Citation Nr: 0926107 Decision Date: 07/13/09 Archive Date: 07/21/09 DOCKET NO. 04-24 594A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for Barrett's esophagitis, also claimed as secondary to a service-connected dental condition. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD S. M. Marcus, Associate Counsel INTRODUCTION The appellant is a veteran who served on active duty from December 1945 to February 1947. This matter is before the Board of Veterans' Appeals (Board) following a July 2008 decision from the United States Court of Appeals for Veterans Claims (CAVC) remanding the Board's February 2006 decision, reopening and denying the Veteran's claim for service connection of esophagitis, claimed as secondary to a service-connected dental condition. This matter was originally on appeal from a December 2003 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The Veteran had a hearing before the Board in March 2005 and the transcript is of record. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2008). 38 U.S.C.A. § 7107(a)(2) (West 2002 & Supp. 2008). FINDING OF FACT The most probative and competent evidence does not indicate a link through causation or aggravation between the Veteran's current Barrett's esophagitis and his service-connected dental osteomyelitis nor is there competent evidence that shows his gastrointestinal diseases are directly related to any remote incident of service. CONCLUSION OF LAW The Veteran's Barrett's esophagitis was not incurred in or aggravated by service and it is not proximately due to or the result of a service-connected disability. 38 U.S.C.A. §§ 1101 and 5107 (West 2002 & Supp. 2008); 38 C.F.R. §§ 3.303, 3.304 and 3.310 (2008). REASONS AND BASES FOR FINDING AND CONCLUSION The Board has thoroughly reviewed all the evidence in the Veteran's claims folder. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the veteran). The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). The notice requirements were met in this case by letters sent to the Veteran in February 2004 and April 2005. Those letters advised the Veteran of the information necessary to substantiate his claim, and of his and VA's respective obligations for obtaining specified different types of evidence. See Quartuccio v. Principi, 16 Vet. App. 183 (2002); 38 C.F.R. § 3.159(b). Since the Board has concluded that the preponderance of the evidence is against the claim for service connection, any questions as to the appropriate disability rating or effective date to be assigned are rendered moot, and no further notice is needed. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The claimant has not alleged that VA failed to comply with the notice requirements of the VCAA, and he was afforded a meaningful opportunity to participate effectively in the processing of his claim(s), and has in fact provided additional arguments at every stage. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005). Ideally, the notice required by 38 U.S.C.A. § 5103(a) should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004); see also Mayfield v. Nicholson, 19 Vet. App. 103 (2005). That was not done in this case. However, the Veteran still has the right to VCAA content complying notice and proper subsequent VA process, and that has been done, as discussed above. Any defect with respect to the timing of the VCAA notice requirement was harmless error. See Mayfield, supra. Although the notice provided to the Veteran in 2004 and 2005 was not given prior to the first adjudication of the claim, the content of the notice fully complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), and, after the notice was provided, the claim was readjudicated and an additional SSOC was provided to the Veteran in October 2005 and June 2009. Not only has he been provided with every opportunity to submit evidence and argument in support of his claim and to respond to VA notices, but the actions taken by VA have essentially cured the error in the timing of notice. The Board also concludes VA's duty to assist has been satisfied. The Veteran's service medical records and VA medical records are in the file. Private medical records identified by the Veteran have been obtained, to the extent possible. The claimant has at no time referenced outstanding records that he wanted VA to obtain or that he felt were relevant to the claim. The duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim, as defined by law. The Veteran was afforded a comprehensive medical examination in February 2009 to obtain an opinion as to whether his gastrointestinal diseases can be directly attributed to service or attributed to his service-connected osteomyelitis. See McLendon v. Nicholson, 20 Vet. App. 79 (2006); Duenas v. Principi, 18 Vet. App. 512, 517 (2004). Further examination or opinion is not needed because, at a minimum, there is no persuasive and competent evidence that the claimed condition may be associated with the Veteran's military service. In this regard, the etiological opinion provided takes into consideration an examination of the Veteran, his medical history, as well as a search of the medical literature. This is discussed in more detail below. Thus, the Board finds that VA has satisfied the duty to assist the Veteran. In the circumstances of this case, additional efforts to assist or notify him in accordance with the VCAA would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to requirements in the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran); 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). VA has satisfied its duties to inform and assist the Veteran at every stage of this case. Therefore, the Board may proceed to consider the merits of the claim. Service Connection The Veteran alleges he has had gastroesophageal reflux (GERD) since his military service, which ultimately developed into his current esophagitis. Alternatively, he alleges his esophagitis is related to his dental disability. Service connection means that the facts establish that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated during service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). This may be shown by affirmative evidence showing inception or aggravation during service or through statutory presumptions. Id. When a disease is first diagnosed after service, service connection can still be granted for that condition if the evidence shows it was incurred in service. 38 C.F.R. § 3.303(d). In the absence of a presumption, in order to prevail on the issue of service connection there must be medical evidence of a current disability; medical evidence, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and medical evidence of a nexus between an in-service injury or disease and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999); see also Pond v. West, 12 Vet. App. 341, 346 (1999). Where a disability is claimed as proximately due to or the result of a service-connected disease or injury, as is the case here, service connection may also be established on a secondary basis by a showing that (1) a current disability exists and (2) the current disability was either (a) caused by or (b) aggravated by a service-connected disability. 38 C.F.R. § 3.310(a). Compensation may be provided for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation. 71 FR 52744 (Sept. 7, 2006) (codified at 38 C.F.R. § 3.310(c)); Allen v. Brown, 8 Vet. App. 374 (1995). Initially, the Board acknowledges that the Veteran is competent to give evidence about what he experienced; for example, he is competent to discuss his current pain and other experienced symptoms. See, e.g., Layno v. Brown, 6 Vet. App. 465 (1994). He is not, however, competent to diagnose any medical disorder or render an opinion as to the cause or etiology of any current disorder because he does not have the requisite medical knowledge or training. See Rucker v. Brown, 10 Vet. App. 67, 74 (1997) (stating that competency must be distinguished from weight and credibility, which are factual determinations going to the probative value of the evidence). The Veteran is currently service-connected for a dental disability, namely osteomyelitis. The Board further notes the Veteran is not service-connected for GERD or pyorrhea alveolaris. The Veteran was granted, however, eligibility for dental treatment purposes only for, among other things, pyorrhea alveolaris in an August 1950 rating decision. His service treatment records confirm extensive dental treatment, but are silent as to any complaints, treatment or diagnosis of esophagitis, GERD or any other gastrointestinal disease. The Veteran's January 1947 separation examination noted the Veteran was treated for tonsillitis in Germany in 1946, but did not note any residual disability or any GI abnormality. The records are simply devoid of any findings consistent with a chronic GI condition. Even if chronic conditions were not shown during service, however, service connection may be established under 38 C.F.R. § 3.303(b) by evidence of continuity of symptomatology or under 38 C.F.R. § 3.303(d) if the evidence shows a disease first diagnosed after service was incurred in service. The crucial inquiry here is whether the Veteran's current esophagitis is proximately due to or the result of his service-connected dental disability or any other remote incident of service. The Board concludes it is not. After service, the Veteran was first diagnosed with Barrett's esophagitis in 1987, over forty years after separation from the military. Private treatment records and VA outpatient treatment records indicate continuous treatment for esophagitis since that time. More recent treatment records also indicate a diagnosis of GERD. In support of his claim, the Veteran submitted various private opinions during the pendency of this appeal. In November 2002, Dr. Styne, a private gastroenterologist, opined as follows: ...[The Veteran's] reflux esophagitis with Barrett's esophagitis, which is a serious gastrointestinal condition, is more likely than not to be connected with his pyorrhea. Chronic reflux has substantial oropharayngeal effects. We know based on the fact that he has Barrett's that he has had longstanding reflux. Dr. Styne's opinion does not appear to stem from an independent review of the Veteran's military records, but rather on the Veteran's more recent medical history and possibly the Veteran's self-reported medical history. Regardless, Dr. Styne's opinion is not probative for other reasons. Most significantly, as indicated above, the Veteran is not service-connected for pyorrhea, and therefore a causal relationship between his esophagitis and pyorrhea is irrelevant for purposes of service-connection of esophagitis here. The Board also finds noteworthy that it is unclear whether Dr. Styne is indicating the Veteran's pyorrhea caused or aggravated the Veteran's esophagitis. Rather, looking at his statement alone, it appears Dr. Styne may actually be suggesting the opposite causation: that the Veteran's gastrointestinal condition caused his pyorrhea. Although favorable at first glance, Dr. Styne's statement offers little insight on how the Veteran's esophagitis may be related to his military service. The Veteran also submitted private statements dated November 2003 and December 2003 from Dr. Bash, an Associate Professor of Radiology and Nuclear Medicine. Dr. Bash, in both statements links the Veteran's current Barrett's esophagitis to "service reflux disease." Again, the Veteran is not service-connected for GERD and Dr. Bash appears to incorrectly presume in-service incurrence of GERD. Accordingly, the opinions are based on incorrect factual premise and are not probative. See Reonal v. Brown, 5 Vet. App. 458, 460-61 (1993). The Veteran was afforded a dental examination in May 2005. Upon review of the claims folder, the dental examiner, who also is a medical doctor, opined in a June 2005 addendum, "the patient's osteomyelitis and pyorrhea alveolaris did not cause chronic gastrointestinal...problems." The Veteran was also afforded a gastrointestinal VA examination in February 2009. The examiner diagnosed the Veteran with GERD and esophagitis. With regard to etiology, the examiner opined as follows: After reviewing the [medical evidence and literature], I find no data supporting [the Veteran's] contention, that his esophageal reflux symptoms and esophagitis is caused by or exacerbated by poor dental status. Therefore it seems less likely as not that his esophageal reflux and esophagitis is caused by, or aggravated by dental osteomyelitis. In regard to direct causation, the February 2009 examiner further indicated: As to [the Veteran's] contention that he had GERD in service and self treated this, it seems unlikely that he would tolerate this type of symptomatology from 1947 until 1980, as he had insurance over many of those years working construction, without seeking medical attention earlier. The Board finds the examiner's opinion compelling. It is based on a thorough examination and a complete review of the claims folder, to include opinions rendered by Dr. Styne and Dr. Bash. In addition, he noted that he had conducted a search on Pub Med and medical search engines to ascertain the viability of the Veteran's assertions. The Board notes one of the Veteran's theories of entitlement to service connection for esophagitis is that his GERD began in the military and ultimately caused his current esophagitis. Dr. Bash opined that his in-service GERD caused his esophagitis. As indicated above, there is no documented confirmation of in-service incurrence of GERD. In accordance with the recent decision of the United States Court of Appeals for the Federal Circuit in Buchanan v. Nicholson, 451 F.3d 1331, 1337 (2006), lay evidence presented by the Veteran concerning his continuity of symptoms after service is generally credible regardless of the lack of contemporaneous medical evidence. He is not, however, competent to diagnose any medical disorder or render an opinion as to the cause or etiology of any current disorder because he does not have the requisite medical knowledge or training. See Rucker v. Brown, 10 Vet. App. 67, 74 (1997) (stating that competency must be distinguished from weight and credibility, which are factual determinations going to the probative value of the evidence). That is, the Veteran does not have the requisite medical credentials to conclude he had the diagnosis of GERD since 1947, but he is competent to indicate he has had reflux symptoms since 1947. In this case, however, the Board finds the claim that his symptomatology began in 1947 not credible. The Veteran first sought treatment for epigastric pain in 1987, which ultimately led to his diagnoses. As the February 2009 examiner indicated, it is entirely incredible that the Veteran suffered with GERD symptoms for 40 years without seeking medical treatment. The Veteran sought out VA benefits shortly after separation from the military for his periodontal disease and treatment thereafter, but never indicated any GERD symptomatology. The Board does not doubt the Veteran may have had some gastrointestinal symptomatology prior to his 1987 diagnoses, but it is doubtful the Veteran had chronic gastrointestinal disease for over four decades without treatment. As such, Dr. Bash's reliance on the incorrect factual premise that the Veteran's GERD began while in the military, renders his opinions far less probative than the February 2009 VA examiner who thoroughly reviewed the claims folder and indicated a clear understanding of the Veteran's military and medical history. See Reonal, 5 Vet. App. at 460-61 (1993). Dr. Styne's opinion relating the Veteran's gastrointestinal disease to some connection with pyorrhea is also not compelling for reasons asserted above. Although the Board sympathizes with the Veteran's condition and frustrations with the appellate process, the most competent and probative evidence does not support his claim. As reflected by the discussion above, the preponderance of the evidence is against the Veteran's claim. As such, the benefit-of-the-doubt rule does not apply. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to service connection for Barrett's esophagitis, also claimed as secondary to a service-connected dental condition, is denied. ____________________________________________ K. PARAKKAL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs