Citation Nr: 1318142 Decision Date: 06/04/13 Archive Date: 06/11/13 DOCKET NO. 06-04 784 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to service connection for peptic ulcer disease. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD K. Haddock, Associate Counsel INTRODUCTION The Veteran had active military service from March 1984 to April 1984 and from March 2003 to May 2004. The Veteran had additional service in the Alabama Army National Guard. This case comes before the Board of Veterans' Appeals (Board) on appeal from a November 2004 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. Jurisdiction over the case was subsequently returned to the VA RO in Montgomery, Alabama. The Board has reviewed the physical claims file and the Virtual VA electronic claims file. This case was previously before the Board, most recently in September 2012, at which time it was remanded for additional development. The case has now been returned to the Board for further appellate action. FINDING OF FACT Peptic ulcer disease is presumed to be etiologically related to the Veteran's active service. CONCLUSION OF LAW Peptic ulcer disease is presumed to have been incurred in active service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303(a) (2012). To prevail on the issue of service connection on the merits, there must be medical evidence of a (1) current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. Hickson v. West, 12 Vet. App. 247 (1999). Where a veteran served for at least 90 days during a period of war or after December 31, 1946, and manifests a peptic ulcer to a degree of 10 percent within one year from the date of termination of that service, that disease shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such disease during the period of service. 38 U.S.C.A. §§ 1101, 1112, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2012). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by VA. VA shall consider all information and lay and medical evidence of record in a case before VA with respect to benefits under laws administered by VA. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102 (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996). The Veteran has asserted that he was diagnosed with peptic ulcer disease prior to his entrance into active service, but that the disability was aggravated by his active service. The Board notes that a Veteran will be considered to have been in sound condition when examined, accepted and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance, and enrollment, or where clear and unmistakable (obvious or manifest) evidence demonstrates that an injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C.A. § 1111 (West 2002); 38 C.F.R. § 3.304(b) (2012). A review of the pre-service medical records is negative for any treatment records showing the Veteran to have a diagnosis of peptic ulcer disease prior to his entrance into active service in March 2003. Additionally, while serving in the Alabama Army National Guard, the Veteran underwent periodic examinations in November 1994, July 1995, August 2000, and January 2003. A review of those examination reports is negative for any indication that the Veteran reported experiencing any symptoms that could be associated with a peptic ulcer at any of those examinations. Additionally, there were no physical findings consistent with a peptic ulcer reported in any of the examination reports. Therefore, the Board finds that the presumption of soundness is not rebutted. Therefore, the Veteran is presumed to have been in sound condition at the time of his March 2003 entrance into active service. Therefore, the Board will consider this claim on a direct basis. In June 2004, the Veteran filed a claim of entitlement to service connection for stomach trouble. The Veteran has reported that he experienced intermittent episodes of abdominal discomfort during his active service. The Board notes that the Veteran is competent to report that he experienced symptoms of abdominal discomfort during active service. Heuer v. Brown, 7 Vet. App. 379 (1995); Falzone v. Brown, 8 Vet. App. 398 (1995); Caldwell v. Derwinski, 1 Vet. App. 466 (1991). Moreover, the Board finds the Veteran credible in that assertion. In October 2004, the Veteran was afforded a VA examination. At that time, the Veteran reported periodic episodes of abdominal discomfort and reported that he took medication for treatment of those symptoms. The Veteran also reported that he had not experienced such an episode in approximately the last six weeks. Based on the history provided by the Veteran and a physical examination of the Veteran, the examiner diagnosed peptic ulcer disease. The Veteran is presumed to have been sound at the time of entrance into active service. The Veteran was diagnosed with peptic ulcer disease in October 2004, within one year of his May 2004 separation from active service. Additionally, the Veteran reported intermittent episodes of abdominal discomfort requiring pain medication for treatment in connection with his peptic ulcer disease. Further, the Veteran has been found competent to report such symptoms and his reports have been deemed credible by the Board. Based on that evidence, the Board finds that the evidence of record is sufficient to conclude that the Veteran's peptic ulcer disease was diagnosed and manifest to a compensable degree within one year of his separation from active service. To manifest to a compensable degree, peptic ulcer disease must be mild with recurring symptoms once or twice yearly. 38 C.F.R. § 4.114, Diagnostic Codes 7304, 7305, 7306 (2012). Accordingly, the Board finds that the evidence shows that it is at least as likely as not that peptic ulcer disease manifested to a compensable degree within one year following separation from service. Therefore, entitlement to service connection for peptic ulcer disease is granted. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to service connection for peptic ulcer disease is granted. ____________________________________________ Harvey P. Roberts Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs