Citation Nr: 1315131 Decision Date: 05/08/13 Archive Date: 05/15/13 DOCKET NO. 10-18 597 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boston, Massachusetts THE ISSUES 1. Whether new and material evidence has been received to reopen a claim for entitlement to service connection for bilateral disabilities of the tibia and fibula (shins). 2. Entitlement to service connection for bilateral disabilities of the tibia and fibula (shins). 3. Whether new and material evidence has been received to reopen a claim for entitlement to service connection for a stomach disability, to include as secondary to medication to treat a service-connected back disability. REPRESENTATION Appellant represented by: Kenneth M. Diesenhof, Attorney at Law WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Michael Holincheck, Counsel INTRODUCTION The Veteran had active service from October 1972 to July 1975. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Boston, Massachusetts. The Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge in March 2013. A transcript of the hearing is included in the Veteran's electronic records in Virtual VA. The Board notes that the first issue on appeal has been re-characterized as requiring new and material evidence. The Veteran originally submitted a claim for service connection for a bilateral shin disability in July 1975. He claimed that he suffered injuries to his shins from striking them on hatches on his ship in service. The claim was denied in April 1976 and the Veteran did not appeal. He submitted a claim for service connection for a bilateral disability of the tibia/fibula in December 2007. His written submission contained the word shins but this was crossed out and tibia/fibula was written in. However, at his hearing in March 2013 the Veteran repeatedly stated that his disability involved his shins and that the disability was due to striking his shins on hatches on his ship during service. (Transcript p. 5). He is service connected for bilateral knee disabilities involving chondromalacia. He stated at his hearing that his claimed disability did not involve his knees but his shins. Whether characterized as a disability of the tibia/fibula or as a disability of the shins, the issue was previously denied in 1976 and not appealed. Thus, the issue has been changed to reflect the posture of the issue on appeal as requiring new and material evidence. The issue of entitlement to service connection for bilateral disabilities of the tibia and fibula (shins). is addressed in the REMAND portion of the decision below and is REMANDED to the Department of Veterans Affairs Regional Office. FINDINGS OF FACT 1. The Veteran was denied service connection for a bilateral shin disability by way of a rating decision dated in April 1976. He failed to perfect an appeal and the decision became final. 2. Evidence received since the April 1976 rating decision is new, and it raises a reasonable possibility of substantiating the underlying claim for service connection for a bilateral disability of the tibia/fibula (shin). 3. The Veteran was denied direct service connection for a stomach disability in April 1976. He failed to perfect an appeal and the decision became final. 4. The Veteran sought service connection for a stomach disability, as secondary to medication used to treat a service-connected back disability, in June 2004. His claim was denied in August 2004. He failed to perfect an appeal of the decision and the decision became final. This is the last final denial on any basis. 5. Evidence received since the August 2004 rating decision is new and it is raises a reasonable possibility of substantiating the underlying claim for service connection for a stomach disability as secondary to medications used to treat a service-connected back disability. 6. The Veteran does not have a stomach disability at any time during the pendency of this appeal. CONCLUSIONS OF LAW 1. The April 1976 rating decision that denied service connection for a bilateral shin disability is final. 38 U.S.C. § 4005(c) (1970); 38 C.F.R. §§ 3.104, 19.118, 19.153 (1975). 2. The evidence received since the April 1976 rating decision is new and material, and the claim for service connection for a bilateral tibia/fibula (shin) disability is reopened. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2012). 3. The August 2004 rating decision that denied service connection for a stomach disability, secondary to medication used to treat a service-connected back disability, is final. 38 U.S.C.A. § 7105(c) (West 2002); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2004). 4. The evidence received since the August 2004 rating decision is new and material and the claim for service connection for stomach disability, as secondary to medication used to treat a service-connected back disability, is reopened. 5. The Veteran does not have a stomach disability that was incurred in or aggravated by service or is secondary to medications used to treat a service-connected disability. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. New and Material The Veteran served on active duty from October 1972 to July 1975. He served in the Navy and his military records show that he was assigned to an aircraft carrier for more than a year. As will be discussed below, both of the issues on appeal were the subject of prior final denials. The Board must consider the question of whether new and material evidence has been received because it goes to the Board's jurisdiction to reach the underlying claim and adjudicate the claim de novo. See Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001); Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). If the Board finds that no such evidence has been offered, that is where the analysis must end, and what the RO may have determined in that regard is irrelevant. Id. Further analysis, beyond consideration of whether the evidence received is new and material, is neither required nor permitted. Id. at 1384; see also Butler v. Brown, 9 Vet. App. 167, 171 (1996). Under 38 C.F.R. § 3.156(a), evidence is considered "new" if it was not of record at the time of the last final disallowance of the claim. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. Finally, new and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. The new and material evidence does not have to be sufficient to grant the claim. See Shade v. Shinseki, 24 Vet. App. 110 (2010) (New evidence would raise a reasonable possibility of substantiating the claim if when considered with the old evidence it would at least trigger the Secretary's duty to assist by provided a medical opinion.) In determining whether evidence is new and material, the "credibility of the evidence is to be presumed." Justus v. Principi, 3 Vet. App. 510, 513 (1992). Bilateral Tibia/Fibula (Shin) The Board notes that the Veteran was previously denied entitlement to service connection for a bilateral shin disability by way of a rating decision dated in April 1976. He was provided notice of the rating action that same month. He failed to perfect an appeal and the decision became final. See 38 U.S.C. § 4005 (1970); 38 C.F.R. §§ 3.104, 19.118, 19.153 (1975). As a result, service connection for a bilateral tibia/fibula (shin) disability may now be considered on the merits only if new and material evidence has been received since the time of the last final denial. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2012); Manio v. Derwinski, 1 Vet. App. 140, 145 (1991); Evans v. Brown, 9 Vet. App. 273 (1996). The evidence of record at the time of the April 1976 rating decision consisted of the Veteran's claim for benefits, his service treatment records (STRs), and a VA examination report dated in January 1976. The STRs showed no evidence of any type of a shin problem on his enlistment physical examination of August 1972. His Report of Medical History at that time was also negative. The Veteran was seen for a complaint of generalized bone aches and pain in June 1973. The impression was psychosomatic complaints. The Veteran was seen in February 1975 with a complaint of pain in his right calf. The assessment was muscle strain. A second entry from later in February 1975 noted a complaint of pain in the calf muscles of both legs. The entry noted the Veteran was seen previously and given pain pills that did not help. The entry noted "VRS" with general muscle aches in the legs and that it was probably flu. The Veteran sprained his left ankle while playing basketball in March 1975. An entry from April 1975 noted that the Veteran complained of pain over his right tibia for two months. He had not obtained any relief. The physical examination said there was tenderness over the shin with no bony prominences. An x-ray of the right tibia was said to be negative. The impression was of no serious organic pathology found. In May 1975 he was seen primarily for swelling in the left eye but also complained of pain in the thigh muscles of his legs. The entry noted that the legs were normal. The Veteran's June 1975 discharge physical examination was negative for any findings relating to the shins or tibia/fibula. The Veteran was noted to have bilateral knee pain. The January 1976 VA examination noted a subjective complaint of left leg pain and shin pain. On examination the examiner said the Veteran said he injured his knees in service by striking them on hatches on his ship. He said he now experienced pain in his knees with sitting and walking. He was also reported to complain of a nagging pain in his left leg. The examiner said there was no evidence of pain on examination. The Veteran had a normal gait and station. His knees and legs were said to be normal. The final impression was no orthopedic condition found on examination. The Veteran's claim for service connection for disability of the shins was denied in April 1976. The rating decision noted the above mentioned STR entries and the results of the VA examination. The claim was denied based on the claimed disability not being shown on the examination. Notice of the rating action, along with appellate rights, was provided, in April 1976. The Veteran did not appeal. The Veteran sought to reopen his claim for service connection for a bilateral shin disability in February 1979. The RO wrote to him that same month and informed him he needed to submit evidence to reopen his claim. The Veteran did not respond to the letter. The Veteran sought to reopen his claim in December 2007. He submitted a VA Form 21-4138, Statement in Support of Claim, wherein he wrote that he was filing a claim for service connection for his shins. The word "shins" was crossed out and he wrote bilateral tibia/fibula. As stated in the Introduction, the Veteran has maintained that he injured his shins in service. The evidence added to the record since the denial of service connection in April 1976 includes: treatment records from Peter Bent Brigham (PBB) Hospital for the period from January 1979 to October 1979, records from PBB and Brigham and Women's Hospital for the period from May 1979 to April 1982, VA treatment records for the period from January 1976 to November 1982 and from April 1983 to April 1984, report from E. Hirsey, D.C., dated in June 1988, Harvard Community Health Plan records for the period from January 1992 to April 1994, note from M. S. Wagner, M.D., dated May 2004, treatment records from Bridgewater Goddard Park Medical Associates (Bridgewater) for the period from September 1994 to February 2001, treatment records from Caritas Good Samaritan for the period from August 2000 to June 2004, records from R. W. Carne, D.C., for the period from August 2007 to January 2008, report from J. M. King, M.D., dated in June 2007, VA and/or QTC examination reports dated in May 1983, July 1985, June 1986, July 1988, July 1991, June 1994, March 1996, January 1997, October 2003, February 2008, June 2008, and November 2010, as well as statements from the Veteran and transcripts of RO hearings in July 1984 and February 1996 and of his hearing from March 2013. The evidence is new to the record. The VA treatment records show the Veteran was seen for complaints of bilateral knee pain beginning in February 1976. He related that he had injured his knees multiple times in service. An orthopedic consult from that time provided a diagnosis of chondromalacia patella. He was seen again for right knee pain in March 1981. He reported a history of multiple knee traumas from approximately 1972. Most of the private treatment records pertain to treatment for conditions unrelated to the claimed bilateral tibia/fibula/shin disability. The records from PBB do contain entries from 1979 that show the Veteran being treated for pain in his right leg. In May 1979 he described the pain as a feeling of pins and needles on full weight bearing. He was noted to have injured his knees in service. The examiner noted that there was numbness with paresthesia over the right lateral fibula. The impression was questionable neuropathy. The Board notes that the Veteran was granted service connection for chondromalacia of the knees in April 1983. The grant was based on review of the treatment records documenting treatment for complaints of knee pain soon after service and continuing over the next several years. He was also granted service connection for a back disability at the same time. The Veteran was afforded a VA examination to assess his disabilities in May 1983. The examiner reported that examination of the knees was within normal limits except for minimal crepitus. There was no weakness of the thigh or calf muscles. Records from Bridgewater note that the Veteran complained of shin pain in August 1997. He gave a history of injuring his shins in service. His shin pain was worsened recently due to running. Shin splints were assessed at that time. The Veteran was afforded a QTC examination in regard to his current claim in June 2008. The request for the examination submitted by the RO cited to several STR entries but limited the request for an opinion to only the right tibia based on the STR entry of April 1975. At the examination the Veteran related that he suffered recurrent contusions to his shins while serving on his ship. He reported having pain in his shins for 35 years. The examiner reported that his examination of the tibia and fibula for both legs revealed normal findings. The examiner cited to the April 1975 STR entry that noted pain in the right tibia without a specific diagnosis. The examiner addressed the only the claimed condition of a right tibia disability. In that regard, he said there was no diagnosis as there was no pathology to render a diagnosis. The examiner included an addendum that indicated he reviewed the Veteran's entrance and discharge physical examinations. The November 2010 examination evaluated the Veteran's stomach disability issue. The Veteran testified at his March 2013 hearing about continually banging his shins on hatches while on his ship. He said he would go to medical on the ship and, if he had skinned his shins, he would receive gauze and tape. He would then tape up his injured shin. He estimated that this happened 10-12 times during service. He specifically related that he did not have problems with his knees but his shins. He related that, after service, he had to give up certain activities such as playing basketball or running. He said it would feel like pins and needles in his shins. This would radiate down the front of his legs. The Veteran also testified that he had scars to prove his injuries in service. The Board finds that the Veteran has submitted new and material evidence. The private treatment records document post-service treatment for symptoms in 1979 that are similar to those reported by the Veteran in his testimony of March 2013. He was diagnosed with shin splints in 1997. The Veteran's testimony provides credible evidence of how he would have hit his shins on the hatches on the ship. 38 U.S.C.A. § 1154(a) (West 2002). He maintains that he continues to experiences symptoms since service. The Veteran's claim for service connection for bilateral tibia/fibula/shin disabilities is reopened. The issue will be addressed in the remand portion of the decision. Stomach Disability The Board notes that the Veteran was previously denied entitlement to direct service connection for a stomach disability by way of a rating decision dated in April 1976. He was provided notice of the rating action that same month. He failed to perfect an appeal and the decision became final. See 38 U.S.C. § 4005 (1970); 38 C.F.R. §§ 3.104, 19.118, 19.153 (1975). He sought to reopen a claim for service connection for a stomach disability, this time as secondary to medication to treat a service-connected back disability in June 2004. His claim was denied in August 2004 with notice of the rating action provided in September 2004. He failed to perfect an appeal of that decision and it became final. See 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2004). This is the last final denial of service connection for a stomach disability on any basis. As a result, service connection for a stomach disability, to include as secondary to medication to treat a service-connected back disability may now be considered on the merits only if new and material evidence has been received since the time of the last final denial. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156; Manio, Evans. The Veteran initially sought service connection for a stomach disability with his claim of July 1975. His STRs show that he had a complaint of pain in the area of the abdomen that appeared when doing sit ups. The June 1975 discharge examination was negative for any findings of a gastrointestinal (GI) disorder. The VA examination of January 1976 noted the Veteran complained of something like a knot in his stomach. He reported having heartburn and using Maalox for relief. There was slight epigastric tenderness. The Veteran was scheduled for an upper GI series but did not report. The final diagnosis was that there was no evidence of any GI abnormality. The Veteran was denied service connection on a direct basis in April 1976. He failed to appeal the decision and it became final. As with his claim for service connection for a shin disability, the Veteran submitted a request to reopen his claim for service connection for a stomach disability in February 1979. The RO wrote to him to advise that he had to submit evidence to reopen his claim that same month. The Veteran did not respond to the letter. The Veteran submitted a note from Dr. Wagner in June 2004. The note, dated in May 2004, stated that taking Ibuprofen and Naprosyn caused abdominal pain and kidney toxicity. The Veteran's representative stated the Veteran was seeking service connection for a stomach disability as secondary to medication used to treat his service-connected back disability. The evidence of record at the time of the August 2004 rating decision consisted of the Veteran's STRs, VA treatment records from 1976 to 1984, private records from PBB and Brigham and Women's Hospital, report from Dr. Hirsey, Harvard Community Health Plan records for the period from January 1992 to April 1994, note from Dr. Wagner, dated May 2004, treatment records from Bridgewater for the period from September 1994 to February 2001, treatment records from Caritas Good Samaritan for the period from August 2000 to June 2004, VA and/or QTC examination reports dated in May 1983, July 1985, June 1986, July 1988, July 1991, June 1994, March 1996, January 1997, October 2003 and hearing transcript from hearings in July 1984 and February 1996. The VA records did not show evidence of a stomach disability. The private and VA treatment records show that the Veteran began taking Motrin and Ibuprofen for complaints of joint pain beginning in the early 1980s. He was later also prescribed Naprosyn. The medication was used to treat complaints of back pain as well. The records from Bridgewater show that the Veteran had an abdominal ultrasound in September 1994. Stones were visualized in the gall bladder but there were no other abnormalities. An upper GI series was done in October 1994 that was reported as normal. The records indicate that the Veteran had his gall bladder removed but there are no entries related to that treatment. The Veteran was seen on several occasions beginning in 1996 with complaints of epigastric pain or abdominal pain of unclear etiology. An entry from July 1997 said the Veteran had a history of irritable bowel syndrome (IBS) but this was not diagnosed. In February 1998 he was seen for abdominal cramps. The assessment included possible IBS and gastroesophageal reflux disease (GERD). An entry from November 1998 noted that nonsteroidal anti-inflammatory drugs (NSAIDs) used to treat complaints of pain, in this case a right shoulder problem, seemed to upset the Veteran's stomach. An entry from June 2000 noted the Veteran had a history of back pain and was taking Tylenol and Motrin for his pain. He reported a past problem with constipation. The Veteran was also evaluated for elevated creatinine levels and an entry from December 2000 noted a history of back pain to 1976, as well as a history of GERD. One possibility for the elevated creatinine level was that the use of NSAIDs could have caused chronic renal insufficiency. There was no mention of any GI-related problems as result of taking medications. An entry from February 2001 reported the Veteran with a normal creatinine level. The examiner said he presumed the Veteran had had NSAID-induced acute renal insufficiency that was resolved. Records from Caritas Good Samaritan show the Veteran was noted to be taking Naprosyn with GI upset characterized as dyspepsia. He was seen in June 2001 for follow-up of GERD and dyspepsia. The Veteran underwent a physical examination by Dr. Wagner in March 2004. A past surgical history of gall bladder removal and GERD was listed. A screening entry for the examination noted that the Veteran had chronic low back pain since 1973 while in the service and that Ibuprofen and Naproxen had caused stomach problems and increased creatinine. The Veteran's claim was denied in August 2004. The RO determined that no new and material evidence had been received to reopen the prior denial of service connection. Notice of the rating action was provided on September 2004. The Veteran submitted a notice of disagreement in September 2004. He was issued a statement of the case in September 2004. He failed to appeal the denial. He submitted his current claim for service connection for a stomach disability, secondary to medication used to treat a service-connected back disability, in December 2007. Evidence received since the denial in August 2004 includes: records from Dr. Carne, report from Dr. King, dated in June 2007, QTC examination reports dated in February 2008, June 2008, and November 2010, as well as statements from the Veteran and a transcript of his hearing from March 2013. The evidence is new to the record. The records from Dr. Carne document chiropractic treatment for the Veteran's back disability. The report from Dr. King addresses the Veteran's back disability as well as GI-related complaints. The Veteran complained of acid reflux problems. Dr. King said the Veteran pointed to the epigastric area and said he experienced pain there. He said that review of the chart (not submitted with the records) showed the Veteran had an esophagogastroduodenoscopy (EGD) study that was within normal limits in March 2005. He was also treated for H. pylori in December 2004. He had tried over the counter and prescription medications without relief. Dr. King said he felt the Veteran had non-ulcerative dyspepsia. The February 2008 QTC examination was to evaluate the Veteran's service-connected back disability. The Veteran was noted to take Propoxyphene-N 100 APAP and Darvocet for pain. The June 2008 QTC examination that addressed the Veteran's tibia/fibula issue also evaluated the Veteran's claim for a stomach disability. The examiner said the Veteran reported being diagnosed with a stomach condition that had existed for 15 years. The Veteran reported having stomach pain located in the epigastric area. The examiner noted that the Veteran's symptoms were treated with Simethacone and Omeprazole. It was noted that the Veteran had had his gall bladder removed. The examiner said there was no diagnosis as there was a normal abdominal examination, there was no anemia and no findings of malnutrition. He did say that that it was possible that the Veteran's stomach complaints were related to his long-time use of Propoxyphene-N 100/APAP 650. The Veteran was scheduled for an upper GI series but had to cancel the appointment. The examiner provided an addendum to his report. He said a current diagnosis could not be provided as the upper GI series was not able to be conducted. He also provided a rationale for his statement of the possible relationship between the Veteran's medication and his stomach symptoms. The examiner said that use of Darvon/Tylenol medication long term can cause nonspecific GI complaints. The November 2010 QTC examination, by the same QTC examiner as from June 2008, also addressed the Veteran's stomach disability. The Veteran reported being diagnosed with a stomach condition that had existed since 1995. The Veteran also related that the condition was from long term use of Motrin for chronic back pain sustained while on active duty. His major concerns were gas and constipation. The Veteran also said he had acid reflux. He was taking Darvocet for back pain. The Veteran reported that he had abdominal pain located in the lower stomach. The pain occurred occasionally. He also said that constipation precipitated it. The examiner said he reviewed the report from Dr. King's office visit in June 2007 with a diagnosis of non-ulcerative dyspepsia and chronic low back pain. The examiner noted that the report showed complaints of acid reflux with a notation of normal EGD in 2005 and treatment for H. Pylori in 2004 without resolution of symptoms. The examiner said Dr. King's examination of the abdomen was normal with no discussion regarding side effects of medication used for pain. The examiner further noted that the QTC report from February 2008 noted the use of Darvocet-N with no notation regarding GI side effects. The examiner further noted that complete blood count (CBC) results were within normal limits. He said the CBC only showed some insignificant abnormalities. The examiner added that a diagnosis was not possible because there was no definitive evidence for a specific stomach condition based on the absence of diagnostic test results. He said the claimed stomach condition did not cause anemia. There were no findings of malnutrition. The examiner provided an addendum to his report in November 2010. The addendum included the results of a current upper GI series where the report said the study was normal. The examiner stated that, with the normal upper GI, there was no pathology to warrant diagnosis for the claimed stomach disability. The Board finds that evidence is new and material to reopen the Veteran's claim for service connection for a stomach disability. The QTC examiner related that the claimed stomach symptoms could be due to medication as there is evidence that long term use can cause nonspecific symptoms. As noted by the United States Court of Appeals for Veterans Claims (Court) in Shade, the threshold to reopen a claim is low. In this case, the RO also reopened the Veteran's claim and afforded him an examination. The initial report from the June 2008 QTC examination provided a possible connection between the Veteran's medication use and his claimed symptoms. II. Service Connection for a Stomach Disability The law provides that service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2012). Service connection may 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). Generally, service connection requires (1) medical evidence of a current disability, (2) medical evidence, or in certain circumstances lay testimony, of in-service incurrence or aggravation of an injury or disease, and (3) medical evidence of a nexus between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Hickson v. West, 12 Vet. App. 247, 253 (1999); accord Caluza v. Brown, 7 Vet. App. 498 (1995). Secondary service connection may be granted for a disability, which is proximately due to, the result of, or aggravated by, an established service-connected disability. 38 C.F.R. § 3.310 (2012). Secondary service connection includes instances in which an established service-connected disability results in additional disability of another condition by means of aggravation. Allen v. Brown, 7 Vet. App. 439 (1995). In order for service connection to be granted for a claimed disability, there must be evidence of the current existence of such claimed disability. See Rabideau v. Derwinski, 2 Vet. App. 141, 144 (1992); see also Brammer v. Derwinski, 3 Vet. App. 223 (1992) (current disability is a prerequisite to an award of service connection). As noted above, the Veteran's STRs are negative for evidence of a stomach disability. The Veteran complained of abdominal pain that occurred while doing sit ups. His January 1976 VA examination noted he complained of feeling like he had a knot in his stomach and of having heartburn. But no disorder was diagnosed. The absence of entries in the STRs regarding the claimed disabilities is not dispositive. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). Prior to December 2007 the VA and private treatment records show the Veteran had GI-related complaints. He had to have his gall bladder removed. He had complaints of acid reflux and heartburn. He reported a history of IBS but this was not diagnosed. Several of the treatment entries from Good Samaritan noted the Veteran to have GI upset with the use of medication. The treatment records also show an upper GI series was negative in October 1994 and an EGD was negative in March 2005. The most recent upper GI series was negative in November 2010. The QTC examiner reviewed the evidence and concluded that there was no stomach condition to diagnose. The Veteran had symptoms of gas and constipation on examination and dyspepsia as noted by Dr. King. Dyspepsia is "impairment of the power or function of digestion; usually applied to epigastric discomfort following meals." See Dorland's Illustrated Medical Dictionary 579 (32d ed. 2011). The examiner concluded, in light of the negative diagnostic tests, that the Veteran did not have a stomach condition that could be diagnosed, or no disability. The Board has considered the Veteran's lay statements and testimony regarding his claimed symptoms. The Veteran is competent to provide such statements and he is credible in that regard. The Veteran's focus has been that he has a current disability that is caused by his years of medication used to treat his service-connected back disability. However, the objective medical evidence of record does not establish the presence of an actual disability. The treatment records and the QTC examination reports, as well as the specialized diagnostic tests, note the Veteran's symptoms but no disability is identified during the pendency of his appeal. See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007); see also Rabideau, Brammer. Upon review of all of the evidence of record, the Board finds that the Veteran's statements do not establish the existence of a current disability in regard to his stomach disability. See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007); see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1377 at n.4 (Fed. Cir. 2007). The medical evidence of record outweighs his statements by showing there is no current disability during the pendency of his current appeal. The Board has considered the doctrine of reasonable doubt, but finds that the record does not provide an approximate balance of negative and positive evidence on the merits. The evidence does not establish the existence of a current stomach disability. Service connection on any basis is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 57-58 (1990); 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2012). The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp 2012)), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2012), provides that VA will assist a claimant in obtaining evidence necessary to substantiate a claim. They also require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. (The Board notes that 38 C.F.R. § 3.159 was revised, effective May 30, 2008. See 73 Fed. Reg. 23353-56 (Apr. 30, 2008). The amendments apply to applications for benefits pending before VA on, or filed after, May 30, 2008. The amendments, among other things, removed the notice provision requiring VA to request the veteran to provide any evidence in the veteran's possession that pertains to the claim. See 38 C.F.R. § 3.159(b)(1).) In addition, the VCAA 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. Those five elements include: 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 v. Nicholson, 19 Vet. App. 473 (2006). The Veteran submitted his claim for benefits in December 2007. The RO wrote to him in February 2008. The Veteran was provided with notice on how to substantiate his claim for service connection, to include on a secondary basis. The letter informed him of the types of evidence that would be beneficial in supporting his claim. He was further advised of the information required from him to enable VA to obtain evidence on his behalf, the assistance that VA would provide to obtain evidence on his behalf, and that he should submit such evidence or provide VA with the information necessary for VA to obtain such evidence for him. He was asked to submit any medical reports that he possessed. The letter also included notice to the Veteran as to how VA determined disability ratings and effective dates. The RO developed the Veteran's claim, to include obtaining records identified by him and affording him an examination prior to any rating action. The Veteran's claim was denied in October 2008. The Veteran has not disputed the contents of the VCAA notice in this case. He was afforded a meaningful opportunity to participate in the development of his claim. From the outset, he demonstrated actual knowledge of what was required to establish service connection, to include as secondary to medication used to treat a service-connected disability, as evidenced by his statements the evidence he identified for VA to obtain. To the extent that the VCAA notice letter of February 2008 was deficient in not advising the Veteran of the prior final denial of his claim and the requirement to submit new and material evidence, there was no prejudice. The RO fully developed his claim by obtaining evidence he identified and by affording him a QTC examination prior to the denial of his claim. His claim was treated as one for service connection and fully developed. Moreover, he has not alleged any prejudice. Thus, the Board is satisfied that the duty to notify requirements under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) were satisfied. The Board also finds that VA has adequately fulfilled its obligation to assist the Veteran in obtaining the evidence necessary to substantiate his claim. All available evidence pertaining to the Veteran's claim has been obtained. The evidence includes his STRs, private treatment records and statements from the Veteran. He was afforded two QTC examinations to assess his claim for service connection. The two examination reports contain the necessary medical opinions to allow for adjudication of the Veteran's claim. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Veteran testified at a Travel Board hearing in his case. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. 3.103(c)(2) requires that the Veterans Law Judge who chairs a hearing fulfill two duties to comply with the above regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. In this case, the issue on appeal and the bases for service connection were discussed. The Veteran provided testimony of how he was prescribed medications for his service-connected back disability going back many years. He related his symptoms and that his physician said they may be related to his medications. The Board finds that the Veteran did have the issue explained to him at his hearing and the evidence needed to support his claim. See Bryant, 23 Vet. App. at 497 The Board finds that VA has satisfied its duty to notify and assist. The Veteran has not identified any other pertinent evidence, not already of record. The Board is also unaware of any such evidence. ORDER New and material sufficient to reopen a claim for service connection for bilateral disabilities of the tibia and fibula (shins), having been received, the appeal is granted to this extent. Entitlement to service connection for a stomach disability, to include as secondary to medication to treat a service-connected back disability, is denied. REMAND As noted, the Veteran originally claimed service connection for a disability involving his shins in 1975. His STRs did not document the number of treatments alleged by the Veteran at his hearing in March 2013. In fact, the STRs did not document "injuries" to the shins, or tibia/fibula of either leg. The entries noted pain in the calf muscles and thigh muscles on different occasions. An entry from April 1975 noted a complaint of pain involving the right tibia for several months that had not resolved. He related striking his knees on hatches on the ship at the time of his VA examination in January 1976. The VA records noted complaints of knee injuries in service. The PBB records noted complaints of right leg pain that the Veteran described as pins and needles with weight bearing. This was the description of symptoms provided by the Veteran at his hearing in March 2013. The records from Bridgewater note complaints of shin pain, with the Veteran giving a history of injury in service, in August 1997. Shin splints were diagnosed at the time. The Veteran submitted his current claim for a bilateral disability involving his tibia/fibula/shin. The RO referred the Veteran for a QTC examination in June 2008. The request for the examination said the Veteran was seeking service connection for a right tibia condition. There was no mention of the right fibula or the left tibia or fibula. The June 2008 QTC examination did provide a summary of the examination of both the right and left tibia and fibula - normal findings. X-rays of the right tibia and fibula were also said to be unremarkable with the bones, soft tissues and articulations all normal. The examiner also provided an opinion that there was no pathology, either on the initial evaluation of shin complaints in 1975 or on the current examination to account for chronic complaints of [right] tibia pain. The examiner did not address the Veteran's left tibia or fibula and did not discuss the evidence contained in private treatment records to include the diagnosis of shin splints in August 1997. A new examination is required to fully assess the Veteran's claim for service connection with consideration of the evidence of record. An opinion as to both legs is also required. Accordingly, the case is REMANDED for the following action: 1. The RO should contact the Veteran and request that he identify the names, addresses, and approximate dates of treatment for all VA and non-VA health care providers who have treated him for his claimed tibia/fibula/shin disability since service with evidence of treatment during the pending claim being of primary importance. The RO should attempt to obtain copies of pertinent treatment records identified by the Veteran that have not been previously secured and associate them with the claims file. 2. Upon completion of the above development, the Veteran should be afforded an examination to assess his claim for service connection. The claims folder and a complete copy of this remand must be provided to the examiner and reviewed as part of the examination. The examiner should note review of the claims folder in the examination report. Any test and/or studies deemed necessary should be conducted and reported in detail in the provided examination report. The examiner is advised that the Veteran was diagnosed with right leg pain, characterized a pins and needles with weight bearing, in May 1979. He was later diagnosed with shin splints in August 1997. The Veteran also testified in March 2013 as continuing to have the symptoms of pain in his shins as pin and needles. He further stated that he had scarring on his shins as a result of his striking his shins on the ship's hatches. The examiner must accept the Veteran's statements of striking his shins in service whether there is documentary evidence or not. His statements are credible and the type of injury described is consistent with his service onboard a ship. The examiner should identify all current diagnoses of the tibias or fibulas and/or shins, if any, or persistent or recurrent symptoms of such disabilities. Thereafter, the examiner should offer an opinion as to whether it is at least as likely as not that any currently diagnosed disability of the tibia/fibula/shins is related to the Veteran's military service. A complete rationale for all opinions must be included in the report provided. If the examiner determines that he/she cannot provide an opinion on the issue at hand without resorting to speculation, the examiner should explain the inability to provide an opinion, identifying precisely what facts could not be determined. In particular, he/she should comment on whether an opinion could not be provided because the limits of medical knowledge have been exhausted or whether additional testing or information could be obtained that would lead to a conclusive opinion. See Jones v. Shinseki, 23 Vet. App. 382, 390 (2010). (The RO should undertake any additional evidentiary development suggested by the examiner in order to obtain a definite opinion.) 3. After the requested examination has been completed, the report should be reviewed to ensure complete compliance with the directives of this remand. If the report is deficient in any manner, it should be returned to the examiner. See Stegall v. West, 11 Vet. App. 268 (1998). 4. After undertaking any other development deemed appropriate, the RO should re-adjudicate the issue on appeal. If the benefit sought is not granted, the Veteran and his attorney should be furnished with a SSOC and afforded an opportunity to respond before the record is returned to the Board for further review. Thereafter, the case should be returned to the Board for further appellate review. By this remand, the Board intimates no opinion as to any final outcome warranted. No action is required of the Veteran until he is notified by the RO. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded to the RO. Kutscherousky v. West, 12 Vet. App. 369 (1999). This case must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ ROBERT E. SULLIVAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs