Citation Nr: 1311052 Decision Date: 04/03/13 Archive Date: 04/19/13 DOCKET NO. 07-38 655 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio THE ISSUES 1. Entitlement to service connection for a digestive disorder to include gastroesophageal reflux disease (GERD). 2. Entitlement to service connection for coronary artery disease (CAD). 3. Entitlement to service connection for an acquired psychiatric disorder, to include a personality disorder. ATTORNEY FOR THE BOARD C. Kedem, Counsel INTRODUCTION The Veteran served on active duty from June 1968 to June 1974. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an October 2005 rating decision by which the RO, in pertinent part, denied entitlement to the benefits sought herein. This matter was previously before the Board in June 2010 when the case was remanded to provide the Veteran with an opportunity to testify at a Board hearing. The Veteran was scheduled for a hearing in accordance with the June 2010 remand, but a Report of Contact dated in October 2010 shows the Veteran withdrew his hearing request. As such, the hearing request is deemed withdrawn. 38 C.F.R. § 20.704 (2012). The Board notes that in early March 2008, the Veteran cancelled a hearing set to take place before a Decision Review Officer at the RO later that month. In January 2011, the Board again remanded this case to the RO for further development of the evidence. As to the issues decided herein, the additional development was accomplished, and the Board concludes that it may proceed with a decision at this time. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998), where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (Fed. Cir. 2002). FINDINGS OF FACT 1. The Veteran did not experience chronic symptoms of GERD in service, and the Veteran's GERD is not otherwise related to his active service. 2. The Veteran did not experience chronic symptoms of CAD in service, CAD did not manifest to a compensable degree within one year of service separation, symptoms of CAD have not been continuous since service separation, and the Veteran's CAD is not otherwise related to his active service. 3. A current acquired psychiatric disorder is not shown. CONCLUSIONS OF LAW 1. A digestive disorder to include GERD was not incurred in active duty service. 38 U.S.C.A. §§ 1110, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303 (2012). 2. CAD was not incurred in active duty service, and service connection for CAD may not be presumed based on the one-year presumption for a chronic disease. 38 U.S.C.A. §§ 1110, 1112, 1137, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2012). 3. An acquired psychiatric disorder, to include a personality disorder, was not incurred in active duty service, and service connection for an acquired psychiatric disorder, to include a personality disorder, may not be presumed based on the one-year presumption for a chronic disease. 38 U.S.C.A. §§ 1110, 1112, 1137, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 (VCAA) The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations imposes obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102 , 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102 , 3.156(a), 3.159, 3.326(a) (2012). The notice requirements of VCAA require VA to notify the claimant of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, the VA will attempt to obtain. The Board notes that a "fourth element" of the notice requirement requesting the claimant to provide any evidence in the claimant's possession that pertains to the claim was removed from the language of 38 C.F.R. § 3.159(b)(1). See 73 Fed. Reg. 23,353-356 (April 30, 2008). The United States Court of Appeals for Veterans Claims (Court) issued a decision in the appeal of Dingess v. Nicholson, 19 Vet. App. 473 (2006), which held that the notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim, including the degree of disability and the effective date of an award. Those five elements include: (1) veteran status; (2) existence of a disability; (3) a connection between a veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. The notice included provisions for disability ratings and for the effective date of the claim. In a timely letter in January 2004, the RO provided notice to the Veteran regarding what information and evidence is needed to substantiate a claim for service connection as well as what information and evidence must be submitted by the Veteran, and what evidence VA would obtain. The Veteran was not advised of the type of information mandated by the Court in Dingess until November 2006. Any defect as to the timing of this notice was cured because the RO readjudicated the claims on several occasions to include in the August 2012 supplemental statement of the case. See Prickett v. Nicholson, 20 Vet. App. 370, 376-78 (2006) (validating the remedial measures of issuing fully compliant VCAA notification and re-adjudicating the claim in the form of a statement of the case to cure timing of notification defect). The Board is also satisfied VA has made reasonable efforts to obtain relevant records and evidence. Specifically, the information and evidence that has been associated with the claims file includes the Veteran's service treatment records, service personnel records, post-service VA and private medical records, records from the Social Security Administration, and the Veteran's statements. The Veteran was also afforded VA medical examinations in furtherance of the claims. To that end, when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds that the VA opinions and findings obtained in this case are adequate, as they are predicated on a full reading of the pertinent evidence of record, the Veteran's statements, an examination of the Veteran, and are fully substantiated. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion regarding the issues on appeal has been met. 38 C.F.R. § 3.159(c)(4). Significantly, the Veteran has not identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claims that has not been obtained. Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist the Veteran in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). Standard of Review After the evidence has been assembled, it is the Board's responsibility to evaluate the entire record. 38 U.S.C.A. § 7104(a) (West 2002). When there is an approximate balance of 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; 38 C.F.R. § 3.102 (reasonable doubt to be resolved in veteran's favor). In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the Court stated that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail." To deny a claim on its merits, the preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Law and Regulations Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. With chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. If a condition noted during service is not shown to be chronic, then generally, a showing of continuity of symptoms after service is required for service connection. 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). GERD is not a "chronic disease" listed under 38 C.F.R. § 3.309(a); therefore, 38 C.F.R. § 3.303(b) does not apply to that disability. See Walker v. Shinseki, ___ F.3d ___, No. 2011-7184, 2013 WL 628429 (Fed. Cir. Feb. 21, 2013). Personality disorders are considered congenital or developmental defects and, therefore, generally are not diseases or injuries for the purposes of service connection. 38 C.F.R. §§ 3.303(c), 4.9, 4.127 (2012); see also Winn v. Brown, 8 Vet. App. 510, 516 (1996). However, if a disease or injury is superimposed over the congenital or developmental defect during service, service connection may be warranted for the resultant disability. VAOPGCPREC 82-90. 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). The Court has held that "Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability. In the absence of proof of a present disability there can be no valid claim." Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); see also Rabideau v. Derwinski, 2 Vet. App. 141, 143-44 (1992). Where a veteran who served for ninety days or more during a period of war (or during peacetime service after December 31, 1946) develops certain chronic diseases, such as arteriosclerosis and psychoses, to a degree of 10 percent or more within one year from separation from service, such diseases may be presumed to have been incurred in service even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. See 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.307, 3.309. 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 (1997); Layno v. Brown, 6 Vet. App. 465 (1994); Cartwright v. Derwinski, 2 Vet. App. 24 (1991) (although interest may affect the credibility of testimony, it does not affect competency to testify). A veteran is competent to report symptoms because this requires only personal knowledge, not medical expertise, as it comes to him through his senses. See Layno, 6 Vet. App. 465. The Board is charged with the duty to assess the credibility and weight given to evidence. Wensch v. Principi, 15 Vet. App. 362, 367 (2001); Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). In weighing credibility, VA may consider interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of the witness. Caluza v. Brown, 7 Vet. App. 498 (1995). The Board may weigh the absence of contemporaneous medical evidence against the lay evidence in determining credibility, but the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). Generally, the degree of probative value which may be attributed to a medical opinion issued by a VA or private treatment provider takes into account such factors as its thoroughness and degree of detail, and whether there was review of the veteran's claims file. Prejean v. West, 13 Vet. App. 444, 448-9 (2000). Also significant is whether the examining medical provider had a sufficiently clear and well-reasoned rationale, as well as a basis in objective supporting clinical data. Bloom v. West, 12 Vet. App. 185, 187 (1999); Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998); see also Claiborne v. Nicholson, 19 Vet. App. 181, 186 (2005) (rejecting medical opinions that did not indicate whether the physicians actually examined the veteran, did not provide the extent of any examination, and did not provide any supporting clinical data). The Court has held that a bare conclusion, even one reached by a health care professional, is not probative without a factual predicate in the record. Miller v. West, 11 Vet. App. 345, 348 (1998). Medical evidence that is speculative, general or inconclusive in nature cannot support a claim. Obert v. Brown, 5 Vet. App. 30, 33 (1993); see also Beausoleil v. Brown, 8 Vet. App. 459, 463 (1996); Libertine v. Brown, 9 Vet. App. 521, 523 (1996). A physician's statement framed in terms such as "may" or "could" is not probative. See Warren v. Brown, 6 Vet. App. 4, 6 (1993). A significant factor to be considered for any opinion is the accuracy of the factual predicate, regardless of whether the information supporting the opinion is obtained by review of medical records or lay reports of injury, symptoms and/or treatment. See Harris v. West, 203 F.3d 1347, 1350-51 (Fed. Cir. 2000) (examiner opinion based on accurate lay history deemed competent medical evidence in support of the claim); Kowalski v. Nicholson, 19 Vet. App. 171, 177 (2005) (holding that a medical opinion cannot be disregarded solely on the rationale that the medical opinion was based on history given by the veteran); Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (holding that the Board may reject a medical opinion based on an inaccurate factual basis). The Board has reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by a veteran or obtained on a veteran's behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Digestive disorder to include GERD The Veteran contends that his currently diagnosed GERD is related to symptoms, complaints, and treatment in service. The service treatment records include complaints of vomiting to include vomiting blood, nausea, abdominal pain, and melena. Viral gastroenteritis was diagnosed on several occasions. At times, the Veteran's symptoms were said to be associated with nervous tension. An upper gastrointestinal series was ordered. In May 1974, dizziness with vomiting was assessed as probable labyrinthitis. In his June 1974 report of medical history completed just prior to service separation, the Veteran denied all symptoms that could be associated with a gastrointestinal problem such as frequent indigestion and stomach, liver, or intestinal trouble. The abdomen and viscera were found to be normal during the corresponding medical examination. The post-service medical records reveal that the only chronic gastrointestinal disability from which the Veteran now suffers is GERD. There is no other currently diagnosed digestive system disorder. There is no diagnosis of GERD until several decades after discharge from service. In February 2011, the Veteran was afforded a VA medical examination. The examination report reveals that the examiner conducted a comprehensive review of the record. Upon obtaining a medical history from the Veteran and examining him, the examiner diagnosed GERD. In the examination report, the examiner emphasized that there was no diagnosis of GERD in the service treatment records and that the symptoms noted in service such as vomiting, melena, and viral gastroenteritis were not signs of GERD and did not cause GERD. The examiner explained that GERD was an anatomical problem involving the lower esophageal sphincter and that there was no causal relationship between the symptoms and diagnoses noted in the service treatment records and GERD. Furthermore, the examiner asserted that GERD did not manifest in service. The Board finds that the Veteran is not competent to diagnose gastrointestinal disorders, and the Board cannot credit his apparent assertions regarding GERD in service or that symptoms suffered in service are precursors to a present digestive disorder. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), GERD and digestive system disorders in general fall outside the realm of the common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer)." The competent evidence, namely that contained in the February 2011 VA medical examination, reflects that GERD was not present in service. 38 C.F.R. § 3.303(b). The Board further finds that the weight of the probative evidence demonstrates that the Veteran's currently diagnosed GERD, which was first diagnosed many years after service, is not causally related to his active duty service. As stated, the Veteran's opinion regarding the etiology of his currently diagnosed GERD is not competent medical evidence upon which the Board may rely. The only competent evidence as to the origins of the Veteran's GERD is that which is contained in the February 2011 VA medical examination report. The February 2011 VA examiner opined that GERD was unrelated to service because, in essence, symptoms consistent with GERD were not present in service. Other than the Veteran's assertions, which do not constitute competent evidence, there is no competent evidence establishing a nexus between the currently diagnosed GERD and service, including no continuous symptomatology of GERD since service. For the foregoing reasons, the Board finds that the Veteran's presently diagnosed GERD is not related to his active duty service. 38 C.F.R. § 3.303(d). For the reasons expressed above, the Board finds that a preponderance of the evidence is against the Veteran's claim for service connection for GERD, and the claim must be denied. Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. CAD The Veteran contends that his current CAD had its onset in service wherein he suffered chest pain, shortness of breath, and syncope. The service treatment records reflect multiple complaints of chest pain. At times, he was prescribed Librium and Maalox. At other times, it was assessed as musculoskeletal pain or as a manifestation of anxiety. On service separation, the heart was found to be normal. CAD was initially diagnosed in 2001. Subsequently, stents were inserted. In February 2011, the Veteran was afforded a VA medical examination. A review of the examination report reflects that the examiner conducted a thorough review of pertinent records in the claims file and obtained a complete history from the Veteran. On examination, the examiner opined that CAD did not manifest in service and was not otherwise related to service. The examiner explained that symptoms the Veteran experienced in service were either musculoskeletal or pleuritic in nature and not cardiac in origin. The examiner explained that the risk factors for CAD were gender, age, family history, hypertension, and hyperlipidemia. In service, the Veteran's only risk factor was gender. As well, the Veteran's in-service symptoms were atypical of angina. The additional risk factors for CAD present in the Veteran, such as hypertension, manifested after service. Thus, the examiner opined that CAD did not manifest in service and was not related to service. The Board finds that the Veteran is not competent to diagnose heart disorders, and the Board cannot credit his apparent assertions regarding CAD in service or that symptoms suffered in service are precursors to the current CAD. As stated, although lay persons are competent to provide opinions on some medical issues, see Kahana, 24 Vet. App. at 435, CAD falls outside the realm of the common knowledge of the lay person. See Jandreau, 492 F.3d at 1377 n.4 (lay persons not competent to diagnose cancer)." The competent evidence, namely that contained in the February 2011 VA medical examination report, reflects that CAD was not present in service. 38 C.F.R. § 3.303(b). The Board finds that the weight of the evidence demonstrates that the Veteran's CAD did not manifest to a compensable degree within one year of service separation. The record contains no evidence regarding a diagnosis of CAD dated before the turn of the Millennium. It follows that CAD, including to a compensable degree, did not manifest within a year of service separation in June 1974. 38 C.F.R. §§ 3.307, 3.309(a). The Board next finds that symptoms of CAD have not been continuous since service separation in June 1974. As stated, CAD was not diagnosed until 2001, some 25 years after service separation. Moreover, chest pain complained of in service is not shown to have constituted CAD. The lack of CAD or symptoms associated with it in service coupled with the diagnosis of CAD long after service separation militates against a finding of continuity of symptomatology from service to the present. 38 C.F.R. § 3.303(b); Maxson, supra. The Board further finds that the weight of the competent evidence demonstrates that the Veteran's currently diagnosed CAD, which was first diagnosed 25 years after service, is not related to his active duty service. As stated, the Veteran's opinion regarding the etiology of his currently diagnosed CAD is not competent medical evidence upon which the Board may rely. The only competent evidence as to the origins of the Veteran's CAD is that which is contained in the February 2011 VA medical examination report. The February 2011 VA examiner opined that CAD was unrelated to service because symptoms of CAD were not present in service. Other than the Veteran's assertions, which do not constitute competent evidence, there is no competent evidence establishing a nexus between the currently diagnosed CAD and service, including no continuous symptomatology of CAD since service. For the foregoing reasons, the Board finds that the Veteran's presently diagnosed CAD is not related to his active duty service. 38 C.F.R. § 3.303(d). For the reasons expressed above, the Board finds that a preponderance of the evidence is against the Veteran's claim for service connection for CAD, and the claim must be denied. Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. Acquired psychiatric disorder, to include a personality disorder The Veteran contends, in essence, that he has an acquired psychiatric disorder that is related to his period of active duty. A September 1971 service treatment record notes a diagnosis of "anxiety reaction." A March 1971 record shows that the Veteran was considered to have inadequate psychiatric defenses to deal with stresses, and was having an adult adjustment reaction. Another March 1971 record shows that the Veteran was temporarily disqualified so that he could receive treatment for a psychiatric disorder. An April 1971 record shows "[s]ymptoms of anxiety + depression." An October 1971 record shows a diagnosis of adult situational reaction. Another record from the same month refers to the psychiatric recommendation for reassignment and states that the Veteran was unable to cope with his current assignment. A May 1971 record shows that a compassionate reassignment was recommended on the basis of the Veteran's 'adult situational reaction.' An October 1972 record refers to the Veteran's "nervous condition." A November 1972 psychiatric examination report shows that insufficient information was elicited to make a diagnosis, but that the Veteran "may be covering up his symptoms" at that time. A January 1973 service treatment record notes a psychologist's impression that the Veteran's "thinking 'is of a schizophrenic nature.'" The January 1973 record shows that a doctor found that the Veteran had a personality disorder with sociopathic tendencies. In January 1973, a psychophysiologic reaction in an anxious young man was noted. That month, Valium was prescribed for sleep. In a March 1973 report of medical history completed by the Veteran, the Veteran reported, in pertinent part, frequent trouble sleeping as well as depression or excessive worry. The corresponding medical examination report indicated no psychiatric disorders, rather a personality disorder with psychopathic tendencies was noted. In a June 1974 report of medical history, the Veteran denied all psychiatric symptomatology. The corresponding separation medical examination report indicated that the Veteran was psychiatrically normal. The record contains no Axis I psychiatric diagnosis on service separation or following service. The Veteran was afforded a VA mental health examination in February 2011. Following a comprehensive examination that included an interview and testing, the VA examiner concluded that the Veteran suffered from a personality disorder, not otherwise specified. The examiner found that the Veteran had no Axis I psychiatric disorder. That the Veteran suffers from a personality disorder is not in dispute. However, because personality disorders are considered congenital or developmental defects, service connection for such disorders is precluded. 38 C.F.R. §§ 3.303(c), 4.9, 4.127. The Veteran suffers from no Axis I (acquired) psychiatric disorder, and he is not shown to have suffered from such a psychiatric disorder at any time during the appeal period. A prerequisite to the granting of service connection is the presence of a current disability. 38 C.F.R. § 3.303; Brammer, supra. Because there is no presently diagnosed acquired psychiatric disorder, the claim herein is denied. Id. Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. (CONTINUED ON NEXT PAGE) ORDER Service connection for a digestive disorder to include GERD is denied. Service connection for CAD is denied. Service connection for an acquired psychiatric disorder, to a personality disorder, is denied. ______________________________________________ MATTHEW TENNER Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs