Citation Nr: 1107523 Decision Date: 02/24/11 Archive Date: 03/09/11 DOCKET NO. 08-14 018 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Huntington, West Virginia THE ISSUE Entitlement to service connection for peptic ulcer disease. REPRESENTATION Appellant represented by: Paralyzed Veterans of America, Inc. WITNESSES AT HEARING ON APPEAL Appellant and his spouse ATTORNEY FOR THE BOARD David Gratz, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1974 to October 1976, and from November 1977 to November 1980. This matter comes to the Board of Veterans' Appeals (Board) on appeal from November 2006 and April 2007 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia, which, inter alia, denied the Veteran's June 2006 claim for service connection for peptic ulcer disease on the basis that, since the December 1982 rating decision denying the claim, new and material evidence had not been received to reopen it. In September 2008, the Veteran testified at a hearing before the undersigned Veterans Law Judge in Washington, DC (Central Office hearing). A copy of the hearing transcript has been associated with the record. The case was previously before the Board in October 2008. At that time, the Board, inter alia, reopened and remanded the issue of service connection for peptic ulcer disease to the RO for additional development. The case has been returned to the Board for further appellate consideration. Additional documents were submitted after the issuance of the December 2010 supplemental statement of the case. The submission of such evidence was accompanied by a waiver of RO consideration dated February 2011. 38 C.F.R. § 20.1304(c) (2010). Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2010). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDING OF FACT Peptic ulcer disease is not shown by competent or credible evidence to be related to the Veteran's active military service or to any incident therein. CONCLUSION OF LAW Peptic ulcer disease was not incurred in or aggravated by active service, nor may it be presumed to have been so incurred. 38 U.S.C.A. §§ 1101, 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2010). REASONS AND BASES FOR FINDING AND CONCLUSION VA's Duties to Notify and Assist the Veteran Review of the claims folder reveals compliance with the Veterans Claims Assistance Act of 2000 (VCAA), 38 U.S.C.A. § 5100 et seq. See 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159. Upon receipt of a complete or substantially complete application for benefits, VA is required to notify 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. See 38 C.F.R. § 3.159(b)(1). Such notice 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). Letters dated July 2006, January 2007, February 2008, and October 2008, provided to the Veteran before the November 2006 rating decision, the April 2007 rating decision, the March 2008 statement of the case, and the December 2010 supplemental statement of the case, respectively, satisfied VA's duty to notify under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159, since they informed the Veteran of what evidence was needed to establish his claim, what VA would do and had done, and what evidence he should provide. The letters also informed the Veteran that it was his responsibility to help VA obtain medical evidence or other non-government records necessary to support his claim. The Court issued a decision in the appeal of Dingess v. Nicholson, 19 Vet. App. 473 (2006), which held that the notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service-connection claim, including the degree of disability and the effective date of an award. The Veteran was provided with such notice in July 2006, January 2007, February 2008, June 2008, and October 2008, prior to the initial rating decision in November 2006. With respect to VA's duty to assist, the RO has obtained, or made reasonable attempts to obtain, all relevant evidence identified by the Veteran. The Veteran's available service treatment records, VA treatment records, and private treatment records have been obtained. The Board has considered that no records of the Veteran's reported treatment from the Martinsburg VA Medical Center (VAMC) dated November 1981, or from the Jacksonville Naval Hospital, are available. Under 38 U.S.C.A. § 5103A(b) and 38 C.F.R. § 3.159(c)(2), VA is required to make as many requests as are necessary to obtain relevant records from a Federal department or agency. VA will end its efforts to obtain records from a Federal department or agency only if VA concludes that the records sought do not exist, or that further efforts to obtain those records would be futile. Cases in which VA may conclude that no further efforts are required include those in which the Federal department or agency advises VA that the requested records do not exist, or the custodian does not have them. In November 2008, in response to the AOJ's request for the Veteran's medical records, the Jacksonville Naval Hospital replied that "Our system reflects no records on file for this patient." Additionally, the Martinsburg VAMC informed VA that there were "no records" of treatment of the Veteran at that facility. In light of the Jacksonville Naval Hospital and the Martinsburg VAMC's responses, the Board finds no basis for further pursuit of these records, as such efforts would be futile. 38 C.F.R. §§ 3.159(c)(2), (3). Where, as here, a Veteran's records may have been lost while in the government's possession, VA has a heightened duty to assist the Veteran by advising him of alternative forms of evidence that can be developed to substantiate the claim, and explaining how service records are maintained, why the search was a reasonably exhaustive search, and why further efforts to locate the records would not be justified. Dixon v. Derwinski, 3 Vet. App. 261, 263-264 (1992). In addition, VA has heightened duties to consider the benefit of the doubt rule, assist in developing the claim, and explain its decision. Cromer v. Nicholson, 19 Vet. App. 215 (2005); Washington v. Nicholson, 19 Vet. App. 362, 370- 71 (2005). No presumption, either in favor of the claimant or against VA, arises when there are lost or missing service records. Cromer v. Nicholson, 19 Vet. App. 215 (2005) (Court declined to apply "adverse presumption" against VA where records had been lost or destroyed while in Government control because bad faith or negligent destruction of the documents had not been shown). In this case, VA advised the Veteran of numerous examples of evidence that could be developed to substantiate his claims in its July 2006, January 2007, February 2008, and October 2008 letters. Moreover, in the above paragraph, VA explained that it had contacted the Jacksonville Naval Hospital and Martinsburg VAMC, and did not stop contacting them until a reply was received; that the search was therefore a reasonably exhaustive search under 38 U.S.C.A. § 5103A(b) and 38 C.F.R. § 3.159(c)(2); and that further efforts to locate the records would not be justified because those institutions did not have the requested records. Dixon v. Derwinski, 3 Vet. App. 261, 263-264 (1992). The Veteran has not reported that he is in receipt of Social Security Administration (SSA) benefits for his claimed peptic ulcer disease. Absent any evidence showing that the Veteran is in receipt of said benefits for his claimed disorder, VA need not attempt to obtain his SSA records. Golz v. Shinseki, 590 F.3d 1317, 1323 (2010). The Board is also satisfied as to compliance with its October 2008 remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998); see also D'Aries v. Peake, 22 Vet. App. 97 (2008) (finding that only substantial compliance, rather than strict compliance, with the terms of a Board engagement letter requesting a medical opinion is required). The Board finds that the AOJ made reasonable attempts to obtain all records cited by the Veteran, including any records of his treatment in service at the United States Naval Hospital in Jacksonville, Florida, and his November 1981 VA treatment records from Martinsburg, West Virginia. The Board further finds that the VA examination reports dated September 2010 and October 2010 substantially comply with the Board's remand directives. Overall, the Board is satisfied that all relevant evidence identified by the appellant has been secured, and that the duty to assist has been met. 38 U.S.C.A. § 5103A. Accordingly, the Board finds that no further assistance to the Veteran in acquiring evidence is required by statute. 38 U.S.C.A. § 5103A. Laws and Regulations Pertaining to Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. See 38 U.S.C.A. § 1110; 38 C.F.R. §§ 3.1(k), 3.303(a). In order to prevail in a claim for service connection there must be medical evidence of a current disability as established by a medical diagnosis; incurrence or aggravation of a disease or injury in service, established by lay or medical evidence; and a nexus between the in-service injury or disease and the current disability, established by medical evidence. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000). 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). Further, 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. See 38C.F.R. § 3.303(b). Some chronic diseases are presumed to have been incurred in service, although not otherwise established as such, if manifested to a degree of ten percent or more within one year of the date of separation from active duty service. 38 U.S.C.A. § 1112; 38 C.F.R. § 3.307(a); see 38 U.S.C.A. § 1101(3) and 38 C.F.R. § 3.309(a) (listing applicable chronic diseases, including peptic [gastric or duodenal] ulcers). This presumption, however, is rebuttable by probative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. For the showing of chronic disease in service, (or within a presumptive period per § 3.307), 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." 38 C.F.R. § 3.303(b). Subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. Id. Medical nexus evidence demonstrating an etiological link is not necessary to prove service connection when evidence, regardless of its date, shows that a Veteran had a chronic condition in service, or during an applicable presumptive period, and that he still has the same chronic condition. Groves v. Peake, 524 F.3d 1306, 1309-1310 (2008). See also 38 C.F.R. § 3.303(b). Disorders diagnosed after discharge may still be service connected if all the evidence, including pertinent service records, establishes the disorder was incurred in service. 38 C.F.R. § 3.303(d); Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). In the absence of proof of a current disability, there can be no valid claim. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Analysis: Service Connection for Peptic Ulcer Disease The Veteran's service treatment records show some evidence of abdominal pain, but no diagnosis of peptic ulcer disease, during service. In his October 1974 Report of Medical Examination at enlistment, the clinician found that the Veteran's abdomen and viscera were normal. In his October 1974 Report of Medical History, the Veteran checked a box indicating that he did not have, and had never had, "stomach, liver, or intestinal trouble." In his September 1976 Report of Medical Examination prior to separation, the clinician found that the Veteran's abdomen and viscera were normal. In his September 1976 Report of Medical History, the Veteran checked a box indicating that he did not have, and had never had, "stomach, liver, or intestinal trouble." In his November 1977 Report of Medical Examination, the clinician found that the Veteran's abdomen and viscera were normal. In his November 1977 Report of Medical History, the Veteran checked a box indicating that he did not have, and had never had, "stomach, liver, or intestinal trouble." An in-service clinician treated the Veteran for abdominal pain in the right lower quadrant of his abdomen in August 1980. The Veteran reported that he had been having sharp pain there for one day, and that the pain was present with movement. The Veteran reported no complaints of diarrhea or constipation, no hyperactive bowels, no anorexia, and normal urine and stools. The Veteran's abdomen was tender to palpation, and pain in the left lower quadrant of his abdomen radiated to the right lower quadrant. In his October 1980 Report of Medical Examination prior to separation, the clinician found that the Veteran's abdomen and viscera were normal. In his October 1980 Report of Medical History, the Veteran checked a box indicating that he did not have, and had never had, "stomach, liver, or intestinal trouble." Following service, the Veteran received treatment for his abdominal pain from a VA clinician at the VAMC in Martinsburg, West Virginia in December 1981. The clinician noted that the Veteran's past history revealed acute gastroenteritis one month prior to admission to the hospital. The clinician found that the Veteran's abdomen showed tenderness in both lower quadrants, especially on the right side. The clinician diagnosed the Veteran with acute appendicitis, and he was brought to the emergency room for an appendectomy (removal of the appendix). In February 1982, a VA clinician recorded that the Veteran started having variable upper abdominal cramps with pain and burning in service in 1979. He noted that, in 1980, the Veteran had acute lower abdominal pain on board ship, and was immediately evacuated to the U.S. Naval Hospital in Jacksonville, Florida, with the impression of acute appendicitis. The Veteran began to feel better during his 2-3 days in the hospital, and no surgery was performed. The Veteran continued to have chronic upper gastrointestinal (GI) distress, relieved with Maalox, through his separation from service in November 1980. The Veteran was hospitalized at VAMC Martinsburg, West Virginia, From November 11, 1981 through November 13, 1981 for acute gastroenteritis. He was readmitted from December 12, 1981 through December 18, 1981, during which time VA clinicians diagnosed him with acute appendicitis, and performed an appendectomy. The Veteran reported that he still will occasionally take Maalox for upper GI symptoms. The clinician noted that the Veteran's post-operative period has been uneventful, that he is on no regular medications, and that he reported not being handicapped in his job. In a VA Compensation and Pension (C&P) report dated February 1982, the examiner recorded that the Veteran had reported a history of peptic ulcer disease, but also noted that he found no evidence of any ulcer after x-ray testing. An October 1998 bill from the Blue Ridge Anesthesia Association shows that the Veteran underwent the repair of a stomach lesion that month. The Veteran reported that he had upper abdominal pain and diarrhea every day since his stomach surgery for peptic ulcer disease (PUD) at Washington County hospital in 2000, according to a June 2006 VA clinician's report. The VA clinician found that x-rays showed a non-specific bowel gas pattern. The VA clinician ruled out (R/O) dumping syndrome status-post (S/P) gastrectomy. The Veteran filed a claim for service connection for peptic ulcer disease in June 2006. In a November 2006 letter, the Veteran wrote that, after service, he was hospitalized for a couple of weeks for peptic ulcer disease. The Veteran asserted that his peptic ulcer disease "began while [he was] on active duty. The hospital records will verify that." The Board finds that the Veteran's assertion cannot support a grant of service connection. Specifically, the assertion is not found to be credible because there is no record of a diagnosis of peptic ulcer disease during service, and because no clinician during or after service has attributed the Veteran's peptic ulcer disease to his time in service. Robinette v. Brown, 8 Vet. App. 69, 77 (1995) (a layperson's account of what a doctor purportedly said is too attenuated and inherently unreliable to constitute medical evidence). In November 2006, the Veteran told a VA clinician that he had been experiencing epigastric and right infraumbilical pain for more than 20 years. The Veteran reported that, after his 1999 gastric surgery, he began experiencing nausea after eating and early satiety. He further reported experiencing diarrhea two to four times per day. The Veteran declined an upper gastrointestinal series (UGI) and a nuclear stress test. The VA clinician noted the Veteran's history of peptic ulcer disease, his appendectomy, and his partial gasterectomy in 1999. The clinician diagnosed the Veteran with abdominal pain. She noted that "This has been present for 20 years....The exact nature of this pain, however, is unclear. It antecedes his gastric surgery and has little to no relationship to food, position, [etc.]." The clinician also diagnosed the Veteran with diarrhea, which began following his surgery, and "may be due to bacterial overgrowth....There are [also] cases of celiac disease that have been unmasked following gastric surgery [and] therefore this may be a consideration." The Veteran asserted in June 2007 that "I was seen several time[s] for stomach problems while in the service. It was not until I was out of the military service and using the VAMC facilities that my Peptic Ulcer was looked at." In a February 2008 letter, the Veteran wrote that "while on active duty I was seen numerous times for stomach problems. They were unable to diagnose the problem. I left active duty [in] 1980, and was seen immediately after active duty at the VAMC Martinsburg. I was diagnosed within a year of leaving active duty." As noted above, the claims file includes documentation, dated December 1981 and February 1982, showing that the Veteran was hospitalized at VAMC Martinsburg, West Virginia, from November 11, 1981 through November 13, 1981 for acute gastroenteritis. He was readmitted from December 12, 1981 through December 18, 1981, during which time VA clinicians diagnosed him with acute appendicitis, and performed an appendectomy. No diagnosis of peptic ulcer disease was made at that time, or within one year of his separation from service. The Board finds that the Veteran's assertion that he was diagnosed with peptic ulcer disease within one year of service is not credible because there is no record of a diagnosis of peptic ulcer disease within one year of service, and because the VA clinician who treated the Veteran for gastrointestinal problems in December 1981-more than one year after service-did not diagnose him with peptic ulcer disease, or note any history thereof within one year of service. Robinette v. Brown, 8 Vet. App. 69, 77 (1995) In his April 2008 substantive appeal, the Veteran stated that he first had stomach problems during his service in Budugin, Germany, from 1974 through 1976. The Veteran reported having no further stomach problems between his separation from service in October 1976, and his return to service in November 1977. The Veteran noted that his stomach problems began again during his second time of service, and that he was treated in service at the Jacksonville, Florida VAMC for appendicitis. He further reported that his stomach problems returned in 1981, at which time a clinician at the VAMC in Martinsburg, West Virginia, performed an appendectomy, and, according to the Veteran, "diagnosed me with a peptic ulcer." As noted above, the Veteran's VA treatment records dated December 1981 and February 1982 clearly indicate that he was treated for acute gastroenteritis from November 11, 1981 through November 13, 1981, and for acute appendicitis from December 12, 1981 through December 18, 1981. Robinette v. Brown, 8 Vet. App. 69, 77 (1995). At his September 2008 Board hearing, the Veteran again asserted that he was diagnosed with a peptic ulcer within a year of separation from service. Id. at pp. 9, 12. He also alleged that his stomach symptoms in service were indicative of peptic ulcer disease. Id. at p. 10. The Veteran noted that he was not diagnosed with peptic ulcer disease during service. Id. at p. 11. He reported that he was treated for gastrointestinal symptoms in service with Maalox. Id. at p. 11. VA provided the Veteran with a C&P examination regarding his claimed peptic ulcer disease in August 2010. The VA examiner noted that the Veteran had a history of peptic ulcer disease, status-post pyloroplasty (surgery to widen the opening in the lower part of the stomach [pylorus] so that the stomach contents can empty into the small intestine) and vagotomy (surgical cutting of the vagus nerve to reduce acid secretion in the stomach) in 1999 due to a perforated gastric ulcer. The examiner also noted that after the Veteran's surgery for a perforated peptic ulcer in 1999, he reported chronic diarrhea, early satiety, and nausea over several years. However, the VA examiner did not provide an opinion regarding the etiology of the Veteran's peptic ulcer disease. Consequently, VA provided the Veteran with a second C&P examination regarding his claimed peptic ulcer disease in October 2010. The examiner, a physician, reviewed the claims file. The examiner described in detail the Veteran's August 1980 record of treatment for abdominal pain during service. Furthermore, the examiner included selected relevant past VA treatment records in her report. The examiner described the results of GI series and barium swallow (BS) testing in September 2010, and a colonoscopy, biopsy, hot biopsy polypectomy, and snare polypectomy in October 2010. Based on the results of the testing and her examination of the Veteran, the examiner diagnosed him with chronic gastritis with a history of peptic ulcer disease. The VA examiner opined that the Veteran's peptic ulcer disorder was not caused by or a result of, or permanently aggravated by, his service, because "the symptoms described by the Veteran in 1980 were not consistent [with] classic ulcer symptoms or the overlap symptoms." The examiner's opinion was also based on her application of the medical literature, "Clinical manifestations of peptic ulcer disease," written by a physician and Professor of Medicine at the University of California Los Angeles Center for Health Sciences. The October 2010 VA examiner also diagnosed the Veteran with organisms suggestive of H. pylori, Barrett's esophagus, tubular adenoma of the ascending colon, and tubular adenoma of the sigmoid colon. The examiner opined that these disorders were not related to, caused by, or permanently aggravated by military service, because there was no documentation of those disorders in the Veteran's service treatment records. Because the Veteran's October 2010 C&P examination was conducted by a competent physician who fully described the functional effects caused by the Veteran's disorder on his occupational functioning and daily activities, the Board finds that the Veteran's examination was adequate. Martinak v. Nicholson, 21 Vet. App. 447, 455-56 (2007). Moreover, the VA examiner considered the Veteran's claims file and medical history in the report. Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007); Ardison v. Brown, 6 Vet. App. 405, 407 (1994). Additionally, the VA examiner provided an etiological opinion, complete with the rationale described above. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). The Board further finds that the VA examiner's medical findings are credible, based on their internal consistency and the VA examiner's duty to offer truthful opinions. Consequently, the Board assigns considerable probative value to the VA examiner's report. Competent medical evidence includes statements from a person qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. 38 C.F.R. § 3.159(a)(1). Because the October 2010 VA examiner is so qualified, her medical opinions constitute competent medical evidence. The Veteran asserted in December 2010 that his attending physician told him that a "biopsy with scrape cultures must be taken and tested" in order to positively diagnose peptic ulcer disease. The Board notes that the results of the Veteran's biopsies were discussed in his October 2010 VA examination. To the extent that the Veteran is asserting that insufficient testing was done in service to obtain a diagnosis of peptic ulcer disease, the Board notes that the October 2010 VA examiner did not find insufficient evidence in the Veteran's service treatment records to render an etiological opinion. Also in December 2010, the Veteran asserted that his attending physician told him that the H. pylori diagnosed at his October 2010 C&P examination was caused by contaminated food or water, and the Veteran stated that he was "exposed to both while serving overseas." The Board finds that the Veteran is not competent to observe whether he ingested H. pylori during service, or to opine on what types of environmental exposures during and after service caused his H. pylori. 38 C.F.R. § 3.159(a)(1). The Veteran again asserted in December 2010 that he has been treated at the Martinsburg VAMC for peptic ulcer disease from 1981 to the present. As explained above, the evidence of record, including his December 1981 VA treatment report, contradicts this contention. Robinette v. Brown, 8 Vet. App. 69, 77 (1995). In January 2011, the Veteran quoted the Board's October 2008 remand to show that a VA examiner in February 1982 had recorded that the Veteran had a history of peptic ulcer disease. While accurate, this fact is unavailing to the Veteran both because February 1982 was more than one year after his November 1980 separation from service, and because, in that same report, the VA examiner found no x-ray evidence of any ulcer. The Board finds that the Veteran is competent to report that he experienced stomach pain during service. Likewise, the Veteran's spouse is competent to observe the Veteran's behavior after service. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) ("Competent lay evidence" is evidence provided by a person who has personal knowledge derived from his own senses); 38 C.F.R. § 3.159(a)(2) ("Competent lay evidence" is any evidence not requiring that the proponent have specialized education, training or experience, but is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person.) See also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (lay 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). However, the Veteran's own determination about the etiology of his peptic ulcer disease and H. pylori is outweighed by the more probative findings of the October 2010 VA examiner, because her determinations are based on greater medical knowledge and experience. Winsett v. West, 11 Vet. App. 420 (1998), aff'd 217 F.3d 854 (Fed. Cir. 1999); Guerrieri v. Brown, 4 Vet. App. 467 (1993). The Veteran is not entitled to service connection based on the finding of a chronic disease, or on the basis of continuity of symptomatology, because the most probative evidence of record shows that the Veteran was not diagnosed with peptic ulcer disease in service, or within one year of separation. 38 C.F.R. §§ 3.303(b), 3.307, 3.309. The preponderance of the evidence is against the award of service connection for peptic ulcer disease; it follows that the benefit of the doubt doctrine is not applicable in the instant appeal. See 38 U.S.C.A. § 5107(b); Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1991). As such, the Veteran's claim is denied. ORDER Service connection for peptic ulcer disease is denied. ____________________________________________ A. BRYANT Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs