Citation Nr: 1303390	
Decision Date: 01/31/13    Archive Date: 02/05/13

DOCKET NO.  08-00 147A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida


THE ISSUE

Entitlement to service connection for pancreatitis.  


REPRESENTATION

Appellant represented by:	Florida Department of Veterans Affairs


ATTORNEY FOR THE BOARD

Nadine W. Benjamin, Counsel



INTRODUCTION

The Veteran (appellant) served on active duty from March 1977 to May 1981.  He also served in the U.S. Army Reserves from March 1982 to February 1983.  

This matter comes to the Board of Veterans' Appeals (Board) on appeal from a rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida.  

In May 2009 and in March 2011, the Board remanded this claim for additional development.  The case has been returned to the Board and is ready for further review.  The Board is satisfied that there was substantial compliance with its remand directives.  See Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999).  In this regard, personnel records were obtained.  

The Board observes that the Veteran has also alleged clear and unmistakable error (CUE) in the December 2006 rating decision; however, as that decision is currently on appeal and thus not final, it is not subject to revision based on CUE.  Specifically, in the absence of a final decision, a motion for CUE is premature as there is no allegation of fact or law upon which relief may be granted. 

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).


FINDING OF FACT

Pancreatitis was not present during the Veteran's active service or the result of disease or injury incurred or aggravated during his active service.  



CONCLUSION OF LAW

The criteria for service connection for pancreatitis have not been met.  38 U.S.C.A. §§ 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2012).


REASONS AND BASES FOR FINDING AND CONCLUSION

With regard to the Veteran's claim decided herein, VA has met all statutory and regulatory notice and duty to assist provisions.  See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2012).

Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim.  See 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2012); Quartuccio v. Principi, 16 Vet. App. 183 (2002).  In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II), the United States Court of Appeals for Veterans Claims (Court) held that VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide.  Prior to the initial adjudication of the Veteran's claim, a letter dated in May 2006 fully satisfied the duty to notify provisions.  See 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b)(1) (2012); Quartuccio at 187.

Additionally, the May 2006 letter informed the Veteran of how VA determines the appropriate disability rating or effective date to be assigned when a claim is granted, consistent with the holding in Dingess/Hartman v. Nicholson.  See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).

The Board also concludes VA's duty to assist has been satisfied.  The Veteran's service treatment records, service personnel records, private treatment records and VA treatment records are in the file.  The Veteran has at no time referenced outstanding private treatment or other records that he wanted VA to obtain or that he felt were relevant to the claim. 

The RO attempted to provide the Veteran with VA examinations to determine the etiology of his pancreatitis.  He failed to appear and has indicated that he did not feel that he had to appear.  Thus the Board must make a determination based on the evidence of record.  38 C.F.R. § 3.655(c) (2012).  

As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006).


Service Connection

The Board must determine the value of all evidence submitted, including lay and medical evidence.  Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006).  The evaluation of evidence generally involves a three-step inquiry.  

First, the Board must determine whether the evidence comes from a "competent" source.  

The Board must then determine if the evidence is credible, or worthy of belief.  Barr v. Nicholson, 21 Vet. App. 303 at 308 (2007) (Observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible).  

The third step of this inquiry requires the Board to weigh the probative value of the proffered evidence in light of the entirety of the record.

Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience.  Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person.  38 C.F.R. § 3.159.  Lay evidence may be competent and sufficient to establish a diagnosis of a condition when:

(1) a layperson is competent to identify the medical condition (i.e., when the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer);

      (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.

Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007); see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009) (where widow seeking service connection for cause of death of her husband, the Veteran, the Court holding that medical opinion not required to prove nexus between service connected mental disorder and drowning which caused Veteran's death).

In ascertaining the competency of lay evidence, the Courts have generally held that a layperson is not capable of opining on matters requiring medical knowledge. Routen v. Brown, 10 Vet. App. 183 (1997).  In certain instances, however, lay evidence has been found to be competent with regard to a disease with "unique and readily identifiable features" that is "capable of lay observation."  See, e.g., Barr v. Nicholson, 21 Vet. App. 303 (2007) (concerning varicose veins); see also Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007) (a dislocated shoulder); Charles v. Principi, 16 Vet. App. 370 (2002) (tinnitus); Falzone v. Brown, 8 Vet. App. 398 (1995) (flatfeet).  Laypersons have also been found to not be competent to provide evidence in more complex medical situations.  See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (concerning rheumatic fever).

Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions.  

Competent medical evidence may also include statements conveying sound medical principles found in medical treatises.  It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a) (1).

After determining the competency and credibility of evidence, the Board must then weigh its probative value.  In this function, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant.  Caluza v. Brown, 7 Vet. App. 498, 511-512 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (per curiam) (table); see Madden v. Brown, 125 F.3d 1447 (Fed Cir. 1997) (holding that the Board has the "authority to discount the weight and probative value of evidence in light of its inherent characteristics in its relationship to other items of evidence").

Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability.  Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table).

Demonstration of continuity of symptomatology is an alternative method of establishing the second and third Shedden /Caluza element under 38 C.F.R. § 3.303(b).  Barr v. Nicholson, 21 Vet. App. 303 (2007); Savage v. Brown, 10 Vet. App. 488, 495-97 (1997); Clyburn v. West, 12 Vet. App. 296, 302 (1999). 

Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology.  Savage, 10 Vet. App. at 495-96; Hickson, 12 Vet. App. at 253 (lay evidence of in-service incurrence sufficient in some circumstances for purposes of establishing service connection); 38 C.F.R. § 3.303(b).

If a chronic disease is shown in service, subsequent manifestations of the same chronic disease at any later date, however remote, may be service connected, unless clearly attributable to intervening causes.  38 C.F.R. § 3.303(b) (2012).  

However, a continuity of symptoms is required where a condition in service is noted but is not, in fact, chronic or where a diagnosis of chronicity may be legitimately questioned.  38 C.F.R. § 3.303(b) (2012).

The Veteran's service treatment records show no complaint, diagnosis or treatment for a pancreatic disorder.  After service, VA records show treatment for nausea and vomiting for one week on April 14, 1982.  He reported a two week history of stomach trouble.  Pancreatitis was diagnosed.  Private medical records show treatment for pancreatitis beginning in 2001.  The record contains findings of pancreatitis and history of pancreatitis thereafter in private and VA records into 2007.  (See, e.g. VA outpatient treatment record of April 2006 and private record of April 2007).  Thus, the record clearly shows a current disability.  

The Board must now determine the whether the Veteran's pancreatitis disability was incurred or aggravated during a period of active service to allow for a grant of service connection.  Under 38 U.S.C.A. § 101(24) "active military, naval, or air service includes active duty, any period of active duty service for training [ACDUTRA] during which the individual concerned was disabled or died from a disease or injury incurred in or aggravated in line of duty, or any period of inactive duty training [INACDUTRA] from an injury incurred or aggravated in line of duty during which the individual concerned was disabled or died from an injury incurred or aggravated in line of duty."

The record clearly verifies the Veteran's period of active duty service from March 1977 to May 1981.  He also served in the U.S. Army Reserves from March 1982 to February 1983.  

Service connection may be granted for disability resulting from disease or injury incurred in or aggravated while performing ACDUTRA or for injury incurred in or aggravated while performing INACDUTRA. 38 U.S.C.A. §§ 101(24), 106, 1110, 1131.  In other words, service connection is available for injuries, but not diseases, sustained on INACDUTRA.  Brooks v. Brown, 5 Vet. App. 484 (1994). 

The evidence does not show, and the Veteran does not contend, that he has experienced pancreatitis during active service.  Thus, in order to warrant service connection, the evidence must show that the Veteran's disorder was incurred or aggravated during his period of ACDUTRA.  

As noted above, service treatment records from the Veteran's period of active duty service are entirely negative for complaints or findings related to pancreatitis.  Thus, the earliest documented treatment occurs in April 1982 at a VA facility.  If the Board finds that the Veteran served on ACDUTRA during this treatment, service connection is possible for the Veteran's pancreatitis if the weight of the evidence shows it had its onset or was aggravated at that time; if the service is not shown to be ACDUTRA, service connection is precluded by 38 U.S.C.A. §§ 1110 , 1131 (West 2002).  

With respect to the characterization of the Veteran's service on April 14, 1982, the record does not clearly verify this as a period of ACDUTRA.  One earnings and leave statement issued by the Defense Finance and Accounting Service indicates that the Veteran received no pay for the period from April 1, 1982, to April 30, 1982.  In the remarks section the dates April 3, and April 4, are designated, but the meaning of the designation of the dates is not immediately apparent.  However, the fact that he received no pay for the month of April 1982 indicates that he did not serve on ACDUTRA during that time.  The Veteran's personnel records also do not establish that he served on ACDUTRA at the time his treatment for pancreatitis first occurred.  

The Veteran has suggested that the pancreatitis should be service-connected since it was diagnosed shortly after a year after service.  The Board would point out that pancreatitis is not a disease that can be service connected on a presumptive basis since it is not included in the enumerated list of diseases eligible for presumptive service connection as either a chronic disease.  38 C.F.R. §3.309(a).  Based on the contents of the Veteran's Reserve personnel records and earning and leave statements, the Board cannot conclude that he served a period of ACDUTRA in April 1982.  As the Veteran has not been shown to have been serving on a period of ACDUTRA at the time of the April 1982 treatment for possible pancreatitis, service connection is not possible and the claim must be denied.  

Additionally, the Board would point out that the RO scheduled the Veteran for a VA examination to obtain a nexus opinion regarding this claim.  Unfortunately, he did not appear.  While he subsequently stated in April 2012 that he wished to be re-scheduled, and another examination was scheduled, again he did not appear.  In several statements submitted thereafter, he indicated that he did not feel he should have to appear for a VA examination and that he was not obligated to do so.  The Board notes that, while VA has a statutory duty to assist the Veteran in developing evidence pertinent to a claim, the Veteran also has a duty to assist and cooperate with VA in developing evidence; the duty to assist is not a one-way street.  See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991); see Hayes v. Brown, 5 Vet. App. 60, 68(1993) (VA's duty to assist is not a one-way street; if a Veteran wishes help, he/she cannot passively wait for it in those circumstances where his/her own actions are essential in obtaining the putative evidence).  The Board must base its determination on the current evidence and the evidence of record does not show that the current pancreatitis is related to the Veteran's service.  

Here, the Board finds that, while the Veteran has asserted that his pancreatitis was incurred in service, he has not demonstrated the medical knowledge required to establish an etiological nexus between his pancreatitis and service.  See Espiritu v. Derwinski, 2 Vet. App. 492, 495 (1992); see also 38 C.F.R. § 3.159 (a)(1) [competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions].  Therefore, although the statements of the Veteran in support of his claim have been given full consideration by the Board, they are not considered competent 
medical evidence and do not serve to establish a medical nexus between the claimed disorder and the Veteran's period of service.  

Further, the Board acknowledges that lay evidence concerning continuity of symptoms after service, if credible, is ultimately competent, regardless of the lack of contemporaneous medical evidence.  See Buchanan v. Nicholson, supra.  In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant.  See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990).  As noted, competency of evidence differs from weight and credibility.  Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, supra; see also Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify").  Here since the Veteran was not treated while on ACDUTRA and also reports no treatment during active service, continuity of symptoms is not indicated by the Veteran.  Moreover, the Veteran is not shown to have a medical background or to have submitted competent evidence to support his lay assertions as to this condition.   

The law provides that when, after consideration of all evidence and material of record, there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of a Veteran's claim, the benefit of the doubt shall be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102 (2012).  However, in this case, the preponderance of the evidence is against the claim. As such, the Board does not find that the evidence is in equipoise so as to warrant resolution of any doubt in the Veteran's favor.  See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); 38 U.S.C.A. § 5107(b).



ORDER

Entitlement to service connection for pancreatitis is denied.  



____________________________________________
L. M. BARNARD
Acting Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs