Citation Nr: 1300401 Decision Date: 01/04/13 Archive Date: 01/11/13 DOCKET NO. 11-03 809 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to service connection for a liver disability. 2. Entitlement to service connection for a stomach disability. 3. Entitlement to service connection for depression. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD James R. Siegel, Counsel INTRODUCTION The Veteran served on active duty from February 1971 to December 1975. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a January 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) that concluded new and material evidence had not been received to reopen claims for service connection for liver and stomach disabilities, and which denied the Veteran's claim for service connection for depression. When this case was previously before it in August 2011, the Board reopened the claims for service connection for stomach and liver conditions. The claims on the merits, as well as the claim for service connection for depression, were remanded for additional development and/or to ensure due process. The case is again before the Board for appellate consideration. In its August 2011 determination, the Board remanded the Veteran's claim for service connection for an eye disability. By rating action dated August 2012, the RO granted service connection for glaucoma. Accordingly, this decision is limited to the issues set forth on the preceding page. The issues of service connection for a disability of the hips, to include on a secondary basis, an attempt to reopen the claim for service connection for hypertension, an increased rating for the Veteran's service-connected low back disability, special monthly compensation based on the need for aid and attendance or by reason of being housebound, and a claim for a total rating based on individual unemployability due to service-connected disability have been raised by the record, but have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over them, and they are] referred to the AOJ for appropriate action. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. There has been no demonstration by competent medical, or competent and credible lay, evidence of record that the Veteran has a stomach disability that is related to service. 2. Service connection is in effect for degenerative disc disease of the lumbar spine, evaluated as 10 percent disabling, and for glaucoma, evaluated as noncompensable. 3. The Veteran does not currently have a liver disorder. 4. There has been no demonstration by competent medical, or competent and credible lay, evidence of record that the Veteran has depression that is related to service. CONCLUSIONS OF LAW 1. A liver disability was not incurred in or aggravated by active service, nor is it proximately due to or the result of, or chronically aggravated by, service-connected disability. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. 3.310(a) (2012). 2. A stomach disability was not incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002). 3. Depression was not incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act The Veterans Claims Assistance Act (VCAA) redefined VA's duty to assist the appellant in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2012). Duty to Notify The notice requirements of the VCAA require VA to notify a Veteran of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, the VA will attempt to obtain. 38 C.F.R. § 3.159(b) (2012). The requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between a veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO). Id; see also Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, insufficiency in the timing or content of VCAA notice is harmless if the errors are not prejudicial to the claimant. Conway v. Principi, 353 F.3d 1369, 1374 (Fed. Cir. 2004) (VCAA notice errors are reviewed under a prejudicial error rule). In any event, where complete notice is not timely accomplished, such error may be cured by issuance of a fully compliant notice, followed by readjudication of the claim. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). By letter dated June 2009, issued prior to the rating decisions on appeal, and by letter dated October 2011, the RO provided notice to the Veteran regarding what information and evidence were needed to substantiate his claim for service connection, as well as what information and evidence must be submitted by the Veteran and what information and evidence will be obtained by VA. These letters advised the Veteran of how the VA assigns a disability rating and an effective date, and the type of evidence which impacts such. Although VCAA notice was not completed prior to the initial adjudication of the claim, the Veteran has not been prejudiced thereby. In this regard, the Board notes that the claim was readjudicated following completion of the VCAA notice. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Conway v. Principi, 353 F.3d 1369, 1374 (Fed. Cir. 2004). Duty to Assist The record reflects that VA has made reasonable efforts to obtain relevant records adequately identified by the appellant. Specifically, the information and evidence that have been associated with the claims file include the service treatment records, VA medical records, the reports of VA examinations, and the testimony of the Veteran at a hearing before the undersigned. The duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim, as defined by law. McLendon v. Nicholson, 20 Vet. App. 79 (2006). If VA provides a claimant with an examination in accordance with the duty to assist, the examination must be adequate. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). The probative value of a medical opinion is derived from a factually accurate, fully articulated, and soundly reasoned opinion. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). VA examinations were conducted, and opinions regarding the etiology of the Veteran's stomach and liver disabilities have been obtained. The VA opinions were rendered by medical professionals who clinically evaluated the Veteran, and provided a factual foundation for the conclusions that were reached. Therefore, the Board finds that the opinions are adequate. See Nieves-Rodriguez, 22 Vet. App. at 304. As discussed above, the appellant was notified and made aware of the evidence needed to substantiate his claim, the avenues through which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence. The Veteran has been an active participant in the claims process by submitting evidence and providing testimony. Thus, he has been provided with a meaningful opportunity to participate in the claims process and has done so. Any error in the sequence of events or content of the notice is not shown to have affected the essential fairness of the adjudication or to cause injury to the claimant. Therefore, any such error is harmless and does not prohibit consideration of these matters. See Conway, supra; Dingess, supra; see also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). Analysis The Board has reviewed all the evidence in the appellant's claims file. Although there is an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the appellant or obtained on his behalf be discussed in detail. Rather, the analysis below will focus specifically on what evidence is needed to substantiate the claims and what the evidence in the claims file shows, or fails to show, with respect to the claims. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. § 3.303(b). Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). VA amended 38 C.F.R. § 3.310, the regulation concerning secondary service connection. The intent was to conform the regulation to Allen v. Brown, 7 Vet. App. 439 (1995), the United States Court of Appeals for Veterans Claims (Court) decision that clarified the circumstances under which a veteran may be compensated for an increase in the severity of an otherwise nonservice-connected condition caused by aggravation from a service-connected condition. Effective October 10, 2006, the section heading of 38 C.F.R. § 3.310 was retitled "Disabilities that are proximately due to, or aggravated by, service-connected disease or injury." The former paragraph (b) of 38 C.F.R. § 3.310 was redesignated as paragraph (c), and a new paragraph (b) was added: (b) Aggravation of nonservice-connected disabilities. Any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease, will be service connected. However, VA will not concede that a nonservice-connected disease or injury was aggravated by a service-connected disease or injury unless the baseline level of severity of the nonservice-connected disease or injury is established by medical evidence created before the onset of aggravation or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity of the nonservice-connected disease or injury. The rating activity will determine the baseline and current levels of severity under the Schedule for Rating Disabilities (38 CFR part 4) and determine the extent of aggravation by deducting the baseline level of severity, as well as any increase in severity due to the natural progress of the disease, from the current level. In order to prevail on the issue of service connection on a direct-incurrence basis there must be medical 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); see also Barr v. Nicholson, 21 Vet. App. 303 (2007); Pond v. West, 12 Vet App. 341, 346 (1999). I. Liver and stomach disabilities The Veteran has been granted service connection for degenerative disc disease of the lumbar spine, evaluated as 10 percent disabling, and for glaucoma, evaluated as noncompensable. The evidence supporting the Veteran's claim includes his statements and some of the findings of record. The service treatment records disclose the Veteran was seen in May 1975 and complained of headache and nausea. An examination of the abdomen revealed increased bowel sounds. It was noted there was generalized discomfort with palpation, with increased tenderness in the right upper quadrant. The assessment was abdominal pain of unknown etiology. Several days later, the Veteran was contacted and advised that all laboratory studies, including liver function tests, were within normal limits. The Veteran complained of headache and nausea in August 1975. The impression was possible gastroenteritis. Medication was prescribed, and a bland diet was recommended. VA outpatient treatment records show the Veteran complained of epigastric upset in December 1978. He was seen in January 1979 and complained of indigestion. He reported the pains in his stomach radiated to his back. The assessments were gastritis, and to rule out an ulcer. Two days later, the Veteran reported his stomach was still slightly upset. The assessment was mild gastritis. Laboratory tests at a VA facility in May 2009 disclose that ALT and AST were elevated. It was indicated the next day that the Veteran had hepatic steatosis. The Veteran was seen in the gastroenterology clinic in June 2009 and it was noted he had elevated liver enzymes. The evidence against the Veteran's claim includes the service treatment records and the post service medical findings of record. On a report of medical history in October 1975, the Veteran denied a history of stomach and liver trouble. A clinical evaluation of the abdomen and viscera in October 1975 was normal. The Board notes that when the Veteran was seen by the VA for gastrointestinal complaints from December 1978 to January 1979, it was concluded his gastritis had resolved. An upper gastrointestinal series at a VA facility in January 1979 was essentially negative. VA examinations in May 1979 and February 1981 reflect that the digestive system was evaluated as normal. The Veteran was afforded VA examinations of the stomach and liver in December 2011. It was reported the Veteran had been seen for non-specific abdominal pain in May 1975 and for gastroenteritis three months later. The examiner noted the stomach was normal on the separation examination. He also indicated the Veteran was diagnosed with gastroesophageal reflux disease in 2010. The diagnosis was gastroesophageal reflux disease. The examiner concluded that the claimed condition was less likely than not incurred in or caused by the claimed in-service event. He observed that while the Veteran was seen on a few occasions in service for gastrointestinal complaints, he had no ongoing treatment and did not have a stomach condition. He added the Veteran was not diagnosed with gastroesophageal reflux disease until 2010, many years after service. He also noted the Veteran had many nonservice-connected conditions, including diabetes mellitus and familial adenomatous polyposis, that can cause gastroesophageal reflux disease. With respect to a liver condition, the examination report shows the Veteran had diabetes mellitus and congenital familial adenomatous polyposis, an inherited condition that causes multiple colon polyps and a high risk of colon cancer. The examiner observed that it was felt in May 2009 that the Veteran had hepatic steatosis because of diabetes mellitus. He added that current examinations no longer show hepatic steatosis, and he related that pelvic and abdominal CT scans in October 2010 showed a normal liver. The examiner also pointed out that the Veteran had a history of elevated liver enzymes, but they had returned to normal. Finally, he stated the service treatment records did not show ongoing treatment for a liver condition, and the separation examination was normal for the liver. The examiner opined that any claimed liver condition was less likely than not incurred or caused by an in-service event. It was noted the Veteran had no ongoing treatment for a liver condition in service, and that a diagnosis of fatty liver (hepatic steatosis) was made in 2009, many years after service. He added that current CT demonstrated no liver condition, and liver enzymes had returned to normal. There was no current liver diagnosis. The examiner also concluded that a liver condition was less likely than not proximately due to or the result of the Veteran's service-connected disability. He noted that degeneration of the lumbar spine would not cause a fatty liver or liver enzyme elevation. Finally, he reiterated that the Veteran did not currently have a fatty liver, hepatic steatosis or liver enzyme elevation, other than occasional mild alkaline phosphatase elevation. The record is devoid of any complaint or finding relative to a liver condition for many years following service. Evidence of a prolonged period without medical complaint is for consideration. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed.Cir.2000). While the fact that a liver condition was initially documented many years after service is not dispositive, it is crucial evidence and, combined with the absence of any medical records of a diagnosis or treatment for many years after service is probative evidence against the claim. See Mense v. Derwinski, 1 Vet. App. 354, 356 (1991) (affirming Board where it found that veteran failed to account for the lengthy time period after service for which there was no clinical documentation of low back condition). In light of the absence of a liver disability for so many years after service, the Board finds that the objective medical evidence of record outweighs the credibility of his reported onset and continuity of symptomatology. Such records are more reliable, in the Board's view, than the Veteran's unsupported and contradictory assertions of the onset of his symptomatology. See Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) [VA cannot ignore a veteran's testimony simply because the veteran is an interested party; personal interest may, however, affect the credibility of the evidence]; see also Curry v. Brown, 7 Vet. App. 59, 68 (1994) [contemporaneous evidence has greater probative value than history as reported by the veteran]. The Board notes the Veteran did have gastrointestinal complaints approximately three years after his discharge from service. It was determined he had gastritis which resolved following treatment. A VA physician concluded that the Veteran's stomach condition is less likely as not related to service. He also found that the Veteran did not have a current liver condition, but when he did, it was not related to service. In Brammer v. Derwinski, 3 Vet. App. 223 (1992), the United States Court of Appeals for Veterans Claims noted that Congress specifically limited entitlement for service-connected disease or injury to cases where such incidents had resulted in a disability. As noted above, the VA physician recently concluded the Veteran does not have any current liver disorder. In the absence of proof of a present disability, there can be no valid claim. Since the Veteran does not have a liver condition, service connection for this disability may not be granted. The Veteran also argues he has a liver condition is related to his service-connected low back disability. There is no objective evidence supporting this claim. As noted above, following the most recent VA examination, the examiner insisted there was no relationship between the Veteran's service-connected low back disability and any liver disorder, and further noted the Veteran did not currently have any liver disability. The Board also acknowledges the assertions of the Veteran that his liver and stomach conditions are related to service. However, as a lay person, he is not competent to diagnose any such disability, or render an opinion as to its cause or etiology, as that requires medical expertise which he is not shown to possess. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed.Cir.2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis). Although the Veteran is competent to testify as to the fact he has liver and stomach conditions, where the determinative issue involves a question of medical diagnosis or causation, only individuals possessing specialized medical training and knowledge are competent to render such an opinion. Espiritu v. Derwinski, 2 Vet. App. 492 (1992). The evidence does not reflect that the Veteran currently possesses a recognized degree of medical knowledge that would render his opinions on medical diagnosis or causation competent. The competent medical opinion of record fails to attribute the Veteran's liver or stomach disabilities to service. The Board concludes, therefore, that the medical findings are of greater probative value than the Veteran's allegations regarding the existence of a liver condition or the etiology of a stomach disorder. Accordingly, the Board finds the preponderance of the evidence is against the claim for service connection for a stomach condition or a liver disability, to include on a secondary basis. II. Depression The service treatment records are negative for complaints or findings pertaining to depression. The Veteran denied depression on a report of medical history in October 1975, shortly before his discharge from service. A psychiatric evaluation 0was normal on the separation examination in October 1975. The Board acknowledges the Veteran was noted to be slightly nervous when he was seen at a VA clinic in January 1979 for gastrointestinal complaints. No psychiatric findings were listed. Psychiatric evaluations on VA examinations in May 1979 and February 1981 were normal. VA medical records disclose the Veteran was seen by a social worker in September 1986. He said he did not know what was wrong, and requested evaluation for treatment for a nervous condition. He claimed he saw a psychiatrist while he was on Guam, but indicated he was not hospitalized or treated with medication. He conceded he had not received treatment since then. He admitted to feeling depressed. An examination revealed his mood was grossly depressed. When seen at the mental health clinic that same day, the Veteran reported he had the same problem in service, but that six months earlier, he felt it was getting worse. It was noted he appeared depressed. The Veteran was admitted to a VA hospital in November 1986 due to increasing depression. Hospital records reflect the Veteran indicated he had been treated since September 1986. He noted he had been depressed since November 1986 when the VA sent him a third letter requesting a refund for an overpayment. It was also indicated he was depressed due to a lack of employment. The diagnoses were adjustment disorder with mixed emotional features, and mixed personality disorder, passive aggressive and dependent. During the hearing in May 2011 before the undersigned, the Veteran testified he was mistreated in service. He claims he sought treatment during service for psychiatric problems at an Air Force base. He indicated he was told it was a "money issue thing" and that debt makes every one depressed. He reported he continued treatment after service. The Veteran reports he was treated in service for psychiatric symptoms. While he is competent to testify to this, the fact remains that he specifically denied ever having been depressed when he was examined in October 1975, prior to his separation from service. It is also significant to note that a psychiatric evaluation at that time did not demonstrate any abnormality. The Board also notes that when he was seen by the VA in September 1986, he asserted he had not been treated since his discharge from service. This is inconsistent with his allegations at the hearing that he continued to receive treatment for psychiatric symptoms after service. The Board finds, therefore, that the Veteran's statements regarding his psychiatric treatment are not credible. The Board acknowledges the assertions of the Veteran that he has depression that is related to service. As a lay person, however, he is not competent to diagnose any such disability, or render an opinion as to its cause or etiology, as that requires medical expertise which he is not shown to possess. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed.Cir.2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis). Although the Veteran is competent to testify as to the fact he has depression, where the determinative issue involves a question of medical diagnosis or causation, only individuals possessing specialized medical training and knowledge are competent to render such an opinion. Espiritu v. Derwinski, 2 Vet. App. 492 (1992). The evidence does not reflect that the Veteran currently possesses a recognized degree of medical knowledge that would render his opinions on medical diagnosis or causation competent. In sum, there is no competent evidence that establishes the Veteran has depression that is related to service. The Board concludes, therefore, that the medical findings are of greater probative value than the Veteran's allegations regarding the etiology of depression. Accordingly, the Board finds the preponderance of the evidence is against the claim for service connection for depression. III. Additional considerations In reaching the above conclusions, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C.A. § 5107(b) (West 2002); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). ORDER Service connection for a liver disability, a stomach disability and for depression is denied. ____________________________________________ ROBERT E. SULLIVAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs