Citation Nr: 1312449 Decision Date: 04/15/13 Archive Date: 05/02/13 DOCKET NO. 10-06 433 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE Entitlement to service connection for a stomach disorder, variously diagnosed as gastritis and duodenal ulcer. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD H. Yoo, Counsel INTRODUCTION The Veteran had active service from December 1942 to January 1946. This appeal comes before the Board of Veterans' Appeals (Board) from a February 2009 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. The issue has been characterized as entitlement to service connection for a stomach disorder, variously diagnosed as gastritis and duodenal ulcer. In Clemons v. Shinseki, 23 Vet. App. 1 (2009), the Court held that a claim is not limited to the diagnosis identified by the Veteran. More precisely, a claim is for a disability that may reasonably be encompassed by several factors including: (1) the claimant's description of the claim; (2) the symptoms the claimant describes; and (3) the information the claimant submits or that VA obtains in support of the claim. See id. As gastritis and duodenal ulcer can share similar symptoms the Board has expanded the Veteran's claim and recharacterized the issue as stated above. See id. In March 2011, a videoconference hearing was held before the undersigned Acting Veterans Law Judge. The transcript of the hearing has been associated in the claims folder. The provisions of 38 C.F.R. § 3.103(c)(2) impose two distinct duties on VA employees, including Board personnel, in conducting hearings: the duty to explain fully the issues and the duty to suggest the submission of evidence that may have been overlooked. Bryant v. Shinseki, 23 Vet. App. 488 (2010). During the March 2011 Board hearing, the undersigned clarified the issue on appeal and inquired as to the etiology and continuity of the Veteran's asserted symptoms. The Veteran was offered an opportunity to ask the undersigned questions regarding his claim. The Board, therefore, concludes that it has fulfilled its duty under Bryant. The Board remanded this issue to the RO/Appeals Management Center (AMC) most recently in November 2012 for additional evidentiary development. The Board is obligated by law to ensure that the RO/AMC complies with its directives; where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance. See Stegall v. West, 11 Vet. App. 268 (1998). The Board is satisfied that there has been substantial compliance with the remand directives and the Board may proceed with review. In November 2012, the Board also remanded a claim to a temporary total rating based on the need for convalescence following right shoulder surgery under 38 C.F.R. § 4.30. In February 2013, the AMC issued a rating decision granting this claim. Since this grant constituted a full grant of the benefits sought on appeal, this claim is no longer in appellate status. AB v. Brown, 6 Vet. App. 35, 39 (1993). As such, the Veteran's claim for benefit for total temporary rating based on the need for convalescence will not be addressed in this decision. A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDING OF FACT Resolving all doubt in the Veteran's favor, a stomach disorder, variously diagnosed as gastritis and duodenal ulcer, is causally related to the Veteran's active service. CONCLUSION OF LAW The criteria for establishing entitlement to service connection for a stomach disorder, variously diagnosed as gastritis and duodenal ulcer, have been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 5103, 5103(A), 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. The Veterans Claims Assistance Act of 2000 (VCAA) As a preliminary matter, the Board notes that regulations enacted under the Veterans Claims Assistance Act of 2000 (VCAA) require VA to notify claimants and their representatives of any information that is necessary to substantiate a claim for benefits. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103(a), 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159(b), 3.326(a) (2012). In the instant case, the Veteran's claim for a stomach disorder, variously diagnosed as gastritis and duodenal ulcer, has been granted herein. As such, any deficiencies with regard to VCAA for these issues are harmless and non-prejudicial. II. Merits to the Claim The Veteran contends that his stomach disorder is a result of food poisoning during his military service. Governing Laws and Regulations Under the laws administered by VA, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. See 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge from service when all the evidence, including that pertinent to service, establishes that the disease was incurred during service. 38 C.F.R. § 3.303(d). Generally, the evidence must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. 38 C.F.R. § 3.303(a); Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004) (citing Hansen v. Principi, 16 Vet. App. 110, 111 (2002); Caluza v. Brown, 7 Vet. App. 498, 505 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (table)). Service connection may be established under the provisions of 38 C.F.R. § 3.303(b) when the evidence, regardless of its date, shows that a Veteran had a chronic condition in service or during the applicable presumptive period. In addition, certain chronic diseases, including other organic diseases of the nervous system, may be presumed to have been incurred or aggravated during service if they become disabling to a compensable degree within one year of separation from active duty. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. 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. If chronicity is not established, then a showing of continuity of symptomatology after discharge is required to support the claim. 38 C.F.R. § 3.303(b). However, the regulatory provisions pertaining to chronicity and continuity of symptomatology are constrained by 38 C.F.R. § 3.309(a), and thus such provisions are only available to establish service connection for the specific chronic diseases listed in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (rejecting the argument that continuity of symptomatology in § 3.303(b) has any role other than to afford an alternative route to service connection for specific chronic diseases). Here, the Board notes that the Veteran has been diagnosed with a duodenal ulcer, which is subject to service connection based upon continuity of symptomatology under 38 C.F.R. § 3.309(a). In each case where a veteran is seeking service connection for any disability, due consideration shall be given to the places, types, and circumstances of such veteran's service as shown by such veteran's service record, the official history of each organization in which such veteran served, such veteran's treatment records, and all pertinent medical and lay evidence. See 38 U.S.C.A. § 1154(a) (West 2002 and Supp. 2012). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has rejected the view that competent medical evidence is required when the determinative issue in a claim for benefits involves either medical etiology or a medical diagnosis. Under 38 U.S.C.A. § 1154(a), 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. Davidson v. Shinseki, 581 F.3d. 1313 (Fed. Cir. 2009); see also Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006). The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence, which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the appellant. Equal weight is not accorded to each piece of evidence contained in the record; not every item of evidence has the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Factual Background and Analysis Initially, the Board notes that the Veteran's service treatment records are absent from the record. According to the VA's request for information, it was determined that the Veteran's service treatment records were destroyed in a fire and therefore, unavailable. Under such circumstances, the United States Court of Appeals for Veterans Claims (Court) has held that there is a heightened obligation on the part of VA to explain findings and conclusions and to consider carefully the benefit of the doubt rule. See Cuevas v. Principi, 3 Vet. App. 542, 548 (1992); O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). Because the Veteran's service treatment records remain absent from the file, the Board's analysis has been undertaken with the heightened obligation set forth in Cuevas and O'Hare in mind. It is further noted, however, that the case law does not lower the legal standard for proving a claim for service connection, but rather increases the Board's obligation to evaluate and discuss in its decision all of the evidence that may be favorable to the claimant. See Russo v. Brown, 9 Vet. App. 46 (1996). The Veteran has testified at the March 2011 Board hearing that during service he and other servicemen developed indigestion after a meal of what he compared to as beef stew. He stated he was advised to drink water and was given pills that tasted like baking powder. The Veteran further testified that he started taking Prilosec in 1990 and has been taking it consistently since. He stated his gastric disorder continued in 1950, 1967, and 1990. He was told by a doctor that the possible food poisoning or indigestion from service is a contributing factor to his current gastric problem. According to the Veteran's post-service treatment records, the Veteran had a diagnosis of "other specified gastritis, with hemorrhage" and received treatment at the VA medical facility. In a December 2008 and January 2009 private treatment record from Dr. T.W., the Veteran's private physician, the Veteran complained of ingestion, nausea, gas, and abdominal bloating. However, no diagnosis or etiology regarding these symptoms was offered. The Veteran was afforded a VA examination in December 2009 where he reported having stomach problems during service after a meal of canned beef stew and was treated with baking soda. The stated that another member of his unit died while studying to be a medic as a result of this meal. He stated that since this incident, he continued to experience constant problems and exacerbations in 1954, 1958, 1967, and in the 1990s. He is currently taking Prilosec. Upon physical examination, the Veteran was diagnosed with "gastrointestinal adenoma and duodenal recurrent ulcer or gastritis with duodenal ulcer." The examiner concluded that he was "unable to give an opinion without mere speculation since critical service records are missing...." According to a June 2011 letter from the Veteran's private physician, Dr. W.J.D. stated: The question was whether any possible food poisoning that occurred during the service could be a contributing factor in the development of current gastritis or other stomach pathology. When I saw you in 1994 some 17 years after the initial diagnosis of duodenal ulcer by Dr. Allen was made, you did have a positive test for the H. Pylori antibody. H. Pylori has been associated with peptic ulcers. It is a bacteria. It is impossible to say when you contracted the H. Pylori. While it is possible you did contract it when you were in the service, there is no way of being sure of that. Therefore, I cannot say with certainty that the episode of food poisoning in the service was the definite cause of your ulcer problem, however, I cannot say that it could not be related either. The Veteran was afforded a new VA examination in August 2011 where it was reported that "[a]pparently is gastritis related GI bleeding. Currently the [Veteran's] history does not have any of the following symptoms when questioned. The [Veteran] has no nausea, vomiting. No hematemesis or melena. No post gastrectomy syndrome, no diarrhea or constipation." Upon physical examination, the examiner determined the Veteran has no abdominal tenderness and no physical findings related to his duodenal ulcer or gastritis history. In an addendum to the August 2011 VA examination, the examiner clarified that upon a review of the claims file and the physical examination the Veteran had a "definitive history of gastritis and GI bleeding." However, regarding his current disorders, the examination "did not reveal any current stomach disorders with regard to symptoms or history." In light of the evidence, the Board finds that the Veteran's claim for entitlement to service connection for a stomach disorder, variously diagnosed as gastritis and duodenal ulcer, must be granted. The Board recognizes that the Court has held that the presence of a chronic disability at any time during the claim process can justify a grant of service connection, even where the most recent diagnosis is negative. McClain v. Nicholson, 21 Vet. App. 319 (2007). Here, it is clear from the objective medical evidence that the Veteran had a diagnosis for gastritis and duodenal ulcer during the pendency of this claim (the claim was filed in August 2008). Therefore, the Board is satisfied that the claimed chronic disability of a stomach disorder is shown to support the claim of service connection despite the fact that the later August 2011 VA examination and the December 2012 addendum reports do not show a disability. The remaining matter for the Board's consideration then is to determine whether the Veteran's shown stomach disorder is etiologically linked to service. The Board finds that there are no negative medical nexus opinions of record. In addition, the Board cannot ignore Dr. W.J.D's June 2011 opinion that the Veteran possibly contracted H. Pylori during service and that his current stomach disorder is possibly related to the episode of food poisoning in service. Furthermore, the Veteran testified under oath before the Board that he experienced symptoms since service. He has consistently maintained this position since then. The Board finds that the Veteran is competent to report the symptoms and impairments associated with his current stomach disorder. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) (holding that lay statements may serve to support a claim by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability that are susceptible of lay observation). The Board also finds the Veteran's assertions concerning in-service food poisoning, symptoms, and the continuity of such symptomatology since service to be credible. Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007) (as a finder of fact, the Board, when considering whether lay evidence is satisfactory, 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). As such, the Board will resolve reasonable doubt to find that the symptoms of the Veteran's stomach disorder were continuous since service. As such, the Board finds that the evidence in its totality is in at least equipoise as to whether the Veteran's stomach disorder is etiologically related service. Upon resolution of all reasonable doubt in the Veteran's favor, the Board concludes that service connection for a stomach disorder, variously diagnosed as gastritis and duodenal ulcer, is warranted. 38 U.S.C.A. § 5107. ORDER Entitlement to service connection for a stomach disorder, variously diagnosed as gastritis and duodenal ulcer, is granted. ____________________________________________ J. W. FRANCIS Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs