Citation Nr: 1300231 Decision Date: 01/03/13 Archive Date: 01/11/13 DOCKET NO. 07-02 443 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUE Entitlement to service connection for a gastrointestinal disability claimed as peptic ulcer disease. REPRESENTATION Appellant represented by: Virginia Department of Veterans Services ATTORNEY FOR THE BOARD C. Fetty, Counsel INTRODUCTION The Veteran served on active duty from April 1966 to April 1968. He also had periods of active duty for training (ACDUTRA) in the Army National Guard from June 12 to 26, 1976, May 28, to June 11, 1977, June 10 to 24, 1978, May 12 to 26, 1979, May 10 to 24, 1980, May 30, to June 13, 1981, May 22 to June 5, 1982, and June 2 to 16, 1984. This matter arises to the Board of Veterans' Appeals (Board) from an April 2006-dated rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia, that denied service connection for duodenal ulcers secondary to Vietnam service. The Board remanded the case for development in July 2009, November 2010, January 2012, and March 2012. The Veteran's January 2007 substantive appeal contains a hearing request. The claims file reflects that the RO notified the Veteran that a hearing had been scheduled in February 2008 for a hearing before a Veteran's Law Judge. The claims file also notes that the Veteran failed to report for the hearing, although the notification letter has not been returned by the United States Postal Service as undeliverable. The Veteran has not explained his failure to report or requested rescheduling of the hearing. The request for a hearing is therefore considered to be withdrawn pursuant to 38 C.F.R. § 20.702(d). FINDINGS OF FACT 1. The Veteran is a combat veteran. 2. The Service Treatment Reports (STRs) do not reflect any relevant treatment for or complaint of a digestive disorder. 3. The Veteran has not alleged continuity of symptoms since active military service. 4. The competent, uncontroverted medical evidence dissociates any current gastrointestinal disorder from active service or symptoms reportedly seen and treated during active service. CONCLUSION OF LAW A gastrointestinal disability, claimed as peptic ulcer disease, was not incurred in active military service, nor may such disability be presumed to have been incurred in active military service. 38 U.S.C.A. §§ 1110, 1111, 1112, 5103, 5103A, 5107 (West 2002 & Supp 2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Board has remanded the case for development. When the remand orders of the Board are not complied with, the Board itself errs in failing to ensure compliance. See Stegall v. West, 11 Vet. App. 268, 271 (1998). In this case, VA's Appeals Management Center has complied with all remand orders. VA must notify and assist claimants in substantiating claims for benefits. 38 U.S.C.A. §§ 5100, 5103A, 5107, 5126 (West 2002); 38 U.S.C.A. §§ 5102, 5103 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA must notify the claimant and his representative of any information and any medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). VA must also inform the claimant of any information and evidence not of record that VA will seek to provide and that the claimant is expected to provide. This notice must be provided prior to an initial unfavorable decision. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). Adequate notice was supplied in a March 2006 notice letter sent to the claimant and his representative. See Dingess v. Nicholson, 19 Vet. App. 473 (2006). VA also has a duty to assist the claimant in the development of the claim. This duty includes assisting the claimant in obtaining STRs, other pertinent treatment records, and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. All necessary development has been accomplished and adjudication may proceed without unfair prejudice to the claimant. See Bernard v. Brown, 4 Vet. App. 384 (1993). VA has obtained VA out-patient treatment reports. The claimant was afforded VA medical examinations. Neither the claimant nor his representative has identified, and the record does not otherwise indicate, that there is any additional existing evidence that is necessary for fair adjudication of the claim that has not been obtained. Hence, no further notice or assistance to the claimant is required to fulfill VA's duty to assist in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002). Service Connection Service connection will be awarded for disability resulting from injury or disease incurred in or aggravated by active service (wartime or peacetime). 38 U.S.C.A. §§ 1110; 1131 (West 2002), 38 C.F.R. § 3.303(a) (2012). Service connection requires competent evidence showing: (1) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; (2) medical evidence of current disability; and (3) medical evidence of a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff'd, 78 F.3d 604 (Fed. Cir. 1996). In Caluza, the United States Court of Appeals for Veterans Claims (hereinafter: the Court) also stressed that § 3.102 states, "The reasonable doubt doctrine is also applicable even in the absence of official records, particularly if the basic incident arose under combat, or similarly stressful conditions [emphasis added], and is consistent with the probable results of such known hardships." Caluza, 7 Vet. App. at 509. Each disabling condition shown by service medical records, or for which the Veteran seeks service connection, must be considered on the basis of the places, types, and circumstances of his service as shown by service records, the official history of each organization in which he served, his medical records, and all pertinent medical and lay evidence. 38 C.F.R. § 3.303(a). "Direct" service connection may be granted for any disease not diagnosed initially until after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred during service. 38 C.F.R. § 3.303(d); Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). Chronic diseases listed at 38 C.F.R. §§ 3.307, 3.309 are accorded special consideration for service connection. Where a Veteran served at least 90 days during a period of war or after December 31, 1946, and a listed chronic disease, such as peptic ulcers (gastric or duodenal) becomes manifest to a degree of 10 percent within one year from the date of termination of such service, such disease will be presumed to have been incurred in service, even though there is no evidence of such disease during service. 38 U.S.C.A. §§ 1101, 1113, 1137 (West 2002); 38 U.S.C.A. § 1112 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.307, 3.309 (2012). Once the evidence has been assembled, the Board assesses the credibility and weight to be given to the evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997) and cases cited therein. 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 (West 2002); 38 C.F.R. § 3.102 (2012). In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the Court stated that a Veteran need only demonstrate that there is an approximate balance of positive and negative evidence in order to prevail. To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. According to 38 U.S.C.A. § 1154(a), the Secretary must consider the places, types, and circumstances of the Veteran's service, his unit's history, his service medical records, and all pertinent lay and medical evidence in the case. More favorable consideration is afforded combat Veterans under 38 U.S.C.A. § 1154(b). In this case, the Veteran served in Vietnam from June 1967 to April 1968, first, as an artilleryman, and thereafter as a heavy truck driver, but he was not awarded a military decoration that conclusively establishes participation in combat. He has supplied competent lay evidence of the numerous combat events in which he participated, both as a cannoneer and as a convoy driver subject to snipers, land mines, ambush, and other encounters with the enemy during Tet 1968. His service personnel records partially corroborate these accounts. Because it is at least as likely as not that the Veteran was in combat, he will be afforded any benefit set forth at 38 U.S.C.A. § 1154(b). The Veteran's STRs reflect that he was sound at entry. No relevant treatment report is of record. He later claimed that he was burned on the face severely and that this burn could have caused an ulcer. Although there is no record of treatment for a burn or for an ulcer in the STRs, his separation examination report clearly reflects a scar on the forehead that was not noted at entry. His abdomen was found to be normal. In April 1968, on a medical history questionnaire, the Veteran checked "no" to a history of any stomach trouble. The questionnaire does not ask about a history of burns. The Veteran filed his original claim for benefits in January 2006. He reported that ulcers arose on February 15, 1969, and that treatment by a Dr. Revenal began in 1972. He related ulcers to the stress of service in Vietnam. In March 2006, the Veteran reported that he severely burned his face while burning artillery-related paraphernalia in Vietnam and that treatment for this burn should be in his STRs. He submitted a statement from his spouse to the effect that he did have facial scars. He also submitted a medical article that notes that severe injuries, such as severe burns, increase the risk for developing ulcers. The article mentions that emotional stress is no longer thought to be a cause of ulcers. The RO denied service connection for ulcers in May 2006. In his May 2006 notice of disagreement, the Veteran attributed his ulcers to exposure to Agent Orange. He reported that stomach troubles arose even prior to discharge from active service. He reported that the stomach pains slowly increased and he first sought treatment in 1980 by Dr. Ravenel. He was immediately hospitalized and a large ulcer was found. He submitted a January 1980 medical report signed by J. Ravenel, M.D. Dr. Ravenal's January 1980 private medical report reflects that the Veteran had presented a week earlier with a complaint of several years of long-standing stomach pains self-treated with over-the-counter antacids. The abdomen was slightly tender in the epigastrium. The impression was gall bladder disease vs. duodenal ulcer. In February 1980, a chronic ulcer and a normal gall bladder were found and medication was started. In August 2006, the Veteran reported that during his separation examination from active service, he reported his stomach problems. The RO obtained VA out-patient treatment reports that reflect that he had both peptic ulcer disease and gastro esophageal reflux disease (hereinafter: GERD) in 2006. In his January 2007 substantive appeal, the Veteran submitted several lay witness statements describing his use of antacids when he returned from active military service in 1968. In his substantive appeal, he reported that during the Tet offensive of 1968, his cannon was heavily engaged in firing at the enemy from his post near the Cambodian border. He reported that he also made over 50 supply runs as a truck driver and once was attacked by about 200 enemy and forced to lie in a ditch for cover. He reported that his nerves were jittery after another truck had detonated a land mine. A January 2010 VA gastric compensation examination report reflects that a December 2009 esophagogastroduodenoscopy showed moderately severe gastritis and evidence of previous ulcers. The physician concluded that the etiology of ulcers and GERD is unknown. Based on the history of medical treatment provided, the physician concluded that it is unlikely that GERD, ulcers, gastritis, or esophageal problems arose during or within a year of separation from active military service. In a May 2011 addendum report, a physician dissociated any currently claimed disorder from any period of ACDUTRA. A January 2012-dated VA compensation examination report reflects that the physician noted that the Veteran's claims of having ulcer symptoms during active service is controverted by his own report of good health at the time of separation. The physician concluded that it is unlikely that any ulcer, GERD, or other gastrointestinal disorder is related to active service, or to ACDUTRA, or to stress related to Vietnam service. In a June 2012 VA compensation examination report, a physician reviewed the pertinent medical history, interviewed the Veteran, and then dissociated any current gastrointestinal disorder from active service on the basis of an absence of treatment for several years after active military service. The physician explained that severe burns that are treated in an intensive care unit can lead to a certain type of ulcer, which is not shown in this case. The June 2012 VA physician specifically stated that a 1980 private report contains evidence the Veteran's symptoms had begun only two-weeks earlier. In contrast, that report actually notes a two-week history of more severe epigastric pain that radiated to the back, which was preceded by several years of intermittent stomach problems treated with over-the-counter antacids. This mis-statement the date of onset of symptoms is not fatal to the medical opinion because the Veteran has not reported continuity of symptoms prior to the 1980 hospitalization. He reported that prior to a recent two-week history of more severe symptoms, he had intermittent stomach problems for several years. Thus, the physician correctly based the opinion on an absence of more severe symptoms dated early enough so as to relate them to active service. The above-mentioned VA medical opinions, that dissociate any ulcers, GERD, and gastritis from active service or ACDUTRA, are persuasive, as they are based on accurate facts and are supported by rationale. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (a medical opinion that contains only data and conclusions is accorded no weight); also see Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (medical opinion based upon an inaccurate factual premise has no probative value). The Board must also address the competency, credibility, and probative value of the lay evidence. 38 U.S.C.A. § 7104(d)(1) (West 2002); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996). The lay evidence is competent with respect to observance of symptoms readily observable and it is credible, as there is no indication of lack of veracity. 38 C.F.R. § 3.159; Washington v. Nicholson, 19 Vet. App. 362, 367-68 (2005). The Veteran and several lay witnesses recall that he had stomach complaints after active military service. The Veteran even reported that certain symptoms arose during active service. However, the medical experts have dissociated these symptoms from the currently diagnosed gastrointestinal disorders, including previously shown duodenal ulcers, on the basis of no severe symptoms requiring medical treatment until 1980. Thus, the lay evidence does not support any later medical opinion. The lay evidence therefore fails to meet the competency standard set forth by the Federal Circuit in Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (lay diagnosis is competent if: (1) lay person is competent to identify the medical condition; (2) lay person is reporting a contemporaneous medical diagnosis; or (3) lay testimony of symptoms at the time supports a later diagnosis by a medical professional). Although service connection for certain listed diseases is presumed for those exposed to Agent Orange, ulcers or other claimed gastrointestinal disorders are not among those diseases listed. See 38 C.F.R. § 3.309(e). After considering all the evidence of record, including the lay evidence, the Board finds that the preponderance of it is against the claim. Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. See 38 U.S.C.A. § 5107 (West 2002); Gilbert, 1 Vet. App. at 53. The claim for service connection for a gastrointestinal disability, claimed as peptic ulcer disease, must therefore be denied. ORDER Service connection for a gastrointestinal disability, claimed as peptic ulcer disease, is denied. ____________________________________________ J. A. MARKEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs