Citation Nr: 0815007 Decision Date: 05/06/08 Archive Date: 05/12/08 DOCKET NO. 03-22 179 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to service connection for hemorrhagic fever. 2. Entitlement to service connection for gastroesophageal reflux disease (GERD). 3. Entitlement to an initial compensable evaluation for bilateral hearing loss. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD L.J. Bakke, Counsel INTRODUCTION The veteran served on active duty from August 1967 to August 1970. This appeal arises before the Board of Veterans' Appeals (Board) from a rating decision rendered in October 2002 by the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama, in which service connection for tinnitus, bilateral hearing loss, hemorrhagic fever, and GERD was denied. In December 2004 the Board issued a decision denying service connection for hemorrhagic fever and GERD. The issues of service connection for tinnitus and bilateral hearing loss were remanded for further development. The veteran appealed the denial of service connection for hemorrhagic fever and GERD to the U.S. Court of Appeals for Veterans Claims (Court). In March 2006, the Court vacated the part of the December 2004 Board decision denying service connection for hemorrhagic fever and GERD, and remanded the issues for further development. In July 2006, the Board remanded the issues of service connection for hemorrhagic fever and GERD in accordance with the Court's direction. Among other things, the remand directed additional efforts be made to reconstruct the veteran's service medical records. In June 2007, the Board issued a decision granting service connection for tinnitus and bilateral hearing loss. Remand was again required concerning the issues of service connection for hemorrhagic fever and GERD to allow consideration of recently received additional service medical records, including the hospital records from the 121st Evacuation Hospital in Ascom, Korea that had been sought. In an August 2007 rating decision, the RO effectuated the grant of service connection for tinnitus and bilateral hearing loss, granting 10 percent and noncompensable evaluations, respectively, effective in December 2001. In October 2007, the veteran expressed disagreement with the evaluation assigned his bilateral hearing loss. This issue is the subject of a remand immediately following this decision. See Manlincon v. West, 12 Vet. App. 238 (1999). The issue of entitlement to an initial compensable evaluation for bilateral hearing loss addressed in the REMAND portion of the decision below is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. The preponderance of the medical evidence is against a finding that the veteran manifests hemorrhagic fever or any residuals of hemorrhagic fever. 2. The preponderance of the medical evidence is against a finding that the diagnosed GERD is the result of active service, to include hemorrhagic fever. CONCLUSIONS OF LAW 1. The criteria of entitlement to service connection for hemorrhagic fever has not been met. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2007); 38 C.F.R. § 3.303 (2007). 2. The criteria of entitlement to service connection for GERD, including as the result of hemorrhagic fever, has not been met. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2007); 38 C.F.R. § 3.303 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Notice and Assistance Upon receipt of a complete or substantially complete application, VA must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 U.S.C.A. § 5103(a). VA must request that the claimant provide any evidence in the claimant's possession that pertains to a claim. 38 C.F.R. § 3.159. The notice requirements apply to all five elements of a service connection claim: 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. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The notice must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App.112 (2004). The notice requirements may be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). The RO provided the appellant pre-adjudication notice concerning the issues of service connection in February 2002. Subsequent additional notice was provided in December 2003 and July 2006 including that concerning the laws regarding degrees of disability and effective dates and, again, in October 2007 following remand by the Court and the Board. The notification substantially complied with the requirements of Quartuccio v. Principi, 16 Vet. App. 183 (2002), identifying the evidence necessary to substantiate a claim and the relative duties of VA and the claimant to obtain evidence; and Pelegrini v. Principi, 18 Vet. App. 112 (2004), requesting the claimant to provide evidence in his or her possession that pertains to the claims. The claims were re- adjudicated in supplemental statements of the case issued in March 2007 and January 2008. VA has obtained service medical records, assisted the veteran in obtaining evidence including private medical records, has accorded the veteran VA examinations, and has afforded the veteran the opportunity to give testimony before the Board, which he did in August 2004. Records from the Social Security Administration (SSA) were requested but not obtained. Review of the record reflects that onset of the disability for which SSA benefits were awarded was in 2003. Private medical records indicate that the disabling disabilities were a left shoulder injury and low back pain. Private medical records identified by the veteran as supporting his claim for service connection have been obtained and demonstrate onset of gastrointestinal problems in 1991. The essential problem in this case is that there is no record of continuity of symptomatology from the veteran's discharge in 1970 until 1991. SSA records establishing disability involving the left shoulder and lower back with onset in 2003 would have no likely bearing on the status of the veteran's gastrointestinal system during the time period from 1970 to 1991. It is highly improbable that these records would have any relevance to the claim at issue. The Board finds it is not necessary to remand this claim in order to obtain them. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran are to be avoided). All other known and available records relevant to the issues of service connection have been obtained and associated with the veteran's claims file; and the veteran has not contended otherwise. VA has substantially complied with the notice and assistance requirements and the veteran is not prejudiced by a decision on the claim at this time. II. Service Connection Service connection may be established for disability resulting from injury or disease incurred in service. 38 U.S.C.A. § 1110. Service connection connotes many factors, but basically, it means that the facts, as shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service. 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 in service. See Pond v. West, 12 Vet. App. 341 (1999); Hickson v. West, 12 Vet. App. 247, 253 (1999). Service connection may be established on a secondary basis if the claimed disability is shown to be proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310. Establishing service connection on a secondary basis 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. 38 C.F.R. § 3.310(a); see also Allen v. Brown, 7 Vet. App. 439, 448 (1995). The standard of proof to be applied in decisions on claims for veterans' benefits is set forth in 38 U.S.C.A. § 5107. A veteran is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. See also, 38 C.F.R. § 3.102. When a veteran seeks benefits and the evidence is in relative equipoise, the veteran prevails. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). The veteran avers that he was treated for hemorrhagic fever during active service and that he has suffered from the residuals of this condition, including GERD, from that time to the present. Service medical records show that the veteran was treated for epidemic hemorrhagic fever. Hospital records from the 121st Evacuation Hospital in Ascom, Korea. show the veteran was hospitalized for a period of 24 days in April and May 1968. He was released in late May 1968 to temporarily restricted duty. The records show the veteran was initially admitted with complaints of nausea, vomiting, dizziness, headaches, malaise and anorexia. He had been exposed to field conditions for three months and had been in good health until onset of symptoms. He was treated and was discharged with a final diagnosis of epidemic hemorrhagic fever, treated and improved. The balance of his service medical record show no further complaints of or treatment for these symptoms. His discharge physical shows no gastrointestinal complaints, abnormalities, defects, diagnoses or other findings. Hemorrhagic Fever Thereafter, there is no medical evidence of any recurrence of hemorrhagic fever. Private medical records are negative for complaints of or treatment for the condition. VA examination conducted in March 2002 shows a diagnosis of hemorrhagic fever by history, absent current residuals. In January 2007, following remands by the Court and the Board, the veteran again underwent VA examination. The examiner stated that the entire claims file, to include service medical records, the newly received hospital records from the 121st Evacuation Hospital in Korea, and private medical records had been reviewed. The examination was within normal limits, and the examiner diagnosed hemorrhagic fever infection, resolved with no residuals found. As the medical evidence contains no current diagnosis of hemorrhagic fever or of any residuals, the preponderance of the evidence is against service connection for the claimed condition. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) ("in the absence of proof of a present disability, there can be no valid claim"). GERD Private medical records dated in 1991 reflect the veteran was treated for symptoms of indigestion. Private treatment records dated in 2003 show diagnoses of GERD and hiatal hernia. VA examination conducted in March 2002 shows a diagnosis of possible GERD, with clinical findings of cricopharyngeus hypertrophy, moderate to severe GERD with hiatal hernia and Schatzki's ring. In January 2007, the veteran again underwent VA examination. The examiner noted that private clinical findings conducted in 2003 showed erosive esophagitis. The veteran refused further clinical testing. Notwithstanding, the examiner observed the veteran clearly had GERD and diagnosed GERD with erosive esophagitis. The examiner opined that the veteran's GERD was not caused by or a result of the hemorrhagic fever the veteran contracted in 1968. The examiner further opined that the GERD was not otherwise the result of the veteran's active service. The examiner based his opinion on review of the veteran's claims folder, to include the newly obtained hospital records from the 121st Evacuation Hospital in Korea, and on medical literature. The examiner noted that the veteran did experience vomiting during his acute illness in service with hemorrhagic fever, but that the condition resolved and there were no other reports of gastro-intestinal complaints in his service medical records or during his separation physical in 1970. Medical literature, the examiner explained, provided no basis for associating GERD with hemorrhagic fever. There are no other opinions or findings establishing that the currently diagnosed GERD is the result of the veteran's hemorrhagic fever, or in any other way the result of his active service. The earliest medical evidence reflecting a diagnosis of gastrointestinal disability is the private medical treatment record dated in 1991-which is over 20 years following the veteran's discharge from active service in 1970. Such evidence weighs heavily against the veteran's statements and testimony, and the statements of his witness, that he has experienced gastrointestinal symptomatology continuously from his inservice treatment for hemorrhagic fever to the present. See Maxson v. Gober, 230 F.3rd 1330, 1333 (Fed. Cir. 2000). Summary Where as here, the determinative issue involves medical diagnosis and medical opinion of etiology, competent medical evidence is required to support the claim. The veteran and his witness are not competent to offer an opinion as to medical diagnosis or causation, consequently their statements to the extent that the veteran currently manifests hemorrhagic fever or its residuals and GERD that is the result of his hemorrhagic fever or, in the alternative, the result of his active service, cannot constitute medical evidence. Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). The preponderance of the evidence is against the claim for service connection for hemorrhagic fever and its residuals and for GERD. The benefit-of-the-doubt standard of proof does not apply. 38 U.S.C.A. § 5107(b) and service connection is not warranted. ORDER Service connection for hemorrhagic fever is denied. Service connection for GERD, including as the residuals of hemorrhagic fever, is denied. REMAND The veteran submitted a timely notice of disagreement to the evaluation initially assigned his bilateral hearing loss in October 2007. Hence, the claim must be remanded for the preparation of a statement of the case. Manlincon, supra; Godfrey v. Brown, 7 Vet. App. 398, 408-10 (1995). Accordingly, the case is REMANDED for the following action: Issue a statement of the case regarding the issue of entitlement to an initial compensable evaluation for bilateral hearing loss. The appellant should be apprised of his right to submit a substantive appeal as to these issues and to have his claim reviewed by the Board. Only if the veteran timely perfects his appeal as to the issue of entitlement to an initial compensable evaluation for bilateral hearing loss, undertake any and all development deemed essential and re- adjudicate the veteran's claim. Thereafter, subject to current appellate procedures, the case should be returned to the Board for further appellate consideration, if appropriate. The veteran need take no action until he is so informed. The veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). The Board intimates no opinion as to the ultimate outcome of this case. ____________________________________________ RONALD W. SCHOLZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs