Citation Nr: 1229263 Decision Date: 08/24/12 Archive Date: 08/30/12 DOCKET NO. 06-00 908 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for chronic ulcer disease. 2. Entitlement to service connection for loss of control of bodily function. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Kathy Diener, Associate Counsel INTRODUCTION The Veteran had active service from April 1983 to December 1984. This matter comes before the Board of Veteran's Appeals (Board) on appeal from an August 2005 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas, which, in pertinent part, denied service connection for loss of control of bodily function and declined to reopen a claim for service connection for chronic ulcer disease for lack of new and material evidence. In April 2009, the Board reopened the claim for service connection for chronic ulcer disease and remanded both claims for additional development. The claims were remanded again in February 2011. With respect to the issue decided herein, the Board is satisfied that there has been substantial compliance with the remand directives. Stegall v. West, 11 Vet. App. 268 (1998). The Veteran presented testimony before the undersigned Veterans Law Judge (VLJ) at the RO in July 2008, and before a Decision Review Officer (DRO) in March 2006. Transcripts of both hearings are associated with the claims file. The issue of service connection for loss of control of bodily function is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC). FINDING OF FACT There is no competent, credible or probative evidence that chronic ulcer disease began during service or is related to any incident or injury in service. CONCLUSION OF LAW The criteria for service connection for chronic ulcer disease are not met. 38 U.S.C.A. §§ 1101, 1131, 1112, 1113, 5103, 5103A, 5107 (West Supp. 2010); 38 C.F.R. §§ 3.159, 3.303, 3.304, 3.310 (2011). REASONS AND BASES FOR FINDING AND CONCLUSION Notice and Assistance Upon receipt of a complete or substantially complete application for benefits and prior to an initial unfavorable decision on a claim by an agency of original jurisdiction, VA is required to notify the appellant of the information and evidence not of record that is necessary to substantiate the claim. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159; Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The notice should also address the rating criteria or effective date provisions that are pertinent to the appellant's claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The RO provided the appellant pre-adjudication notice by letter dated in May 2005. Complete notice was provided in May 2009, and the claims were readjudicated in Supplemental Statements of the Case in August 2010 and May 2012. See Prickett v. Nicholson, 20 Vet. App. 370, 376-78 (2006) (validating the remedial measures of issuing fully compliant VCAA notification and re-adjudicating the claim in the form of a statement of the case to cure timing of notification defect). VA has assisted the appellant in obtaining evidence, which includes his service treatment records, post-service VA treatment records, and personal statements from the Veteran. The Veteran was provided an adequate VA examination, and he was afforded the opportunity to present testimony before the Board. During the Board hearing, the Veteran reported that he had recently been treated for ulcer disease by a private physician. Pursuant to the Board's remand instructions, the RO asked the Veteran to identify that doctor's name and address so that those records could be obtained, but the Veteran did not respond. Accordingly, the Board finds that VA has fulfilled its duty to assist the Veteran in this regard. VA has substantially complied with the notice and assistance requirements, and the Veteran is not prejudiced by a decision on the claim at this time. Principles of Service Connection Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. In order to prevail on the issue of service connection there must be competent evidence of a current disability; medical evidence, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and competent evidence of a nexus between an in-service injury or disease and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). In addition, certain chronic diseases, including peptic ulcer disease, may be presumed to have been incurred or aggravated during service if they become disabling to a compensable degree within one year of separation from active duty. 38 U.S.C.A. §§ 1101, 1112 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.307, 3.309. Service connection may also be established by chronicity and continuity of symptomatology. See 38 C.F.R. § 3.303(b). Continuity of symptomatology may establish service connection if a claimant can demonstrate (1) that a condition was "noted" during service; (2) there is post-service evidence of the same symptomatology; and (3) there is medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Barr v. Nicholson, 21 Vet. App. 303, 307 (2007) (citing Savage v. Gober, 10 Vet. App. 488, 495-96 (1997)). "[S]ymptoms, not treatment, are the essence of any evidence of continuity of symptomatology." Savage, 10 Vet. App. at 496. The Board has considered all lay and medical evidence as it pertains to the issue in this case. 38 U.S.C.A. §§ 5107(b),7104(a); 38 C.F.R. § 3.303(a). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36 (1994); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Service connection may be granted for a disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a) (2011). In addition, a claimant is entitled to service connection on a secondary basis when it is shown that a service-connected disability has chronically aggravated a nonservice-connected disability. Allen v. Brown, 7 Vet. App. 439 (1995). A veteran is competent to report symptoms that he experiences at any time because this requires only personal knowledge as it comes to him through his senses. Layno v. Brown, 6 Vet. App. 465, 470(1994). However, an appellant who has no special medical expertise generally is not competent to provide a diagnosis that requires the application of medical expertise to the facts presented. Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno, 6 Vet. App. at 469; see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). In determining whether statements submitted by a veteran are credible, the Board may consider internal consistency, facial plausibility, consistency with other evidence, and statements made during treatment. Caluza v. Brown, 7 Vet. App. 498 (1995). The absence of contemporaneous medical evidence is a factor in determining credibility of lay evidence, but lay evidence does not lack credibility merely because it is unaccompanied by contemporaneous medical evidence. See Buchanan, 451 F.3d at 1337; Barr, 21 Vet. App. at 309 ("Board may not reject as not credible any uncorroborated statements merely because the contemporaneous medical evidence is silent as to complaints or treatment for the relevant condition or symptoms"). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102 (reasonable doubt to be resolved in veteran's favor). In this case, the Veteran is seeking service connection for chronic ulcer disease, which he contends was first diagnosed during service. He states that he experiences abdominal pain, particularly in response to increased stress, and he reported that he was receiving private treatment for ulcers in July 2008. Service treatment records reflect that the Veteran sought treatment for nausea, vomiting, and diarrhea in August 1983. He was diagnosed with gastroenteritis and prescribed anti-nausea medication, a clear liquid diet, and rest. There is no record of any subsequent treatment for the same symptomatology. The Veteran did not report any gastric symptoms during his separation physical examination in December 1984, and no gastric disorders were diagnosed. The Veteran was afforded a VA examination in October 1990. The Veteran reported that while stationed at Camp Butler in 1983 he began having stomach pains. He stated that he was hospitalized overnight and had some tests and was told he had an ulcer condition for which he was treated. He indicated that he had no reevaluation since that time. He reported heartburn relieved by Pepto-Bismol and Maalox and that he had not had any recent evaluation. The examiner noted peptic ulcer by history provided by the Veteran, but that no records were available for review. VA outpatient treatment records reflect that the Veteran sought treatment in June 1992 for complaints of diarrhea which he attributed to a recent virus. In December 2002, the Veteran reported that he had been injured in a motor vehicle accident. He complained of pain from his neck to his back and reported that he experienced urinary and fecal incontinence approximately 2 to 3 times per week. VA treatment notes reflect that the Veteran reported diarrhea in April 2009 and denied nausea or vomiting in July 2010. The Veteran was afforded a VA examination in April 2010, in which he reported sharp stomach pains in the upper abdomen and epigastric area, especially in stressful situations or with eating spicy foods. He stated that he has nausea and vomiting once per month and watery stools three to four time per week. He reported that he used over the counter medication to treat these symptoms. The diagnosis was gastroenteritis, diagnosed in August 1983 in the military, but there was no history of peptic ulcer disease in the claims file. The examiner concluded that the Veteran's abdominal pain, nausea, and vomiting were not likely related to service. Barium x-rays taken the following month indicated gastroesophageal reflux disease (GERD) without esophagitis but were otherwise negative. Pursuant to the Board's remand instructions, the VA examiner who evaluated the Veteran's claimed ulcer disability in April 2010 was asked to review the record, including private treatment records, and revisit his opinion. As noted above, the Veteran did not respond to requests to identify the private examiner who had treated him in July 2008. In a March 2011 addendum, the VA examiner stated that he had reviewed the available records and there was no evidence of a gastric condition in service other than a single instance of gastroenteritis. The examiner opined that the current condition is not likely related to active service. After carefully reviewing the relevant evidence, the Board finds that service connection for chronic ulcer disease is not warranted. The weight of the competent, probative and credible evidence is against a finding that the claimed disability had its onset in service or is related to his active service. The Veteran's service treatment records do not show that a chronic gastric problem began in service; rather, they reflect that the Veteran had a single instance of gastroenteritis. The clinical evaluation of the gastrointestinal system was normal at the time of separation from service, and the Veteran did not report related symptoms at that time. Thus, the condition experienced in service was acute and transitory and had resolved by the time of separation. Accordingly, the Board finds that a chronic gastric disability did not begin in service. Next, the Board finds that symptoms of a gastric disorder, to include ulcer disease, have not been present continuously since service. As noted, the Veteran did not complain of any gastric symptoms during the service separation examination in 1984, and there are no records of complaints of or treatment for ulcers prior to 1990, when he reported that ulcers had been diagnosed in service. As discussed above, however, the evidence does not show that ulcer disease or a chronic gastric disorder was diagnosed in service. At the time of the 1990 VA examination, the Veteran indicated that he had not been reevaluated for the claimed ulcer condition since service and had no recent evaluation. The examiner noted the reported history of an ulcer in service but did not indicate a diagnosis of a chronic ulcer condition. The evidence reflects that the Veteran did not seek treatment for chronic gastric symptoms again until 2010, when GERD was diagnosed. While the Veteran reported recent private treatment for ulcers during his Board hearing, he has not produced or clearly identified any records of that treatment to support his claim. Thus, there is no competent and probative evidence of a diagnosis of ulcer disease nor of continuous treatment for any gastric symptoms since service. In addition, the Veteran does not credibly describe continuous symptoms of ulcer disease since service. During both the VA examination of April 2010 and his testimony before the Board in July 2008, the Veteran repeated his contention that ulcers were diagnosed in service and then described his current symptoms. At no time during the appeal period has he asserted that his gastric symptoms have existed continuously since service. Given the absence of any such specific contentions, and given his failure to report any gastric symptoms during his separation physical examination, the Board finds that the Veteran's lay testimony in this regard does not establish continuous symptoms of ulcer disease. Finally, the Board finds that there are no private or VA treatment records showing that the Veteran has a current ulcer disability that may be related to service. The evidence rather reflects that he has GERD, which was not diagnosed in service or for many years thereafter. Moreover, there is no competent medical opinion of record relating the Veteran's current GERD or gastric symptoms to his active service. The Board acknowledges the Veteran's assertions regarding the claimed chronic ulcer disease. The Veteran is competent to describe symptoms, but as the record does not establish that he possesses a recognized degree of medical knowledge, he lacks the competency to provide evidence that requires specialized knowledge, skill, experience, training or education, such as a diagnosis of the claimed disorder and whether there is a medical nexus between the claimed disorder and service. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006). In summary, the preponderance of the competent, credible and probative evidence is against a finding that a gastric disability, including the claimed peptic ulcer disease, began during service or is causally related to any incident or injury in service. Thus, the criteria for service connection are not met, and the claim must be denied. In reaching this decision the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the Veteran's claim, the doctrine is not for application. See Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). ORDER Service connection for a chronic ulcer disease is denied. REMAND The Veteran is seeking service connection for loss of control of bodily function, including bladder and bowel incontinence. He contends that his condition is secondary to diabetes mellitus, for which service connection is not in effect. 38 C.F.R. § 3.310(a); Sabonis v. Brown, 6 Vet. App. 426 (1994). However, the Board has a duty to consider all theories of entitlement to the benefit sought. See Szemraj v. Principi, 357 F.3d 1370, 1371 (Fed. Cir. 2004). The record contains VA treatment notes which reflect that, in December 2002, the Veteran complained of pain from his neck to his back and reported that he experienced urinary and fecal incontinence approximately 2 to 3 times per week. He again reported in June 2010 that he sometimes loses control of his bodily functions. Service connection for myofacial cervical and lumbar spine syndrome was granted effective December 2004. The Veteran was afforded a VA examination of his claimed incontinence in April 2010. In a March 2011 addendum, the VA examiner reviewed the available records and noted that the Veteran had not reported loss of control of bowel or bladder control during prior examinations. The examiner opined that the current condition is not likely related to active service because myofacial cervical or lumbar spine syndrome could not cause loss of bladder or bowel control. A claimant is entitled to service connection on a secondary basis when it is shown that a service-connected disability has chronically aggravated a nonservice-connected disability. Allen v. Brown, 7 Vet. App. 439 (1995). In this case, while a VA examiner found that the Veteran's back disability does not cause claimed bladder and bowel incontinence, no medical opinion has been provided as to whether the condition may be aggravated by his service-connected spine disabilities. Hence, a remand is required to obtain an medical opinion in this regard. Accordingly, the case is REMANDED for the following actions: 1. Request an addendum opinion from the VA examiner who conducted the April 2010 VA examination (or a suitable substitute). The claims folder, including a copy of this remand, must be made available to the examiner. The examiner should review the record and provide an opinion as to whether it is at least as likely as not (i.e., 50 percent or greater probability) that the claimed bladder and bowel incontinence is aggravated by service-connected myofacial cervical or lumbar spine syndrome. If the VA examiner finds that the claimed bladder and bowel incontinence is aggravated (permanently worsened) by the cervical and/or the lumbar spine disorder, the examiner should indicate the degree of disability over and above the degree of disability that would exist without the aggravation caused by the service-connected cervical and/or lumbar spine disorder. A rationale for any opinion reached must be provided. A complete rationale for the opinion is requested. 2. Review the record and complete any further development, if necessary. Thereafter, readjudicate the issue on appeal. If the claim remains denied, the RO should issue a supplemental statement of the case and afford the Veteran an opportunity to respond. Thereafter, the case should be returned to the Board for appellate review. The appellant has the right to submit additional evidence and argument on the matter 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. 2011). ____________________________________________ K. J. ALIBRANDO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs