Citation Nr: 1304284	
Decision Date: 02/06/13    Archive Date: 02/19/13

DOCKET NO.  09-24 125	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO) 
in Muskogee, Oklahoma


THE ISSUES

1. Entitlement to service connection for a stomach disorder.

2. Entitlement to service connection for a bilateral eye disorder.


REPRESENTATION

Appellant represented by:	Oklahoma Department of Veterans Affairs


ATTORNEY FOR THE BOARD

G. Jackson, Counsel




INTRODUCTION

The Veteran had active military service from January 1985 to December 2000. 

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2008 rating decision issued by the RO. In that rating decision, the RO denied entitlement to service connection for the claimed stomach and bilateral eye disorders.

The Veteran's appeal originally included the issues of entitlement to service connection for a right knee disorder, headaches, a left shoulder disorder, a right ankle disorder and a right heel disorder. During the pendency of the appeal, the RO, in an August 2012 decision, granted service connection for headaches, left shoulder tendinopathy and right knee chondromalacia patellae with anterior cruciate ligament repair and assigned 30, 20 and 10 percent ratings, respectively, for the disabilities, effective on August 24, 2007; the RO granted service connection for right foot metatarsalgia and right Achilles tendonitis with right ankle sprain with residual chronic laxity in an October 2012 rating decision and assigned 10 percent ratings, respectively, for the disabilities. The right foot metatarsalgia rating was effective on November 7, 2011 and the right Achilles tendonitis rating was effective on August 24, 2007. Therefore, his appeal concerning the issues of service connection for a right knee disorder, headaches, a left shoulder disorder, a right ankle disorder and a right heel disorder have been resolved. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997) (where an appealed claim for service connection is granted during the pendency of the appeal, a second NOD must thereafter be timely filed to initiate appellate review of the claim concerning the compensation level assigned for the disability).

The Board notes that, in addition to the paper claims file, there is a Virtual VA electronic claims file associated with the Veteran's claim. A review of the documents in the electronic file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issues on appeal.


FINDINGS OF FACT

1. A stomach disorder has not been shown by competent evidence to be causally related to the Veteran's service.

2. A visual impairment was noted on service entrance examination and did not undergo an increase in severity in service.

3. Presbyopia has been diagnosed.


CONCLUSIONS OF LAW

1. A stomach disorder was not incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp 2011); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2011).

2. An acquired bilateral eye disorder was not incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp 2011); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.306 (2011).

3.  Presbyopia is a refractive error and not due to a disease or injury.  38 C.F.R. § 3.303 (2011).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

Veterans Claims Assistance Act of 2000

The Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2011) includes enhanced duties to notify and assist claimants for VA benefits. VA regulations implementing the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2011).

The notice requirements of the VCAA require VA to notify the claimant of any evidence that is necessary to substantiate the claim, as well as the evidence VA will attempt to obtain and which evidence he is responsible for providing. 38 C.F.R. § 3.159(b) (2011). 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, the VCAA notice requirements may be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. See Pelegrini, 18 Vet. App. at 121.

In this case, in an October 2007 letter issued prior to the decision on appeal, the Veteran was provided notice regarding what information and evidence is 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. The letter advised the Veteran of how disability evaluations and effective dates are assigned, and the type of evidence which impacts those determinations.  

The record also reflects that VA has made reasonable efforts to obtain relevant records adequately identified by the Veteran. Specifically, the information and evidence that have been associated with the claims file include the Veteran's service treatment records, VA treatment records and examination reports.    

The VCAA provisions have been considered and complied with. The Veteran was notified and aware of the evidence needed to substantiate his claims, the avenues through which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence.  

The Veteran was an active participant in the claims process by providing evidence and argument and presenting for VA examinations. Thus, he was 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 notices is not shown to have any effect on the case or to cause injury to the Veteran. Therefore, any such error is harmless and does not prohibit consideration of this matter on the merits. See Dingess, supra; see also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998).

Laws and Regulations

Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires (1) evidence of a current disability; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) 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); see also Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table); 38 C.F.R. § 3.303. 
 
Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden/Caluza element is through a demonstration of continuity of symptomatology. See Barr v. Nicholson, 21 Vet. App. 303, 307 (2007); Savage v. Gober, 10 Vet. App. 488, 495-97 (1997); see also 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) evidence of a nexus between the present disability and the post-service symptomatology. Savage v. Gober, 10 Vet. App. 488, 495-96 (1997); 38 C.F.R. § 3.303(b). 

In relevant part, 38 U.S.C.A. § 1154(a) requires that the VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim to disability or death benefits. Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (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, 1377 (Fed. Cir.2007). In fact, competent medical evidence is not necessarily required when the determinative issue involves either medical etiology or a medical diagnosis. Id. at 1376-77; see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. Sept 14, 2009); Buchanan v. Nicholson, 451 F .3d 1331, 1337 (Fed. Cir.2006).

"Symptoms, not treatment, are the essence of any evidence of continuity of symptomatology." Savage, 10 Vet. App. at 496 (citing Wilson v. Derwinski, 2 Vet. App. 16, 19 (1991).  

Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno, supra (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted").

Service connection may also be granted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d).

A veteran will be considered to have been in sound condition when examined, accepted, and enrolled for active service, except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable (obvious or manifest) evidence demonstrates that an injury or disease existed prior thereto and was not aggravated by such service. Only such conditions as are recorded in examination reports are to be considered as noted. 38 U.S.C.A. § 1111; 38 C.F.R. § 3.304(b). 

A pre-existing injury or disease will be considered to have been aggravated by active military, naval or air service, where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306(a). Temporary or intermittent flare-ups during service of a pre-existing injury or disease are not sufficient to be considered aggravation in service unless the underlying disability, as contrasted to the symptoms of that disability, has worsened. See Crowe v. Brown, 7 Vet. App. 238, 247-48 (1994); Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). Clear and unmistakable evidence (obvious and manifest) is required to rebut the presumption of aggravation where the pre-service disability underwent an increase in severity during service. 38 C.F.R. § 3.306(b). 

To rebut the presumption of sound condition where a condition is not noted at service entry, VA must show by clear and unmistakable evidence both that the disease or injury existed prior to service and that the disease or injury was not aggravated by service. VAOPGCPREC 3-03 (July 16, 2003). The clear and unmistakable evidence standard requires that the result be undebatable. Cotant v. West, 17 Vet. App. 116, 131 (2003). In considering the effect of section 1111 on claims for service-connected disability, the United States Court of Appeals for the Federal Circuit (Federal Circuit) has stated that the government may show a lack of aggravation by establishing that there was no increase in disability during service or that any increase in disability was due to the natural progress of the preexisting condition. Wagner v. Principi, 370 F.3d 1089, 1094-96 (Fed. Cir. 2004) (citing 38 U.S.C.A. § 1153).

When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107(b).

Analysis

Stomach disorder

The Veteran essentially asserts that his stomach disorder had an onset in service. A December 1988 service treatment record reflects, in pertinent part, the Veteran's complaint of diarrhea and nausea. A January 1989 service treatment record documents the Veteran's complaint of stomach cramps, diarrhea and chills. He stated that that he immediately started vomiting after drinking milk and then had diarrhea over the night. The assessment was viral syndrome (possible food poisoning but unlikely).

An April 1989 service treatment record reflects the Veteran's complaints of vomiting and bad body aches after eating dinner. The diagnosis was gastroenteritis. December 1989 service treatment records reflect the Veteran's complaint of vomiting, nausea and a feeling of general malaise. He reported that he could not hold down food and had no appetite. The diagnosis was viral syndrome. The Veteran's October 2000 Report of Medical History associated with his separation examination documents his complaint of frequent indigestion; he reported that every time he ate, his stomach got large and tight. The examiner noted indigestion.  

In a March 2005 VA treatment record, the Veteran denied having abdominal pain, constipation, diarrhea, vomiting, abdominal distension, bloody or tarry stools, loss of appetite or heartburn. In a November 2005 VA treatment record, he reported no symptoms of gastroesphogeal reflux disease (GERD); he took PPI as prophylactic. In a February 2009 VA treatment record, the Veteran complained, in pertinent part, that his acid reflux had gotten worse over the prior three to four months. He could not take certain medications, Ibuprofen, due to his stomach problems. The relevant diagnosis was GERD.

In the report of November 2011 VA examination, the examiner noted that the Veteran's complaint of acid reflux that was irritated by certain medications and diagnosis of GERD, initially documented in the February 2009 VA treatment record. The diagnosed GERD was confirmed; the Veteran had no other stomach or duodenal disorders. The examiner concluded, after review of the medical records, taking the Veteran's history, performing examination and review of medical literature, that the Veteran's claimed stomach disorder and GERD were less than likely permanently aggravated or a result of any event or illness incurred in service. The examiner explained that the service treatment records document only acute and completely healed infrequent episodes of gastroenteritis and the current GERD did not exist and was not diagnosed until many years after service.

In this case, the evidence does not serve to link the onset of the GERD (claimed stomach disorder) to the period of active service. The Board points out that the passage of so many years between discharge from active service and the objective documentation of a claimed disability is a factor that tends to weigh against a claim for service connection. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). There is no credible evidence or opinion that even suggests that there exists a medical relationship, or nexus, between the current GERD and the Veteran's active service.  In the November 2011 report of VA examination, the examiner explicitly opined that the Veteran's GERD (he had no other diagnosed stomach disorder) was less than likely permanently aggravated or a result of any event or illness incurred in service, explaining that the infrequent episodes of gastroenteritis documented in the service treatment records were only acute and completely healed and that the current GERD did not exist and was not diagnosed until many years after service. Neither the Veteran nor his representative has identified, presented, or alluded to the existence of any medical evidence or opinion to contradict that provided by the VA examiner (which was based on a review of the medical records, taking the Veteran's history, performing examination and review of medical literature). 

The only evidence of record supporting the Veteran's claim is his various general lay assertions. Although the Veteran is competent to provide evidence of visible symptoms, he is not competent to provide evidence that requires medical knowledge. 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). Moreover, the Veteran's lay assertions are not found to be credible for the purpose of establishing a continuity of symptomatology referable to a stomach disorder since service because he expressly denied having abdominal pain, constipation, diarrhea, vomiting, abdominal distension, bloody or tarry stools, loss of appetite or heartburn in a March 2005 VA treatment record and denied having symptoms of GERD in a November 2005 VA treatment record.    

For the foregoing reasons, the Board finds that the claim of service connection for a stomach disorder must be denied. In reaching this conclusion, 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. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990).


Bilateral Eye Disorder

As an initial matter, the Board finds that a preexisting visual impairment was noted at service entry in December 1984. A review of the evidence of record shows that, on enlistment examination dated December 1984, clinical evaluation revealed that the Veteran wore glasses to correct his visual impairment. Because this report of examination notes the presence of visual impairment upon service entry, the Board finds that the evidence effectively rebuts the presumption of soundness upon service entry. 38 C.F.R. § 3.304(b). As visual impairment was recorded in the examination report at the time the Veteran was accepted and enrolled for service, there is no requirement to rebut the presumption of soundness with clear and unmistakable evidence. Id. 

Having determined that a visual impairment preexisted the Veteran's military service, the Board finds that the preexisting visual impairment did not undergo an increase in disability during active service; there was no aggravation of the visual impairment in service. 38 C.F.R. § 3.306(a).

The Veteran's December 1984 Report of Medical History associated with his enlistment examination and his December 1984 enlistment examination documents that he wore glasses for his visual impairment. A December 1988 service treatment record documents diagnosed low hyperoptic astigmatism. The October 2000 Report of Medical History associated with his separation examination and his October 2000 separation examination documents that he continued to wear glasses for his visual impairment.  

An April 2009 VA optometry treatment record reflects the Veteran's complaint of greater difficulty with reading. On examination, the diagnoses were blurry vision and presbyopia.

In the report of October 2011 VA examination, the examiner indicated that the Veteran had not been diagnosed with an eye condition (other than congenital or developmental errors of refraction). The examiner stated that the only diagnosis was presbyopia which was a refractive error that naturally occurs in all persons of the Veteran's approximate age.

In a November 2012 VA addendum opinion, the examiner documented review of the claims file and indicated the opinion was based upon this review of the claims file. The examiner opined that the Veteran's preexisting visual impairment was not aggravated beyond its natural progression by an in-service injury, event or illness. To that end, the examiner explained that the Veteran entered and left service with stable vision that was described as low hyperopic astigmatism in both eyes. The examiner further noted that since leaving the service, the only eye disorder that the Veteran had demonstrated was age related presbyopia, a condition where with age, the eye exhibits a progressively diminished ability to focus on near objects. 

In this case, the evidence does not establish that the Veteran's preexisting visual impairment was aggravated during his period of active service. There is no credible evidence or opinion that even suggests that his preexisting visual impairment was aggravated during active service.  In the November 2012 VA addendum opinion, the examiner explicitly opined that the Veteran's preexisting visual impairment was not aggravated beyond its natural progression by an in-service injury, event or illness, explaining that the Veteran entered and left service with stable vision that was best described as low hyperopic astigmatism in both eyes. Neither the Veteran nor his representative has identified, presented, or alluded to the existence of any medical evidence or opinion to contradict that provided by the VA examiner (which was based on a review of the entire claims file). Furthermore, the examiner noted the only current eye disorder that the Veteran had demonstrated was presbyopia (which was a refractive error that naturally occurs in all persons of the Veteran's approximate age). Thus, presbyopia is not a diseases or injury within the meaning of applicable legislation (see 38 C.F.R. § 3.303(c)), and service connection for presbyopia is not warranted.  We also note that since presbyopia is not due to a disease or injury, neither the presumption of soundness nor the presumption of aggravation are applicable.  See, Terry v. Principi, 340 F.3d 1378, 1385-86 (Fed.Cir.2003).

The only evidence of record supporting the Veteran's claim is his various general lay assertions.  Although the Veteran is competent to provide evidence of visible symptoms, he is not competent to provide evidence that requires medical knowledge. 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). Moreover, the Board finds the objective medical evidence to be more probative than his lay assertions in determining that his preexisting visual impairment was not aggravated during service.  

For the foregoing reasons, the Board finds that the claim of service connection for a bilateral eye disorder must be denied. In reaching this conclusion, 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.  See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. at 53-56 (1990).

  
ORDER

Entitlement to service connection for a stomach disorder is denied.

Entitlement to service connection for a bilateral eye disorder is denied.



____________________________________________
H. N. SCHWARTZ
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs