Citation Nr: 1124247 Decision Date: 06/24/11 Archive Date: 06/29/11 DOCKET NO. 09-38 870 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUE Entitlement to service connection for a gastrointestinal disability, to include as secondary to service-connected posttraumatic stress disorder (PTSD). ATTORNEY FOR THE BOARD B. Elwood, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1947 to June 1948 and from July 1950 to September 1953. He received the Combat Infantry Badge and Purple Heart Medal. This matter initially came before the Board of Veterans' Appeals (Board) from a February 2008 rating decision of the Department of Veterans' Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. In that decision, the RO denied the Veteran's petition to reopen a claim for service connection for postoperative duodenal ulcer and recurrent hiatal hernia as new and material evidence had not been received. In August 2010, the Vice Chairman of the Board granted a motion to advance this appeal on its docket pursuant to 38 C.F.R. § 20.900(c) (2010). 38 U.S.C.A. § 7107(a)(2) (West 2002). In September 2010, the Board granted the Veteran's petition to reopen the claim for service connection for a gastrointestinal disability and remanded the underlying claim for further development. In a November 2010 statement, the Veteran requested a Board hearing before a Veterans law Judge at the RO by videoconference. In January and February 2011, he was notified that his Board hearing had been scheduled for a date in March 2011. He failed to appear for this hearing. To the Board's knowledge, he has offered no explanation as to why he failed to appear for the scheduled hearing. Accordingly, the Board will proceed to a decision on this appeal as if the Veteran's hearing request had been withdrawn. See 38 C.F.R. § 20.704(d) (2010). The Veteran was previously represented by the North Carolina Division of Veterans Affairs. In April 2010, prior to certification of the appeal to the Board, that organization's representation was revoked. The Veteran is now unrepresented. 38 C.F.R. § 20.608(a) (2010). FINDING OF FACT The Veteran experienced gastrointestinal symptoms in service and there is post-service continuity of symptomatology demonstrating a nexus between the Veteran's current gastrointestinal disability and the in-service symptoms. CONCLUSION OF LAW The criteria for service connection for a gastrointestinal disability are met. 38 U.S.C.A. §§ 1110, 1131, 5107(b) (West 2002); 38 C.F.R. § 3.303 (2010). REASONS AND BASES FOR FINDING AND CONCLUSION The Veterans Claims Assistance Act of 2000 as amended (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2010); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2010). As the Board is granting the claim on appeal, it is substantiated, and there are no further VCAA duties. Wensch v. Principi, 15 Vet App 362, 367-68 (2001); see also 38 U.S.C.A. § 5103A(a)(2) (Secretary not required to provide assistance "if no reasonable possibility exists that such assistance would aid in substantiating the claim"); VAOPGCPREC 5-2004; 69 Fed. Reg. 59989 (2004) (the notice and duty to assist provisions of the VCAA do not apply to claims that could not be substantiated through such notice and assistance). Analysis Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table); see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303. Service connection is also provided for a disability, which is proximately due to, or the result of a service-connected disease or injury. 38 C.F.R. § 3.310 (2010). Service connection can be granted under 38 C.F.R. § 3.310, for a disability that is aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439 (1995). VA has amended 38 C.F.R. § 3.310 to explicitly incorporate the holding in Allen, except that it will not concede aggravation unless certain additional conditions are met. 38 C.F.R. § 3.310(b). Because service connection for a gastrointestinal disability is not being granted on the basis of aggravation, it is not necessary to determine which version of the regulation is applicable. Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden/Caluza element is through a demonstration of continuity of symptomatology. Barr v. Nicholson, 21 Vet. App. 303 (2007); see Savage 10 Vet. App. 488, 495-97 (1997); see also Clyburn v. West, 12 Vet. App. 296, 302 (1999). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Savage, 10 Vet. App. at 495-96; see Hickson, 12 Vet. App. at 253 (lay evidence of in-service incurrence sufficient in some circumstances for purposes of establishing service connection); 38 C.F.R. § 3.303(b). In relevant part, 38 U.S.C.A. § 1154(a) (West 2002) requires that VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability or death benefits. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The United States Court of Appeals for the Federal Circuit (Federal Circuit) 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 professional." 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"). "Symptoms, not treatment, are the essence of any evidence of continuity of symptomatology." Savage, 10 Vet. App. at 496 (citing Wilson v. Derwinski, 2 Vet. App. 16, 19 (1991)). Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno, 6 Vet. App. at 469 (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")). Service connection may also be granted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Medical records reveal that the Veteran has been diagnosed as having various gastrointestinal disabilities. For example, a September 2007 VA examination report indicated diagnoses of chronic abdominal dyspepsia and status post hiatal hernia surgery. Therefore, there is evidence of a current gastrointestinal disability. There is also evidence of in-service gastrointestinal symptoms and of a continuity of symptomatology linking those symptoms to the current gastrointestinal disability. The Veteran has reported on several occasions that he began to experience gastrointestinal symptoms in service. For example, a May 1963 VA treatment record reveals that he reported that he experienced abdominal discomfort in service. Also, he reported during the September 2007 VA examination that he experienced loose bowels in approximately 1950 while serving in Korea. The Veteran's reports are consistent with those made by a fellow serviceman in a May 1980 letter, in which the serviceman stated that he had known the Veteran since 1950 and that he was treated for frequent stomach pains while in Korea. Where a veteran engaged in combat, satisfactory lay evidence that an injury or disease was incurred in service will be accepted as sufficient proof of service connection where such evidence is consistent with the circumstances, conditions, or hardships, of service. 38 U.S.C.A. § 1154(b). Section 1154(b) sets forth a three step sequential analysis that must be undertaken when a combat veteran seeks benefits under the method of proof provided by the statute. First, it must be determined whether the veteran has proffered "satisfactory lay or other evidence of service incurrence or aggravation of such injury or disease." Second, it must be determined whether the proffered evidence is "consistent with the circumstances, conditions, or hardships of such service." Finally, if the first two requirements are met, VA shall accept the veteran's evidence as "sufficient proof of service connection," even if no official record of such incurrence exists. In such a case, a factual presumption arises that the alleged injury or disease is service connected. Collette v. Brown, 82 F.3d 389, 393 (Fed. Cir. 1996); 38 C.F.R. § 3.304. Competent evidence of a current disability and of a nexus between service and a current disability is still required notwithstanding the provisions of 38 U.S.C.A. § 1154(b). Wade v. West, 11 Vet. App. 302 (1998); Turpen v. Gober, 10 Vet. App. 536 (1997); Libertine v. Brown, 9 Vet. App. 521 (1996). As the Veteran is competent to report in-service gastrointestinal symptoms, there is nothing to explicitly contradict his reports, and his reports are consistent with the circumstances of his service, in-service gastrointestinal symptoms are conceded. VA and private medical records dated from January 1961 to November 1963, an August 1962 VA examination report, and a December 1963 statement by the Veteran (VA Form 1-9) reveal that he reported recurrent abdominal pain and indigestion, vomiting, gas, occasional nausea, and alternating diarrhea and constipation. Some symptoms were somewhat relieved by food, milk, and medication. He reported a 7 to 8 month history of epigastric pain during a February 1961 VA medical evaluation and a 5 year history of abdominal pain during VA medical evaluations dated in October 1962 and May 1963. Also, he reported abdominal "discomfort" and acute abdominal pain in service and specified that although he had not experienced continuous abdominal pain since service, he had never been free of abdominal discomfort since that time. Examinations revealed some tenderness to deep palpation in the mid epigastric region and over the transverse, ascending, and descending colons. Also, peristaltic activity was somewhat increased. He was diagnosed as having chronic mild psychophysiological gastrointestinal reaction, a duodenal ulcer, altered intestinal motility pattern, irritable colon syndrome, and gastritis. The physician who conducted the February 1961 evaluation noted that the Veteran had been treated bi-monthly for a duodenal ulcer since August 1960. VA treatment records dated from November 1978 to March 1980 and a February 1979 VA examination report indicate that the Veteran reported a 20 year history of peptic ulcer disease. He underwent a hiatal hernia repair in 1973, did well for several years, but began to experience increasing symptoms of radiating heartburn and epigastric and substernal pain. He also underwent a partial gastrectomy in 1975. He reported indigestion with almost anything he ate or drank, weakness, dizziness, nausea, continuous diarrhea, painful gas, bloating, and black and tarry bowel movements. Overall, his stomach problems had been persistent ever since service. Examinations revealed a tender epigastric region, indigestion, increased bowel sounds, and an ulcer. Diagnoses of active peptic ulcer disease, recurrent hiatal hernia with reflux esophagitis, recurrent gastritis, dumping syndrome, and psychophysiologic gastrointestinal reaction were provided. In a July 1979 letter, W.F. Boyles, M.D. stated that he had treated the Veteran intermittently since 1961 for gastrointestinal problems which reportedly began in service. His symptoms were persistent and he developed intractable peptic ulcer disease, which was treated by surgery in November 1968. Following surgery, he began to experience severe dumping syndrome which did not respond to several attempted treatments. His prognosis for recovery was poor. In statements dated in May 1980 and February 1985, the Veteran's family and friends reported that the Veteran had experienced a long history of stomach problems ever since his discharge from service in 1953. VA treatment records dated from July 1997 to July 2007 and an August 2007 statement by the Veteran reveal that he reported that he experienced gastrointestinal problems ever since his service in Korea. Specifically, he reported dyspepsia, acid reflux, bloating, and chronic diarrhea. He also indicated that he had a 50 year history of abdominal pain during a June 2007 VA endoscopy consultation Examinations revealed a tender abdomen, epigastric pain, and dyspeptic signs and symptoms. He was diagnosed as having a right inguinal hernia, gastroenteritis, generalized abdominal pain with dyspepsia, diverticulosis, and gastroesophageal reflux disease. A September 2007 VA examination report reveals that the Veteran reported indigestion, abdominal pain, and loose bowel movements since his service in Korea. Diagnoses of chronic abdominal dyspepsia and status post hiatal hernia surgery were provided. The physician who conducted the September 2007 VA examination opined that the Veteran's gastrointestinal disability was not likely "less likely than not" related to an in-service combat injury sustained in Korea. He reasoned that there was no evidence that the Veteran's chronic symptoms dated back to the time of the injury. No further explanation or reasoning was provided. In March 2008 statements, the Veteran and his daughter reported that the Veteran had experienced a long history of gastrointestinal problems. The Veteran again reported that he had experienced severe stomach problems ever since his discharge from service and his daughter reported that he had experienced symptoms such as nausea and an inability to eat ever since her childhood. An October 2010 VA examination report indicates that the Veteran reported painful esophageal distress on a daily basis, frequent epigastric pain, bloating, frequent loose bowel movements, and daily cramps. He was diagnosed as having gastroesophageal reflux disease, irritable bowel syndrome, and a duodenal ulcer. The examiner who conducted the October 2010 VA examination opined that the Veteran's gastrointestinal disability was not likely ("less likely as not") caused by or a result of military service or PTSD. This opinion was based on the fact that there was evidence of gastrointestinal symptoms in 1968 and that in 1978 diagnoses of ulcer disease and hiatal hernia were provided. The examiner reasoned that this was 25 years after the Veteran's separation from service and that it was unlikely that events in service had any influence on his disability. Furthermore, PTSD did not cause ulcer disease or hiatal hernia and irritable bowel syndrome with loose bowel movements was more likely secondary to the Veteran's gastric surgical procedures. The September 2007 opinion is of little probative value, because the examiner only discussed whether the Veteran's gastrointestinal disability was related to an in-service combat injury and reasoned that there was no evidence that the Veteran's chronic symptoms dated back to the time of the injury. However, he did not consider the Veteran's reports of gastrointestinal symptoms in service and in the years since service. A medical opinion based solely on the absence of documentation in the record is inadequate and a medical opinion is inadequate if it does not take into account the Veteran's reports of symptoms and history (even if recorded in the course of the examination). Dalton v. Peake, 21 Vet. App. 23 (2007). The October 2010 opinion is also of little probative value, because the examiner only considered the evidence of gastrointestinal symptoms beginning in 1968, but did not consider the medical evidence showing treatment as early as 1961 or the Veteran's reports of gastrointestinal symptoms in service and in the years since that time, nor did it consider the reports of the Veteran's family members reporting symptoms since his return from service. See Id. The Veteran has provided varying accounts as to the onset of his abdominal pain, but has generally reported that abdominal discomfort and other symptoms have been present since service. Although there is no contemporaneous medical evidence of a gastrointestinal disability in service or in the years immediately following service, there is no affirmative evidence to contradict his reports and they are otherwise consistent with the evidence of record. The Board therefore finds that his reports are credible. In sum, a current gastrointestinal disability is well established. The Veteran's reports establish that he experienced gastrointestinal symptoms in service. The reports of the Veteran and his family members show a continuity of symptoms linking the current disability to the symptoms in service. See Jandreau, 492 F.3d at 1377; Buchanan, 451 F.3d at 1337. Resolving all reasonable doubt in favor of the Veteran, the criteria for service connection for the currently diagnosed gastrointestinal disability have been met. 38 U.S.C.A. §§ 1110, 1131, 5107(b); 38 C.F.R. § 3.303. ORDER Entitlement to service connection for a gastrointestinal disability is granted. ____________________________________________ Mark D. Hindin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs