Citation Nr: 1123772 Decision Date: 06/22/11 Archive Date: 06/28/11 DOCKET NO. 06-37 721 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for an epigastric ulcer. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD M. Purdum, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1974 to December 1976 and from August 1977 to April 1995, and has 8 months and 10 days of inactive duty service. This matter is before the Board of Veterans' Appeals (Board) on appeal from a May 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO), in Waco, Texas, which, in pertinent part, denied service connection for epigastric ulcer disease. In July 2009, the Board remanded this case for additional development. The file has now been returned to the Board for further consideration. The Board notes that the May 2006 rating decision also denied the Veteran's claim of entitlement to service connection for peptic ulcer disease. The Veteran perfected his appeal as to such issue by a December 2006 Substantive Appeal. The Board, in July 2009, remanded the issue for additional development, and a subsequent July 2010 rating decision of the Appeals Management Center (AMC) granted service connection for peptic ulcer disease. Thus, the AMC's July 2010 action represents a full grant of the benefit sought as to the Veteran's claim regarding peptic ulcer disease and the Board will confine its consideration to the issue set forth on the decision title page. FINDING OF FACT The evidence of record does not demonstrate the presence of an epigastric ulcer. CONCLUSION OF LAW Epigastric ulcer was not incurred in or aggravated by service and may not be presumed as such. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1133, 5103, 5103A, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309 (2010); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist the Appellant The Veterans Claims Assistance Act of 2000 (VCAA), 38 U.S.C.A. §§ 5100, 5102-5103A, 5106, 5107, 5126 (West 2002 & Supp. 2010), 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2010), requires VA to assist a claimant at the time that he or she files a claim for benefits. As part of this assistance, VA is required to notify claimants of what they must do to substantiate their claims. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). The notice required by the VCAA can be divided into three elements. Specifically, VA must inform the claimant of any information and evidence not of record: (1) that is necessary to substantiate the claim; (2) that the claimant is to provide; and (3) that VA will attempt to obtain. Beverly v. Nicholson, 19 Vet. App. 394, 403 (2005) (outlining VCAA notice requirements). In addition, the notice requirements of the VCAA apply to all five elements of a service-connection claim, including: (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. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. In a September 2005 letter, before the initial adjudication of the claim, the Veteran was notified of the evidence not of record that was necessary to substantiate the claim. He was told that he needed to provide the names of persons, agencies, or companies who had additional records to help decide his claim. He was informed that VA would attempt to review his claim and determine what additional information was needed to process his claim, schedule a VA examination if appropriate, and obtain service, VA, and private treatment records as indicated. A June 2008 letter also informed the Veteran regarding the appropriate disability rating or effective date to be assigned. Since the Board has concluded that the preponderance of the evidence is against the claim of entitlement to service connection for epigastric ulcer, any questions as to the appropriate disability rating or effective date to be assigned or the timeliness of the notice thereof, are rendered moot, and no further notice is needed. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). There is no allegation from the Veteran that he has any evidence in his possession that is needed for a full and fair adjudication of this claim. Under these circumstances, the Board finds that the notification requirements of the VCAA have been satisfied as to both timing and content. The purpose behind the notice requirement has been satisfied and the Veteran has been afforded a meaningful opportunity to participate effectively in the processing of his claim. Therefore, adequate notice was provided to the Veteran prior to the transfer and certification of the Veteran's case to the Board and complied with the requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b). Next, the VCAA requires that VA make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate a claim. VA's duty to assist includes: (1) obtaining records not in the custody of a federal department or agency; (2) obtaining records in the custody of a federal department or agency; (3) obtaining service treatment records or other records relevant to active duty and VA or VA- authorized treatment records; and (4) providing medical examinations or obtaining medical opinions if necessary to decide the claim. See 38 C.F.R. § 3.159(c). VA has a duty to obtain a medical examination if the evidence establishes: (1) a current disability or persistent or recurrent symptoms of a disability; (2) an in-service event, injury, or disease; and (3) the current disability may be associated with the in-service event, but (4) there is insufficient evidence to make a decision on the claim. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The Veteran was afforded VA examinations in May 2008 and December 2009 and specific opinions as to his claim were obtained. In this case, the Veteran's service treatment records and all identified and authorized post-service treatment records relevant to the issue on appeal have been requested or obtained. Accordingly, all available records and medical evidence have been obtained in order to make an adequate determination as to this claim. In sum, the Board finds the duty to assist and duty to notify provisions of the VCAA have been fulfilled and no further action is necessary under the mandate of the VCAA. Additionally, the Board finds there has been substantial compliance with its July 2009 remand directives. The Board notes that the U.S. Court of Appeals for Veterans Claims (Court) has recently held that "only substantial compliance with the terms of the Board's engagement letter would be required, not strict compliance." See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); see also Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (holding that there was no Stegall (Stegall v. West, 11 Vet. App. 268) violation when the examiner made the ultimate determination required by the Board's remand.) The record indicates that the AMC sought from the Veteran information as to any outstanding relevant treatment records in July 2009 and afforded the Veteran an additional VA examination in December 2009, and later issued a Supplemental Statement of the Case in July 2010. Thus, the Board finds that the AMC substantially complied with the mandates of its remand. See Stegall, supra, (finding that a remand by the Board confers on the appellant the right to compliance with its remand orders). Therefore, in light of the foregoing, the Board will proceed to review and decide the claim based on the evidence that is of record consistent with 38 C.F.R. § 3.655 (2010). Service Connection A threshold requirement for the grant of service connection for any disability is that the disability claimed must be shown present. 38 U.S.C.A. §§ 1110, 1131. The United States Court of Veterans Appeals has interpreted the requirement of current disability thus: Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability. See 38 U.S.C. §§ 1110, 1131. In the absence of proof of a present disability there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The current disability requirement for a service connection claim is satisfied if the claimant has a disability at the time the claim is filed or during the pendency of that claim. See McClain v. Nicholson, 21 Vet. App. 319 (2007). The Veteran asserts that service connection is warranted for epigastric ulcer. Specifically, by his April 2011 Appellant's Post-Remand Brief, the Veteran's representative asserts entitlement to service connection for epigastric ulcer on the basis that the Veteran experienced epigastric and right lower quadrant pain during his active service. Indeed, service treatment records show that the Veteran had complaints of stomach pain, right lower quadrant pain, and epigastric pain in the 1980's and 1990's, specifically on occasions dated in June 1981, March 1982, April 1983, May 1983, and May 1989. An April 1983 upper gastrointestinal series detected a deformity of the duodenal bulb and the Veteran was diagnosed with peptic ulcer disease. In May 1991, the Veteran was assessed as having peptic acid disease and was prescribed medication. Separation examination dated in February 1995 indicates that the Veteran reported that he had stomach or intestine trouble and peptic ulcer disease, and that he took prescription medication. Physical examination of the abdomen at that time was normal. On VA examination in May 2008, the Veteran complained of pain in the epigastric area. At that time, he was diagnosed with peptic ulcer disease in remission. The Board, by its July 2009 remand, sought an opinion as to whether the Veteran had any peptic ulcer or epigastric ulcer or disability, and whether such was related to his military service, including his in-service gastric complaints. On VA examination in December 2009, the examiner noted the Veteran's in-service complaints and diagnosis of peptic ulcer disease. The Veteran reported that he took prescription medication and denied: nausea and vomiting; hematemesis or melena; diarrhea or constipation; episodes of colic or distention; periods of incapacitation due to stomach or duodenal disease; history of hospitalization or trauma; history of neoplasm; and tenderness or organomegaly. He complained of pain in the abdominal area, at times, precipitated by food and alleviated by medication. Physical examination in December 2009 revealed that the Veteran had lost some weight, and reported that such was due to family circumstances in the last several months. The examiner determined that the Veteran's hemoglobin and hematocrit levels were low-normal, and that clinically, anemia was not present. Related to the diagnostic and clinical tests required, the Board notes that the examination report directed the examiner to provide the specific site for any ulcer disease found. The examiner thus diagnosed the Veteran with peptic ulcer disease. The examiner opined that such was likely a continuation of his in-service peptic ulcer disease. As discussed above, the Veteran is currently in receipt of service connection for peptic ulcer disease. The Board notes that the Veteran has complained of epigastric pain during the pendency of the appeal. However, pain alone, without a diagnosed or identifiable underlying malady or condition, does not constitute a disability for which service connection can be granted. Sanchez-Benitez v. Principi, 259 F.3d 1356 (Fed. Cir. 2001). Again, the Board notes that the Veteran has complained of epigastric pain and been diagnosed and service-connected for peptic ulcer disease. There exists no evidence of record indicating that the Veteran demonstrates diagnosis of epigastric ulcer, or a disability characterized by epigastric pain, beyond that of his peptic ulcer disease. Moreover, given the complexity of the medical issue involved, the Veteran's assertions are not competent to establish the presence of such disability. The record does not establish that the Veteran possesses a recognized degree of medical knowledge, such that he is competent to provide evidence that requires specialized knowledge, skill, experience, training or education, such as a medical diagnosis corresponding to his assertions regarding an epigastric ulcer. As discussed above, the Veteran asserts entitlement to service connection for epigastric ulcer on the basis that he demonstrated epigastric and right lower quadrant pain during service. The Board does not argue the fact that the Veteran made such complaints during service. However, the threshold requirement for the grant of service connection for the claimed disability, that the Veteran actually demonstrates a diagnosis of epigastric ulcer, or a disability characterized by epigastric pain, beyond that of his already service-connected peptic ulcer disease, has not been met. Thus, further consideration of any in-service complaints, which, without evidence of a current disability, may not serve as a basis for service connection, is not required. 38 U.S.C.A. §§ 1110, 1131. Because the Veteran does not have an epigastric ulcer, the evidence weighs against his claim and the appeal must be denied. ORDER Entitlement to service connection for an epigastric ulcer is denied. ____________________________________________ C. CRAWFORD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs