Citation Nr: 1313876	
Decision Date: 04/25/13    Archive Date: 05/03/13

DOCKET NO.  06-13 565	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Phoenix, Arizona


THE ISSUE

Entitlement to service connection for a gastrointestinal (GI) disability, to include gastroesophageal reflux disease (GERD).  


REPRESENTATION

Appellant represented by:	Arizona Department of Veterans Services


WITNESSES AT HEARING ON APPEAL

Appellant and his fiancé. 


ATTORNEY FOR THE BOARD

M. Riley, Counsel 

INTRODUCTION

The Veteran served on active duty from June 1972 to June 1975.  This case comes before the Board of Veterans' Appeals (Board) on appeal from a March 2005 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Phoenix, Arizona, which, in pertinent part, denied entitlement to service connection for a GI disorder characterized as duodenitis and diverticulosis.  

In June 2009, the Veteran testified before the undersigned Veterans Law Judge at the RO.  A transcript of the hearing is included in the claims file.

In December 2009, July 2011, and August 2012, the Board remanded the case for further action by the originating agency.  The case has now returned to the Board for further appellate action.


FINDING OF FACT

The Veteran does not have a chronic GI disability, to include GERD.


CONCLUSION OF LAW

A chronic GI disability was not incurred in or aggravated by active duty service.  38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2012).  


REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran contends that service connection is warranted for a GI disability, initially claimed as a stomach disorder, as he began to experience symptoms of acid reflux and abdominal pain during active duty service.  Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service.  See 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a).  To establish a right to compensation for a present disability, a Veteran 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"-the so-called "nexus" requirement.  Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).  See also Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed.Cir.2007). 

After review of the evidence of record, the Board finds that the Veteran does not have a chronic GI disability, to include GERD.  The Veteran has reported symptoms of acid reflux, abdominal cramps, and regurgitation, but the balance of the competent medical evidence is against the claim and outweighs his lay statements. 

Service treatment records document several complaints associated with the Veteran's GI system.  Beginning in July 1973, he made occasionally complaints of diarrhea, nausea, and vomiting.  Diagnoses of influenza and viral gastroenteritis were made in July 1973 and May 1975.  The Veteran was admitted for one day of inpatient treatment in June 1975 for epigastric tenderness and pylorospasm and was diagnosed with probable viral bowel syndrome.  While service records show some treatment for symptoms affecting the Veteran's GI system, there are no findings of a chronic GI disorder.  In fact, the diagnoses rendered during service were specifically associated with acute conditions due to various viral conditions.  The separation examination, conducted two days after the Veteran's discharge from the naval medical center, was also negative for GI or abdominal abnormalities.  

The post-service medical evidence also weighs against the finding of a chronic GI disability, including GERD.  Clinical records from the Phoenix VA Medical Center (VAMC) are negative for treatment pertaining to the claimed disability until June 2000, almost 30 years after the Veteran's separation from active service, when he complained of burning pain in his chest with exercise.  He was prescribed Zantac, but no diagnosis was made.  Four months later, the Veteran's chart included a notation showing a past history of GERD, though no specific findings were made regarding this condition.  VA records continued to note a history of GERD and the Veteran was prescribed medication to control acid reflux symptoms, but no testing confirmed the presence of the condition.  In June 2008, the Veteran was admitted to a private hospital for treatment of a broken left leg and complained of abdominal pain and distention.  An abdominal CT demonstrated air in the colon with possible early adynamic ileus.  The bowel obstruction resolved and the Veteran's private physician suspected that the ileus was associated with diabetes mellitus.  Therefore, while post-service treatment records show some treatment for complaints of the GI system, the VAMC diagnosis of GERD was unsupported by any objective clinical findings and the Veteran's acute bowel obstruction in June 2008 fully resolved.  

Also weighing against the finding of a current disability are the medical opinions of a VA examiner who physically examined the Veteran and reviewed the claims file in August 2011 and October 2012.  The VA examiner noted the Veteran's complaints of regurgitation and acid reflux, but concluded that the diagnosis of GERD contained in the VA treatment records was unsubstantiated by objective medical findings.  Furthermore, an esophogram and upper GI study performed in September 2011 (after the completion of the VA examination report) were negative for evidence of a chronic GI disability.  Based on the results of the September 2011 tests, the VA examiner issued an October 2012 addendum medical opinion concluding that a diagnosis of GERD or any other chronic condition was not supported by the record.  Although the VA treatment records and other VA examinations conducted in February 2006 and February 2010 included a finding of GERD, the August 2011 VA examiner noted that these diagnoses were rendered without any clinical or laboratory testing.  The September 2011 tests confirmed that the Veteran had no stomach disease and the Veteran's complaints of reflux with exercise were characterized as non-diagnostic.  

As discussed by the August 2011 VA examiner, the Veteran was previously examined by VA physicians in February 2006 and February 2010.  While these examiners included a diagnosis of GERD in their respective examination reports, the Board finds that they are outweighed by the conclusions of the August 2011 VA examiner.  The February 2006 and February 2010 examiners appear to have merely repeated the finding of GERD from the Veteran's VA treatment records with no medical or clinical evidence to support the diagnosis.  Both examiners noted a lack of objective testing to confirm the finding, and conducted examinations of the Veteran's abdomen with normal results.  As discussed above, GI testing performed in September 2011 was negative for any abnormalities or signs of GERD, and the Board finds these studies and the opinion of the August 2011 VA examiner outweigh the conclusions of the February 2006 and February 2010 VA examiners.  

The Board has also considered the Veteran's reports of acid reflux and regurgitation during the claims period.  Lay statements are competent to establish the presence of observable symptomatology and "may provide sufficient support for a claim of service connection."  Layno v. Brown, 6 Vet. App. 465, 469 (1994).  However, where the determinative issue involves medical causation or a medical diagnosis, there must be competent medical evidence to the effect that the claim is plausible.  Grottveit v. Brown, 5 Vet. App. 91, 93 (1993); Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992).  

Whether lay evidence is competent and sufficient to establish a diagnosis in a particular case is a fact issue to be addressed by the Board.  Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007).  The Veteran's statements are competent to establish the presence of his reported symptoms, but do not demonstrate the presence of a current chronic GI disability.  The Veteran is competent to identify and explain the symptoms that he observes and experiences, but a chronic disability in this case requires more than simple observation of symptoms.  See Clemons v. Shinseki, 23 Vet. App. 1 (2009).  The Veteran's acid reflux and regurgitation could be the result of any number of medical etiologies affecting multiple systems of the body and clearly requires specialized medical training and expertise to properly identify the cause.  See Jandreau 1376-1377 (lay witness capable of diagnosing dislocated shoulder); Barr v. Nicholson, 21 Vet. App. 303, 308-309 (2007) (lay testimony is competent to establish the presence of varicose veins); Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (unlike varicose veins or a dislocated shoulder, rheumatic fever is not a condition capable of lay diagnosis); Falzone v. Brown, 8 Vet. App. 398, 405 (1995) (lay person competent to testify to pain and visible flatness of his feet).  Medical tests conducted in September 2011 were entirely negative for evidence of a chronic GI condition, and the Board finds that the competent medical evidence, including the October 2012 medical opinion of the August 2011 VA examiner, outweighs the Veteran's lay testimony regarding the cause of his symptoms.  

As a final matter, the Board notes that treatment records from the Veteran's private physician include treatment and diagnoses of duodenitis and diverticulosis in May 1995.  However, these records pertain to patient other than the Veteran, albeit one with a similar name.  Thus, the private treatment records do not establish the presence of a current chronic GI disability. 

Absent proof of a chronic disability, there can be no valid claim.  See Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Degmitech v. Brown, 104 F.3d 1328 (Fed. Cir. 1997); Brammer v. Derwinski, 3 Vet. App. 223 (1992); Rabideau v. Derwinski, 2 Vet. App. 141 (1992).  Accordingly, the Board must conclude that the preponderance of the evidence is against the claim for service connection on a direct basis.  


Duties to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002)) defined VA's duties to notify and assist a veteran in the substantiation of a claim.  VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012).

VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) and that the claimant is expected to provide.  Pelegrini v. Principi (Pelegrini II), 18 Vet. App. 112, 120-21 (2004), see 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b).

In this case, notice fulfilling the requirements of 38 C.F.R. § 3.159(b) was furnished to the Veteran in an August 2004 letter.  The Veteran also received notice regarding the disability-rating and effective-date elements of the claim in a March 2006 letter.  See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). 

VCAA notice should be given before an initial AOJ decision is issued on a claim.  Pelegrini II, 18 Vet. App. at 119-120.  While complete VCAA notice, specifically notice of the Dingess elements, was provided after the initial adjudication of the claim, this timing deficiency was remedied by the issuance of VCAA notice followed by readjudication of the claim.  Mayfield v. Nicholson, 444 F. 3d 1328 (Fed. Cir. 2006).  The claim was most recently readjudicated in the February 2013 SSOC.  Therefore, any timing deficiency has been remedied.

VA is also required to make reasonable efforts to help a claimant obtain evidence necessary to substantiate a claim.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c), (d).  This "duty to assist" contemplates that VA will help a claimant obtain records relevant to a claim, whether or not the records are in Federal custody, and that VA will provide a medical examination or obtain an opinion when necessary to make a decision on the claim.  38 C.F.R. § 3.159(c)(4).

VA has obtained records of treatment reported by the Veteran, including service treatment records, records of VA treatment, and private medical records.  Additionally, the Veteran was provided a proper VA examination in August 2011 with an October 2012 addendum medical opinion.

For the reasons set forth above, the Board finds that VA has complied with the VCAA's notification and assistance requirements.  


ORDER

Entitlement to service connection for a chronic GI disability, to include GERD, is denied.




____________________________________________
MILO H. HAWLEY
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs