with dyspepsia as well as nausea and generalized cramping pain. The veteran was status post esophageal dilation in October 2001 as indicated on EGD and a hiatal hernia was noted. The examiner referenced Dr. C.A.'s December 2003 letter regarding surgical intervention contributing to small intestinal dysfunction with adhesive disease. The examiner found, however, that the veteran had no specific history of gastrointestinal adhesions/adhesive disease. The examiner summarized the medical evidence of record regarding the claim. He observed that an upper gastrointestinal series conducted in December 1946 was essentially negative with essentially normal motility and no ulcer disease noted. The examiner found that there was an apparent documented history of duodenal ulcer disease. The pertinent diagnosis was history of duodenal peptic ulcer disease with no evidence of residual peptic ulcer disease noted at the time of the examination. The examiner noted the veteran's contentions regarding the etiology of his duodenal ulcer, history of duodenal ulcer disease since at least August 1962 and a long history of gastroesophageal reflux. However, based on the negative gastrointestinal examination conducted in December 1946, the examiner found that the history of duodenal peptic ulcer disease as well as the history of chronic gastroesophageal reflux disease with dysphagia was not likely the direct result of the veteran's military service. The Board finds the greatest probative weight regarding the etiology of the ulcer disease is to be accorded the report of the March 2007 VA examination. The Board may appropriately favor the opinion of one competent medical authority over another. See Owens v. Brown, 7 Vet. App. 429, 433 (1995); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). The examiner who prepared the March 2007 examination report had access to and had reviewed the veteran's claims file. There is no indication that the private physician reviewed any of the evidence in the claims file when preparing his November 2003 letter. The private physician who prepared the November 2003 letter apparently based his opinion solely on the veteran's self-reported medical history as there was no reference to any service medical records. An examination that does not take into account the records of prior medical treatment is neither thorough nor fully informed. Green v. Derwinski, 1 Vet. App. 121, 124 (1991). Furthermore, the examiner who prepared the report of the March 2007 VA examination provided reasons for his opinion and cited to clinical evidence in the claims file in support of his opinion. The examiner found that, based on a negative gastrointestinal examination in 1946, the veteran did not have ulcer disease at that time. The VA examiner noted the opinion provided by the private physician in November 2003 but then specifically determined that the opinion was not supported by the clinical evidence of record. The VA examiner determined that there was no evidence of adhesions or adhesion disease in the clinical records. The failure of the private physician to support his opinion with citations to the clinical records significantly lessens the probative value of the opinion. See Bloom v. West, 12 Vet. App. 185, 187 (1999) [the probative value of a physician's statement is dependent, in part, upon the extent to which it reflects "clinical data or other rationale to support his opinion."]. A bare conclusion, even one reached by a health care professional, is not probative without a factual predicate in the record. Miller v. West, 11 Vet. App. 345, 348 (1998). The only other evidence of record which indicates that the veteran currently has an ulcer which was linked to active duty in any way is the veteran's own allegations and lay statements. In October 1974, the veteran submitted lay statements from three individuals who attested to the fact the veteran did not have stomach problems prior to military service but did have problems during service and thereafter. In November 1974, the veteran's spouse submitted a statement indicating that she married the veteran in June 1945. At that time, he was having considerable stomach pain which was not relieved by an operation for a hernia repair. After discharge, the veteran continued to have trouble with stomach pain and a duodenal ulcer was diagnosed in 1962. In December 1984, the veteran alleged that he had been taking prescription drugs for stomach ulcer since 1952. VA has defined competency of evidence, pursuant to 38 C.F.R. § 3.159(a), as follows: "(1) Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also mean statements conveying sound medical principles found in medical treatises. It would also include statements contained in authoritative writings such as medical and scientific articles and research reports or analyses. (2) Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person." The Board finds that the veteran is competent to report on stomach symptomatology he experienced while on active duty. He is not competent, however, to diagnose the cause of the disorder. See Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). The Board finds that the nature of gastrointestinal disorders are not such that a lay person's observations as to diagnosis or etiology would be probative. For the same reason, the Board finds that the lay statements do not provide competent evidence documenting the existence of a duodenal ulcer during active duty nor are they competent to link a post-service gastrointestinal disorder to the veteran's active duty service. The veteran's allegations that his ulcer is linked to his participation in combat does not change the outcome of this decision. 38 U.S.C.A. § 1154. The claim is denied due to the absence of a duodenal ulcer during service or for many years thereafter and the absence of any evidence linking duodenal ulcer disease to service or a service-connected disability. After reviewing the totality of the relevant evidence, the Board is compelled to conclude that the preponderance of such evidence is against entitlement to a service connection for ulcer disease. It follows that there is not a state of equipoise of the positive evidence with the negative evidence to permit a favorable determination pursuant to 38 U.S.C.A. § 5107(b). Entitlement to a compensable evaluation for service-connected residuals of a ventral hernia In March 2002, the veteran submitted his claim for an increased rating. On VA examination in April 2003, the veteran reported tenderness along his incision line. Physical examination revealed a 15 centimeter incision which was 2 centimeters wide at the widest. The incision was flat, and barely visible. No ventral hernia was present. There was no diastasis of the recti muscles. The diagnosis was 15 centimeter abdominal scar from ventral hernia repair. At the time of a March 2006 VA examination, physical examination revealed a 15 centimeter well healed surgical scar. No ventral hernia was present. The pertinent diagnosis was stable ventral hernia. A VA stomach examination was conducted in March 2007. Physical examination revealed a ventral mid-line scar in the epigastrium which measured 15.5 centimeters by 1 centimeters wide. The scar was essentially benign with no particular hypersensitivity or tenderness noted. All the scars in the abdominal region appeared superficial and stable with no particular depression or elevation noted. The texture of the skin was normal. No keloid formation or inflammation was present. The pertinent diagnosis was post-operative hernia scar on the ventral epigastric region. The veteran's service-connected residuals of a ventral hernia are currently evaluated as non-compensably disabling under Diagnostic Code 7339. Under Diagnostic Code 7339, a noncompensable rating is assigned for a healed, post-operative wound with no disability, belt not indicated. A 20 percent rating is assigned for a small post-operative ventral hernia, not well supported by a belt under ordinary conditions, or healed ventral hernia or postoperative wounds with weakening of abdominal wall and indication for a supporting belt. A 40 percent rating is assigned for a large hernia, not well supported by a belt under ordinary conditions. 38 C.F.R. § 4.114, Code 7339. The Board finds that an increased rating is not warranted when the service-connected disability is evaluated under Diagnostic Code 7339. There is no competent evidence of record which indicates that the veteran experiences a hernia which is not well supported, nor evidence of weakening of the abdominal wall with an indication of a need for a supporting belt. Furthermore, there is no competent evidence documenting that the veteran currently experiences a large ventral hernia which is not well supported by a belt. In April 2003 and March 2006, it was specifically noted that no ventral hernia was present. The only symptomatology noted at the time of the March 2007 VA examination was a post- operative hernia scar. There was no finding of a ventral hernia at that time. The Board finds that an increased rating is not warranted when the service-connected residuals of a ventral hernia are evaluated under the rating criteria for evaluation of scars. The rating criteria for evaluation of scars changed during the appeal period. The prior version of Diagnostic Code 7803 provided for a 10 percent evaluation for a scar which was superficial and unstable. The current version of Diagnostic Code 7803 provides for a 10 percent evaluation for a scar which was superficial, poorly nourished with repeated ulceration. The Board finds that an increased rating is not warranted under the prior or current version of Diagnostic Code 7803. While the veteran's scar appears to be superficial, there is no evidence of record indicating that it was unstable or that is was poorly nourished with repeated ulceration. The scar has been described as well-healed and stable. Under the prior provisions of Diagnostic Code 7804, a 10 percent rating is warranted for superficial scars that are tender and painful on objective demonstration. Under the revised rating schedule, the provisions of Diagnostic Code 7804 do not change substantively. A superficial scar that is painful on examination warrants a 10 percent rating. The Board finds that an increased rating is not warranted when the veteran's scar is evaluated under the old or current version of Diagnostic Code 7804. At the time of the March 2003 VA examination, the veteran reported he experienced tenderness along his incision line. However, physical examination conducted in March 2006 and March 2007 failed to evidence complaints of tenderness in the scar. The examiner who conducted the March 2007 VA examination specifically noted that no hypersensitivity or tenderness was present at that time. Other than at the time of the April 2003 VA examination, the record is silent as to the presence of tender or painful scars. The April 2003 examination report contains the veteran's self-reported history of tenderness along the incision line, with no findings on examination in this regard. The Board finds, therefore, that the preponderance of the evidence demonstrates that the incision scar from service-connected ventral hernia does not warrant a 10 percent evaluation based on the presence of tender and painful scars. Diagnostic Code 7805 provides that scars may be evaluated based on limitation of the part affected. The Board finds that an increased rating is not warranted when the service- connected disability is evaluated under the prior or current version of Diagnostic Code 7805. There is no competent evidence of record which indicates that the residuals of the ventral hernia (including the surgical incision) results in any limitation of any part of the body. The veteran has not alleged the presence of such symptomatology. The Board finds that an increased rating is not warranted when the scar is evaluated under the current version of Diagnostic Code 7801. This Diagnostic Code provides for evaluation of scars, other than the head, face, or neck that are deep or that cause limited motion. In the current case, there is no competent evidence of record indicating that the scars from the ventral hernia surgery are deep. They have been described as superficial. As noted above, there is no evidence indicating that the scar limits the function of any body part. The Board finds that an increased rating is not warranted when the surgical scar is evaluated pursuant to the current version of Diagnostic Code 7802. This Diagnostic Code provides for evaluation of scars, other than on the head, face or neck, which are superficial and do not cause limited motion. A 10 percent evaluation is assigned for areas of 144 square inches or greater (929 square centimeters). A review of the claims file reveals that the scar from the ventral hernia repair measures no more than 15.5 centimeters by 2 centimeters or 31 square centimeters. This does not equate to a compensable evaluation under the current version of Diagnostic Code 7802. After reviewing the totality of the relevant evidence, the Board is compelled to conclude that the preponderance of such evidence is against entitlement to a compensable evaluation for residuals of the ventral hernia during any portion of the appeal period. See Hart v. Mansfield, 21 Vet. App. 505 (2007) ("staged" ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings). It follows that there is not a state of equipoise of the positive evidence with the negative evidence to permit a favorable determination pursuant to 38 U.S.C.A. § 5107(b). ORDER Service connection is not warranted for a low back disorder. The appeal is denied. Service connection for acid reflux is not warranted. The appeal is denied. New and material evidence having been received, the veteran's claim of entitlement to service connection for duodenal ulcer has been reopened. The appeal is granted to that extent only. Service connection is not warranted for duodenal ulcer. The appeal is denied. A compensable evaluation for service-connected residuals of a ventral hernia is not warranted. The appeal is denied. ____________________________________________ BARBARA B. COPELAND Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs