Citation Nr: 1111508 Decision Date: 03/23/11 Archive Date: 04/05/11 DOCKET NO. 06-34 188A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Diego, California THE ISSUES 1. Entitlement to service connection for gastroenteritis. 2. Entitlement to service connection for hemorrhoids. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Dan Schechter INTRODUCTION The Veteran had active service from August 1965 to August 1967. The appeal comes before the Board of Veterans' Appeals (Board) from an August 2005 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California. Records in the course of appeal reflect that the Veteran has been homeless, and may remain homeless. His RO of jurisdiction has been changed from Los Angeles to San Diego, apparently reflective of greater proximity of the latter RO to the Veteran. The issue entitlement to service connection for hemorrhoids is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. FINDINGS OF FACT The evidence preponderates against the Veteran having current gastroenteritis. CONCLUSION OF LAW Gastroenteritis was not incurred in or aggravated by service.. 38 U.S.C.A. §§ 1110, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.303 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duty to notify and assist claimants in substantiating their claims for VA benefits, as codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.159, 3.326(a) (2010). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative 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; and (3) that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1) (2010). This notice must be provided prior to an initial decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). If complete notice is not provided until after the initial adjudication, such a timing error can be cured by subsequent legally adequate VCAA notice, followed by readjudication of the claim, as in a Supplemental Statement of the Case (SOC) or Supplemental Statement of the Case (SSOC). Additionally, where there is an uncured timing defect in the notice, subsequent action by the RO which provides the claimant a meaningful opportunity to participate in the processing of the claim can prevent any such defect from being prejudicial. Mayfield v. Nicholson, 499 F.3d 1317, 1323-24 (Fed. Cir. 2007); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). The U.S. Supreme Court has held that an error in VCAA notice should not be presumed prejudicial, and that the burden of showing harmful error rests with the party raising the issue, to be determined on a case-by-case basis. Shinseki v. Sanders, 129 S. Ct. 1696 (2009). In this case, the appellant has not demonstrated any prejudicial or harmful error in VCAA notice, nor, as discussed herein, has the Board identified any. VA has fulfilled the above requirements in this case for the claim for service connection for gastroenteritis. A VCAA notice letter was sent in March 2005, prior to the RO's initial adjudication of the claim in August 2005. This VCAA letter informed the Veteran of the notice and duty-to-assist provisions of the VCAA, of the bases of review, and of the information and evidence necessary to substantiate the claim. He was also told by this letter that it is ultimately his responsibility to see that pertinent evidence not in Federal possession is obtained. In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the Court held that, upon receipt of an application for a service-connected benefits, 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating, or is necessary to substantiate, each of the five elements of the claim, including notice of what is required to establish service connection and that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. The Veteran was afforded a letter providing Dingess-type notice in March 2006. To whatever extent such Dingess-type notice may have been deficient in this case, such deficiency would be harmless and moot because the claim for service connection for gastroenteritis is herein denied. The VCAA letter also requested that the Veteran advise of any VA and private medical sources of evidence pertinent to his claim, and that he provide necessary authorization to obtain those records. It also requested evidence and information about treatment after service, in support of the claim. The Veteran replied to that VCAA request in May 2006 informing that he had no other evidence or information to provide to VA in furtherance of his claims. In records obtained from the Social Security Administration (SSA), a disability application completed by the Veteran informed that he had been treated on a single day in April 2003 at the VA Medical Center (VAMC) in Los Angeles, and that he had been treated over the course of two days in January 2004 at the Santa Monica UCLA Medical Center. VA treatment records were obtained and associated with the claims file. Because VA treatment records contemporaneous with the Santa Monica UCLA Medical Center records were obtained and these note no current gastric disorder including no current disorder reported by the Veteran, there appears to be no reasonable possibility that the Santa Monica UCLA Medical Center records for two days in January 2004 would reflect any findings of gastroenteritis to support the claim. Thus, all pertinent records were requested from indicated sources, and all records received were associated with the claims file. All pertinent records from the SSA were also requested, and an August 2008 reply from the SSA supplied all the records they had. The Veteran was appropriately informed, including by the appealed rating decision, an SOC, and an SSOC, of records obtained, and, by implication, of records not obtained. He was also adequately informed of the importance of obtaining all relevant records, and of his ultimate responsibility to see that records are obtained in furtherance of his claim. While some treatment records were added to the claims file following the most SSOC issued in August 2008, these were a few mental health treatment records that did not address the alimentary system. Hence, there is no reasonable possibility of their relevance, and hence no reasonable possibility of prejudice to the Veteran by the Board's adjudication of the claim prior to RO review of the claim informed by these additional records added to the claims file subsequent to the SSOC. As delineated in 38 C.F.R. § 3.159(c)(4), a VA examination to address the question of etiology as related to service is required when a veteran presents a claim for service connection in which there was a pertinent event, injury, or disease in service; there is evidence of current disability; the medical evidence of record does not contain sufficient competent medical evidence to decide the claim; and the veteran indicates that the claimed disability or symptoms may be associated with service. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). In this case, as addressed in detail infra, there is no evidence of current disability to support the claim for service connection for gastroenteritis. Accordingly, there is criteria for a requirement of a VA examination to address the claim are not met, the Veteran's representative's argument to the contrary notwithstanding. 38 C.F.R. § 3.159(c)(4); McLendon. The Veteran addressed his claim by statements including in treatment in the course of appeal. Admittedly, the Veteran did not adequately address the claim so as to support the presence of current disability to support the claim. However, where there is no current disability, as appears the case here, requesting the Veteran to provide statements of current disability would be contrary to the factfinding roles of the Board and VA generally. The Veteran initially requested a Travel Board hearing, but subsequently cancelled that request after it was scheduled before a Veterans Law Judge. There is no indication that the Veteran was not appropriately afforded the opportunity of a hearing to address his appealed claim, including at a hearing before the undersigned. There has also been no expressed indication that the Veteran desires a further opportunity to address his claim adjudicated herein. In summary, in this case, with regard to the claim for service connection for a gastroenteritis herein adjudicated, the Board finds that any error in notice and development assistance cannot "reasonably affect the outcome of the case," and hence will not affect "the essential fairness of the [adjudication]" for the service connection claim at issue on appeal. See ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998); Mayfield v. Nicholson, 19 Vet. App. 103 (2005). In view of the foregoing, the Board finds that all notification and development actions needed to render a decision on the Veteran's claim for service connection for gastroenteritis have been accomplished. II. Claim for Service Connection for Gastroenteritis Service connection may be granted for a disability resulting from injury or disease incurred in or aggravated by active service. 38 U.S.C.A. § 1110 (West 2002 & Supp. 2009); 38 C.F.R. § 3.303 (2009). With a chronic disease shown as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." When the disease identity is established (leprosy, tuberculosis, multiple sclerosis, etc.), there is no requirement of evidentiary showing of continuity. Continuity of symptomatology is required only where the condition noted during service (or in the presumptive period) is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. Id. If a condition noted during service is not shown to be chronic, then generally a showing of continuity of symptoms after service is required for service connection. 38 C.F.R. § 3.303(b). Service connection may also 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). 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). Medical evidence is generally required to establish a medical diagnosis or to address questions of medical causation; lay assertions of medical status generally do not constitute competent medical evidence for these purposes. Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). However, lay statements may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability which may reasonably be observed by laypersons. See 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372, 1376 (Fed Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). See also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. Sept. 14, 2009) ("in some cases, lay evidence will be competent and credible evidence of etiology"). It is the responsibility of the Board to weigh the evidence, including the medical evidence, and determine where to give credit and where to withhold the same and, in doing so, the Board may accept one medical opinion and reject others. Evans v. West, 12 Vet. App. 22, 30 (1998). The Board cannot make its own independent medical determination, and it must have plausible reasons, based upon medical evidence in the record, for favoring one medical opinion over another. Evans; Rucker v. Brown, 10 Vet. App. 67, 74 (1997). Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno v. Brown, 6 Vet. App. 465, 469 (1994), distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted"). In determining the weight to be assigned to evidence, credibility can be affected by inconsistent statements, internal inconsistency of statements, inconsistency with other evidence of record, facial implausibility, bad character, interest, bias, self- interest, malingering, desire for monetary gain, and witness demeanor. Caluza v. Brown, 7 Vet. App. 498, 511, 512 (1995), aff'd per curiam, 78 F.3d. 604 (Fed. Cir. 1996). The Federal Circuit Court has held that "[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical profession." Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) ("[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence."). The Board herein only adjudicates the claim for service connection for gastroenteritis. However, because the Veteran in statements noted herein also addressed gastritis, he appears not to understand that gastroenteritis and gastritis are distinct disorders. Regarding the apparent confusion in the Veteran's understanding of gastritis and gastroenteritis, the Board does not ultimately find this confusion material to the present claim herein adjudicated. The Board here limits its adjudication to the claim for service connection for gastroenteritis as the disability the subject of the appealed claim, thereby not prejudicing any future claim for gastritis the Veteran may desire to file. However, the Board also herein notes the absence of evidence to support the presence of either disorder currently, and hence the Board also finds no prejudice to the Veteran in the Board not expanding the claim to also include service connection for gastritis. See Clemons v. Shinseki, 23 Vet. App. 1 (2009) (noting that VA should not hold a claimant to his or her lay claim of a specificly claimed diagnosis where a related disability may be claimed.) A service treatment record (STR) dated in October 1966 shows treatment for symptoms including headaches, diarrhea, and nausea with high fever, with symptoms starting the night prior. A malaria smear was negative. The examiner assessed probable gastroenteritis, though with malaria still possible. The Veteran was then treated with aspirin and Lomotil, and admitted for in-patient care. Two days later he was noted to be improving, and to be without fever, diarrhea, or vomiting. He was discharged on light duty on the third day following the onset of symptoms. There are no STRs reflecting any recurrence of gastroenteritis or complaint or treatment for other gastrointestinal conditions. His service separation examination in August 1967 noted no gastrointestinal disorder. At a December 2005 VA treatment the Veteran reported that he had been diagnosed with gastritis for many years, though he denied current pain or nausea. He expressed a belief that his gastritis was associated with 'veteran related work.' The examiner found the Veteran's abdomen to be soft and nontender with no distension and positive bowel sounds. The examiner assessed no evidence of gastritis currently. There is no record of complaints of current gastroenteritis or current gastritis, or findings or treatments for gastroenteritis or gastritis in any records after service contained within the claims file, and the Veteran has not indicated the existence of any such records. While he asserted at a December 2005 VA treatment that he had had gastritis for many years, it is not at all clear that the Veteran had cognizance of the nature of that disorder, or that he has cognizance of the difference between gastritis and gastroenteritis as two separate and distinct disorders. More so, treatment records over the past several years show no current gastritis or gastroenteritis, as already noted. Thus, the Veteran's contention of past gastritis notwithstanding, there is simply no evidence to support the presence of current gastritis or gastroenteritis to support the claim. The Veteran has not even asserted at any time in the course of his claim that he currently has, or recently has had, gastritis or gastroenteritis. The record also does not reflect any post-service history of treatment with any medication for either gastritis or gastroenteritis. To the contrary, the medical record thoroughly documents the Veteran's strongly held practice of not taking any medications. In short, the record as a whole presents no evidence to support current gastritis or gastroenteritis. In the absence of any evidence of current gastroenteritis to support the claim, the "current disability" element of the claim for service connection is not met, and the preponderance of the evidence is against the claim for service connection for gastroenteritis on that basis. 38 C.F.R. § 3.303. The Board recognizes the Court has held that the presence of a chronic disability at any time during the claim process can justify a grant of service connection, even where the most recent diagnosis is negative. McClain v. Nicholson, 21 Vet. App. 319 (2007). However, where the overall record fails to support a diagnosis of the claimed disability, that holding is inapplicable. In the absence of current disability, the Board does not here reach conclusions as to whether the Veteran meets the other elements of a claim for service connection. Id. Because the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine does not apply, and the claim must be denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for gastroenteritis is denied. REMAND The Veteran has claimed entitlement to service connection for hemorrhoids, and that claim has been developed for appellate review. Relevant evidence is reviewed below. A November 2003 VA flexible sigmoidoscopy reflected the presence of internal hemorrhoids which were small and without the stigmata of bleeding. At December 2005 VA treatment the Veteran reported that hemorrhoids had been found by sigmoidoscopy in 2003. He further reported that he intermittently had bright red blood per rectum (BRBPR), but that he had seen none for several months. The examiner conducted a rectal examination and observed no inflamed hemorrhoids. The examiner assessed internal hemorrhoids with some BRBPR, without current evidence of acute inflammation. A March 2007 treatment record noted the Veteran's report of a very small amount of blood on toilet tissue. His history of colonoscopy was noted. The treating gastroenterologist assessed a likely bleeding hemorrhoid. The balance of contemporaneous treatment records generally reflect the Veteran's ongoing complaints of occasional BRBPR as reflective of hemorrhoids. The Veteran's service treatment records and service separation examination are all entirely negative for findings, complaints, or treatment for hemorrhoids. However, the Veteran in a December 2005 treatment record expressed the opinion that his hemorrhoids were associated with 'veteran related work.' Unfortunately, this seemingly tangential statement is apparently typical of the Veteran's statements and expressions of thought. As reflected in VA psychiatric treatment and evaluation records, the Veteran speech is frequently tangential or marked by non sequiturs, with diagnoses including schizotypal personality disorder or similar conditions. In this case, based on such psychiatric problems, it appears that the Veteran cannot reasonably be expected to provide any clear statement of his history of hemorrhoids without at least some direct questioning by VA. Accordingly, under these circumstances the Board finds remand in order to ask the Veteran directly to provide a statement of the history of his claimed hemorrhoids, from service to the present. See Clemons v. Shinseki, 23 Vet. App. 1 (2009) (noting the inherent unreasonableness of imputing self-knowledge of disability or to expect unsolicited and appropriately specific assertions of disability from a lay claimant, particularly where psychiatric disability is at issue). If the Veteran asserts that he has had hemorrhoids from service, a VA examination may then be warranted. As delineated in 38 C.F.R. § 3.159(c)(4), a VA examination to address the question of etiology as related to service is required when the Veteran presents a claim for service connection and meets the low threshold requirements there is an event, injury, or disease in service; there is evidence of current disability; the medical evidence of record does not contain sufficient competent medical evidence to decide the claim; and the Veteran indicates that the claimed disability or symptoms may be associated with service. McLendon v. Nicholson, 20 Vet. App. 79 (2006). Because the Board believes a specific request for a history of disability should be addressed to the Veteran, and because this request may elicit from the Veteran a self-reported history indicating a link to an event, injury, or disease in service, remand is warranted for the requested history from the Veteran, and, if the history so indicates, for a VA examination addressing the disability underlying the claim and its etiology. Accordingly, the case is REMANDED for the following action: 1. Contact the Veteran and ask him to provide a detailed history of any hemorrhoids or symptoms of hemorrhoids he has experienced, both in service and after service, in support of his claim. The letter should also ask him to provide any additional evidence or information he may have regarding his remanded claim for service connection for hemorrhoids. All records and responses received should be associated with the claims file, and any indicated records development should be undertaken. 2. Thereafter, if the criteria under 38 C.F.R. § 3.159(c)(4) are met to require a VA examination, afford the Veteran an appropriate VA examination for compensation purposes addressing the Veteran's claimed hemorrhoids and their etiology as related to service. 3. Then, readjudicate the remanded claim de novo. If any benefit sought by the remanded claim is not granted to the Veteran's satisfaction, provide him and his representative with a Supplemental Statement of the Case and afford an appropriate opportunity to respond thereto. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2010). ____________________________ ANDREW J. MULLEN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs