Citation Nr: 1318525 Decision Date: 06/06/13 Archive Date: 06/11/13 DOCKET NO. 09-09 545 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Baltimore, Maryland THE ISSUES 1. Entitlement to service connection for a gastrointestinal disability. 2. Entitlement to service connection for chronic vaginal infections. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. S. Willie, Counsel INTRODUCTION The Veteran served on active duty from April 1985 to April 1989 with subsequent membership in the reserve from June 1989 to March 1993. These matters initially came before the Board of Veterans' Appeals (Board) on appeal from a rating decision by the Baltimore, Maryland, Department of Veterans Affairs (VA) Regional Office (RO). In August 2010, the Veteran presented testimony at a Central Office hearing before the undersigned Veterans Law Judge. A transcript of this hearing is associated with the claims file. In December 2010, and July 2012, the Board remanded these issues for additional development. The Board notes that, in addition to the paper claims file, there is a Virtual VA electronic claims file associated with the claims. Review of the documents in the electronic file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issues on appeal. The issue of entitlement to service connection for chronic vaginal infections addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT A gastrointestinal disability was initially demonstrated many years after service discharge and has not been shown by competent clinical, or competent and credible lay evidence to be causally related to the Veteran's active service. Ulcers were first demonstrated years post-service. CONCLUSION OF LAW The criteria for service connection for a gastrointestinal disability are not met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) The requirements of 38 U.S.C.A. §§ 5103 and 5103A have been met with regard to the issue decided herein. There is no issue as to providing an appropriate application or the completeness of the application. By correspondence dated in February 2007, VA advised the Veteran of the information and evidence needed to substantiate a claim. The letter provided notice of what part of that evidence is to be provided by the claimant, and notice of what part VA will attempt to obtain. The Veteran was also provided information regarding the assignment of disability ratings and effective dates. The appeal was most recently readjudicated in the March 2013 Supplemental Statement of the Case. VA has also satisfied its duty to assist. The claims folder contains service treatment records, VA medical records, VA examinations and some identified private medical records. Moreover, during the August 2010 Board hearing, the undersigned explained the issues on appeal and asked questions designed to elicit evidence that may have been overlooked with regard to the claim. These actions provided an opportunity for the Veteran and her representative to introduce material evidence and pertinent arguments, in compliance with 38 C.F.R. § 3.103(c)(2) and consistent with the duty to assist. See Bryant v. Shinseki, 23 Vet. App. 488, 492 (2010). This case was remanded in December 2010 and July 2012 for further development to include obtaining identified medical records. The Board attempted to obtain relevant private records. The Veteran, however, has not responded to the VA's authorization requests. Furthermore, an attempt was made to obtain Social Security Administration records. The VA was informed, however, that no records were on file. For the foregoing reasons, the Board concludes that all reasonable efforts were made by VA to obtain evidence necessary to substantiate the claims. No further assistance to the Veteran with the development of evidence is required. 38 U.S.C.A. § 5103A(a)(2) ; 38 C.F.R. § 3.159(d). Accordingly, the Board will address the merits of the claim. 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). Service connection for some chronic diseases, including ulcers, may be granted if manifest to a compensable degree within one year of separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. The Veteran appeals the denial of service connection for a gastrointestinal disability. The Veteran contends she was treated for inflamed stomach lining during service which later was diagnosed as ulcers. Service treatment records reveal complaints of nausea, constipation and the inability to hold down food in July 1986. The abdomen was negative for soft masses and there was non radiating pain to palpation mid-epigastrium. On the follow up evaluation, the Veteran stated that she was only constipated. In September 1986, examination revealed no showing of hemorrhoids and a negative finding of gastroenteritis. Later that month, there was a notation of upper abdominal pain and questionable gastritis. In the April 1989 separation examination, the abdomen and viscera were shown to be normal. At that time, the Veteran denied stomach, liver and/or intestinal trouble. In the May 1991 periodic examination, the abdomen and viscera were again shown to be normal and the Veteran denied stomach, liver and/or intestinal trouble. In August 1991, it was stated that there were only two abnormalities found on the Veteran's physical examination which included low fasting blood sugar and urine found with some red blood cells. The conditions were not considered significant. In a July 2004 private examination, an impression was given of multiple gastric ulcer, moderate gastritis, acute gastric ulcer without bleeding and gastritis. In May 2007, C.B. expressed that she has known the Veteran since childhood. She asserted that over the years, since separation, she noticed a decline in the Veteran's health. According to C.B., the Veteran frequently mentions her struggles with managing her ulcers. During the August 25, 2010 hearing, the Veteran related that she had stomach issues in service that developed into ulcers which was first diagnosed in 2004. The Veteran was afforded a VA examination in January 2011. During this examination, gastroesophageal reflux disease was diagnosed. The VA examiner stated that there was no evidence of burning midepigastric pain or of melena in the service treatment records. She opined that the disability was not caused by or a result of active duty service. She reasoned that the Veteran's current gastrointestinal symptom is a burning midepigastric discomfort that occurs sporadically and resolved by medications. The Veteran's symptoms and private medical records, according to the examiner, indicate that she has been diagnosed with gastritis and ulcer disease as well as internal hemorrhoids. It appeared to the examiner that these symptoms presented after the Veteran's discharge from service. In the February 2013 opinion, the VA examiner stated that there was insufficient documentation in the medical record to establish a diagnosis of gastritis in September 1986. It was noted that a presumptive diagnosis of gastroenteritis was made, a self-limited, temporary condition. The examiner further stated that follow-up evaluation appeared to demonstrate the resolution of this temporary condition and did not suggest any further gastrointestinal diagnoses. The VA examiner concurred with the previous medical opinion offered in January 2011. He opined that there was no evidence that the Veteran's diagnosed peptic ulcer disease, gastritis and gastroesophageal reflux disease manifested during or may otherwise be related to the Veteran's service. Based on the evidence presented, the Board finds against the claim. In this regard, although the Veteran complained of and was treated for abdominal problems during active service, such was acute and resolved. To that end, the separation examination revealed normal findings for the abdomen and the Veteran denied symptomatology at separation. Furthermore, the May 1991 examination again revealed normal findings for the abdomen and the Veteran continued to deny problems. When examined in August 1991, there were only two abnormalities found on the Veteran's physical examination neither of which was related to the gastrointestinal system. Post-service medical evidence reflects that the Veteran was diagnosed with a gastrointestinal disability many years after separation. The Board notes that the passage of many years between discharge from active service and the medical documentation of a claim disability is a factor that weighs against a claim for service connection. See Maxson v. West, 12 Vet. App. 453 (1999), aff'd sub nom. Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). The Board has reviewed all service treatment records, VA medical records and private treatment records of file. These records do not include any opinion linking the Veteran's current disability to service. There is no competent evidence or opinion that the Veteran's gastrointestinal disability is related to her military service and neither the Veteran nor her representative has presented any such opinion. While the Veteran asserts that she was told by her physician that her in service manifestations evolved into her current disability, she has not submitted any support despite being requested to do so. Rather, the VA examiners, who have reviewed the record to include the service treatment records, concluded there was no evidence that the Veteran's diagnosed peptic ulcer disease, gastritis and gastroesophageal reflux disease manifested during or may otherwise be related to service. In sum, the more probative evidence is against the claim. The Board finds that the Veteran's assertions that her gastrointestinal disability is related to service are not credible when weighed against the other evidence of record, including her own statements. See Barr v. Nicholson, 21 Vet. App. 303, 310 (2007) (the Board is within its province to weigh that testimony and to make a credibility determination as to whether competent evidence supports a finding of service incurrence and continuity of symptomatology sufficient to establish service connection). In this regard, the examination at separation was normal for the abdomen, the Veteran denied symptomatology at separation, post-service manifestations are not shown until years after service and the VA examiners have opined that there is no evidence linking the Veteran's disability to service. The Board recognizes that the Veteran was seen in service for abdominal complaints. Any in-service symptomatology, however, appears to have been acute and resolved. Although the Veteran has a gastrointestinal disability, it is not attributable to service. Accordingly, this claim is denied. The Board has considered the applicability of the benefit-of-the-doubt doctrine. As the preponderance of the evidence, however, is against the claim, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2012); Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER Service connection for a gastrointestinal disability is denied. REMAND The Veteran appeals the denial of entitlement to service connection for chronic vaginal infections. When this issue was before the Board in December 2010, the Board found that further development was needed. To the end, the RO was asked to obtain a VA gynecological opinion to determine the nature and etiology of the Veteran's claimed chronic vaginal infections. The Veteran was afforded a VA gynecological examination for chronic vaginal infections in January 2011; however, the examiner did not provide an etiological medical opinion at that time. In September 2011, an unfavorable addendum opinion was received. The examiner stated that the Veteran's chronic vaginal infections were less likely than not related to her military service. Although the examiner cited to medical literature pertaining to many possible causes of recurring vaginal infections, she did not relate the medical literature cited to any specific facts of this Veteran's case. In July 2012, the case was remanded again for further development. The Veteran was afforded a VA examination in August 2012. While the VA examiner diagnosed recurrent vaginitis and recurrent cystitis and opined that the condition was less likely as not incurred in or caused by service, she again did not provide an adequate rationale. The VA examiner did not render any reasoning for her conclusion that the disability was not related to service. Rather, she stated that the Veteran has not had vaginitis or cystitis for over one year and then she discussed the risk factors. The aforementioned medical opinions are inadequate for rating purposes under current judicial guidance. The VA examiner who rendered the January 2011, September 2011 and August 2012 opinions is either unable to and/or unwilling to render an adequate opinion, as such the Board finds that the Veteran should be afforded a VA examination by an examiner who is capable of addressing the questions presented. The Court has held that a remand by either the Court or the Board confers on the appellant, as a matter of law, a right to compliance with the remand instructions, and imposes upon VA a concomitant duty to ensure compliance with the terms of the remand. Stegall v. West, 11 Vet. App. 268, 271 (1998). As such, the examiner is requested to comply with the Board's remand directives, as stated below. Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for a VA examination, with an examiner other than the January 2011/August 2012 examiner, to determine the nature and etiology of the Veteran's claimed chronic vaginal infections. The claims folder should be made available to the examiner for review. After the completion of review of the record, the examiner should offer the following opinions: Does the Veteran currently have a chronic gynecological disability, to include a disability manifested by recurring vaginal or urinary tract infections? If so, what is the diagnosis of this disability? If the answer to the first question is in the affirmative, is this disability congenital or developmental in nature? If the Veteran is found to have chronic gynecological disability that is not congenital or developmental in nature, is it as likely as not (50 percent probability or higher) that this disability was incurred during or is due to active service? The reasons and bases for all opinions should be included in the form of an adequate medical rationale. 2. The Veteran is hereby notified that it is her responsibility to report for the examination and to cooperate in the development of the claim. The consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2012). In the event that the Veteran does not report for the aforementioned examination, documentation should be obtained which shows that notice scheduling the examination was sent to the last known address. It should also be indicated whether any notice that was sent was returned as undeliverable. 3. Upon completion of the above requested development and any additional development deemed appropriate, the RO should readjudicate the remanded issue. If any benefit sought on appeal remains denied, the appellant and her representative should be provided with a supplemental statement of the case. An appropriate period of time should be allowed for response. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals 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). ______________________________________________ MICHAEL D. LYON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs