Citation Nr: 1310663	
Decision Date: 04/01/13    Archive Date: 04/11/13

DOCKET NO.  07-15 571	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Nashville, Tennessee


THE ISSUES

1.  Entitlement to service connection for a gastrointestinal disability, including gastroesophageal reflux disease (GERD) and ulcers.

2.  Entitlement to service connection for a prostate disability, to include prostatitis and benign prostatic hypertrophy.   


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

Patricia Veresink, Associate Counsel



INTRODUCTION

The Veteran had active service from June 1962 to July 1965.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2005 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee.   

The case was remanded by the Board in February 2011 to afford the Veteran a VA examination and obtain a nexus opinion.  The Veteran was afforded a VA examination in April 2011.  Regarding the gastrointestinal claim, the examiner provided a nexus opinion with a sufficient rationale for that opinion.  Therefore, a review of the record indicates that the Board's directives were substantially complied with regarding that issue.  See Stegall v. West, 11 Vet. App. 268, 271 (1998).
 
The issue of service connection for a prostate disability 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.


FINDINGS OF FACT

1.  The Veteran has a current diagnosis of a duodenal ulcer, healed without objective residual, but does not have a GERD disability. 

2.  The Veteran's duodenal ulcer did not manifest during service, did not manifest to a compensable degree within the first postservice year, and is it not shown to be causally or etiologically related to service. 



CONCLUSION OF LAW

The criteria for service connection for a gastrointestinal disability, including GERD and ulcers, have not been met.  38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

		Duties to Notify and Assist

Under 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) and 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2010), VA has a duty to notify the claimant of any information and evidence needed to substantiate and complete a claim, and of what part of that evidence is to be provided by the claimant and what part VA will attempt to obtain for the claimant.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1).

The record shows that through VCAA letters dated June 2005 and April 2006 the Veteran was informed of the information and evidence necessary to substantiate the claim for service connection.  The Veteran was also advised of the types of evidence VA would assist in obtaining, as well as the Veteran's own responsibilities with regard to identifying relevant evidence.  See Quartuccio v. Principi, 16 Vet. App. 183 (2002); Charles v. Principi, 16 Vet. App. 370 (2002).

The United States Court of Appeals for Veterans Claims (Court) decision in Pelegrini v. Principi, 18 Vet. App. 112 (2004) held, in part, that a VCAA notice as required by 38 U.S.C. § 5103(a), must be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim for VA benefits.  Further, the 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 v. Nicholson, 19 Vet. App. 473 (2006).    

The VCAA letter to the Veteran was provided in June 2005 prior to the initial unfavorable decision in October 2005.  In this case, the Veteran was advised of the criteria for rating a disability and those governing effective dates of awards in the March 2006 letter, prior to the most recent adjudication by the RO, which cures any timing deficiency.  See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006).

The Board also finds that there has been compliance with the VCAA assistance provisions.  The record in this case includes service treatment records, VA examination reports, VA treatment records, and lay evidence.  The Board finds that the record as it stands includes adequate competent evidence to allow the Board to decide the case, and no further action is necessary.  See generally 38 C.F.R. § 3.159(c).  No additional pertinent evidence has been identified by the Veteran.

The Veteran was afforded a VA examination in April 2011.  38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4).  The Board notes that the examiner was provided with an accurate history, the Veteran's history and complaints were recorded, and the examination report sets forth detailed examination findings.  Therefore, the examination report is adequate to decide the claim of service connection.  Thus, further examination is not necessary regarding the issue on appeal.

Service Connection - Laws and Regulations

Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability.  See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (table).  

In some circumstances, certain chronic diseases listed at 38 C.F.R. § 3.309(a) may be presumed to have been incurred in service if manifest to a compensable degree within one year from discharge from service, provided further that the rebuttable presumption provisions of 38 C.F.R. § 3.307 are also satisfied.  38 U.S.C.A. §§ 1112, 1113, 1137; 38 C.F.R. § 3.309(b).

For the showing of chronic disease in service, there are required a combination of manifestations sufficient to identify a disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word chronic.  38 C.F.R. § 3.303(b).  Continuity of symptomatology is required only where the condition noted during service is not, in fact, shown to be chronic or when the diagnosis of chronicity may be legitimately questioned.  Id.  When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim.  Id.

However, the continuity and chronicity provisions of 38 C.F.R. § 3.303(b) only apply to the chronic diseases enumerated in 38 C.F.R. § 3.309(a).  Walker v. Shinseki, ___ F.3d ___, No. 2011-7184, 2013 WL 628429 (Fed. Cir. Feb. 21, 2013), overruling Savage v. Gober, 10 Vet. App. 488, 495-96 (1997) (applying 38 C.F.R. § 3.303(b) to a chronic disease not listed in 38 C.F.R. § 3.309(a) as "a substitute way of showing in-service incurrence and medical nexus.")

Pertinent to the case at hand, peptic ulcers (gastric or duodenal) are among the list of chronic diseases listed within 38 C.F.R. § 3.309(a).  The provisions of 38 C.F.R. § 3.309(a) specify that a proper diagnosis of gastric or duodenal ulcer is to be considered established if it represents a medically sound interpretation of sufficient clinical findings warranting such diagnosis and provides an adequate basis for a differential diagnosis from other conditions with like symptomatology; in short, where the preponderance of evidence indicates gastric or duodenal ulcer.  Whenever possible, laboratory findings should be used in corroboration of the clinical data.

In McClain v. Nicholson, 21 Vet. App. 319 (2007), the Court held that the requirement that a claimant have a current disability before being granted service connection is satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim, even though the disability may have resolved by the time VA adjudicates the claim.

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 or to establish etiology 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).  When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent.  Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77. 

The Board is charged with the duty to assess the credibility and weight given to evidence.  Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001).  Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability.  Id. at 1076; see also 38 C.F.R. § 7104(a) (West 2002).  Moreover, the Court has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence.  Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992).  

Competency of evidence differs from weight and credibility.  Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted.  Rucker v. Brown, 10 Vet. App. 67, 74   (1997); Layno v. Brown, 6 Vet. App. 465, 469   (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). 

The absence of contemporaneous medical evidence is a factor in determining credibility of lay evidence, but lay evidence does not lack credibility merely because it is unaccompanied by contemporaneous medical evidence.  See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (lack of contemporaneous medical records does not serve as an "absolute bar" to the service connection claim); Barr v. Nicholson, 21 Vet. App. 303 (2007) ("Board may not reject as not credible any uncorroborated statements merely because the contemporaneous medical evidence is silent as to complaints or treatment for the relevant condition or symptoms").  

As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing.  See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996).  

In determining the probative value to be assigned to a medical opinion, the Board must consider three factors.  See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008).  The initial inquiry in determining probative value is to assess whether a medical expert was fully informed of the pertinent factual premises (i.e., medical history) of the case.  A review of the claims file is not required, since a medical professional can also become aware of the relevant medical history by having treated a Veteran for a long period of time or through a factually accurate medical history reported by a Veteran.  See id. at 303-04.  

The second inquiry involves consideration of whether the medical expert provided a fully articulated opinion.  See Id.  A medical opinion that is equivocal in nature or expressed in speculative language does not provide the degree of certainty required for medical nexus evidence.  See McLendon v. Nicholson, 20 Vet. App. 79 (2006).

The third and final factor in determining the probative value of an opinion involves consideration of whether the opinion is supported by a reasoned analysis.  The most probative value of a medical opinion comes from its reasoning.  Therefore, a medical opinion containing only data and conclusions is not entitled to any weight.  In fact, a review of the claims file does not substitute for a lack of a reasoned analysis.  See Nieves-Rodriguez, 22 Vet. App. at 304; see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A] medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions.").  

Service Connection - Analysis

The Veteran contends that he has a gastrointestinal disability that is causally related to service.  The Veteran experienced occasional gastrointestinal complaints during service.  In July 1962, the Veteran complained of emesis, diarrhea, and nausea.  In August 1962, the Veteran complained of constipation.  In August 1964, the Veteran complained of an upset stomach with diarrhea, headache, and dizziness.  He was diagnosed with viral gastroenteritis.  In March 1965, the Veteran complained of pains in his stomach after drinking orange juice or anything that appeared to have acid in it.  The examiner noted a one year history of intermittent epigastric burning relieved by milk.  The examiner diagnosed hyperacidity.  On the June 1965 separation report of medical history, the Veteran specifically noted no current symptoms or history of frequent indigestion or stomach liver, or intestinal trouble.  On the corresponding report of medical examination, the examiner noted the Veteran's abdomen and viscera as clinically normal.  

Post-service, the Veteran did not complain of stomach problems until May 1976 when he experienced epigastric discomfort.  At that time, the Veteran reported epigastric pain off and on made worse by eating, with symptoms for the prior seven years.  An upper GI radiological report showed a deformed duodenal bulb with probable active ulcer crater.  

VA treatment records show GERD, stable.  However, the records do not indicate how GERD was diagnosed.  

The Veteran was afforded a VA examination in April 2011.  The examiner noted the Veteran's history of duodenal ulcer.  He noted the onset of stomach difficulties while in service in 1962, when the Veteran complained of epigastric pain as well as some substernal chest pain.  He noted the June 1976 upper GI that showed an active duodenal ulcer, but no evidence of any reflux, and a normal esophagus.  The Veteran had an upper GI done.  The examiner noted a small fixed hiatus hernia.  Reflux was not elicited during fluoroscopy.  The Veteran's small bowel series was normal.  The examiner diagnosed a duodenal ulcer, healed without objective residual.  He noted that despite subjective complaints of gastroesophageal reflux disease, no objective findings were shown to substantiate the diagnosis.  The examiner provided an opinion noting that it is less likely than not that the Veteran's active duodenal ulcer in 1976 had been there for more than a decade.  Therefore, it is less likely than not that his current disability is caused by or related to in-service complaints.  

Upon review of the evidence, the Board finds that the Veteran has a current diagnosis of a duodenal ulcer, healed without objective residual, but does not have a GERD disability.  The Board also finds that the Veteran's duodenal ulcer did not manifest during service, did not manifest to a compensable degree within the first postservice year, and is it not shown to be causally or etiologically related to service. 

The most persuasive evidence in this case consists of the VA examiner opinion in April 2011, which is based upon claims folder review, interview of the Veteran and examination of the Veteran.  This examiner fully considered the Veteran's in-service complaints and the postservice treatment history.  A review of a June 1976 upper GI series showed an active ulcer, but no reflux and a normal esophagus while current upper GI series examination showed healed duodenal ulcer with no evidence of GERD.  The examiner found that it was unlikely that the active duodenal ulcer found in 1976 had been present for more than a decade, and that there was insufficient evidence to support a GERD diagnosis.

Notably, the record does include a diagnosis of GERD during the appeal period.  On this record, the Board finds that the April 2011 VA examiner opinion of no GERD disability holds substantially greater probative weight to than the assessment of GERD located in clinic records.  In this respect, the VA examiner had benefit of review of the entire claims folder, interview and examination of the Veteran, and actual upper GI series tests results.  On the other hand, the VA clinic assessments do not provide any rationale or reasoning underlying the diagnosis.  See Stefl v. Nicholson, 21 Vet. App. 120, 124   (2007) (holding that a probative medical opinion supports its conclusion with an analysis that the Board can consider and weigh against contrary opinions).

Thus, unlike the situation in McClain, the Board determines that the evidence does not support a finding that the Veteran holds a diagnosis of GERD rather than the Veteran has been properly diagnosed with GERD which was asymptomatic at the time of the April 2011 VA examination.

Otherwise, the only evidence of record relating the Veteran's current stomach disabilities to his service are the Veteran's lay assertions that the disabilities are related to his symptoms noted in service.  The Board first observes that the Veteran's assertions of having recurrent or persistent duodenal ulcer symptoms since service are not consistent with the entire evidentiary record and, therefore, not credible.  At the time of separation from service, the Veteran denied current gastrointestinal complaints.   When first being diagnosed with duodenal ulcer in 1976, the Veteran reported that his symptoms had been ongoing for 7 years, which would place the onset to approximately 1969 (4 years after service discharge).

In resolving the inconsistent history provided by the Veteran, the Board finds greater probative value and reliability to the Veteran's recorded recollections on his separation examination and his first treatment for GERD in 1976, as these events were contemporaneous in time to the events in question and bear a greater indicia of reliability as they were made in the context of seeking appropriate medical treatment.  See Lilly's An Introduction to the Law of Evidence, 2nd Ed. (1987), pp. 245- 46 (many state jurisdictions, including the federal judiciary and Federal Rule 803(4), expand the hearsay exception for physical conditions to include statements of past physical condition on the rational that statements made to physicians for purposes of diagnosis and treatment are exceptionally trustworthy since the declarant has a strong motive to tell the truth in order to receive proper care).  See generally Rucker v. Brown, 10 Vet. App. 67, 73 (1997) (observing that although formal rules of evidence do not apply before the Board, recourse to the Federal Rules of Evidence may be appropriate if it assists in the articulation of the reasons for the Board's decision). 

On the other hand, the Veteran's current recollections were made many decades after the events in question, are not consistent with prior statements which appear reliable, and were made in the context of seeking monetary benefits.  Quite simply, the statements made in 1965 and 1976 are more reliable and consistent with the entire evidentiary record.

The Veteran has also provided his own self-diagnosis and opinion in this case.  However, he has not demonstrated that he has expertise in medical matters.  While there is no bright line exclusionary rule that a lay person cannot provide opinion evidence as to a nexus between an in-service event and a current condition, not all medical questions lend themselves to lay opinion evidence.  See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009).  

Here, VA regulation contains specific instructions that a proper diagnosis of gastric or duodenal ulcer can be deemed established if it represents a "medically sound interpretation of sufficient clinical findings," and accounts for "a differential diagnosis from other conditions with like symptomatology."  In addition, the diagnosis should be corroborated by laboratory findings when possible.  So, while the Veteran is clearly competent to describe the types of gastrointestinal symptoms he has experienced, VA's own regulation strongly suggests that this type of issue involves a matter for medical professionals.

In any event, this case was reviewed by a medical examiner who was fully informed of the pertinent factual premises of the case and addressed the Veteran's lay assertions.  Additionally, the examiner provided a fully articulated opinion that included a reasoned analysis which appears consistent with the principles enunciated in 38 C.F.R. § 3.309(a).  Overall, the Board finds that the examiner's opinion - including the meaning and significance of the gastrointestinal complaints in service - holds substantially greater probative value than the Veteran's own self-diagnosis and opinion as to the medical significance of his symptoms, as the VA examiner possesses greater training and expertise to diagnosis duodenal ulcer and GERD.

As the preponderance of the evidence is against the claim that the Veteran's current gastrointestinal disabilities are related to an injury, disease, or event in service, the benefit-of-the-doubt standard of proof does not apply.  38 U.S.C.A. § 5107(b).

ORDER

Entitlement to service connection for a gastrointestinal disability, including GERD and ulcers, is denied.


REMAND

The Veteran was afforded a VA examination in April 2011 regarding his claim of service connection for a prostate disability.  The examiner performed a thorough examination, reviewed the Veteran's history and records, and determined that he could not resolve the issue of whether the Veteran's benign prostatic hypertrophy is related to his urinary tract condition during service without resorting to mere speculation.  

In Jones v. Shinseki, 23 Vet. App. 382 (2010), the Court admonished the Board for relying on medical opinions that were unable to provide an opinion regarding etiology, without resorting to mere speculation, as cause for denying the Veteran's claims.  In Jones, the Court noted it was unclear whether the examiners were unable to provide this requested definitive medical comment on etiology because they actually were unable to since the limits of medical knowledge had been exhausted or, instead, for example, needed further information to assist in making this determination (e.g., additional records and/or diagnostic studies) or other procurable and assembled data.

The Court in Jones acknowledged there are instances where a definitive opinion cannot be provided because required information is missing or can no longer be obtained or current medical knowledge yields multiple possible etiologies with none more likely than not the cause of the claimed disability.  See Clemons v. Shinseki, 23 Vet. App. 1, 6 (2009) (noting the Board need not obtain further medical evidence where the medical evidence "indicates that determining the cause is speculative").  The Court in Jones held, however, that in order to rely upon a statement that an opinion cannot be provided without resort to mere speculation, it must be clear that the procurable and assembled data was fully considered and the basis for the opinion must be provided by the examiner or apparent upon a review of the record.

Here, the examiner simply stated that he cannot resolve the issue without resorting to mere speculation, without addressing why he came to such a conclusion and whether any additional information would assist the examiner in providing a more definitive opinion.  Therefore, the case must be returned to provide a new opinion or a new VA examination.  

Accordingly, the case is REMANDED for the following action:

1. The case should be returned to the April 2011 VA examiner for further comment.  If unavailable, the Veteran should be afforded another VA examination to ascertain the nature and etiology of any prostate disability.  The relevant documents in the claims file should be made available to and reviewed by the examiner in connection with the opinion.  The examiner should again clearly note any current disability and respond to the following:  

For any current prostate disability, the examiner should offer an opinion as to whether it is at least as likely as not (a 50% or higher degree of probability) that the Veteran's prostate disability is causally or etiologically related to service, including his in-service urinary tract complaints. 

A complete rationale should be given for any opinion provided.  If the examiner again notes that an opinion may not be provided without resorting to speculation, the examiner should provide a rationale for the inability to relate the diagnosis to service and should indicate if any further information would assist the examiner in making the determination.  

2.  After completion of the above and any other development the RO/AMC should deem necessary, the RO should review the expanded record and determine if the claim remaining on appeal may be granted on any basis.  The Veteran and his representative should be furnished an appropriate supplemental statement of the case, and should be afforded an opportunity to respond.  Thereafter, the case should be returned to the Board for appellate review, if otherwise in order.

The Veteran has the right to submit additional evidence and argument on the matter 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).




______________________________________________
T. MAINELLI
Acting Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs