Citation Nr: 1320684 Decision Date: 06/26/13 Archive Date: 07/05/13 DOCKET NO. 95-12 026 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUE Entitlement to service connection for residuals of food poisoning. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD L. Barstow, Counsel INTRODUCTION The Veteran had active military service from August 1966 to August 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 1993 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois. During the course of this appeal, the Veteran moved several times and eventually became a resident of Mississippi. His case was then transferred to the Jackson, Mississippi RO. Unfortunately, the original claims file was lost. The folder was rebuilt in September 1998 and May 1999 although several documents are missing. In January 1996, the Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the claims folder. The case was remanded several times, most recently in July 2012 to obtain an addendum medical opinion from the April 2009 VA examiner. Review of the record indicates substantial compliance. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The July 2012 remand noted that the issues of entitlement to service connection for a right arm disability and entitlement to a compensable evaluation for pulmonary coccidioidomycosis had been raised by the record, but had not been adjudicated by the Agency of Original Jurisdiction (AOJ) and referred those issues. It does not appear that they have yet been adjudicated. Therefore, the Board does not have jurisdiction over them, and they are again referred to the AOJ for appropriate action. FINDING OF FACT Residuals of food poisoning were not present during service and a currently diagnosed gastrointestinal disorder did not develop as a result of any incident during service. CONCLUSION OF LAW Residuals of food poisoning were not incurred or aggravated in service. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. The Veterans Claims Assistance Act of 2000 (VCAA) The 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 & 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 claimant and his representative of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). The VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). In this case, the Veteran's claim preexisted the enactment of the VCAA. Following the enactment of the VCAA, March 2002, July 2002, January 2003, May 2004 and December 2005 letters complied with VA's duty to notify the Veteran with regards to the issue adjudicated herein. Specifically, these letters apprised the Veteran of what the evidence must show to establish entitlement to the benefit, what evidence and/or information was already in the RO's possession, what additional evidence and/or information was needed from the Veteran, what evidence VA was responsible for getting, and what information VA would assist in obtaining on the Veteran's behalf. A letter in March 2006 notified the Veteran of the criteria for assigning a disability rating and an effective date. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Veteran's claim on appeal was subsequently readjudicated, most recently in a January 2013 supplemental statement of the case. See Prickett v. Nicholson, 20 Vet. App. 370, 376-77 (2006). Regarding VA's duty to assist, VA obtained some of the Veteran's service treatment records (STRs), personnel records, Social Security Administration (SSA) records, post-service medical records and also secured an examination in furtherance of his claim. Unfortunately, the following original documents are no longer part of the claims folder-the claim for service connection; the Veteran's complete STRs; inpatient treatment records from January 1969 to April 1969 from the Wadsworth VA Medical Center in West Los Angeles, California; two April 1993 VA examination reports; and the April 1993 rating decision. In such circumstances, there is a heightened obligation to assist the Veteran in the development of the case, a heightened obligation to explain findings and conclusions, and a heightened duty to consider carefully the benefit of the doubt rule. See Washington v. Nicholson, 19 Vet. App. 362, 369-70 (2005). The Appeals Management Center (AMC) has attempted to obtain the missing documents. In August 2009, a request for STRs under PIES (Personal Information Exchange System) code M01 was issued. A September 2009 response included the Veteran's entrance and separation examination reports, but confirmed that the remaining STRs had been sent to the RO in March 1969. The AMC requested treatment records from January 1969 to November 1993 from the Jesse Brown VA Medical Center (VAMC) and the West Los Angeles VAMC. Negative responses were received in August 2011 and July 2010, respectively. The AMC also requested the two April 1993 VA examination reports from the Jesse Brown VAMC. A negative response was received in August 2010. Finally, the AMC requested a copy of the 1993 rating decision from the Jackson VAMC. A negative response was received in September 2011. The RO informed the Veteran that it had requested these records in a January 2012 letter as well as an undated letter. A formal determination was entered by the AMC in January 2012 as to the unavailability of any clinical treatment records from 1969 to 1993, as well as the 1993 rating decision. Therefore, in view of the foregoing, the Board concludes that further efforts to locate the missing records would be futile. There is no indication that these documents are available from any other sources. While this makes addressing the Veteran's claim more difficult, the evidence of record is sufficient to make an informed decision on his claim and there is no indication that any additional evidence exists that would assist VA with resolving this claim. Accordingly, the Board concludes that adjudication of the claim is non-prejudicial even in the absence of this evidence. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman, 19 Vet. App. at 486; Shinseki v. Sanders/Simmons, 129 S. Ct. 1696 (2009). A pertinent VA examination was obtained in April 2009 with addendum medical opinions in August 2010 and August 2012. 38 C.F.R. § 3.159(c)(4). The VA examination with addendum opinions obtained in this case is sufficient, as the examiner conducted a complete examination, recorded all findings considered relevant under the applicable law and regulations, and offered well supported opinions based on consideration of the full history of the disorder. The Board finds that VA's duty to assist the Veteran with respect to obtaining a VA examination concerning the issue adjudicated herein has been met. 38 C.F.R. § 3.159(c)(4). II. Analysis Service connection may be granted for disability resulting from disease or injury incurred or aggravated during active military service. 38 U.S.C.A. § 1110. Generally, service connection requires (1) the existence of a present disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Lay assertions may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C.A. § 1153(a); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see Buchanan v. Nicholson, 451 F. 3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). The Veteran contends that service connection for residuals of food poisoning is warranted. Specifically, he notes that he was hospitalized for food poisoning for a period of 2-3 days in 1968 and has suffered from periodic vomiting and stomach pain since this incident. The record references the Veteran's STRs and indicates that there was a long history of treatment for epigastric distress, but no mention of food poisoning. The August 1968 REFRAD examination contains a normal clinical evaluation of all systems. On the accompanying medical history report, the Veteran denied stomach problems, to include indigestion and stomach or intestinal trouble. The record also references a May 1969 rating decision that denied service connection for a stomach ulcer because it was not shown to exist by the evidence of record. According to post-service VA treatment records, the Veteran was prescribed Maalox in September and October 1993. The Veteran was hospitalized in October and November 1993 for an unrelated problem. He reported a three-week history of productive cough with vomiting afterwards. He gave a prior medical history that included food poisoning in the late 1960's. A nutritional screening shows that the Veteran denied problems with dysphagia, nausea, diarrhea, vomiting, and constipation. The Veteran was hospitalized for an unrelated problem in November 1995. A nutritional screening again shows that he denied problems with dysphagia, nausea, diarrhea, vomiting, and constipation. At his hearing, the Veteran testified that he contracted food poisoning in 1968 after eating Vietnamese food that had been prepared "out in the field." See January 1996 Hearing Transcript (T.) at 6. He stated that he was treated for food poisoning at either the 24th or the 25th Division Hospital in Saigon, and that his stomach had bothered him ever since. Id. at 3, 6. Specifically, he reported stomach aches as well as vomiting after eating certain foods. Id. at 7. He indicated that he had been prescribed Maalox. Id. He testified: "I don't know if it had anything to do with the food poisoning or my stomach just got a little, you know, sensitive to certain things." Id. at 6. The Veteran indicated that he had last been treated for this condition in 1994 or 1995. Id. at 6-7. The Veteran was treated for unrelated problems in July 2000, February 2002, and February 2005. He denied any gastrointestinal upset, to include diarrhea, abdominal pain, and constipation. In August 2008, the Veteran complained of epigastric discomfort for three days. Pain was off and on with no relation to food. He had nausea and one episode of vomiting. His epigastric pain was opined to be likely due to gastritis. A CT scan of the abdomen in November 2008 suggested a hiatal hernia although evaluation was limited by CT. These records do not indicate that the Veteran had any residuals of in-service food poisoning. At an April 2009 VA examination, the Veteran reported having food poisoning in Vietnam. He developed nausea, vomiting, and diarrhea that lasted for two to three days. He was back to his normal state within three to four days and had no recurrent problems in that regard since that time. The Veteran reported that over the past year, he had noted slight discomfort about the left chest area and upper abdomen occurring every other day [The Board notes that these symptoms were later attributed to the Veteran's service-connected PTSD.] He took medication for his stomach, which seemed to be helpful. The Veteran had no history of gastroesophageal reflux disease (GERD) or peptic ulcer disease to his knowledge. The examiner noted the CT scan of the abdomen in November 2008 that suggested a possible hiatal hernia, but it was not definitive. The Veteran had not undergone recent upper gastrointestinal (GI) studies. Eating greasy foods resulted in nausea and vomiting. His bowel habits were regular. The Veteran had noted, over the past year, that he had alternating constipation with diarrhea. He developed an episode of diarrhea approximately every two months that lasted for about one day during which time he had two to three loose bowel movements. The last episode occurred about one month ago. He took medication daily for constipation. He described no melena, hematemesis or hematochezia. He gave no history of gallbladder or liver disease. His appetite was good and his weight was stable. Following examination, the Veteran was diagnosed with irritable bowel syndrome. The examiner reviewed the claims file, but was unable to find any of the original clinical notes related to treatment of food poisoning. The examiner noted that there was reference to food poisoning in the Board's remand. Certainly, there was no evidence that there was any residual related to the one episode of food poisoning. It would be very unusual to have an ongoing problem related to an isolated episode of food poisoning, and very unlikely in this particular case. The examiner's rationale was that the Veteran recovered from the initial episode after a short time interval and had no recurrent problems in that regard. Instead, the Veteran as likely as not had an irritable bowel syndrome. His current GI symptoms were less likely than not related to residuals of food poisoning. A temporary claims folder included VA treatment records dated from September 2009 to August 2010. A treatment record dated in September 2009 reveals that the Veteran reported some vague history of dysphagia. Diagnostic testing was positive for H. pylori and showed a gastric submucosal lesion. The Veteran was also diagnosed with a gastric stromal tumor in September 2009. Records dated in December 2009 show that the Veteran was diagnosed with reflux and that he might have a folded stomach from a hiatal hernia. He had surgery for the suspected tumor in December 2009. The Veteran's reflux symptoms had reportedly resolved in January 2010. A June 2010 record indicates that the Veteran's gastrointestinal stromal tumor (GIST) was stable. In August 2010, the RO obtained an addendum opinion from the April 2009 VA examiner. The examiner reviewed the claims file and noted that the Veteran had one episode of food poisoning while on active duty. He also noted that the Veteran had developed symptoms compatible with irritable bowel syndrome in 2008. It was the examiner's opinion that the Veteran's current GI disorder was unrelated to his active service. The rationale was that food poisoning is a temporary condition and is not associated with irritable bowel syndrome. The Board observes that at the time of this opinion, the temporary claims folder containing treatment records dated from September 2009 to August 2010 was not of record and had not been reviewed in connection with this opinion. Subsequently, an additional opinion from the April 2009 examiner addressing the evidence contained in the temporary claims folder was obtained in August 2012. The examiner noted reviewing the Veteran's extensive claims file again in its entirety. Again, the examiner did not find any credible evidence that the food poisoning which the Veteran developed while in Vietnam related to any GI problems he now experienced. The Veteran was found to have chronic gastritis in 2009 with an H. pylori infection and was treated appropriately. There was suspicion of a gastric tumor, but that was excluded by endoscopy and exploratory surgery in 2009. The Veteran also presented symptoms most compatible with irritable bowel syndrome. His current list of medications did not include any medication for gastric problems. At the time of his last primary care physician visit in November 2011, there was no mention of any gastric symptoms. As previously stated, it appeared that the Veteran had an isolated episode of food poisoning in service from which he recovered over a period of two days. It would be very unlikely that the episode of food poisoning from which he recovered rapidly would result in ongoing gastric symptoms lasting for many years. In 2009, the Veteran was diagnosed with H. pylori infection and gastritis. It was unknown as to how individuals develop infection with H. pylori, but was common in the general population. The examiner was unaware of any relationship to food poisoning. Speculation would be required to link the H. pylori infection to the episode of food poisoning. Again, it was the examiner's medical opinion that it was less likely than not that the food poisoning resulted in ongoing gastric symptoms lasting years. The examiner noted reviewing the claims file on three separate occasions and had nothing else medically to add. Based on a review of the evidence, the Board concludes that service connection for residuals of food poisoning is not warranted. Although the Veteran had food poisoning in service and has been shown to have irritable bowel syndrome, gastritis and H. pylori post-service, the evidence fails to show that any current GI disorder is related to the Veteran's in-service food poisoning. As noted above, most of the Veteran's STRs are not of record; there are no records documenting his food poisoning. However, the Veteran is competent to report having food poisoning in service. Layno v. Brown, 6 Vet. App. 465 (1994). The Board also finds that the Veteran is credible. Accordingly, an in-service GI injury of food poisoning is conceded. However, there is no indication that the Veteran's in-service food poisoning resulted in any current disorder. The Veteran's August 1968 REFRAD examination revealed no GI disorder and the Veteran specifically denied having stomach symptomatology such as indigestion and stomach or intestinal trouble. Moreover, the Veteran himself reported to the April 2009 examiner that he returned to normal within three to four days of the food poisoning. The Board acknowledges the Veteran's testimony of having continuing stomach problems after the food poisoning. However, the Board is cognizant of the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) recent holding in Walker v. Shinseki, 708 F.3d 1331. In that decision, the Federal Circuit held that the theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic in 38 C.F.R. § 3.309(a). In this case, none of the Veteran's treatment records show any GI disorder listed as a chronic condition in 38 C.F.R. § 3.309(a). As such, to the extent that the Veteran's assertions indicate a continuity of symptomatology, absent evidence that his symptoms led to a diagnosed chronic condition listed in 38 C.F.R. § 3.309(a), service connection based on a continuity of symptomatology cannot be granted under Walker. Furthermore, although post-service medical evidence shows irritable bowel syndrome, gastritis and H. pylori, the probative evidence of record fails to show that such disorders are due to his in-service food poisoning. The evidence does not establish a nexus between any currently diagnosed GI disorder and his military service. None of the Veteran's pertinent treatment records contain any medical opinion relating a currently diagnosed GI disorder to the Veteran's military service. No medical professional has provided any opinion indicating that the Veteran's in-service food poisoning resulted in any residual disability. Although the Veteran's complete post-service treatment records are not of record, the pertinent VA opinions do not establish a nexus. The Veteran has not indicated that such records contain nexus opinions relating a GI disorder to his military service. In this case, the April 2009 VA examiner provided three separate opinions indicating that the Veteran did not have any residuals from food poisoning. The examiner's most recent opinion in August 2012 shows that it would be very unlikely that the episode of food poisoning from which the Veteran recovered rapidly would result in ongoing gastric symptoms lasting for many years. The examiner further opined that it was unknown as to how individuals develop infection with H. pylori, but was common in the general population. The examiner was unaware of any relationship to food poisoning. The VA examiner's multiple medical opinions are well-supported by rationales and are uncontradicted. No medical professional has provided any opinion indicating that the Veteran's in-service food poisoning resulted in chronic disabling residuals. In this case, the claims folder contains no competent evidence of a residual disability from the Veteran's in-service food poisoning. Without competent evidence of an association between a currently diagnosed GI disorder and his active duty, service connection for residuals of food poisoning is not warranted. 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, the etiology of a GI disorder falls outside the realm of common knowledge of a lay person. See Jandreau at 1377 n.4 (lay persons not competent to diagnose cancer). The Veteran's own assertions as to etiology have no probative value. Without evidence of the onset of a residual disability from food poisoning in service, or competent evidence of an association between a GI disorder and the Veteran's active duty, service connection for residuals of food poisoning is not warranted. Based on this evidentiary posture, the Board concludes that the preponderance of the evidence is against the Veteran's claim for service connection for residuals of food poisoning. As the preponderance of the evidence is against this issue, the benefit-of-the-doubt rule does not apply, and the Veteran's claim of entitlement to service connection for residuals of food poisoning is denied. See 38 U.S.C.A §5107 (West 2002 & Supp. 2012). ORDER Entitlement to service connection for residuals of food poisoning is denied. ____________________________________________ ROBERT E. SULLIVAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs