Citation Nr: 1307312 Decision Date: 03/04/13 Archive Date: 03/11/13 DOCKET NO. 09-21 501 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUE Entitlement to service connection for a gastrointestinal disability (to include ulcer disease and gastroesophageal reflux disease (GERD)). REPRESENTATION Appellant represented by: North Carolina Division of Veterans Affairs WITNESSES AT HEARING ON APPEAL The Veteran and his wife ATTORNEY FOR THE BOARD J. Chapman, Associate Counsel INTRODUCTION The appellant is a Veteran who served on active duty from July 1965 to January 1969. This matter is before the Board of Veterans' Appeals (Board) on appeal from a May 2008 rating decision of the Huntington, West Virginia Department of Veterans Affairs (VA) Regional Office (RO) that denied service connection for claimed ulcer disease [the issue has been expanded to encompass any gastrointestinal disability). The Veteran's claims file is now in the jurisdiction of the Winston-Salem, North Carolina RO. In December 2011, a videoconference hearing was held before the undersigned; a transcript of the hearing is associated with the claims file. In March 2012 this matter was remanded to the RO for additional development. FINDING OF FACT A chronic gastrointestinal disability was not manifested in service; the Veteran is not shown to have duodenal ulcer disease; his current gastrointestinal disability (to include GERD) is not shown to be related to his service/gastrointestinal complaints noted therein . CONCLUSION OF LAW Service connection for a gastrointestinal disability is not warranted. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. § 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative of any information, and any medical or lay 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. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). VCAA notice requirements apply to all five elements of a service connection claim: 1) Veteran status; 2) existence of a disability; 3) a connection between the Veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 484-86 (2006), aff'd, 483 F.3d 1311 (Fed. Cir. 2007). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The Veteran was advised of VA's duties to notify and assist in the development of his claim prior to its initial adjudication. A December 2007 letter explained the evidence necessary to substantiate his claim, the evidence VA was responsible for providing, and the evidence he was responsible for providing. It also informed the appellant of disability rating and effective date criteria. The Veteran has had ample opportunity to respond/supplement the record; he has not alleged that notice in this case was less than adequate. The Board notes that the statement of the case (SOC) initially issued in this matter was defective (as it addressed diabetes mellitus, and not gastrointestinal disability). That defect was cured by the post-remand readjudication and issuance of an adequate supplemental SOC in October 2012. The Veteran's pertinent service treatment records (STRs) and postservice treatment records have been secured. The RO arranged for a VA examination in October 2012. The examination report is adequate for rating purposes, as it reflects that the examiner had familiarity with all factual data, includes all necessary findings, and includes an explanation of rationale for the opinion. See Barr v. Nicholson, 21 Vet. App. 303 (2007) (VA must provide an examination that is adequate for rating purposes). The Board finds that the record as it stands includes adequate competent evidence to allow the Board to decide these matters, and that no further development of the evidentiary record is necessary. See generally 38 C.F.R. § 3.159(c)(4). The Veteran has not identified any pertinent evidence that remains outstanding. VA's duty to assist is met. Accordingly, the Board will address the merits of the claim. Legal Criteria, Factual Background, and Analysis Service connection may be granted for disability due to disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Service connection may be granted for any disease initially diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). To substantiate a claim of service connection, there must be medical evidence of a current claimed disability; medical or, in certain circumstances, lay evidence of incurrence or aggravation of a disease or injury in service; and medical evidence of a nexus between the disease or injury in service and the current disability. See Hickson v. West, 12 Vet. App. 247 (1999). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a). Certain chronic diseases (to include duodenal ulcer disease) may be service-connected on a presumptive basis if manifested to a compensable degree in a specified period of time post-service (one year for ulcers). 38 U.S.C.A. §§ 1112, 1113; 38 C.F.R.§§ 3.307, 3.309. When there is an approximate balance of positive and negative 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(b); 38 C.F.R. § 3.102. When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). The Board notes that it has reviewed all of the evidence in the Veteran's claims file, and in "Virtual VA" (VA's electronic data storage system), with an emphasis on the evidence relevant to the matter on appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Hence, the Board will summarize the relevant evidence as appropriate and the Board's analysis will focus specifically on what the evidence shows, or fails to show, as to the claim. The Veteran claims that his current gastrointestinal disability (claimed as peptic ulcer disease) began in service in October 1966. He relates that he had a problem with his stomach in service which was treated by drinking milk. The Veteran's STRs show that in August 1966, he was seen for a complaint of stomach pains, described as cramping and occurring since the previous morning. He also reported constipation. The impression was mild gastroenteritis. In May 1967, the Veteran was seen for a complaints of a stomach ache since the previous night and epigastric tenderness. The impression was gastritis. On December 1968 service separation examination, there were no complaints, findings, or diagnosis pertaining to a gastrointestinal (GI) disorder. After the separation examination, in January 1969, the Veteran was seen for complaints of vomiting (6x in a day), diarrhea (x2), and stomach acid. Examination found no tenderness or guarding; the impression was mild acid peptic distress. Private treatment records from July 1999 to January 2008 show that on July 1999 initial visit with the provider (to establish care) the Veteran had complaints of stomach and throat burning. He stated he had not "had a physical" in 5 years, and gave a history (duration not given, with no mention of service onset) of esophageal reflux. Esophageal reflux was diagnosed, and medication for such was prescribed. August 2010 VA treatment records note complaints of reflux and a diagnosis of GERD; medication was prescribed for the gastrointestinal (GI) symptoms. Subsequent VA treatment records show the Veteran continuing treatment for GERD. At the videoconference hearing before the undersigned the Veteran testified that there were no available records of his treatment (including by an uncle who was a physician) for GI complaints). He related that he was initially disqualified for employment with an Emergency Medical Service (EMS) due to disability, but was thereafter accepted (after receiving treatment from his uncle). It was noted at the hearing that reports of physical examinations in connection with EMS employment should be available and would be sought. The Veteran's wife (since 1983) who is a retired nurse testified primarily regarding an issue that was subsequently withdrawn. Following the March 2012 remand, the RO sent the Veteran a letter asking him to identify/provide releases for records of evaluations/treatment he received for GI disability (e.g. physical examinations for EMS employment). He did not respond. On October 2012 VA examination, the examiner noted that the record (to include the Veteran's STRs) was reviewed. The examiner stated that the Veteran has not had and does not currently have an intestinal condition. The examiner noted a history (provided by the Veteran's wife) of treatment in 1969 for pain in the epigastric area, as well as the presence of black stools now and then. The Veteran reported burning in the epigastric area, but denied vomiting, passing blood, a problem swallowing, diarrhea, weight loss, or having any [complete GI] work up from 1969 to the present time. He also reported that he does not have any problems if he takes his medication (omeprazole) daily. Diagnostic testing was conducted, and revealed no definite abnormality in the duodenal sweep and proximal small bowel. The impression was a trace of reflux with possible small hiatal hernia. No ulcer disease or gastric outlet obstruction was noted. The examiner noted that the Veteran did not have episodes of bowel disturbance with abdominal distress or attacks of an intestinal condition; nor did he have weight loss or malnutrition attributable to an intestinal condition. It was noted that the Veteran required continuous medication to control reflux The examiner opined that the claimed condition was less likely than not (less than 50 percent probability) related to [the complaints in service]. He explained that the Veteran's problem in service was likely dyspepsia or gastroenteritis, an unremarkable/transient problem, likely viral, and that the Veteran was not treated [for gastrointestinal problems] for many years after service. The Veteran initiated this claim as one of service connection for peptic ulcer, which is a chronic disease that may be service connected on a presumptive basis if manifested to a compensable degree in service or in the first postservice year. See 38 U.S.C.A. § 1112; 38 C.F.R. § 3.309. Service treatment records note an episode of acid peptic distress, and the Veteran has related that he had an ulcer disorder treated with milk and medication. However, extensive evaluation by VA (including diagnostic studies) has excluded such diagnosis. Whether or not there is a diagnosis of duodenal (peptic) ulcer is established by diagnostic studies, and the Veteran's own opinion that he has/has had such disease is not competent evidence. See Jandreau v. Nicholson, 492 F. 3d 1372, 1377 (Fed. Cir, 2007). He does not point to any diagnostic studies that establish such diagnosis. The October 2012 VA examination report indicates also that the Veteran does not have an intestinal disorder; however, he does have (as shown by diagnostic studies) GERD and a possible hiatal hernia. As he is also shown to have had GI complaints in service, what remains necessary to establish service connection for a GI disability is evidence of a nexus between the GERD/possible hiatal hernia and his service/complaints noted therein. The Veteran's GI complaints and gastritis/gastroenteritis in service each resolved, with no follow-up noted. While he is competent to observe GI symptoms, his accounts that the current symptoms supporting the diagnosis of GERD (and possible hiatal hernia) have been present throughout since service are not credible (because they are self-serving). See Pond v. West, 12 Vet. App. 341 (1999). To the extent that the Veteran seeks to buttress his accounts by alleging pre-1999 (continuous since service) treatment for GI complaints, records of which are unavailable, the Board finds such allegation inconsistent with factual data which show that on an initial examination by his private provider in July 1999 (to establish care) the Veteran reported that he had a history of reflux, and that he had not [received medical care] in 5 years. What remains for consideration is whether or not the current GERD (and possible hiatal hernia) are related to the remote complaints/problems noted in service (i.e., whether the symptoms in service were manifestations of the current GI diagnoses). That is a medical question, and requires medical expertise. See Jandreau, 492 F.3d at 1377 (Fed., Cir. 2001). The Veteran is not shown to have any medical expertise, and he has not presented any medical opinion/textual evidence in support of his claim; his own opinion in this matter is not competent evidence. The only competent (medical) evidence in the record regarding a nexus between the Veteran's GI disability and his service is the October 2012 VA examiner's opinion that the claimed GI disability is unrelated to the complaints in service. The examiner explained the rationale for the opinion, citing to factual evidence that shows that the Veteran's complaints/episodes in service were more likely than not indicative of an unremarkable, transient, likely viral problem, and did not reflect GERD (or an ulcer disease), and that he was not treated for GI problems until many years after service. Because the examiner expressed familiarity with the record, and cited to supporting factual data, his opinion is probative evidence in this matter. Because there is no competent evidence to the contrary, it is persuasive. The preponderance of the evidence is against this claim. Therefore, the appeal in the matter must be denied. ORDER Service connection for a gastrointestinal disability is denied. ____________________________________________ GEORGE R. SENYK Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs