Citation Nr: 1300727 Decision Date: 01/08/13 Archive Date: 01/16/13 DOCKET NO. 07-12 381 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boston, Massachusetts THE ISSUES 1. Entitlement to service connection for a gastrointestinal disorder, specifically gastroesophageal reflux disease (GERD) and intestinal blockage. 2. Entitlement to service connection for pernicious anemia, including as secondary to the service-connected appendectomy scar. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD C. Fetty, Counsel INTRODUCTION This appeal has been advanced on the Board's docket pursuant to 38 U.S.C.A. § 7107(a)(2) (West 2002); 38 C.F.R. § 20.900(c) (2012). The Veteran had active service from February 1943 until December 1945. This matter arises to the Board of Veterans' Appeals (Board) from a July 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Boston, Massachusetts, which, in pertinent part, denied service connection for constipation/intestinal blockage and for pernicious anemia. In June 2009, the Board remanded multiple claims for development. In April 2012, the Board adjudicated all other issues that remained on appeal, but again remanded these remaining two claims for additional development. FINDINGS OF FACT 1. GERD arose many years after active military service. 2. The medical evidence dissociates GERD and intestinal blockage from any event of active service and from any service-connected disability. 3. Pernicious anemia arose many years after active military service. 4. The medical evidence dissociates pernicious anemia from any event of active service and from any service-connected disability. CONCLUSIONS OF LAW 1. Neither GERD nor intestinal blockage was incurred in active military service and neither GERD nor intestinal blockage is caused or aggravated by a service-connected disability. 38 U.S.C.A. §§ 1110; 1131 (West 2002), 38 C.F.R. § 3.303(a) (2012). 2. Pernicious anemia was not incurred in active military service and is not caused or aggravated by a service-connected disability. 38 U.S.C.A. §§ 1110; 1131 (West 2002), 38 C.F.R. § 3.303(a) (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS 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, all remand orders have been complied with. VA's duty to notify and assist is codified at 38 U.S.C.A. § 5103A (West 2002), at 38 U.S.C.A. § 5103 (West 2002 & Supp. 2012), and at 38 C.F.R. § 3.159 (2012). These sections provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim, but VA need not provide assistance where there is no reasonable possibility that such assistance would aid in substantiating the claim. These sections also provide that VA must notify the claimant and his representative of any information and any medical or lay evidence, not previously provided, that is necessary to substantiate the claim. VA must inform the claimant and his representative of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. The United States Court of Appeals for Veterans Claims (Court) has held that 38 U.S.C.A. § 5103(a) (West 2002), requires that notice to a claimant be provided 'at the time' that or 'immediately after' VA receives a complete or substantially complete application for VA-administered benefits. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). The timing requirement applies equally to the initial disability rating and effective-date elements of a service-connection claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). In this case, timely and adequate notice was provided in an April 2006 letter from VA to the claimant. 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 a VA medical examination and an addendum medical opinion was also obtained. 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 claims 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 claims. 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 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 primary anemia, 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). Although the Veteran has not made an allegation of combat, the record reflects that during WWII he served in the North Atlantic and Mediterranean areas aboard a destroyer escort. Thus, it is likely that he is a combat veteran. See Falk v. West, 12 Vet. App. 402 (1999) (if the ship upon which the Veteran served was in combat, so was the Veteran). Thus, he will be afforded the more favorable consideration afforded combat Veterans under 38 U.S.C.A. § 1154(b). Service connection may be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). Where a service-connected disability aggravates a nonservice-connected condition, a Veteran may be compensated for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation. Allen, 7 Vet. App. at 448. 38 C.F.R. § 3.310 was amended effective October 10, 2006; however, because the claims were received in September 2005, the earlier, possibly more lenient secondary service connection criteria, will be used. The Veteran's service treatment reports reflect that he underwent an appendectomy and an inguinal hernia repair surgery during active service. During recovery, he reported several days of constipation. After active service, the RO granted service connection for residuals of an appendectomy and residuals of an inguinal hernia repair. In his September 2005 service connection claim, the Veteran claimed service connection for a gastrointestinal disorder, claimed as constipation or intestinal blockage. He claimed that these disorders, in turn, caused pernicious anemia. A November 2009 VA digestive disorders compensation examination report reflects that relevant bowel dysfunction symptoms, such as abdominal pains and constipation, alternating with diarrhea, began only 10 years earlier. The examiner then attributed current problems to a ventral hernia, which, the examiner explained, was caused by stress on the abdominal wall during active service. Thus, it was at least as likely as not that a ventral hernia should be service-connected. In November 2010, the RO granted service connection for a ventral hernia. In July 2011, a VA examiner examined the Veteran and concluded that it is unlikely that GERD or an episode of apparent bowel obstruction was related to the in-service appendicitis and further found that the Veteran's pernicious anemia is caused by a vitamin B12 deficiency, secondary to GERD. In April 2012, the Board remanded the case for an addendum medical opinion-one that clarifies that the claims files were reviewed and that the Veteran's own account of symptoms dating back to active service were adequately considered. In July 2012, a VA physician reviewed the pertinent medical history and concluded that there was no evidence that an intestinal blockage or GERD began during active service. The physician noted that except for a complaint of constipation during active service, there was no documented gastric or bowel-related issue during active service or for many years thereafter, including during multiple post-service medical examinations. The July 2012 reviewing physician further noted that pernicious anemia arose in 2003, prior to GERD and was caused by an auto-immune disorder. The physician explained that pernicious anemia likely caused the Veteran's gastritis, given that pernicious anemia arose prior to the onset of gastritis or GERD. The physician noted that there is no known cause of pernicious anemia. The VA physician also explained that there was a greater-than-50-year gap between the Veteran's appendectomy and his anemia, which would also tend to dissociate anemia from the appendectomy. The physician noted that there was no consistent complaint of relevant symptoms during many years of examinations for other health concerns and numerous examination reports specifically mention that there were no abdominal findings. The July 2012 VA medical opinion is persuasive, as it is based on accurate facts and is supported by a 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 July 2012 VA opinion is not controverted by any other medical evidence, and the July 2012 opinion weighs heavily against the Veteran's claims for service connection. In short, the Veteran was not diagnosed with the claimed disorders during service or for years thereafter, and there is no medical opinion linking either of the currently claimed disorder to any aspect of the Veteran's period of service. The most on point medical evidence of record is a medical opinion weighing against the claim for service connection. There is no competing medical evidence or opinion. The only evidence favoring the claim is found in statements from the Veteran. The Veteran reported that his GERD/constipation and pernicious anemia are related to active service. The Board notes, however, that the Veteran is not medically trained and is thus not competent to say that currently diagnosed medical conditions began during service. He is competent to discuss his symptoms, and he is competent to identify epigastric pain and state when it began. Competency to discuss symptoms, however, does not equate to competency to diagnosis the disorders causing the symptoms or to confirm that a currently diagnosed medical condition is the same thing that may have caused similar symptoms years ago. Thus, VA cannot attach any weight to his lay opinion. See 38 C.F.R. § 3.159; 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). Here, because the medical opinion is against the Veteran's claim, and no health professional agrees that GERD/intestinal blockage, or pernicious anemia is related to active service, it cannot be said that the Veteran's statements or contentions support a later medical diagnosis. After considering all the evidence of record, the Board finds that the preponderance of the evidence is against the claims. The benefit of the doubt doctrine will therefore not be applied. See 38 U.S.C.A. § 5107 (West 2002); Gilbert, supra. Service connection for GERD and/or intestinal blockage must be denied. Service connection for pernicious anemia must be denied. ORDER Service connection for GERD and/or intestinal blockage is denied. Service connection for pernicious anemia, including as secondary to the service-connected appendectomy scar, is denied. ____________________________________________ DENNIS F. CHIAPPETTA Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs