Citation Nr: 1316218 Decision Date: 05/16/13 Archive Date: 05/29/13 DOCKET NO. 09-08 795 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Entitlement to service connection for a gastrointestinal disorder, to include gastroesophageal reflux disease (GERD), esophageal stricture, and peptic ulcer disease (PUD). WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD D. M. Ames, Counsel INTRODUCTION The Veteran had active service from January 1969 to August 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. The Veteran testified at a hearing in October 2011 before the undersigned. A copy of the transcript has been associated with the claims file. The issues of entitlement to service connection for bilateral hearing loss, tinnitus, and a scar from a shell fragment wound to the right thigh were initially also on appeal. In an October 2012 rating decision, the RO granted service connection for bilateral hearing loss and tinnitus. In a March 2013 rating decision, the RO granted service connection for the Veteran's right thigh scar. Therefore, these issues are no longer before the Board. A review of the Virtual VA paperless claims processing system reveals additional VA treatment records from 2009 until 2012. In the March 2013 Supplemental Statement of the Case, the RO specifically stated that the Veteran's VA treatment records from 2009 to 2012 were reviewed prior to the adjudication of the claims. Therefore there is no prejudice to the Veteran in the Board's adjudication of his claim. In March 2012 the Board remanded this case to the RO via the Appeals Management Center (AMC) for further development and it has now been returned to the Board. The issue of entitlement to a total rating based upon individual unemployability (TDIU) due to service-connected disability has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it and it is referred to the AOJ for appropriate action. FINDING OF FACT The preponderance of the evidence reflects that the Veteran does not have a gastrointestinal disorder due to any incident of his active duty service. CONCLUSION OF LAW The Veteran's gastrointestinal disorder was not incurred or aggravated in service, may not be presumed to have been so incurred or aggravated, and is not proximately due to, or the result of, or chronically aggravated by a service-connected disability. 38 U.S.C.A. §§ 1101, 1110, 1112, 1131, 5107 (West 2002 and Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.310 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's 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 and Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the Veteran and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim, and to indicate which information and evidence VA will obtain and which information and evidence the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). VCAA notice requirements apply to all five elements of a service connection claim: (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. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 486 (2006). The notice must be provided to the Veteran prior to the initial adjudication of his claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). VA has satisfied its duty to notify by issuing pre-adjudication notice letters in October 2007 and November 2007. The letters advised the Veteran of what evidence was required to substantiate his claim, and of his and VA's respective duties for obtaining evidence. The November 2007 letter advised him of what evidence was required to substantiate a claim based upon secondary service connection. Both letters provided notice regarding the disability evaluation and effective date elements of a service connection claim. Dingess, 19 Vet. App. at 473. The duty to assist provisions of the VCAA have been met. The claims file contains service treatment records (STRs), service personnel records, reports of post-service medical treatment, and the report of a VA examination in August 2009 and an addendum opinion in April 2012. The examination, combined with the addendum opinion, was adequate because it was based on a thorough examination, a description of the Veteran's pertinent medical history, a complete review of the claims folder, and appropriate diagnostic tests. The examiner also provided a rationale for her opinions. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007); Stefl v. Nicholson, 21 Vet. App. 120, 124-25 (2007) (holding an examination is considered adequate when it is based on consideration of the appellant's prior medical history and examinations and also describes the disability in sufficient detail so that the Board's evaluation of the disability will be a fully informed one). The Veteran testified at a hearing before the undersigned in October 2011. During the hearing, the undersigned explained the issue on appeal. See Bryant v. Shinseki, 23 Vet. App. 488 (2010). However, there was no specific suggestion of the submission of evidence that may have been overlooked. Id., at 492. The Board finds that the Veteran was not prejudiced by this omission. The Veteran testified that he was treated at VA Medical Centers (VAMCs) including the McCaffrey CBOC. Records from the McCaffrey CBOC were already of record. Further, this case was remanded so that all outstanding VA treatment records from 2009 to the present could be obtained. As noted above, the Veteran received letters in October 2007 and November 2007 that explained what was required to substantiate his claims and there is no indication that he does not understand what is necessary to substantiate his claims. Additionally, the record does not indicate that there is any relevant overlooked evidence that the Veteran could submit that would aid in substantiating his claims; hence, he is not prejudiced by the undersigned not having suggested the submission of overlooked evidence. This case was remanded in March 2012 so additional VA treatment records could be obtained and so the claims file could be returned to the examiner who conducted the August 2009 examination and an addendum opinion regarding aggravation could be provided. As noted above, the required records were obtained and an adequate addendum opinion was rendered. There was substantial compliance with the Board's remand directives. See Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). The Veteran has not made the RO or the Board aware of any additional evidence that must be obtained in order to fairly decide the appeal. He has been given ample opportunity to present evidence and argument in support of his claim. Pursuant to 38 C.F.R. § 3.655, all relevant evidence necessary for an equitable disposition of the Veteran's appeal of this issue has been obtained and the case is ready for appellate review. General due process considerations have been complied with by VA. See 38 C.F.R. § 3.103 (2012). Service Connection Claim Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity for certain diseases. 38 C.F.R. §§ 3.303(a), (b), 3.309(a); see also Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may also 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). In order to establish service connection for the claimed disorder, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical, or in certain circumstances, lay evidence of a nexus between the claimed in-service disease or injury and the current disability. See 38 C.F.R. § 3.303; see also Hickson v. West, 12 Vet. App. 247, 253 (1999); Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). Certain chronic diseases, including peptic ulcer disease, may be presumed to have been incurred in or aggravated by service if manifest to a compensable degree within one year of discharge from service. See 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309; see also Walker, supra. A disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. 38 C.F.R. § 3.310(a). Secondary service connection may also be established for a nonservice-connected disability which is aggravated by a service connected disability. In such an instance, the Veteran may be compensated for the degree of disability over and above the degree of disability existing prior to the aggravation. 38 C.F.R. § 3.310(b) (2012); see Allen v. Brown, 7 Vet. App. 439, 448 (1995). A claim for secondary service connection requires medical evidence that connects the asserted secondary disorder to the service-connected disability. Velez v. West, 11 Vet. App. 148, 158 (1998). In order to establish entitlement to service connection on this secondary basis, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical evidence establishing a nexus (i.e., link) between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all of the evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (finding that the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis herein focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (holding that the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran). The Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The evaluation of evidence generally involves a 3-step inquiry. First, the Board must determine whether the evidence comes from a "competent" source. The Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007) (observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible). The third step of this inquiry requires the Board to weigh the probative value of the proffered evidence in light of the entirety of the record. The standard of proof to be applied in decisions on claims for veterans' benefits is set forth in 38 U.S.C.A. § 5107 (West 2002). A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. See 38 C.F.R. § 3.102. When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). VA's duty to assist attaches to the investigation of all possible in-service causes of a disability. Schroeder v. West, 212 F.3d 1265, 1271 (Fed. Cir. 2000); see also Comer v. Peake, 552 F.3d 1362, 1368 (Fed. Cir. 2009). Therefore the Board will address both direct and secondary service connection. The Veteran has been diagnosed with GERD and peptic ulcer disease (PUD), satisfying the first elements of a direct and secondary service connection claim. Hickson, 12 Vet. App. at 253; Wallin, 11 Vet. App. at 512. At his October 2011 hearing, the Veteran testified that he had a stomach ache around the time he returned home from the Republic of Vietnam. He had experienced symptoms for a few weeks. He thought that it was "nerves," but he stated one or two years after separation, he found out that it was a mild ulcer. He stated that the pain went away until 2000, when he was diagnosed with GERD. The Veteran did not assert that he was treated for his stomach ache in service and his STRs do not reflect any symptoms or diagnoses of a gastrointestinal problem. The Veteran is competent to report observable symptoms such as a stomach ache. Layno v. Brown, 6 Vet. App. 465 (1994). Further, his testimony that he experienced a stomach ache in service is credible. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). The second element of a direct service connection claim is met. Hickson, 12 Vet. App. at 253. However, the nexus element of a service connection claim is not met, for the reasons discussed below. The Veteran's post-service VA and private treatment records do not show a diagnosis of GERD until 2000, 30 years after his separation from service. He was diagnosed with PUD in 2002. The Veteran testified that he was not diagnosed with GERD until 2000. However, he asserts that his stomach ache in service caused his GERD and PUD. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issue in this case, whether his in-service stomach ache caused his GERD and PUD which appeared 30 years after separation, 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). Further, his Veteran's allegation has been investigated by competent medical examination and found not supportable. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Therefore, his assertion is afforded little probative weight in favor of his claim. In August 2009, the Veteran underwent a VA examination. He reported having heartburn after his return from the Republic of Vietnam and that he self-treated with over-the-counter medications. He reported that he was diagnosed with GERD in 2000. The examiner noted that he underwent an EGD in 2002 and was diagnosed with PUD and again with GERD. The examiner diagnosed GERD with esophageal stricture and opined that it was not caused by the Veteran's period of active service. She explained that his GERD was diagnosed in 2000 and PUD was diagnosed in 2002, many years after service. Further, she noted that the Veteran began smoking at age 15 and this "more than likely" increased his risk for GERD. Lastly, she found that GERD is a common disorder that impacts approximately 40 percent of all adults. For these reasons, she found that the Veteran's GERD and PUD were not related to his period of active service. In April 2012, the same examiner again noted that the Veteran was diagnosed with GERD in 2000 and PUD in 2002. She stated that the Veteran smoked one pack of cigarettes per day for approximately 48 years, and that smoking was a risk factor for GERD. Additional risk factors were his weight, his caffeine intake of three cups of coffee per day, and alcohol use. Regarding PUD, she stated that the Veteran worked two jobs, including one in a steel mill, and as a result he developed polyarthralgias that "may have been treated" with non-steroidal anti-inflammatory medications (NSAIDs), which are a common cause of PUD. For this reason, she concluded that there was no nexus between the Veteran's period of active service and his current gastroesophageal disorders. The Veteran stated that although he had a stomach ache in service and shortly after separation, his pain went away until 2000. His statement, which is competent and credible, provides probative evidence against a finding of continuity of symptomatology. Further, the medical evidence of record shows that he was diagnosed with PUD in April 2002, thirty two years after separation from service. The opinions of the VA examiner provides probative evidence against the Veteran's claim. The Veteran has asserted that his gastrointestinal disorder manifested around the time he returned from Vietnam and was diagnosed with a mild ulcer within a year or two after discharge; he also stated that the symptoms abated until 2000 when he was diagnosed as having GERD. To the extent that these assertions rise to level of an allegation of continuity of symptomatology, his GERD is not a chronic condition as set forth in 38 C.F.R. § 3.309(a). Therefore, the theory of continuity of symptomatology is not applicable with regard to GERD. 38 C.F.R. § 3.303(a), (b); see also Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). However, PUD is a chronic disability set forth in 38 C.F.R. § 3.309(a). In this case, there is no competent and credible evidence that the Veteran had PUD or symptoms of PUD in service and that the symptoms have continued since that time. Although not dispositive, a lengthy period without complaint or treatment is considered evidence that there has not been a continuity of symptomatology and weighs heavily against the claim. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). The length of time without treatment combined with the Veteran's testimony that his pain went away for years after service, outweighs any later statement that he experienced continuity of symptoms of PUD. Moreover, there is no competent and credible evidence linking a current diagnosis of PUD to any gastrointestinal symptoms in service or thereafter which the Board finds would be necessary in this case given the complexity of establishing a diagnosis of PUD. Service connection based upon continuity of symptomatology is not warranted. 38 C.F.R. § 3.303(a), (b); see also Walker, supra. There is no other lay or medical evidence of record addressing a nexus between the Veteran's claimed condition and his period of active military service. The opinion of the VA examiner is more probative than the Veteran's lay assertion for the reasons discussed above. The nexus element of a direct service connection is not satisfied. Hickson, 12 Vet. App. at 253. Service connection on a direct basis is not warranted. 38 C.F.R. § 3.303. With regard to secondary service connection, the Veteran's PTSD is service-connected, satisfying the second element of a secondary service connection claim. Wallin, 11 Vet. App. at 512. However, the nexus element of a secondary service connection claim is not met. In an October 2007 statement, the Veteran asserted that his PTSD and medications for PTSD made his GERD worse. At his October 2011 hearing, the Veteran testified that he thought his gastroesophageal disorder was caused by stress due to PTSD or by his PTSD medications. As noted above, the Veteran is competent to discuss observable symptoms. Layno v. Brown, 6 Vet. App. 465 (1994); Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). To the extent that he believes his PTSD and its medications have aggravated his GERD, his statement is credible. However, his lay assertion is not probative evidence. Lay persons are competent to provide opinions on some medical issues, see Kahana, 24 Vet. App. at 435, as to the specific issue in this case, whether his PTSD or its medications caused or aggravated his GERD, 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). Further, his allegation has been investigated by competent medical examination and found not supportable. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). At his August 2009 VA examination, the examiner found that the Veteran's PTSD and PTSD medications did not cause his gastroesophageal disorder because it was diagnosed before he was diagnosed with PTSD and began taking medication. In an April 2012 addendum opinion, the VA examiner who provided the August 2009 opinion stated that the Veteran's gastroesophageal disorder was not aggravated by PTSD or its medication because the gastroesophageal disorders were diagnosed before the Veteran began treatment for PTSD. Her opinion provides probative evidence against the Veteran's claim. The evidence of record does not show that the Veteran's GERD or PUD have increased in symptomatology since he was diagnosed with PTSD and began treatment in 2007. Prior to and after his diagnosis of PTSD, GERD and PUD were listed among his health conditions. In June 2008, he was advised to quit smoking because of his GERD. In August 2009, he denied dysphagia, pyrosis, epigastric pain, and episodes of nausea and vomiting. He reported a history of heartburn. In September 2009, it was noted that he underwent an esophageal stricture in the past, and that it caused his symptoms to improve. He did not have dysphagia, nausea and vomiting, pyrosis, abdominal pain, odynophagia, abnormal bowel movement pattern, hematochezia, melena, or tenesmus. In September 2009 he underwent a barium swallow and was noted to have stricture of the distal esophagus, "probably" due to peptic esophagitis. He had previously been diagnosed with an esophageal stricture in April 2002. The results of the barium swallow were "unremarkable." VA records from September 2009 to May 2012 reflect a diagnosis of GERD and that the Veteran continues to take omeprazole for control of symptoms. No increase in symptoms was noted since the Veteran's diagnosis of PTSD and the beginning of his treatment. 38 C.F.R. § 3.310(b) (2012); see Allen v. Brown, 7 Vet. App. 439, 448 (1995). The findings of the VA examiner, combined with the contemporaneous medical evidence showing no increase in symptoms since the diagnosis of PTSD provide probative evidence against the Veteran's claim. Curry v. Brown, 7 Vet. App. 59, 68 (1994) (noting that contemporaneous evidence has greater probative value than history as reported by the Veteran). Since the preponderance of the evidence is against the claim, the provisions of 38 U. S. C. A. 5107(b) regarding reasonable doubt are not applicable, and his claim for service connection for a gastrointestinal disorder must be denied on both a direct and secondary basis. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Alemany v. Brown, 9 Vet. App. 518, 519 (1996). ORDER Service connection for a gastrointestinal disorder is denied. ____________________________________________ S. L. Kennedy Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs