Citation Nr: 1319992 Decision Date: 06/20/13 Archive Date: 07/02/13 DOCKET NO. 12-13 518 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Albuquerque, New Mexico THE ISSUES 1. Entitlement to service connection for a stomach disability (also claimed as ulcers). 2. Entitlement to service connection for a pancreatic disability. 3. Entitlement to service connection for kidney stones. ATTORNEY FOR THE BOARD J. Hager, Counsel INTRODUCTION The Veteran served on active duty from November 1950 to November 1952. These matters initially came before the Board of Veterans' Appeals (Board) from a February 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Albuquerque, New Mexico. In that decision, the RO denied entitlement to service connection for a stomach disorder (also claimed as ulcers) and pancreatic disorder with kidney stones. As discussed below, kidney stones is a disease that is distinct from a pancreatic disorder. The issues have been recharacterized accordingly. Boggs v. Peake, 520 F.3d 1330 (Fed. Cir. 2008) (claims based upon distinctly and properly diagnosed diseases or injuries cannot be considered the same claim). As discussed below, the Veteran was subsequently diagnosed with hypertension, gastroesophageal reflux disease and diverticulosis. The issues of entitlement to service connection for hypertension, gastroesophageal reflux disease, and diverticulosis have thus been raised by the evidence of record but have not yet been adjudicated by the agency of original jurisdiction. These issues are therefore referred to the AOJ for appropriate action. In January 2013, the Board remanded the claims to the RO, via the Appeals Management Center (AMC), for additional development. For the reasons stated below, the RO/AMC complied with the Board's remand instructions. Stegall v. West, 11 Vet. App. 268, 271 (1998). Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. The Veteran has not had a disability relating to the stomach, to include ulcers, during the appeal period. 2. The Veteran has not had a disability relating to the pancreas during the appeal period. 3. Kidney stones did not manifest in service or for many years thereafter, and are unrelated to service. CONCLUSIONS OF LAW 1. A stomach disorder, to include ulcers, was not incurred in or aggravated by service and ulcers may not be presumed to have been so incurred. 38 U.S.C.A. §§ 1101, 1110, 1112, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2012). 2. A pancreatic disability was not incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303. 3. Kidney stones were not incurred in or aggravated by service, and a renal disorder may not be presumed to have been so incurred. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VCAA The requirements of 38 U.S.C.A. §§ 5103 and 5103A have been met. There is no issue as to providing an appropriate application form or completeness of the application. VA notified the Veteran in July 2010 of the information and evidence needed to substantiate and complete a claim, to include notice of what part of that evidence is to be provided by the claimant, what part VA will attempt to obtain, and how disability ratings and effective dates are determined. The case was most recently readjudicated in April 2013. VA fulfilled its duty to assist the Veteran in obtaining identified and available evidence needed to substantiate a claim. As noted by the Board in its January 2013 remand, some service treatment records, including the separation examination report, are available, however, the National Personnel Records Center has indicated that the Veteran's service treatment records were damaged by fire and furnished copies of these records that showed they had been damaged. In addition, some of the service treatment records may have been destroyed. In these circumstances, when a service treatment records are or may be unavailable through no fault of his own, VA's duties to assist, to provide reasons and bases for its findings and conclusions, and to consider carefully the benefit-of-the-doubt rule are heightened. Milostan v. Brown, 4 Vet. App. 250, 252 (1993). When VA is unable to produce records that were once in its custody an explanation should be given a claimant as to how service treatment records are maintained, why the search that was conducted constitutes a reasonably exhaustive search, and why further efforts are not justified. 38 U.S.C.A. § 5103A(b)(2). Moreover, the claimant should be assisted in obtaining sufficient evidence from alternate or collateral sources. Id. at 263 (citing VA Adjudication Manual). The RO provided the required explanation in an August 2010 letter. In addition, in its January 2013 remand, the Board instructed that the RO/AMC ensure that all alternate or collateral sources had been considered and appropriate action taken with regard to the service treatment records. In response, the RO/AMC provided a copy of the National Personnel Records Center September 2010 response indicating that the record was fire related, that the originals were moldy or brittle and could not be provided, and that copies were being furnished. The Board finds that the RO/AMC substantially complied with the remand instructions by indicating that it had considered alternative sources. Moreover, any error in this regard would be harmless because the Veteran has stated that he did not report the relevant in-service incident and therefore even if alternative sources of records were obtained, they would not contain any evidence pertinent to the claim. Donnellan v. Shinseki, 24 Vet. App. 167, 176 (2010) ("It is substantial compliance, not absolute compliance, that is required" under Stegall). The RO/AMC attempted to contact many of the private treatment providers identified by the Veteran but those efforts were largely unsuccessful, and the RO/AMC invited the Veteran to attempt to contact the private providers himself in its January 2013 letter. There is no evidence that there is any outstanding, pertinent evidence that could be obtained by further efforts on the part of VA. In addition, in its January 2013 remand, the Board instructed that the Veteran be afforded a VA examination as to the nature and etiology of his current disabilities. Such examination was provided in March 2013 and, for the reasons stated below, was adequate. The Board will therefore proceed to the merits of the appeal. Analysis 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; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). Pursuant to 38 C.F.R. § 3.303(b), where a chronic disease is shown as such in service, subsequent manifestations of the same chronic disease are generally service connected. If a chronic disease is noted in service but chronicity in service is not adequately supported, a showing of continuity of symptomatology after separation is required. Entitlement to service connection based on chronicity or continuity of symptomatology pursuant to 38 C.F.R. § 3.303(b) applies only when the disability for which the Veteran is claiming compensation is due to a disease enumerated on the list of chronic diseases in 38 U.S.C.A. § 1101(3) or 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In addition, for veterans who have served 90 days or more of active service during a war period or after December 31, 1946, the chronic diseases listed in 38 U.S.C.A. § 1101(3) and 38 C.F.R. § 3.309(a) are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from active duty. 38 U.S.C.A. §§ 1101(3), 1112(a)(1), 1113; 38 C.F.R. §§ 3.307(a), 3.309(a). Ulcers, peptic (gastric or duodenal), as well as renal disease are chronic diseases in 38 U.S.C.A. § 1101(3) and 38 C.F.R. § 3.309(a). Whether service connection is claimed on direct, presumptive, or any other basis, a necessary element for establishing such a claim is the existence of a current disability. See Degmetich v. Brown, 104 F.3d 1328 (1997). The presence of a disability at the time of filing of a claim or during its pendency warrants a finding that the current disability requirement has been met, even if the disability resolves prior to the Board's adjudication of the claim. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). The Veteran filed his claims for service connection in this case in July 2010. In his claim he described a motor vehicle accident in which he was ejected onto the side of the road. The Veteran wrote, "I hit myself in different parts of my body," but was told by a sergeant not to report the accident because it could harm the sergeant's chance of promotion. In a subsequent, August 2010 statement, the Veteran indicated that he "was scraped but otherwise okay." When the Veteran went on sick call, he reportedly lied about the accident and the worry caused him to have stomach cramps and an inability to sleep. Although treated with antacid, the condition, which was never recorded, reportedly it continued getting worse after he got out of service. The Veteran indicated that he had been treated for ulcers and pancreas disorders and hospitalized in 2008 for a kidney stone, for which he underwent surgery. A July 2010 report of contact (VA Form 21-0820), indicates that when asked to clarify the disabilities for which he was claiming entitlement to service connection, the Veteran identified stomach disorders, kidney stones, ulcers, and a pancreas disorder. A July 2010 lay statement from a friend indicated that he had known the Veteran for at least 50 years and that during this time he had a history of stomach disorders. He noted the Veteran's military service from 1950 to 1952. After service, the Veteran was hospitalized several times intermittently due to ulcers and other stomach disorders. He noted the Veteran's subsequent hospitalization for kidney stones and surgery to remove them. Although surgery for the kidney stones helped, it did not correct the stomach problems and the Veteran reportedly continued to suffer from stomach problems and had at various times been diagnosed as having possible pancreas disorders. The Veteran's spouse, in an April 2013 letter, similarly stated that the Veteran had stomach problems since she married him in July 1952, resulting in hospitalizations at least once every year. In a November 2011 statement, the Veteran indicated that he had been in and out of the hospital since 1954 due to stomach disorders and "of late for kidney stones." He noted the inability to locate records of the physicians he saw due to either their death or the inability to locate their records. A review of the available service treatment records reveals no complaints, treatment or diagnosis of a stomach, pancreatic, or kidney disorder. The separation examination report indicates that the Veteran's abdomen and genitourinary system were clinically evaluated as normal. Most of the medical records in the claims file are dated prior to the appeal period. VA treatment records beginning in September 2002, mostly in the Virtual VA file, show relevant treatment for, and diagnoses of, gastroesophageal reflux disease with history of duodenal ulcer. The Veteran was admitted to Presbyterian Hospital in June 2007 for abdominal pain and vomiting. The diagnoses on admission were urinary tract infection, partially treated; right ureter kidney stone; right lower quadrant and right low back pain, colicky in nature; a history of shingles, diagnosed in the week prior to admission on the left gluteus; and a history of kidney stones. The diagnoses on discharge were right ureter kidney stone, possibly incidental; persistent migrating bilateral lower quadrant with intermittent ileus versus small bowel obstruction; hypertension; and mild acute renal insufficiency, resolving with hydration. Also diagnosed during the admission were continuing abdominal pain, infectious disease with treatment for pyelonephritis potentially related to an obstructing stone but with no fever, bradycardia, acute renal failure with longstanding uncontrolled hypertension causing hypertensive nephropathy possibly exacerbated with nonsteroidal anti-inflammatory drug doses and with decreased intravenous intake, and deep venous thrombosis prophylaxis. An August 2011 Empowering Healthcare abdominal and pelvic CT scan showed the liver, spleen, gallbladder, pancreas, and retroperitoneum to be normal. An obstruction of the right kidney by a 7 millimeter right upper ureteric calculus was noted, with moderate ureterectasis and pelvocaliectasis. The visualized bowel appeared normal. Scanning of the pelvis was unremarkable except for slightly enlarged pancreas with calcifications and a right inguinal hernia with fat. August 2011 VA treatment notes indicate that the Veteran had a kidney stone removed. Patient medical history indicated duodenal ulcer and gastroesophageal reflux disease. The only comprehensive medical opinion addressing the nature and etiology of the Veteran's current disabilities is provided by the March 2013 VA examiner. The examiner reviewed the claims file, accurately related the Veteran's version of events surrounding an in-service jeep accident and post service treatment. The examiner indicated that the Veteran did not have any signs or symptoms attributable to any gallbladder conditions or residuals of treatment for either gallbladder or pancreatic conditions. Symptoms noted were persistently recurrent epigastric distress, vomiting, and epigastric and right upper quadrant tenderness to palpation, with no guarding or rebound pain. The VA examiner opined that based on his interview of the Veteran, review of the claims file, and treatment records, the current diagnoses were gastroesophageal reflux disease, past history of peptic ulcer with episode of bleed in 2001, currently asymptomatic; history of recurrent nephrolithiasis including current episode starting on March 27, 2013; and mild diverticulitis. The examiner specifically noted that there were no diagnoses found or made with regard to the stomach, the pancreas, and the gallbladder. Following the examination and a review of the evidence the examiner opined that it was less likely than not that the Veteran's current disorders were caused by a jeep rollover accident or in any way connected to the accident he experienced in a jeep in Korea in 1950. The examiner's rationale was that there is no pathophysiologic explanation for how a motor vehicle accident could cause gastroesophageal reflux disease which did not become symptomatic until at least a couple of weeks after the accident, according to the Veteran's account. He also noted that the date of the Veteran's peptic ulcer was not certain but that the appellant admitted it was years after service. The examiner found no physiologic explanation as to how the jeep accident could have caused an ulcer that presented years afterward. The examiner also noted the Veteran's statement that he lied about the accident, but in contrast to the appellant's contention that the accident caused his stomach symptoms, the examiner found no pathophysiologic explanation connecting his not reporting injuries with how this could cause the disorders diagnosed on the examination. The examiner further concluded that there was no pathophysiologic explanation for the Veteran's nephrolithiasis, i.e., kidney stones, being related to the jeep accident, particularly in light of the manifestation of the kidney stones many years after service. Similarly, he concluded that the Veteran's diverticulosis was only recently found, that diverticulosis is usually asymptomatic and that there was no pathophysiologic explanation connecting this disorder with his upper abdominal esophageal symptoms or to his jeep accident. In reviewing the evidence, the Board is cognizant that what constitutes a claim cannot be limited by a lay Veteran's assertion of his condition in the application, but must be construed based on the reasonable expectations of the non-expert claimant and the evidence developed in processing the claim. Clemons v. Shinseki, 23 Vet. App. 1, 4-5 (2009). The Veteran has reported various contemporary diagnoses stated to him by physicians and is competent to do so. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Moreover, there have been diagnoses of disabilities in addition to those the appellant claimed service connected that may result from similar symptomatology. The Board must address all issues reasonably raised by the evidence of record. See Robinson v. Shinseki, 557 F.3d 1355, 1361 (Fed. Cir. 2009). As there have been diagnoses of hypertension, gastroesophageal reflux disease, and diverticulosis, the Board has referred these issues to the RO. The Board will assume arguendo that the Veteran's statements regarding the in-service jeep accident and his actions thereafter are credible, and will also will assume arguendo that his statements of experiencing various symptoms that appeared to him to be stomach related in and since service are credible. With regard to disability of the stomach, pancreas, and gallbladder, however, the evidence reflects that he does not have current disability related to these organs. As noted above, evidence of a disability since filing of the claim is a necessary element in establishing a service connection claim. A "disability" for the purposes of awarding VA disability benefits is not only a disease or an injury, but also any "other physical or mental defect." 38 U.S.C.A. § 1701(1); Allen v. Brown, 7 Vet. App. 439, 444-45 (1995) (applying definition of disability in section 1701(1) to statutes describing "eligibility for disability compensation for service connected disabilities"). Thus, while diagnosis of a particular disease is not an essential element of a service connection claim, here, where the evidence of record, including an adequate medical examination and opinion as explained below, indicates that the only current disabilities are due to disease other than those for which service connection has been claimed, denial of the claims on the basis of lack of current disability is warranted. With regard to kidney stones, which were diagnosed during the appeal period including by the March 2013 VA examiner, the only medical opinion addressing whether kidney stones were related to service is that of the March 2013 VA examiner. As he explained the reasons for his conclusions based on an accurate characterization of the evidence of record, including the Veteran's statements, which the examiner, like the Board, presumed were credible, his opinion that the kidney stones were not related to service, is entitled to significant probative weight. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning; threshold considerations are whether the person opining is suitably qualified and sufficiently informed). In his April 2013 response to the most recent supplemental statement of the case, the Veteran contended that he was not arguing that the accident caused his disorders, but, rather, that the mental anguish and distress from being forced to lie about the accident caused his disorders. The March 2013 VA examiner specifically addressed the Veteran's contention that the lying caused his stomach symptoms, but found that no pathophysiologic explanation connecting the appellant's deception with the etiology of the disorders diagnosed on examination. The Veteran also indicated in his April 2013 letter that he did not view the ulcer as a significant problem and was not claiming entitlement to service connection for this disorder. As noted above, however, the Board must address all issues raised by the evidence of record and has therefore addressed the Veteran's ulcers. The Veteran also challenged the statement that he had not had medical attention in the past 40-45 years, but both the Board and the March 2013 VA examiner accepted that the Veteran was treated during this time period but the records could not be obtained. Finally, the Veteran indicated in April 2013 that one of the hospitals where he had been treated had been reorganized and had indicated they could probably furnish him some information for the past ten years, but this would take at least two more weeks. Two weeks has since elapsed but no additional records have been presented. Moreover, as there is no indication that recent treatment records would be relevant to the issues on appeal or contain any information different than that in the private treatment records already of record, the Board will not further delay its decision in this case based on the Veteran's statements indicating the possibility of receipt of medical records in the future. As to the opinion of the Veteran and lay witnesses that he has current stomach, pancreas, and kidney disabilities that are related to service, lay witnesses are competent to opine as to some matters of diagnosis and etiology, and the Board must determine on a case by case basis whether a veteran's particular disability is the type of disability for which lay evidence is competent. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). In this case, the lay testimony addressing whether symptoms or disabilities reportedly diagnosed by physicians are related to the in-service jeep accident or otherwise related to service is testimony as to an internal medical process which extends beyond an immediately observable cause-and-effect relationship that is of the type that the courts have found to be beyond the competence of lay witnesses. Jandreau, 492 F.3d at 1377, n. 4 ("sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer"). The Veteran and the lay witnesses are therefore not competent to opine as to the correct medical diagnosis based the symptoms he has exhibited or as to whether such a diagnosed disease is related to the in-service incident described by the Veteran. To the extent that the lay testimony on these questions is competent, the Board finds the specific, reasoned opinion of the trained health care professional who prepared the March 2013 VA examination report to be of greater probative weight than general lay assertions. See Cox v. Nicholson, 20 Vet. App. 563, 568-569 (2007) (a non-physician VA health care provider may provide competent medical evidence as long as the examination and opinions themselves are not incomplete or otherwise insufficient). The Board acknowledges that ulcers are a chronic disease listed in 38 U.S.C.A. § 1101(3) and 38 C.F.R. § 3.309(a). As the Veteran has not been diagnosed with ulcers during the appeal period, however, it is unnecessary to discuss whether there was sufficient indicia of chronicity in service or continuity of symptomatology to warrant entitlement to service connection for this disorder. There is no evidence that an ulcer was compensably disabling within one year of separation from active duty. Finally, there was no notation of ulcers in service. See 38 C.F.R. § 3.303(b) (continuity of symptomatology analysis applicable when condition noted during service or in the presumptive period but not shown to be chronic or where the diagnosis of chronicity may be legitimately questioned). For the foregoing reasons, the preponderance of the evidence is against the claims for entitlement to service connection for stomach disability, pancreatic disability, and kidney stones. The benefit-of-the-doubt doctrine is therefore not for application, and the claims must be denied. See 38 U.S.C.A. § 5107(b). ORDER Entitlement to service connection for a stomach disability (also claimed as ulcers) is denied. Entitlement to service connection for a pancreatic disability is denied. Entitlement to service connection for kidney stones is denied. ___________________________________________ DEREK R. BROWN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs