Citation Nr: 1302187 Decision Date: 01/18/13 Archive Date: 01/23/13 DOCKET NO. 08-08 921 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUES 1. Entitlement to service connection for psychogenic gastrointestinal reaction. 2. Entitlement to service connection for a gastrointestinal disorder, to include gastroesophageal reflux disease (GERD). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Christopher Murray, Counsel INTRODUCTION 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). The Veteran had active military service from April 1945 to July 1946 and from September 1950 to June 1951. This case comes before the Board of Veterans' Appeals (Board) on appeal of a December 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado. The Veteran testified before the Board at a June 2011 hearing. A transcript of the hearing is of record. This case was brought before the Board in October 2011, at which time the claim was remanded to allow the Agency of Original Jurisdiction (AOJ) to further assist the Veteran in the development of his claim. The case is once again before the Board for appellate consideration of the issue on appeal. The issue of entitlement to service connection for a gastrointestinal disorder is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT The Veteran has not been diagnosed with psychogenic gastrointestinal reaction at any point during the appeal period. CONCLUSION OF LAW The criteria for service connection for psychogenic gastrointestinal reaction have not been met. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist When VA receives a complete or substantially complete application for benefits, it must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). See also Quartuccio v. Principi, 16 Vet. App. 183 (2002); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In the instant case, the Veteran received notification prior to the initial unfavorable agency decision in December 2006. The RO's December 2005 and February and March 2006 notice letters advised the Veteran what information and evidence was needed to substantiate the claim decided herein and what information and evidence must be submitted by him, namely, any additional evidence and argument concerning the claimed condition and enough information for the RO to request records from the sources identified by the Veteran. He was specifically told that it was his responsibility to support the claim with appropriate evidence. Finally the letters advised him what information and evidence would be obtained by VA, namely, records like medical records, employment records, and records from other Federal agencies. The duty to notify the Veteran was satisfied under the circumstances of this case. 38 U.S.C.A. § 5103. During the pendency of this appeal, on March 3, 2006, the United States Court of Appeals for Veterans Claims (Court) issued a decision in Dingess v. Nicholson, 19 Vet. App. 473, 484 (2006), which held that the VCAA notice must include notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. A March 2006 VCAA letter provided such notice. In light of the above, the Board finds that all notices required by VCAA and implementing regulations were furnished to the Veteran and that no useful purpose would be served by delaying appellate review to send out additional VCAA notice letters. VA must also make reasonable efforts to assist the appellant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claims. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159 (2012). Service treatment records are associated with claims file. All post-service VA and private treatment records identified by the Veteran have also been obtained. Therefore, VA's duty to further assist the Veteran in locating additional records has been satisfied. The Veteran was afforded VA examinations in September 2006 and November 2011. See 38 U.S.C.A. § 5103A(d); see also 38 C.F.R. § 3.159 (c)(4) (2012); Wells v. Principi, 327 F. 3d 1339, 1341 (Fed. Cir. 2002). The Board finds the VA examinations adequate for the purposes of determining service connection, as they involved a review of the Veteran's pertinent medical history as well as a clinical evaluation of the Veteran, and provide an adequate basis for the diagnosis rendered. See generally Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). As a final note, the Board again observes this case was previously remanded by the Board in October 2011 for additional development. Specifically, the Board determined that the AOJ should make additional attempts to obtain private and VA treatment records and the Veteran should be provided further VA examinations. As noted above, the records identified by the Veteran have been obtained and associated with the claims file, and the Veteran was provided additional VA examinations in November 2011, which the Board has found to be adequate for the purposes of the instant case. As such, the Board finds there has been substantial compliance with the October 2011 remand, and adjudication of the instant claim may proceed. See Stegall v. West, 11 Vet. App. 268, 271 (1998). In light of the foregoing, the Board is satisfied that all relevant facts have been adequately developed to the extent possible; no further assistance to the appellant in developing the facts pertinent to the issue on appeal is required to comply with the duty to assist. 38 U.S.C.A. §§ 5103 and 5103A; 38 C.F.R. § 3.159. Analysis Under 38 U.S.C.A. § 7104, Board decisions must be based on the entire record, with consideration of all the evidence. The law requires only that the Board address its reasons for rejecting evidence favorable to the claimant. Timberlake v. Gober, 14 Vet. App. 122 (2000). The Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378 (Fed. Cir. 2000). 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; 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). 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 postservice 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 postservice symptomatology. Barr, 21 Vet. App. at 307 (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 Veteran maintains he suffers from psychogenic gastrointestinal reaction as directly related to his period of active service. After reviewing the record in its entirety, the Board notes that, while the record supports the Veteran's assertion of an in-service diagnosis of psychogenic gastrointestinal reaction, the preponderance of the evidence weighs against a finding that the Veteran is currently diagnosed with the disorder. Significantly, the Board observes a September 2006 VA gastrointestinal examination notes the Veteran's service treatment records note a diagnosis of psychogenic gastrointestinal disorder. However, following a clinical evaluation of the Veteran, the VA examiner rendered a current diagnosis of gastroesophageal reflux disease (GERD) with findings of esophagitis. A VA psychiatric examination diagnosed generalized anxiety disorder. Pursuant to the Board's remand instructions, the Veteran was provided a second set of VA examinations in November 2011, which also included a clinical evaluation. Following a review of the claims file and clinical evaluation, the VA examiner again determined the Veteran currently suffers from GERD with distal esophagitis. To prevail on the issue of service connection, there must be medical evidence of a current disability at some point during the pendency of the claim. See Degmetich v. Brown, 104 F.3d 1328 (Fed. Cir. 1997) (a "current disability" means a disability shown by competent medical evidence to exist at the time of the award of service connection); Brammer v. Derwinski, 3 Vet. App. 223 (1992) (in the absence of proof of a present disability, there can be no valid claim for service connection as Congress has specifically limited entitlement to service connection to cases where such incidents have resulted in a disability). The Board acknowledges the Veteran has been previously diagnosed with psychogenic gastrointestinal disorder. However, there is no clinical diagnosis of psychogenic gastrointestinal disorder contained in the record during the current appeal period. See McClain v. Nicholson, 21 Vet. App. 319 (2007) (a "current disability" exists if the diagnosed disability is present at the time of the claim or during the pendency of that claim). Therefore, these earlier diagnoses may not be relied upon to award service connection for the disorder. Finally, to the extent the Veteran's earlier diagnosis of psychogenic gastrointestinal disorder may have developed into a separate, distinct psychiatric or gastrointestinal disorder, the Board observes that service connection for an anxiety disorder was granted by a September 2012 rating decision, and the Veteran's claim of service connection for a gastrointestinal disorder has been remanded by the Board below. Therefore, this decision does not affect the Veteran's separate claims for either a psychiatric or gastrointestinal disorder. Accordingly, for the reasons discussed above, the Board concludes that the preponderance of the evidence is against the claim for service connection for psychogenic gastrointestinal disorder, and the benefit of the doubt rule does not apply. See 38 U.S.C.A. § 5107 (West 2002). ORDER Service connection for psychogenic gastrointestinal disorder is denied. REMAND The Veteran has claimed service connection for a gastrointestinal disorder, currently diagnosed as GERD with distal esophagitis, on both a direct and secondary basis. With regards to direct service connection, the Veteran claims he began to suffer from stomach problems in service, and has continued to suffer from such symptomatology since. With respect to secondary service connection, he asserts his gastrointestinal disorder may be due to, or in the alternative aggravated by, medications prescribed for his service-connected psychiatric disorder. Following the October 2011 remand, the Veteran was provided a VA gastrointestinal examination in November 2011. The VA examiner noted that the Veteran's service treatment records includes a report of a gastrointestinal series (x-ray study) which more likely eliminates GERD as being present at that time. Based on this finding, the examiner opined that it is less likely as not that the Veteran's GERD is etiologically related to his active service. The examiner also opined that there is no scientific evidence to relate the reflux of stomach contents into the esophagus due to a psychiatric disorder. In reviewing the November 2011 examination report, the Board notes that the examiner's opinion does not address the Veteran's assertion of continuity of symptomatology, nor does it address his assertion that medication prescribed to treat his psychiatric disorder, and not necessarily the psychiatric disorder itself, caused or aggravated his current gastrointestinal disorder. Once VA undertakes a duty to provide a medical examination, due process requires VA to notify the claimant prior to the adjudication of the claim of any inability to obtain evidence sought (including a VA examination with medical opinion). See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007); see also Daves v. Nicholson, 21 Vet. App. 46, 51 (2007), citing Green v. Derwinski, 1 Vet. App. 121, 123-124 (1991); Bowling v. Principi, 15 Vet. App. 1, 12 (2001) (emphasizing the Board's duty to return an inadequate examination report "if further evidence or clarification of the evidence... is essential for a proper appellate decision"). As the November 2011 VA examination does not address all of the Veteran's assertions, namely a continuity of symptomatology and/or secondary service connection due to medication prescribed to treat a service-connected condition, a new VA opinion is required. Accordingly, the case is REMANDED for the following action: (This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) 1. Return the claims folder to the VA gastrointestinal examiner (or if unavailable to another appropriate VA medical specialist) for an addendum opinion regarding the nature and etiology of any current gastrointestinal disorder. If the examiner determines that an examination is necessary to answer the Board's questions, one should be scheduled. Following a review of the claims folder, and clinical examination if deemed necessary, the examiner should address the following: a. Is it at least as likely as not (probability of at least 50 percent) that any current gastrointestinal disorder is etiologically related (caused/aggravated by or incurred in) the Veteran's periods of active service? In rendering this opinion, the examiner must address the Veteran's assertions of a continuity of symptomatology since service. b. If (a) is answered in the negative, is it at least as likely as not (probability of at least 50 percent) that any current gastrointestinal disorder is proximately due to (caused by) or aggravated (chronically worsened) by a service-connected psychiatric disability. In rendering this opinion, the examiner must address the effects of medication prescribed for the Veteran's psychiatric disability. The examiner is requested to provide a complete rationale for any opinion expressed, based on the examiner's clinical experience, medical expertise, and established medical principles. If an opinion cannot be made without resort to speculation, the examiner should provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made. 2. After completing the above, and any other development deemed necessary, readjudicate the Veteran's claim based on the entirety of the evidence. If the benefits sought on appeal are not granted to the appellant's satisfaction, he and his representative should be provided with a supplemental statement of the case. An appropriate period of time should be allowed for response. The appellant has the right to submit additional evidence and argument on the matter or matters 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. 2012). ______________________________________________ S. L. Kennedy Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs