Citation Nr: 1304485 Decision Date: 02/07/13 Archive Date: 02/19/13 DOCKET NO. 09-42 149 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Newark, New Jersey THE ISSUE Entitlement to service connection for gastroesophageal reflux disease (GERD) (claimed as acid reflux). REPRESENTATION Appellant represented by: New York State Division of Veterans' Affairs ATTORNEY FOR THE BOARD J. Nichols, Associate Counsel INTRODUCTION The Veteran served on active duty from May 1999 to July 2007. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Newark, New Jersey. The Board remanded the case for further development in December 2011, and it has since been returned to the Board for appellate review. A review of the Virtual VA paperless claims processing system reveals documents that are either duplicative of the evidence of record or are not pertinent to the present appeal. FINDINGS OF FACT 1. The Veteran failed to report to his scheduled VA examination in January 2012, and no good cause has been shown for his failure to report. 2. The Veteran has not been shown to have GERD that is related to his military service. CONCLUSION OF LAW GERD was not incurred in active service. 38 U.S.C.A. §§ 1101, 1110, 1154 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Upon receipt of a substantially complete application for benefits, VA must notify the claimant what information or evidence is needed in order to substantiate the claim and it must assist the claimant by making reasonable efforts to get the evidence needed. 38 U.S.C.A. §§ 5103(a), 5103A; 38 C.F.R. § 3.159(b); see Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The notice required must be provided to the claimant before the initial unfavorable decision on a claim for VA benefits, and it must (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. 38 U.S.C.A. §§ 5103(a); 38 C.F.R. § 3.159(b)(1); Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004). Upon receipt of an application for a service-connection claim, 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating, or is necessary to substantiate, each of the five elements of the claim, including notice of what is required to establish service connection and that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Dingess v. Nicholson, 19 Vet. App. 473 (2006). In this case, the RO did provide the appellant with notice in October 2008 prior to the initial decision on the claim in March 2009. Therefore, the timing requirement of the notice as set forth in Pelegrini has been met and to decide the appeal would not be prejudicial to the claimant. Moreover, the requirements with respect to the content of the notice were met in this case. The RO informed the Veteran in the notice letters about the information and evidence that is necessary to substantiate his claims for service connection. Specifically, the October 2008 letter stated that the evidence must show that he had an injury in military service or a disease that began in, or was made worse during military service, or that there was an event in service that caused injury or disease; that he has a current physical or mental disability; and, that there is a relationship between his current disability and an injury, disease, or event in military service. That letter also advised him of the division of responsibilities in obtaining such evidence, and the letter explained how disability ratings and effective dates are determined. In addition, the duty to assist the Veteran has also been satisfied in this case. The Veteran's service treatment records and VA treatment records are in the claims file and were reviewed by both the RO and the Board in connection with his claim. To date, he has not identified any other outstanding records that are pertinent to his claim for service connection being decided herein. In carrying out the Board's December 2011 remand directives, the RO scheduled the Veteran for a VA examination in January 2012. When the Veteran failed to report to the examination, the RO ascertained that the VA examination notification letter dated December 2011 was properly sent to the last known address of record. The law specifically provides that written VA notices are to be sent to "a claimant or payee at his or her latest address of record." 38 C.F.R. § 3.1(q). It bears emphasis that VA's duty to assist is not always a "one-way street." The appellant has an obligation to assist in the adjudication of his claim in notifying VA of any change in address. See Wood v Derwinski, 1 Vet. App, 190, 193 (1991); Wamhoff v. Brown, 8 Vet. App. 517, 522 (1996). Furthermore, the Veteran was informed of the consequences of failing to report to a VA examination in the December 2011 Board determination and also in the December 2011 post-remand development letter. Because the Veteran has frustrated the RO's attempt to obtain compliance with the terms of the December 2011 remand, complete compliance has been rendered impossible. Although the Secretary is required to comply with remand orders, it is substantial compliance, not absolute compliance, that is required. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (holding that there was no violation of due process when the examiner made the ultimate determination required by the Board's remand, because such determination "more than substantially complied with the Board's remand order"). The Board, therefore, finds that the RO substantially complied with the remand directives and there is no need for another remand. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran are to be avoided). For all of these reasons, the Board concludes that VA has fulfilled its duty to assist the Veteran to the extent possible in this case. Hence, there is no error or issue that precludes the Board from addressing the merits of this appeal. Law and Analysis Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In considering the evidence of record under the laws and regulations as set forth above, the Board concludes that the Veteran is not entitled to service connection for GERD. Initially, the Board notes that the adjudication of this issue has been made significantly more difficult by the Veteran's failure to report for a VA examination. He has not asserted any good cause for missing the examination scheduled in January 2012, which was scheduled in order to determine the nature and etiology of any gastrointestinal disorder that may be present and whether the Veteran's GERD was related to his military service. According to 38 C.F.R. § 3.655, in an original compensation claim, when a claimant fails to report for an examination scheduled in conjunction with an original compensation claim without good cause, the claim shall be rated based on the evidence of record. The VA examination and medical opinion may have provided evidence to support the Veteran's claim, but due to his failure to report, the claim must be adjudicated based on the available evidence of record. Turning to the evidence of record, the Board notes that the Veteran's service treatment records are negative for any diagnosis or treatment for a GERD during service. He served from May 1999 to July 2007. The Veteran did have various complaints regarding an upset stomach, nausea, and diarrhea during battalion corpsman screening in March 1997 and May 1997, and in July 1999, he reported having a history of diarrhea and constipation. Significantly, there was no report of indigestion or heartburn, and upon physical examination in August 1999, a physician noted that the diarrhea had resolved. In a July 2003 Post-Deployment Health Assessment, the Veteran noted that he had developed diarrhea during deployment, but he denied having any indigestion, heartburn, ulcer ,or stomach problems from 2001 to 2007. Upon separation in 2007, the Veteran also denied having any gastrointestinal problems in his medical assessment form, and a physician noted that the Veteran had no chronic medical conditions upon separation. Thus, there is no evidence of GERD or acid reflux during his active military service. In fact, the Veteran later told a December 2008 VA examiner that his gastrointestinal issues began in 2008. Therefore, the Board finds that GERD disorder did not manifest in service. In addition to the lack of evidence showing that GERD manifested during active duty service, the evidence of record does not link any current diagnosis to the Veteran's active service. VA treatment records reveal that the Veteran complained of epigastric pain in September 2008 and that he was given medications for nausea and vomiting. A physician's note reveals that the examination yielded no diagnosis. The Veteran was later afforded a VA examination in December 2008 during which he indicated that his gastrointestinal issues began in 2008 and had stabilized. The examiner noted the Veteran's reported history of complaints of intermittent midepigastric pain during service and severe episodes of midepigastric pain with nausea, vomiting, and severe headaches after service. Upon physical examination, the examiner found that the Veteran was in overall good health, and no abnormal findings were noted. Upper gastrointestinal series (studies) were ordered for the Veteran, but the examiner noted that he failed to report for such studies. As such, the examiner found that he could not provide any diagnosis without the studies, and no medical opinion was provided at this time. Additional VA treatment records dated from January 2009 to March 2009 reveal that the Veteran had symptoms of nausea, vomiting, diarrhea and soft stools. In March 2009, the Veteran was diagnosed with GERD and was instructed to continue medication. In June 2009, the Veteran continued to report having symptoms of nausea and terrible stomach pains, to include diarrhea, vomiting, excess gas, and bloating. The physician indicated that there was a negative gastrointestinal work-up, but noted a current diagnosis of GERD. The Board notes that the Veteran was diagnosed with GERD on at least one occasion during the pendency of the appeal. The United States Court of Appeals for Veterans Claims (Court) has held that the requirement of a current disability is satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or at any point during the pendency of that claim. McClain v. Nicholson, 21 Vet. App. 319, 312 (2007). Thus, the crux of the case turns on whether the Veteran's current diagnosis of GERD is related to his military service. As previously stated, the Board recognized the need for further evidentiary development, but such development has been frustrated by the Veteran's failure to report to the upper gastrointestinal studies as noted by the December 2008 VA examiner. Such studies may have provided grounds for a medical opinion based on medically ascertainable facts. Furthermore, as the Veteran also failed to report to the January 2012 VA examination, the current record is still void of a medical opinion relating the Veteran's post-service diagnosis of GERD to his military service, including the symptomatology of nausea, vomiting, and diarrhea therein. In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis if (1) the 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. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed.Cir.2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). A lay person may speak to etiology in some limited circumstances in which nexus is obvious merely through observation, such as a fall leading to a broken leg. Jandreau, 492 F.3d 1372, 1376-77. The Board's duty is to assess the credibility and competency in determining the weight of the evidence. See Dalton v. Nicholson, 21 Vet. App. 23, 36 (2007); Wood v. Derwinski, 1 Vet. App. 190, 193 (1991); see also Layno v. Brown, 6 Vet. App. 465, 469 (1994) (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"). In this case, the Veteran himself stated that his gastrointestinal issues began in 2008, which would have been after his separation from service in July 2007. Thus, he has not alleged that the disorder manifested in service or that there was continuity of symptomatology. Although he has generally claimed service connection for GERD, he has not specifically stated how the disorder is related thereto. Based on the foregoing, the evidence of record does not show that GERD manifested in service or that it is otherwise related to his military service. Therefore, the Board finds that the preponderance of the evidence is against the Veteran's claim. Accordingly, the benefit-of-the-doubt rule is not applicable, and the claim must be denied. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). ORDER Entitlement to service connection for GERD is denied. ____________________________________________ JESSICA J. WILLS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs