Citation Nr: 1234934 Decision Date: 10/09/12 Archive Date: 10/17/12 DOCKET NO. 06-33 172 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Entitlement to service connection for a stomach disorder, to include duodenal ulcer disease. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. D. Deane, Counsel INTRODUCTION The Veteran served on active duty from October 1971 to March 1972. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a November 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. In February 2009, the Veteran testified at a videoconference hearing before the undersigned. A transcript of that hearing is of record. In a December 2009 decision, the Board denied entitlement to service connection for an ulcer disability. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans' Claims (Court). The Court granted the parties' Joint Motion for Remand of the Board's December 2009 decision. Pursuant to the actions requested in the August 2010 Joint Motion, the Court vacated the Board's decision and remanded the issue of entitlement to service connection for an ulcer disability to the Board for readjudication. The parties agreed that the Board failed to satisfy its duty to assist the appellant in the development of his claim by providing an adequate medical examination or opinion regarding the issue of aggravation. In December 2010, the Board remanded this matter to the RO via the Appeals Management Center (AMC) for additional development. In June and August 2012, the Veteran and his representative submitted to the Board additional evidence (along waivers of RO jurisdiction of such evidence) for consideration in connection with the claim on appeal. The Board accepts this evidence for inclusion in the record on appeal. 38 C.F.R. § 20.1304 (2012). The following determination is based on review of the Veteran's claims file in addition to his Virtual VA "eFolder ." FINDINGS OF FACT 1. There is clear and unmistakable evidence that the Veteran had a stomach disorder (peptic ulcer disease) prior to service. 2. Absent clear and unmistakable evidence, the Veteran's preexisting peptic ulcer disease was aggravated during his active service. 3. The Veteran's presently diagnosed stomach disability (peptic ulcer disease) is as likely as not causally related to the pre-existing ulcer disease presumed to be aggravated during active service. CONCLUSIONS OF LAW 1. As the Veteran's pre-existing stomach disorder was presumed to be aggravated in service, the presumption of soundness has not been rebutted regarding his stomach disorder. 38 U.S.C.A. §§ 1110, 1111, 1112, 1113, 1131, 1137, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.159, 3.303, 3.304, 3.306 (2011). 2. Resolving all doubt in the Veteran's favor, the present stomach disability resulted from a disease aggravated by active service. 38 U.S.C.A. §§ 1110, 1111, 1112, 1113, 1131, 1137, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.306 (2011). (CONTINUED NEXT PAGE) REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VCAA The Board notes that VA has a duty to notify and a duty to assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. §§ 3.159, 3.326(a). In this decision, as the Board has granted entitlement to service connection for a stomach disorder (a complete grant of the benefit sought on appeal), no additional discussion of VA's duty to notify and assist is necessary for this matter. Laws and Regulations Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131 (West 2002). Generally, the evidence must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004) (citing Hansen v. Principi, 16 Vet. App. 110, 111 (2002); Caluza v. Brown, 7 Vet. App. 498, 505 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (table)). In each case where a veteran is seeking service connection for any disability, due consideration shall be given to the places, types, and circumstances of such veteran's service as shown by such veteran's service record, the official history of each organization in which such veteran served, such veteran's treatment records, and all pertinent medical and lay evidence. 38 U.S.C.A. § 1154(a) (West 2002 and Supp. 2011). Service connection may be established under the provisions of 38 C.F.R. § 3.303(b) when the evidence, regardless of its date, shows that a veteran had a chronic condition in service or during the applicable presumptive period. In addition, certain chronic diseases, including peptic ulcers (gastric or duodenal), 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; 38 C.F.R. §§ 3.307, 3.309. A veteran is presumed to have been in sound condition when examined, accepted and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable (obvious or manifest) evidence demonstrated that an injury or disease existed prior thereto. Only such conditions as are recorded in examination reports are to be considered as noted. 38 C.F.R. § 3.304(b). If the disorder was not noted upon entry, the presumption of soundness may be rebutted by a showing, by clear and unmistakable evidence, both that a disease or injury existed prior to service and that the disease or injury was not aggravated by service. 38 U.S.C.A. § 1111; VAOPGCPREC 3-2003 (July 16, 2003); see also Cotant v. Principi, 17 Vet. App. 116, 123-30 (2003) (detailing legislative history relating to presumption of soundness and the possibility that the omission of the relevant language from 38 C.F.R. § 3.304(b) was unintentional and that 38 C.F.R. § 3.304(b) should be construed as consistent with the VA's pre-February 1961 regulations). Clear and unmistakable evidence means that the evidence cannot be misinterpreted and misunderstood, i.e., it is undebatable. Quirin v. Shinseki, 22 Vet. App. 390, 396 (2009) (citing Vanerson v. West, 12 Vet. App. 254, 258-59 (1999)). Such clear and unmistakable evidence includes medical facts and principles that may be considered to determine whether the increase is due to the natural progression of the condition. Additionally, when considering whether a disorder has been aggravated by military service, temporary or intermittent flare-ups of a pre-existing injury or disease are not sufficient to be considered "aggravation in service" unless the underlying condition, as contrasted with symptoms, have worsened. Jensen v. Brown, 4 Vet. App. 304, 306-307 (1993); Green v. Derwinski, 1 Vet. App. 320, 323 (1991); Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). Instead, "a lasting worsening of the condition," or a worsening that existed not only at the time of separation but one that still exists currently is required. Routen v. Brown, 10 Vet. App. 183, 189 (1997); Verdon v. Brown, 8 Vet. App. 529, 538 (1996). If such an increase in severity is shown, it is presumed to have been aggravated absent clear and unmistakable evidence that the increase in disability is due to the natural progression of the disorder. See, by analogy, 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306(a). However, 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); 38 C.F.R. § 3.306(b). VA bears the burden to rebut the presumption of aggravation in service. Laposky v. Brown, 4 Vet. App. 331, 334 (1993); Akins v. Derwinski, 1 Vet. App. 228, 232 (1991). Recently, the Court clarified the matter of the evidentiary burdens in claims for aggravation in which the pre-existence of a claimed disability was not found on the service entrance examination. It was indicated that the burden was not on the claimant to show that his disability increased in severity; rather, it was on VA to establish by clear and unmistakable evidence that it did not or that any increase was due to the natural progress of the disease. If the claimed disability is not found on the entrance examination but is shown by clear and unmistakable evidence to have pre-existed service, then nonetheless the burden is on VA to prove lack of aggravation or that any increase was part of the natural progress by clear and unmistakable evidence. In presumption of soundness cases, VA may not rest on the notion that the record contains insufficient evidence of aggravation to carry its burden to rebut the presumption, but must rely on affirmative evidence to prove that there was no aggravation; if the VA fails to produce clear and unmistakable evidence of lack of aggravation, the claimant is entitled to a finding of in-service aggravation of the preexisting condition. Horn v. Shinseki, 25 Vet. App. 231 (2012). The Federal Circuit has rejected the view that competent medical evidence is required when the determinative issue in a claim for benefits involves either medical etiology or a medical diagnosis. Under 38 U.S.C.A. § 1154(a), 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. Davidson v. Shinseki, 581 F.3d. 1313 (Fed. Cir. 2009); see also Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006). Finally, in a claim for service connection, the ultimate credibility or weight to be accorded evidence must be determined as a question of fact. The Board determines whether (1) the weight of the evidence supports the claim, or (2) the weight of the "positive" evidence in favor of the claim is in relative balance with the weight of the "negative" evidence against the claim: the appellant prevails in either event. However, if the weight of the evidence is against the appellant's claim, the claim must be denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Factual Background The Veteran contends that his claimed ulcer disorder was aggravated during his period of active duty. A longitudinal review of the file reveals that a pre-service April 1971 Gallbladder - Stomach & Small Intestines x-ray report from Akron City Hospital listed the following impression: "Even though this patient is seventeen years of age, he shows an old healed ulcer in the proximal cap and a small active ulcer in the immediate post-bulbar area." Service treatment records showed a normal clinical evaluation of the abdomen and viscera on pre-service enlistment examination in August 1971. The Veteran also denied having stomach trouble on an August 1971 Report of Medical History. An October 1971 treatment record showed that the Veteran was seen for complaints of an upset stomach and vomiting for two days. He reported having a history of ulcer disease per an upper gastrointestinal (UGI) study, but said he wanted to stay in the Army. Additional treatment records dated in early October 1971 showed that the Veteran fractured his left clavicle after a fall in the mess hall and was prescribed Darvon. A subsequent record in October 1971 detailed that the Veteran was disqualified from service for two disabilities, fracture of the left clavicle before being brought onto active duty and peptic ulcer disease. It is noted on this record that the Veteran had proven ulcer disease that existed prior to service, but that no documentation from a civilian source had been found. In November 1971, it was also noted that documentation from a civilian physician regarding peptic ulcer was to be obtained and, if obtained, the Veteran should be separated. A February 1972 treatment record indicated that the Veteran was first diagnosed as having a duodenal ulcer in April 1971 and had had continuous symptoms since joining the Army in September 1971. The February 1972 service discharge examination report noted that the Veteran had active peptic ulcer disease (duodenal) and had not been fit for induction into service. A March 1972 Medical Board Proceedings report showed that the Veteran was medically unfit for service due to active peptic ulcer disease that existed prior to service. In a February 1972 letter, a private physician, J. B. P., M.D., stated that the Veteran had been under his professional care for ulcers since April 1971 until the time he left for service. He reported that the Veteran had been treated with a bland diet and probanthine and enclosed x-ray reports dated in April 1971 (which are cited above). In March 1972, the Veteran signed a US Army "Separation for the Convenience of the Government" form (AMFL 88, 3 Sep 70). This form stated that the Veteran had been informed of preliminary findings that he did not meet the medical standards for procurement when accepted for enlistment or induction into service in September 1971. It further stated that the Veteran understood that his condition existed prior to his entry on active duty and was neither incident to nor aggravated by his military service. An undated private medical record from Kaiser Permanente reflected a complaint of epigastric pain and a history of duodenal ulcer. The Veteran reported having ulcers for 20 years and was assessed as having stress, peptic ulcer, smoking, and weight loss possibly due to ulcer. Records dated in February 1990 showed that the Veteran did not report for a scheduled upper GI (UGI) series. In an August 1993 statement, a private physician, K. C. F., M. D., noted that the Veteran had a past medical history significant for ulcers and that his medications included Tagamet and Zantac. Private treatment records from D. L. J., M. D., included September and October 2004 office visit notes which showed that the Veteran was seen for rechecks of gastritis. His stomach was noted to be improving on both occasions. An October 1994 record detailed that the Veteran had peptic ulcer disease and had been prescribed Zantac. In a March 2005 statement, the Veteran reported that he had been suffering with ulcers for 35 years and had been taking medicine. He explained that he had not been able to stay in the Army because of this as he kept getting sick, could not hold his food down, lost weight, and kept getting weaker. He reported that the problem was cyclic in that it heals and then comes back, adding that he did not know if this problem was hereditary, due to his inability to cope with stress, or due to his metabolism. In statements dated in April and July 2005, D. L. J., M. D., stated that he had been the Veteran's family doctor since 1994. He further stated that the Veteran had recently been disabled, but did not include ulcer disease as one of the disabling conditions. In a May 2005 VA general examination report, the Veteran reported that he had had duodenal ulcer disease since age 16 and had been discharged from service with this disability. He indicated he was still bothered by abdominal gas pain which lasted all day, but that a recent change in medication (from AcipHex to ranitidine) decreased the incidence of pain to twice a month. A May 2005 upper GI study revealed no pathology of the upper GI tract. In an August 2005 letter, the Veteran's ex-spouse indicated that she had known the Veteran since August 1970 and that a few months after she met him, he began complaining of stomach aches. She said he was diagnosed as having ulcers at age 16 and was on a bland diet and seemed to have his ulcers under control prior to service, but that soon after joining the military he told her his stomach always hurt. In a November 2005 notice of disagreement (NOD), the Veteran asserted that he was not "in a clear state of mind" when he signed the service discharge papers that stated he was without entitlement to benefits. He asserted he was sick and depressed at the time and only 17 years of age. VA outpatient treatment records included a December 2006 record noting that the Veteran had chronic peptic ulcer disease. A January 2007 addendum note reflected that the Veteran was positive for H. pylori antibody, which was a bacteria in the stomach associated with chronic ulcers and gastritis. The physician stated that this needed to be eradicated and prescribed two antibiotics for the Veteran. In a March 2007 VA GI consult note, the Veteran reported abdominal discomfort since he was a teenager, indicating that he had been diagnosed as having peptic ulcer disease in 1971. He further reported that he had had symptoms since that time intermittently and took large amounts of Mylanta and Rolaids but had stopped tetracycline due to side effects. A May 2007 esophagogastroduodenoscopy (EGD) report listed an impression of gastritis and possible short-segment Barrett's esophagus. Findings from a May 2007 biopsy report were positive for chronic gastritis and negative for H. pylori. In a September 2007 VA outpatient record, the examiner assessed questionable GERD/chronic gastritis. During February 2008 VA stomach examination, the Veteran reported having chronic peptic ulcer disease since age 16 as well as having aggravating factors including stress and anxiety. He denied a history of hospitalizations, surgeries, or periods of incapacitation due to stomach or duodenal disease. He reported sharp abdominal pain in the epigastric and umbilical areas that was alleviated by medication and milk. After examining the Veteran and reviewing his claims file, the examiner stated that the Veteran clearly had reported ulcer symptoms prior to his military service and there was no objective evidence of worsening of symptoms. He further opined that there was no medical evidence to support the conclusion that the Veteran's period of service permanently aggravated the Veteran's current gastritis (diagnosed by May 2007 endoscopy) beyond what would have been its normal progression. He added that because of other multiple risk factors for gastritis, he was unable to state that the Veteran's period of service exacerbated/aggravated his chronic preexisting condition beyond its normal progression without resorting to speculation. An October 2008 private medical record from M. Q., M.D., showed that the Veteran had presented for an opinion regarding a peptic ulcer, which was diagnosed back in 1971. The physician indicated that a review of the Veteran's upper GI in 1971 showed a small gastric ulcer. He discussed the Veteran's "claim" that stress related to military service and change in his diet had "reactivated" his ulcer. The physician explained that there was no definite evidence that stress or certain diet has a definite role in peptic ulcer disease as well as noted that an upper GI in 2007 was negative for ulcer disease. He reported that the medication the Veteran was prescribed for GERD, known as Omepraxole, had been working well. During the February 2009 hearing, the Veteran testified that he had been told by his doctors that it was possible, but not definite, that stress and diet can reaggravate an ulcer. He reported that his ulcer condition was pretty mild prior to service due to diet and medication, but increased during service and has remained the same ever since. He further indicated that he was prescribed Darvon during service and thought that this medication may have made his stomach worse. In an October 2010 statement, a private physician, P. M. S., M. D., stated that he had provided internal medicine care for the Veteran between 2006 and 2008 at the VA clinic in Akron. After reviewing the Veteran's medical history as well as a statement from his ex-spouse, the physician opined that it was more likely than not that the Veteran's ulcer disease was aggravated and increased in severity during his time in military service based on the medical knowledge of peptic ulcer disease at that time. Medical treatise information associated with the file showed that side effects of Darvon included nausea, vomiting, stomach pain, and constipation. Additional internet articles discussed peptic ulcer disease, Helicobacter pylori, and gastritis as well as causes and symptoms of ulcers. In a December 2010 VA examination report, the examiner, a VA gastroenterologist, reiterated the Veteran's discussion of his medical history. The Veteran asserted that he developed abdominal pain, nausea, and vomiting at age 16 and was diagnosed with peptic ulcer disease at that time after a UGI barium study. He reported that he felt okay at that time and was placed on medication, probanthine, and a bland diet. The Veteran indicated that after enlistment he was not able to eat a bland diet and was given Darvon, both of which he felt made his ulcer worse. He asserted that he still suffered from pain currently, stating that his abdominal pain was exacerbated by stressful events in his life. The examiner noted that the Veteran had clearly stated that he was diagnosed with an ulcer prior to enlisting in the military in 1971. The physician opined that it was unlikely that the Veteran's ulcer disease was worsened by his change from a bland diet to a non-bland diet and a prescription of Darvon in the military thus causing him the present pain he had more than 35 years later. She concluded that his ulcer disease that predated his enlistment in service was not aggravated beyond normal progression as a result of his service. It was further noted that she thought his present symptoms were related to irritable bowel syndrome, not acid related disease. VA outpatient treatment records dated from 2008 to 2011 showed continued findings of history of peptic ulcer disease/gastritis, dyspepsia, GERD, and abdominal pain. A January 2011 VA treatment record showed a notation that it was unlikely that the Veteran had irritable bowel syndrome. An April 2011 VA EGD report listed an impression of Barrett's esophagus, pylorus appeared to be somewhat deformed but duodenum was easily intubated, and normal duodenum. Additional VA treatment records dated in November 2011 showed continued findings of GERD with persistent laryngopharyngeal reflux and postcricoid edema as well as a history of short segment Barrett's, leuckocytosis, and anemia. In multiple statements dated in 2011 and 2012, the Veteran asserted that his December 2010 VA examination was inadequate and that his examiner was unprofessional. He also discussed his unsuccessful attempts to obtain private treatment records pertaining to his claimed stomach disorder dated from 1972 to 1994 from a former physician who was now retired. In an August 2012 statement, a VA physician indicated that she had treated the Veteran since August 2008. He was noted to have a long history of gastritis/peptic ulcer disease (actually prior to his military service - though the actual records were unobtainable). The Veteran was noted to report being diagnosed with peptic ulcer disease prior to his military service and having an exacerbation of symptoms during his military service (partially aggravated by medication provided for a previous clavicle fracture). The physician noted that the Veteran's most recent EGD findings from June 2012 included positive Barrett's Esophagus, erosive gastritis in the antrum, moderately deformed pylorus probably consistent with prior peptic ulcer, and negative H. Pylori. She discussed his current treatment with multiple medications and indicated that he has suffered multiple exacerbations of abdominal pain and bloating. She noted her agreement with the Veteran's private physician that it was more likely than not that his ulcer disease has been exacerbated during his military service and continues to be problematic for him despite multiple therapies. Analysis As an initial matter, service treatment records showed a normal clinical evaluation of the abdomen and viscera on pre-service enlistment examination in August 1971. The Veteran also denied having stomach trouble on an August 1971 Report of Medical History. As no stomach disorder was noted upon entry, the presumption of soundness has attached and may only be rebutted by a showing, by clear and unmistakable evidence, both that a disease or injury existed prior to service and that the disease or injury was not aggravated by service. In this case, the evidence of record clearly and unmistakably establishes that a stomach disorder pre-existed the Veteran's active duty service beginning in October 1971. 38 U.S.C.A. § 1111; 38 C.F.R. §3.304(b). In this regard, there is the April 1971 pre-service report from Akron City Hospital containing the impression that even though this patient was seventeen years of age, he showed an old healed ulcer in the proximal cap and a small active ulcer in the immediate post-bulbar area. There is also the February 1972 letter from J. B. P., M. D., who stated that the Veteran had been under his professional care for ulcers since April 1971 until the time he left for service. The record also contains multiple lay statements from the Veteran and his ex-wife who both asserted that he had been diagnosed as having ulcers prior to his entry into active duty. A VA physician considered these statements in providing a positive opinion. Thus, the remaining question is whether the pre-existing stomach disorder that was quiescent at entry to service was aggravated by service. While service treatment records dated at service entry in August 1971 showed a normal clinical evaluation of the abdomen, an October 1971 treatment record showed that the Veteran was seen for complaints of an upset stomach and vomiting for two days. The burden is on VA to rebut by clear and unmistakable evidence that the pre-existing disorder was not aggravated by service, which may be established by evidence that any increase in disability was due to the natural progress of the pre-existing condition. Here, the Board finds that VA failed to produce clear and unmistakable evidence of lack of aggravation. The record is replete with VA and private medical opinions coming to divergent conclusions regarding whether the Veteran's pre-existing disorder was aggravated during service and if so, whether the increase in disability was due to the natural progress of the pre-existing condition. It is far from undebatable that there was no aggravation. Indeed, the negative VA opinion failed to produce a convincing opinion on this point. The fact that another VA physician provided a positive opinion causes the Board to further question whether clear and unmistakable evidence has been presented. The Board has thus determined that the Veteran is entitled to a finding of in-service aggravation of the preexisting condition. Consequently, the Board finds that the presumption of soundness at entry into service is not rebutted by the evidence of record regarding the Veteran's stomach disorder. 38 U.S.C.A. § 1111 (West 2002); 38 C.F.R. § 3.304 (2011). The outstanding question is therefore whether there is sufficient evidence to establish that the Veteran has a present stomach disorder that is causally related to the pre-existing ulcer disease now presumed to be aggravated during active military service. The Board reiterates that the post-service private and VA treatment records discussed in detail above did reflect findings of a stomach disorder, to include gastritis and peptic ulcer disease. Shedden element (1) is therefore met. As for the second requirement for service connection, the above analysis came to the clear conclusion that the Veteran's pre-existing stomach disorder was presumed to be aggravated during service. Accordingly, Shedden element (2) is satisfied as to this claim. A finding of a nexus between the Veteran's current stomach disorder and the ulcer disease aggravated during service is still needed to satisfy Shedden element (3). In view of the totality of the evidence, including the Veteran's documented in-service complaints and treatment for peptic ulcer disease, the conflicting yet equally probative as well as equally flawed VA and private physician opinions of record, and the competent and credible lay statements of record asserting continuity of symptomatology since service, the Board finds that the evidence supports the conclusion that the Veteran's claimed stomach disorder is as likely as not causally related to the pre-existing ulcer disease presumed to be aggravated during service. Based on the foregoing, the Board finds that the evidence of record is at least in equipoise with regard to this claim. Therefore, with application of the benefit of the doubt doctrine, service connection for a stomach disorder is warranted. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). As such, the appeal is granted. ORDER Entitlement to service connection for a stomach disorder is granted. ____________________________________________ MICHAEL A. HERMAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs