Citation Nr: 1313896 Decision Date: 04/25/13 Archive Date: 05/03/13 DOCKET NO. 09-01 303 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Entitlement to service connection for a gastrointestinal disorder and an abdominal aortic aneurysm, to include as secondary to service-connected posttraumatic stress disorder. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD S. M. Marcus, Counsel INTRODUCTION The appellant is a veteran who served on active duty from September 1943 to February 1946. This matter is before the Board of Veterans' Appeals (Board) on appeal from a July 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California. Thereafter, the Veteran relocated and the jurisdiction of his claim was moved to the RO in Muskogee, Oklahoma. This appeal has been advanced on the Board's docket. 38 U.S.C.A. § 7107(a)(2) (West 2002); 38 C.F.R. § 20.900(c) (2012). FINDING OF FACT The Veteran's gastrointestinal diagnoses and abdominal aortic aneurysm are not related to his military service or to a service-connected disorder, to include posttraumatic stress disorder (PTSD). CONCLUSION OF LAW The criteria for entitlement to service connection for a gastrointestinal disorder and an abdominal aortic aneurysm, to include as secondary to a service-connected disorder, have not been met. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. § 3.310 (2006); 38 C.F.R. §§ 3.303, 3.304, 3.310 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION With respect to the Veteran's claim herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2012). Proper notice from VA must inform the claimant of any information and 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. Quartuccio v. Principi, 16 Vet. App. 183 (2002). This notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In addition, the notice requirements apply to all five elements of a service-connection claim, including: (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. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. The RO's September 2005, March 2006, and August 2008 letters advised the Veteran of the foregoing elements of the notice requirements. See Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); see also Bernard v. Brown, 4 Vet. App. 384, 394 (1993). The August 2008 letter also provided the Veteran with notice of what type of information and evidence was needed to establish disability ratings, as well as notice of the type of evidence necessary to establish an effective date. See Dingess/Hartman, 19 Vet. App. at 486. Thereafter, the claim was readjudicated several times, most recently in a March 2013 supplemental statement of the case. Accordingly, the RO effectively satisfied the remaining notice requirements with respect to the issue on appeal. In addition, the duty to assist the Veteran has also been satisfied in this case. The Veteran's service treatment records and VA medical treatment records have been obtained. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Veteran identified ongoing treatment with a particular private physician, Dr. M. The Board previously remanded the claim to ask the Veteran to either provide these private treatment records or provide VA a release form to obtain these records on his behalf. The VA sent the Veteran a letter in February 2013 asking him to either provide relevant private treatment records from Dr. M or provide a release form for VA to obtain these records on his behalf. The Veteran did not reply. As such, the Board concludes VA has satisfied its duty to assist the Veteran in obtaining these records. VA provided the Veteran with VA examinations in December 2010, May 2011, September 2012, and March 2013 to determine the etiology of his gastrointestinal disorders in conjunction with the claim on appeal. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159; see McLendon v. Nicholson, 20 Vet. App. 79, 83-86 (2006). The March 2013 VA examination is adequate as it was based upon a complete review of the evidence of record, consideration of the Veteran's lay statements, and clinical examination of the Veteran. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). In this regard, the Board finds that there has been substantial compliance with the prior remand as the RO provided the Veteran with an adequate VA examination. See Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman, 19 Vet. App. at 486. The Veteran claims he had "stomach problems" since 1946. While he does not believe he ever had problems during his military service, the issues arose very shortly after separation from service. More specifically, various family members, including his wife indicate his stomach issues began in the summer of 1946, approximately five or six months after separation from the military. He contends ongoing problems with epigastric distress, hiatal hernia, hyperacidity, and reflux ever since. At the very least, the Veteran feels his ongoing stomach problems through the decades are attributable to anxiety and stress stemming from service-connected PTSD. In general, in order to prevail on the issue of service connection 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. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Service connection may also be granted for chronic disorders, such as peptic or gastric ulcer, when manifested to a compensable degree within one year of separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2012). Although the Veteran had gastrointestinal complaints within one year after separation from service, an ulcer was specifically ruled out in September 1947 diagnostic testing. As such, the Board finds this presumption inapplicable here. Service treatment records are silent as to any complaints, treatment or diagnoses related to gastrointestinal problems. Service connection may be established on a secondary basis for a disability which is proximately due to, or aggravated by, service-connected disease or injury. Disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). Temporary or intermittent flare-ups of symptoms of a condition, alone, do not constitute sufficient evidence aggravation unless the underlying condition worsened. Cf. Davis v. Principi, 276 F. 3d 1341, 1346-47 (Fed. Cir. 2002); Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). Lay statements are competent evidence relating to symptoms or facts of events that the witness observed and is within the realm of his or her personal knowledge, but such statements are not competent evidence to establish that which would require specialized knowledge or training, such as medical expertise. Layno v. Brown, 6 Vet. App. 465, 469-70 (1994); see also Visser v. Packer Engineering Assoc., Inc., 924 F.2d 655, 659-60 (7th Cir.1991) (holding that lay assertion cannot be "flights of fancy, speculations, hunches, intuitions, or rumors about matters remote from [the witness's] experience;" finding that statements are not competent evidence to describe motive because testimony too much like psychoanalysis, for which witness not qualified). Statements may also be competent evidence to establish medical etiology or nexus. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009), but see Waters v. Shinseki, 601 F.3d 1274, 1278 (2010) ("VA must consider lay evidence but may give it whatever weight it concludes the evidence is entitled to" and holding that mere conclusory generalized lay statement that service event or illness caused the claimant's current condition is insufficient to require VA to provide an examination). Specifically, "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." Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The Veteran's gastrointestinal complaints have been variously diagnosed through the years, but medical records support ongoing treatment since at least 1947. In a November 1947 signed statement, the Veteran's treating physician indicated treating the Veteran since July 1947 for gastric distress, anorexia, weight loss, weakness, and fatigue. No specific diagnosis is noted. It is also well-documented that the Veteran was hospitalized at a VA facility in September 1947 for suspected peptic ulcer, but the ultimate diagnosis was chronic "gastritis." The Veteran and his family indicate symptoms started in the "summer" of 1946. Although there are no specific medical records from that time frame, in light of the consistency of the lay statements and the medical evidence shortly thereafter, the Board finds the lay statements of record regarding the continuity of symptomatology throughout the years are competent and credible evidence. Caluza v. Brown, 7 Vet. App. 498, 506 (1995) (finding that in weighing the credibility, VA may consider inconsistent statements, internal inconsistency, and consistency with other evidence of record). The pertinent inquiry then is whether any chronic disorder has been persuasively attributed to his military service or, in the alternative, persuasively attributed to his service connected PTSD. After careful consideration of all the pertinent evidence, the Board concludes it has not. As indicated above, the first medical evidence of gastrointestinal complaints was in 1947, over one year after separation from service. At that time, the Veteran's private physician indicated treatment from July 1947 to August 1947 for epigastric distress, weight loss, anorexia, weakness, and fatigue. No diagnosis is noted. Shortly thereafter, the Veteran was hospitalized from September 1947 to October 1947. At the time of admission, a peptic ulcer was suspected, but the Veteran's history was "not typical" of an ulcer. Diagnostic testing ruled out a peptic ulcer. Rather, the trouble was "hyperacidity." The diagnosis was chronic gastritis. Within the VA hospitalization report, the physician noted "it is possible that there is a psychiatric reason for some of his trouble also." In fact, after service the Veteran worked as a police officer and took off work from June 1973 to July 1973 due to "upset stomach." Medical records from the 1970s and 1980s included multiple private examinations to ascertain whether the Veteran's gastrointestinal complaints could be related to job-related emotional stress. Private medical reports date March 1977, September 1978, and March 1980, for example, diagnose the Veteran with a hiatal hernia, chronic recurrent duodenal ulcer syndrome, and anxiety neurosis. These private reports indicate the Veteran's hiatal hernia and duodenal ulcer are at least "aggravated and accelerated by" emotional stress and tension of his police work. The March 1980 report recognized that certain spicy foods also played a role. An April 1977 private physician report, in contrast, noted that hiatal hernias are usually "congenital" in origin, but could also be attributed to trauma. The Veteran, however, had no history of such trauma and the physician at that time did not believe the disorder had anything to do with his job, to include emotional stress. The physician noted the Veteran's stomach problems in the 1940s. At that time, moreover, the Veteran did not have a "current" ulcer, but there was some slight deformity of the duodenal bulb. As to etiology, the April 1977 private physician opined as follows: Both conditions of symptoms from hiatal hernia and duodenal ulcer occur in all walks of life whether or not the patient is employed or not and there has been no evidence that this is an increased hazard for policemen over any other position in life. They seem to depend more upon the individual's reaction to life about him. While these early 1970s and 1980s private opinions indicate a "possible" connection between high stress and the Veteran's gastrointestinal conditions, none of them linked a gastrointestinal diagnosis as due to or aggravated by PTSD. These opinions, which merely indicated a "possible" connection between a psychological component and gastrointestinal diagnoses, are too speculative to be probative evidence. See Obert v. Brown, 5 Vet. App. 30, 33 (1993) (holding that speculative opinions are not probative). It is noteworthy, moreover, that these opinions considered the impact of the Veteran's post-service occupational stress on his gastrointestinal disorders, rather than any military-related chronic psychiatric disorder. In 1997 the Veteran was treated for esophageal hiatal hernia with erosions. Ultimately, he had to undergo a surgical procedure in November 2003 for chronic diverticulitis, with recurrent lower gastrointestinal bleeds requiring transfusions. The Veteran's private physician Dr. G noted in a November 2005 statement that the Veteran, who had been his patient since July 1993, had psychological and physical ailments since 1946, to include hyperacidity, depression, anxiety, and anorexia. The Veteran was afforded multiple VA examinations in December 2010, May 2011, September 2012, and March 2013. All four of these examiners highlight the Veteran's long-standing alcohol abuse and tobacco history. A March 2008 VA psychiatric examination concluded the Veteran's history of alcohol abuse, in remission, was "secondary" to his PTSD as he wanted to "erase his memories." While this statement has been considered, the Board finds it less probative than the other medical evidence. The Veteran told the examiner at that time that he started drinking in 1946 during service to erase memories. In the vast majority of the voluminous other medical evidence, however, the Veteran stated abusing alcohol prior to military service while still in his "teens." The examiners, such as the December 2010 examiner, addressed this contention finding no significant alteration in alcohol intake prior to service versus post-service. In fact, the Veteran, during his multiple gastrointestinal VA examinations, never claimed his alcohol abuse began in service. In December 2010, the VA examiner diagnosed the Veteran with gastroesophageal reflux disease and hiatal hernia. After reviewing the file and describing the Veteran's medical and military history in detail the examiner concluded as follows: ...the Veteran's [gastroesophageal reflux disease]/hiatal hernia is less likely as not permanently aggravated or a result of any event and/or condition that occurred and/or expressed in-service and/or within one year of discharge including the Veteran's reported alcohol abuse and/or PTSD and/or alleged alcohol abuse related to PTSD and is at least as likely as not permanently aggravated or a result of non-service related alcohol and/or tobacco abuse and was not caused by and/or worsened by an already service connected disability. The examiner noted that the Veteran's tobacco and alcohol abuse pre-existed service and was not materially altered in-service. It was further noted, "There is a well established association between [gastroesophageal reflux disease] and alcohol and/or tobacco abuse." A distinction was made, however, between "alcohol abuse related to PTSD" versus "non-service related alcohol [abuse]" without really explaining the difference. For that reason, the Board sought a new VA examination. The Veteran was afforded a new VA examination in May 2011, but at that time all gastrointestinal diagnostic tests returned within normal limits. Because the Veteran did not have any objective manifestations warranting a diagnosis, the examiner did not proffer an opinion with regard to etiology. The claim was again remanded to afford the Veteran a new VA examination and proffer an etiology opinion over all gastrointestinal diagnoses found, past and present. The Veteran was afforded a new examination in September 2012. At that time, the diagnosis was an abdominal aortic aneurysm. The examiner did not have the claims folder to review, but noted the Veteran's self-reported medical history. The examiner concluded that the diagnosis was "less likely than not" incurred in or caused by any in-service event. Rather, the examiner found it more likely that the abdominal aortic aneurysm was a result of tobacco use and/or coronary artery disease and/or advancing age without any aggravation by an already service-connected disability. The Veteran was most recently afforded a VA examination in March 2013. The examiner thoroughly documented the Veteran's self-reported history, and detailed all the evidence reviewed in the claims folder, to include the 1947 hospitalization, private opinions, and VA opinions rendered through the years. The examiner diagnosed hyperacidity and hiatal hernia, with erosion. His history of symptoms since 1946 was also noted as was his alcohol and tobacco abuse history. At that time, the Veteran reported he ceased smoking and drinking in 1949 and has not resumed since that time. The Veteran stated, however, that he began drinking alcohol and smoking tobacco prior to induction into the service and continued throughout without any change in habits. The examiner noted the Veteran's PTSD and medications taken for his disabilities. The March 2013 examiner noted that neither the service treatment records nor the 1947 records show any evidence of gastritis or ulcer. Rather, the 1947 report shows a normal upper gastrointestinal study despite the Veteran's complaints and hospitalization. The examiner also noted the Veteran's reported history was presumed accurate. With regard to alcohol and tobacco abuse, the examiner noted the Veteran reported smoking four years prior to military service and continued to smoke for three years post service, with no reported material alteration in-service. The Veteran reported abusing alcohol before induction at age 18 and continued until 1949, with no reported alteration in alcohol intake after induction. Based on all these facts, the examiner concluded that the Veteran's gastroesophageal reflux disease, hiatal hernia, and other gastroentestional disorders are "less likely as not" the result of any in-service event or caused or "permanently aggravated" by PTSD or "alleged alcohol abuse related to PTSD." Rather, the examiner found his gastrointestinal conditions to be more likely as not related to non-service related alcohol abuse and tobacco abuse. The examiner indicated "there is a well established association between [gastroesophageal reflux disease] and alcohol and/or tobacco abuse." In short, the medical evidence confirms a lengthy history of gastrointestinal complaints, with varying diagnoses since at least 1947. The Veteran and his family submitted statements that these symptoms started within six months after separation of service in the summer of 1946. Peptic ulcer or gastric ulcer was not diagnosed within the first year of separation of service, and indeed, an ulcer was clinically ruled out in September 1947. Diagnoses have been rendered through the years, to include hiatal hernia, gastroesophageal reflux disease, abdominal aortic aneurysm, hyperacidity, and chronic diverticulitis. Some medical professionals have indicated a possible connection between emotional stress and/or a psychological component to the development or aggravation of these gastrointestinal diagnoses. None of these medical professionals linked a gastrointestinal diagnosis to PTSD specifically, and were merely speculating the possibility of a link to a psychological component. For these reasons, the Board does not find these opinions probative. See Obert v. Brown, 5 Vet. App. 30, 33 (1993) (holding that speculative opinions are not probative). During that same time period, an April 1977 medical examiner opined to the contrary, finding the Veteran's gastrointestinal complaints unrelated to any particular occupational or emotional stress. Other medical professionals have opined that the Veteran's gastrointestinal diagnoses are "more likely" related to the Veteran's long history of alcohol and tobacco abuse. These medical professionals considered the impact of the Veteran's service-connected PTSD on gastrointestinal issues, and specifically opined that PTSD did not cause or aggravate these diagnoses. The December 2010 and March 2013 VA examiners also considered whether PTSD induced alcohol abuse caused or aggravated any current gastrointestinal diagnosis and opined to the contrary. The March 2013 examiner in particular explained that the Veteran's self-reported history of alcohol and tobacco abuse pre-dated service and was not materially altered while in service or thereafter. The vast majority of medical opinions of record associate the Veteran's gastrointestinal diagnoses to his history of alcohol and tobacco abuse. The Board considered the Veteran's statements and those from his family regarding continuity of symptomatology and why he feels his PTSD caused or aggravated his stomach problems. In fact, the March 2013 VA examiner reported in detail the Veteran's contentions and considered these statements credible in rendering the opinion. Despite the Veteran's medical history, continuous symptoms, and service-connected PTSD, the most probative medical evidence consistently links the Veteran's gastrointestinal diagnoses to non-service related alcohol and tobacco abuse. Overall, the Board finds the medical evidence adequately addressed the Veteran's lay statements and fully explained opinions expressed with medical knowledge and experience. Accordingly, the Board concludes service connection for a gastrointestinal disorder, to include abdominal aortic aneurysm, is not warranted. As reflected by the discussion above, the preponderance of the evidence is against the Veteran's claims. As such, the benefit-of-the-doubt rule does not apply, and the claims must be denied. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for a gastrointestinal disorder and an abdominal aortic aneurysm, to include as secondary to a service-connected disorder, is denied. ____________________________________________ JOY A. MCDONALD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs