Citation Nr: 1122828 Decision Date: 06/14/11 Archive Date: 06/28/11 DOCKET NO. 10-34 844 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for duodenal ulcer or peptic ulcer disease. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD Siobhan Brogdon, Counsel INTRODUCTION The Veteran served on active duty from February 14, 1964 to April 8, 1964. This appeal comes before the Department of Veterans Affairs (VA) Board of Veterans Appeals from a December 2009 rating decision of the VA Regional Office in Waco, Texas that denied service connection for stomach ulcer. FINDINGS OF FACT 1. An ulcer disorder was not noted at service entrance - only a history of prior treatment; the presumption of soundness attaches. 2. A duodenal ulcer preexisted service; there is evidence of an increase in severity of ulcer symptoms during service. 3. The VA does not have clear and unmistakable evidence that there was no aggravation of duodenal ulcer in service. 4. There is evidence of duodenal ulcer symptoms in service leading to chronic peptic ulcer disease; natural progress of the pre-existing condition has not been established. CONCLUSIONS OF LAW 1. The presumption of soundness at service entrance as to duodenal ulcer is not rebutted. 38 U.S.C.A. § 1111 (West 2002 & Supp. 2010); 38 C.F.R. § 3.304 (2010). 2. Peptic ulcer disease was incurred in service. 38 U.S.C.A. §§ 1131, 1153, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.303, 3.306 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In a statement dated in August 2010, the Veteran asserts that his service entrance examination did not disclose a stomach ulcer, and that it was not until basic training that he started to experience severe stomach pain to the point that he was ordered into the infirmary. He states that he spent approximately three to four weeks in the hospital at that time and was diagnosed with a stomach ulcer and advised to separate from the military. The appellant maintains that he has continued to experience pain and symptoms since that time and that his condition is chronic. Preliminary Considerations - Veterans Claims Assistance Act of 2000 (VCAA). As provided for by the 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. 2010); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2010). In this instance, however, the claim of entitlement to service connection for stomach ulcer is granted. The United States Court of Appeals for Veterans Claims (Court) has held that the VCAA is not applicable where further assistance would not aid the appellant in substantiating the claim. Wensch v. Principi, 15 Vet App 362 (2001); see also 38 U.S.C.A. § 5103A (a) (2). In view of the Board's favorable decision and full grant of the benefit sought on appeal, further assistance is unnecessary to aid the appellant in substantiating the claim. Law and Regulations Service connection may be granted for disability resulting from disease or injury incurred in or aggravated during active military service. 38 U.S.C.A. §§ 1110, 1131 (West 2002 & Supp 2010); 38 C.F.R. § 3.303 (2010). 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 or aggravated by service. 38 C.F.R. §§ 3.303, 3.306 (2010). A veteran will be considered to have been in sound condition when examined, accepted, and enrolled for active service, except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable (obvious or manifest) evidence demonstrates that an injury or disease existed prior thereto and was not aggravated by such service. Only such conditions as are recorded in examination reports are to be considered as noted. 38 U.S.C.A. § 1111 (West 2002 & Supp 2010); 38 C.F.R. § 3.304(b) (2010). A preexisting injury or disease will be considered to have been aggravated by active service where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during and subsequent to service. 38 U.S.C.A. § 1153 (West 2002 & Supp. 2010); 38 C.F.R. § 3.306 (2010). Factual Background On service induction examination in February 13, 1964, the Veteran reported that he had seen a physician for ulcer. The examining official noted that the appellant had been treated for ulcer between December and February 1964. The Veteran was afforded a fluoroscopic examination the following day that disclosed good peristaltis, a normal esophagus, normal features of the stomach, and normal pyloric canal, duodenum, etc. An impression was recorded that there was no X-ray evidence of disease of the upper gastrointestinal tract. The abdomen and viscera were evaluated as normal and no pertinent defect was recorded. Service treatment records reflect that on February 26, 1964, the appellant was seen for complaints of dyspepsia. It was noted that he had a personal history of ulcer and currently had a constant burning pain in the epigastrium without relief from Donnatal. Additional medication was prescribed. The Veteran underwent Medical Board proceedings in mid March 1964. A narrative summary at that time indicated that he had been admitted with a chief complaint of abdominal pain. It was reported that he had had vague stomach pains for years, and that in April 1961, had begun to have burning epigastric pain without a definite relationship to meals. It was reported that he took various medications for six or seven months without success, and that an upper gastrointestinal series after that time disclosed an active duodenal ulcer. It was noted that he gradually drifted away from his medications and denied any significant pain for six months preceding entry into the Army. The narrative summary indicated that an upper gastrointestinal X-ray in 1961 had disclosed an active duodenal ulcer and that this was confirmed by the family physician by phone. It was reported that since induction, he had had more frequent epigastric pain. The Veteran was prescribed a bland diet and treated with Amphogel and anticholinergies. On examination, diagnoses included ulcer of the duodenum, existing prior to service, fit. It was determined that he did not meet the medical fitness standards and would be presented to a Medical Board for separation for a condition existing prior to service condition that had not been aggravated therein. A claim of entitlement to service connection for stomach ulcer was received in June 2009. The Veteran was afforded a VA general medical examination in October 2009. The examiner noted that the claims folder was not available for review. It was noted that the appellant had a history of ulcer disease for which he had been treated with H2 blockers to include Zantac in the 1980s with good relief. He related that he was currently taking Omeprazole with good relief but with some mild discomfort once or twice a month. Following examination, diagnoses included peptic ulcer disease, stable on medication. The claims folder was reviewed by a VA physician for stomach, duodenum and peritoneal adhesions purposes in November 2009. The examiner noted that the records indicated that the Veteran had a duodenal ulcer prior to military service and was asymptomatic when he entered the military. It was reported that he had some epigastric distress during military service that had been intermittent since then. It was noted that abdominal examinations performed in August 2009 and on general medical examination in October 2009 had been normal. Following evaluation, the diagnosis was peptic ulcer disease. The examiner opined that it was less likely than not that the Veteran's current symptoms of peptic ulcer disease were permanently aggravated or worsened by his two months of military service. Legal Analysis Service treatment records reflect that the Veteran acknowledged upon induction that he had been treated for an ulcer. A thorough work-up ensued with a finding of a normal gastrointestinal tract. The entrance examination report clearly reflects no gastrointestinal functional deficiency and no defect was recorded. As such, the two-step presumption of soundness at service entrance attaches. There must be clear and unmistakable evidence showing that a stomach ulcer existed prior to active service, and clear and unmistakable evidence that it was not aggravated by service. See Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004); VAOPGCPREC 3-2003. In the instant case, the Board finds that the evidence does not rise to the exacting level demanded by the law and the presumption of soundness is not rebutted. Accordingly, the Veteran is presumed to have entered service in sound condition. Service treatment records reflect that the Veteran began to seek treatment for digestive tract symptoms fairly soon after entering active duty. On admission in March 1964, it was noted that such symptoms had been intermittent since 1961 and that there had been exacerbation in service. The Veteran was medically discharged from service for disabilities that included peptic ulcer. On VA compensation and pension evaluation in November 2009, the examiner opined that it was less likely than not that the Veteran's current symptoms of peptic ulcer disease were permanently aggravated or worsened by his two months of military service. The Board finds, however, that nothing in the lay or medical evidence establishes that the Veteran had an ulcer (as distinct from a history of such) at service entrance. The Board is fully aware that service personnel contacted his family physician who confirmed by phone that a 1961 upper gastrointestinal series disclosed an active duodenal ulcer. However, a fluoroscopic examination was specifically performed at service entrance relative to the appellant's history of ulcer and no disability was found. In fact, the examining/interpreting physician specified that areas of the gastrointestinal tract were normal, and ultimately found that there was no X-ray evidence of disease of the upper gastrointestinal tract. Therefore, nothing at entrance suggested ulcer disease. The Veteran was seen for symptoms shortly after entering active duty but the Board is unable to conclude that such symptomatology did not develop in service since it was first identified during active duty. Service connection may still be denied if ulcer disease were determined to be due to the natural progression of the disease process. In this case, however, the VA doctor in November 2009 merely made a conclusory statement that it was less likely than not that the symptoms of peptic ulcer disease were permanently aggravated or worsened by two months of service. The Board finds that nothing in the doctor's summary conclusion rises to the level of a finding of natural progression, or to the level of clear and unmistakable evidence that there was no aggravation. Without a rational basis for this conclusion, the report is inadequate and of little probative value. The evidence in this case establishes a preservice history of ulcer with no functional defect at time of service entrance. During service, the Veteran was seen for symptoms leading to hospitalization for which he was ultimately medically discharged from active duty. The evidence does not support ultimate conclusions that the in-service manifestations were an acute flare-up, that there was not a permanent change in the nature of the disability, or that there was natural progress. The Board is not presented with clear and unmistakable evidence that there was no aggravation. Therefore, the presumption of soundness is not rebutted and a grant of service connection is in order on the basis of incurrence rather than aggravation. See Wagner. The Board thus resolves the benefit of the doubt in favor of the appellant by finding that service connection for peptic ulcer disease is warranted. ORDER Service connection for peptic ulcer disease is granted. ____________________________________________ H. N. SCHWARTZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs