Citation Nr: 1314792 Decision Date: 05/03/13 Archive Date: 05/15/13 DOCKET NO. 10-22 415A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUE Entitlement to service connection for a digestive tract disability. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J. Smith, Counsel INTRODUCTION The Veteran served on active duty from January 1943 to June 1943. The Veteran's claim comes before the Board of Veterans' Appeals (Board) on appeal from a May 2008 rating decision of the Department of Veterans Affairs' (VA) Regional Office (RO) in Chicago, Illinois. In January 2013, the Board adjudicated a number of issues, and remanded the remaining above-captioned claim for additional development. That development having been completed, the claim has been returned to the Board and is now ready for appellate disposition. The Board has considered documentation included in the Virtual VA system in reaching the determinations below. No new records pertinent to this appeal were found therein. 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). FINDINGS OF FACT 1. The in-service digestive tract complaints were not due to an organic pathology. 2. The post service GERD and diverticulitis were not manifest during service and are unrelated to service. CONCLUSION OF LAW The criteria for service connection for a digestive tract disability have not been met. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002 & 2012); 38 C.F.R. §§3.102, 3.159, 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Notice and Assistance Under applicable law, VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from 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; and (3) that the claimant is expected to provide. This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). The Board finds that the content requirements of a duty to assist notice have been fully satisfied. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). A letter from the RO dated in February 2008 provided the Veteran with an explanation of the type of evidence necessary to substantiate his claim, as well as an explanation of what evidence was to be provided by him and what evidence the VA would attempt to obtain on his behalf. That letter, and a separate letter of March 2006, additionally provided him with information concerning the evaluation and effective date that could be assigned should service connection be granted, pursuant to Dingess v. Nicholson, 19 Vet. App. 473 (2006). VA has no outstanding duty to inform the Veteran that any additional information or evidence is needed. VA also has a duty to assist the Veteran in the development of the claim. This duty includes assisting the Veteran in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. Here, the Board finds that all relevant facts have been properly developed, and that all evidence necessary for equitable resolution of the issue has been obtained. The Veteran's service treatment records and post service treatment records have been obtained. He has been afforded the opportunity for a personal hearing. He has been afforded a VA examination for the matter on appeal. The Board does not have notice of any additional relevant evidence which is available but has not been obtained. The Board is further satisfied that the RO has substantially complied with its January 2013 remand directives. Stegall v. West, 11 Vet. App. 268, 271 (1998); see also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (finding that only substantial compliance, rather than strict compliance, with the terms of a Board engagement letter requesting a medical opinion is required). As directed by the Board, the AOJ afforded the Veteran a VA examination for the claim on appeal. See McLendon v. Nicholson, 20 Vet. App. 79 (2006); see also 38 U.S.C.A. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4). For the foregoing reasons, the Board concludes that all reasonable efforts were made by the VA to obtain evidence necessary to substantiate the Veteran's claim. Therefore, no further assistance to the Veteran with the development of evidence is required. Analysis Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may also be warranted 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). In relevant part, 38 U.S.C.A. § 1154(a) requires that the VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim to disability or death benefits. Lay evidence can be competent and sufficient to establish a diagnosis of a disorder 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). Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno v. Brown, 6 Vet. App. 465 (1994) (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted.") The Veteran in this case has been diagnosed with gastroesophogeal reflux disease (GERD) and diverticulitis, both documented, for example, on VA examination in February 2013. Thus, the question is whether his current disability is related to active service or events therein. See 38 C.F.R. § 3.303. As for the in-service incurrence of the condition, initially, the Board notes that as the claimed disorder in this case is unrelated to combat, 38 U.S.C.A. § 1154(b) does not apply. However, service treatment records do confirm gastrointestinal problems. The Veteran's entrance examination conducted in January 1943 was normal. In April 1943, he was found to have gastritis, chronic, atonic, cause undetermined, manifested by pain and tenderness in the epigastrium and in right lower quadrant. He reported generalized abdominal pains over the past few years. In May 1943, a gastroscopic examination was conducted. The results were normal. In a June 1943 progress record, the Veteran was found to have "psychoneurosis, mixed type, moderately severe, cause undetermined, manifested by weakness, widely distributed aches and pains following 'pneumonia' in 1935, persistent gastrointestinal symptoms, a history of industrial and social maladjustment, for all of which no organic basis can be found." In a June 1943 June Certificate of Disability for Discharge, discharge was recommended based on psychoneurosis. Additional diagnoses included pes planus, hammer toes, and tonsillitis. A gastrointestinal disability was not mentioned. On remand in January 2013, a VA examination was ordered to determine whether the Veteran's current disability may be related to service. In February 2013, an examination was conducted. The examiner diagnosed GERD and diverticulitis, and concluded that it was less likely than not (less than 50 percent probability) that the disorders were incurred in or caused by service. In reaching this conclusion, the examiner discussed the service treatment records. She noted that the gastroscopy in May 1943 was normal, and also that there was a normal abdominal x-ray conducted demonstrating no evidence of a gastrointestinal disorder. She noted that the Veteran developed GERD in 2001, and had one bout of diverticulitis, which resolved in 2007. She concluded that there was no evidence of an organic gastrointestinal or esophageal condition during military service, and that there was no organic cause to the Veteran's symptoms. Rather, they were consistent with manifestations of his psychoneurosis, supported by normal gastrointestinal studies. The examiner stated she was unaware of any current medical literature that would support any correlation between somatization and true organic conditions such as GERD or diverticulosis. The remote onset of GERD and diverticulitis more than 50 years after service was found to be most consistent with lifestyle choices. She stated that current medical literature supports that the Veteran's chronic alcohol use, poor diet, and chronic smoking serve as provoking agents to developing GERD and diverticulitis. There is no probative evidence regarding specific etiology (in his case) to the contrary of the February 2013 examiner's opinion. The Board finds the report fully adequate for the purposes of adjudication. See Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007). The examiner founded her opinion on an examination of the claims file and of the Veteran, with reference to past and current diagnostic reports, and medical literature applicable to the claim. She accepted and discussed the in-service gastrointestinal symptoms in rendering his opinion. In the absence of any competent evidence to the contrary, the preponderance of the evidence is against the claim. In reaching this decision, the Board notes that the Veteran, on his own behalf, has contended that his current stomach disorder is related to military service. However, the Veteran is not competent or qualified, as a layperson, to render an opinion concerning medical causation in this case. See Barr v. Nicholson, 21 Vet. App. 303, 307-08 (2007); Layno v. Brown, 6 Vet. App. 465, 469-70 (1994). Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet.App. 428, 435 (2011), the specific issue in this case, the etiological cause of his GERD and diverticulitis, falls outside the realm of 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)." Furthermore, there are no Jandreau exceptions in this case. The Veteran's representative also argues that where, as here, the record lacks evidence of a nexus, a Veteran may be entitled to disability benefits if he establishes continuity of symptomatology between the present condition and in-service injury or disease. 38 C.F.R. § 3.303(b) (2012). However, the United States Court of Appeals for the Federal Circuit recently clarified that the continuity of symptomatology language in § 3.303(b) "restricts itself to chronic diseases" found in 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013)). (holding, "nothing in § 3.303(b) suggests that the regulation would have any effect beyond affording an alternative route for proving service connection for chronic diseases."). As neither GERD nor diverticulitis is a chronic disease under § 3.309(a), the Court finds as a matter of law that the Veteran may not establish continuity of symptomatology in lieu of a nexus. The only disorder possibly applicable to this claim included under §3.309(a) appears to be peptic ulcers, but the record is devoid of documentation of any type of peptic ulcer. The Veteran is competent to report that he has had on-going digestive tract symptoms since service. See, 38 C.F.R. § 3.303(a). However, his opinion and statements pale in significance to the medical evidence that clearly establishes that there was no organic pathology during service and that the current diseases were unrelated to service. Here, the medical evidence is far more persuasive and credible than the lay assertions. Finally, the Board acknowledges that in the May 2008 rating decision on appeal and the April 2010 statement of the case, the RO discussed that the Veteran's psychoneurosis, including gastrointestinal symptoms, existed prior to service. In this case, the Board does not find that the question of whether there was a pre-existing gastrointestinal disability has been raised by the record. Every Veteran is presumed sound at entry, except as to defects noted at entry or where clear and unmistakable (obvious or manifest) evidence demonstrates that an injury or disease existed prior to service and was not aggravated by service. 38 C.F.R. § 3.304(b). Here, no gastrointestinal defects were noted at the examination for entry into service. There are no medical records dated from prior to service documenting a gastrointestinal disease, including GERD or diverticulitis. The Veteran's April 1943 mention of stomach pain over the past few years is not clear and unmistakable evidence of a pre-existing gastrointestinal disability. As such, the Veteran is presumed sound at entry with regard to this claim. While the Veteran's psychoneurosis may have preexisted service, this is a separate claim, which the Board already declined to reopen in January 2013. In short, there is competent evidence that the Veteran has a digestive tract disorder; however, the more probative and credible evidence establishes that there is no relationship to service. In reaching this decision the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the appellant's claim, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for a stomach disorder is denied. ____________________________________________ H. N. SCHWARTZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs