Citation Nr: 1322118 Decision Date: 07/10/13 Archive Date: 07/18/13 DOCKET NO. 10-12 298 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUE Entitlement to service connection for a gastrointestinal (GI) disorder, characterized as gastroesophageal reflux disease (GERD) and irritable bowel syndrome (IBS). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD D. M. Donahue, Associate Counsel INTRODUCTION The Veteran served on active duty from February 1974 to December 1981. This matter is on appeal from a February 2008 decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi. The Veteran testified before a Decision Review Officer (DRO) at the RO in January 2009 and before the undersigned Veterans Law Judge in August 2010. Transcripts of the hearings are of record. This issue was reopened and remanded by the Board in September 2011 and again remanded in October 2012 for further development and, to the extent it is being adjudicated, is now ready for disposition. Review of the Virtual VA claims file does not reveal any additional documents pertinent to the present appeal with the exception of VA treatment records dated from December 2005 to May 2013, which were considered by the agency of original jurisdiction (AOJ) in the May 2013 supplemental statement of the case. 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). FINDING OF FACT A GI disorder was not shown during active duty service or for many years thereafter, and is unrelated to service. CONCLUSION OF LAW The criteria to establish service connection for a GI disorder have not been met. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.303, 3.304 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act of 2000 As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a 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). Proper notice from VA must inform the claimant and his representative, if any, prior to the initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ) of any information and any medical or lay 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. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002). These notice requirements apply to all five elements of a service-connection claim (Veteran status, existence of a disability, a connection between the Veteran's service and the disability, degree of disability, and effective date of the disability). Dingess v. Nicholson, 19 Vet. App. 473 (2006). Information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded must be included. Id. Here, neither the Veteran nor his representative has alleged prejudice with respect to notice, as is required. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009); Goodwin v. Peake, 22 Vet. App. 128 (2008); Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). None is found by the Board. Indeed, the VCAA duty to notify was satisfied by way of letters sent to the Veteran in November 2006 and May 2009 that fully addressed all notice elements and was sent prior to the initial RO decision in this matter. The letter informed him of what evidence was required to substantiate the claim and of his and VA's respective duties for obtaining evidence. They also provided the Veteran with notice of what type of information and evidence was needed to establish a disability rating, as well as notice of the type of evidence necessary to establish an effective date. Next, VA has a duty to assist a veteran in the development of the claim. This duty includes assisting him or her in the procurement of service treatment records and other pertinent records, and providing an examination when necessary. See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2012). After a careful review of the file, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). First, the RO has obtained the Veteran's service treatment records and VA outpatient treatment records. The Veteran has also acquired all relevant private treatment records. Significantly, neither the Veteran nor his representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claims that has not been obtained. Moreover, VA opinions with respect to the issue on appeal were obtained in November 2012. 38 C.F.R. § 3.159(c)(4). To that end, when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). As noted below, the Board finds that the VA opinions obtained in this case are more than adequate, as they are predicated on a full reading of the private and VA medical records in the Veteran's claims file. They consider all of the pertinent evidence of record, to include the Veteran's statements, and provide a sufficient rationale for any conclusions rendered, relying on and citing to the records reviewed. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the issue on appeal has been met. 38 C.F.R. § 3.159(c) (4). Next, a discussion of the Veteran's hearings before the DRO and the Board is necessary. In both cases, the individual presiding over a hearing must comply with the duties set forth in 38 C.F.R. § 3.103(c)(2). Bryant v. Shinseki, 23 Vet. App. 488 (2010). These duties consist of (1) fully explaining the issues and (2) suggesting the submission of evidence that may have been overlooked. They were met here, as the issues on appeal were identified at the hearing, relevant testimony was elicited regarding all issues on appeal, and sources of evidence relevant in this regard were identified during this process. Therefore, the Board does not find that either hearing was deficient, and the Veteran has not asserted otherwise. Finally, it is noted that this appeal was remanded by the Board in September 2011 and October 2012 for further development. Specifically, the Board instructed the RO to provide a VA examination and opinion related to his GI disorder claim. To the extent that the claim is being adjudicated, the Board is now satisfied there was substantial compliance with these remands. See Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). The Veteran underwent VA November 2012 which, as noted above, the Board finds adequate for adjudication purposes. After this required development was completed, the issue was readjudicated, and the Veteran was sent a supplemental statement of the case in May 2013. Accordingly, the Board finds that the September 2011 and October 2012 remand directives were substantially complied with and, thus, there is no Stegall violation in this case. Hence, no further notice or assistance is required to fulfill VA's duty to assist in the development of the claims. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). Service Connection Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131 (West 2002). Generally, the evidence must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; 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, 1166 -67 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498, 505 (1995). Moreover, under 38 C.F.R. § 3.303(b), the second and third elements of Shedden and Caluza may be established through a demonstration of continuity of symptomatology. Barr v. Nicholson, 21 Vet. App. 303 (2007). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was 'noted' during service; (2) evidence of post- service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Savage v. Gober, 10 Vet. App. 488, 495-96 (1997). Finally, 38 U.S.C.A. § 1154(a) requires that VA give 'due consideration' to 'all pertinent medical and lay evidence' in evaluating a claim for disability or death benefits. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Specifically, '[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.' Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). In this case, the Veteran served in the Air Force from February 1974 to December 1981. He has submitted a claim for service connection for a GI disorder, and asserts that his GI disorder manifested during active service. The Board first considers whether service connection is warranted directly based on active duty service. The Board notes that there was two incidents of abdominal discomfort in service; however, the service treatment records reflect no a diagnosis of any chronic GI disorders. In a January 1977 STR, the Veteran reported chest pain in the epigastric region that resolved spontaneously and recurred again about three hours prior. The examiner noted some slight epigastric tenderness upon examination. The diagnosis was dyspepsia versus functional disorder, and treated with Maalox. In a February 1980 STR, the Veteran reported diarrhea after he ate chicken. In a December 1980 STR, the Veteran complained of loose stools. The diagnosis was viral enteritis. During a December 1980 follow-up, the Veteran complained of abdominal pain and increased gas, the diagnosis was rule out appendicitis. The Veteran had his appendix removed in December 1980. In a September 1981 separation medical history report, the Veteran denied stomach or intestinal problems as well as frequent indigestion. Physical examination was normal of the genitourinary system and abdomen and viscera except for appendectomy scar. Though the Veteran was treated on occasion for epigastric pain and diarrhea, there were no complaints or diagnosis of a chronic GI disorder in the last year of active service nor upon separation from service. The Board finds no evidence to support a chronic GI disorder manifested in active service. Next, the post-service evidence does not indicate GI symptomatology for many years after service discharge. Notably, the Veteran underwent a VA general medical evaluation in April 1982, where the Veteran did not complain of any digestive disorder. Upon physical examination, there was no indication of any digestive or hernia abnormalities. The first objective evidence of a GI disorder is in a February 1997 VA progress note which indicates that an upper GI series showed GERD. A May 2007 VA follow-up also included the diagnosis of duodenal ulcer. An August 1997 upper GI series showed mild duodenitis. A November 2002 private discharge summary included a diagnosis of diverticulitis. Despite the absence of post-service treatment for many years since active duty, the Board has also considered the Veteran's statements, as well as statements made by fellow airmen, asserting continuity of symptoms. McClain v. Nicholson, 21 Vet. App. 319, 325 (2007) (VA must consider the credibility and probative weight of all relevant evidence, including the credibility of the Veteran's statements). When considering such statements, the Board may consider factors such as facial plausibility, bias, self interest, and consistency with other evidence of record. Caluza v. Brown, 7 Vet. App. at 511; see also Jandreau v. Nicholson, 492 F.3d 1372, 1376 (Fed. Cir. 2007); cf. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). Competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ('although interest may affect the credibility of testimony, it does not affect competency to testify'). In this regard, it is true that the Veteran is competent in some cases to self-diagnose some disorders despite his status as a lay person. However, he is not competent diagnose a GI disorder, as they are not disorders that may be diagnosed by its unique and readily identifiable features, and thus requires a determination that is 'medical in nature.' See Jandreau, 492 F.3d at 1377, n.4. Nevertheless, the Veteran's lay testimony is competent to establish the presence of observable symptomatology and may provide sufficient support for a claim of service connection, if credible, regardless of the lack of contemporaneous medical evidence. See Barr v. Nicholson, 21 Vet. App. 303, 307 (2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). However, the Board determines that the Veteran's reported history of continued symptomatology since active service, while competent, is nonetheless not credible. In making this determination, the Board may consider internal consistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498 (1995). The Board is not required to accept an appellant's uncorroborated account of his active service experiences. Wood v. Derwinski, 1 Vet. App. 190 (1991). Significantly, although the Veteran has asserted that these GI disorders have continued since active duty, the Board notes that the Veteran submitted service-connection claims for many disorders in January 1982 and July 1988. However, on neither occasion did he claim service connection for a GI disorder. The fact that the Veteran was aware of the VA benefits system, sought out a claim for compensation for psychiatric and back disorders, but made no reference to his purported history of GI disorder since service, weighs heavily against his credibility. Kahana v. Shinseki, 24 Vet. App. 428, 438 (2012)(Lance, J., concurring) (discussing the distinction between cases in which there is a complete absence of any evidence to corroborate or contradict the testimony, and cases in which there is evidence that is relevant either because it speaks directly to the issue or allows the Board as factfinder to draw a reasonable inference). Had the Veteran been experiencing any GI symptoms at that time, there seems to be no reason why the Veteran would not have identified those disabilities. Moreover, a contemporaneous VA examination in October 1982 made no reference to a GI or digestive disorder. The Board also cannot ignore the significance of the fact that the Veteran did not submit a claim or make any kind of mention of his GI disorder until 1997 at the earliest, over approximately 15 years after he left active duty. Shaw v. Principi, 3 Vet. App. 365 (1992) (a veteran's delay in asserting a claim can constitute negative evidence that weighs against the claim). Though the Veteran has repeatedly stated that he discussed his GI disorder claim during a Compensation and Pension Board hearing in August 1982, the transcript of the hearing does not include any such discussion. The value of the Veteran's assertions is additionally diminished, given that there is no clinical evidence indicating a GI disorder at the time he left service. Therefore, continuity has not here been established, either through the competent evidence or through the Veteran's statements. Next, service connection may be granted when the evidence establishes a medical nexus between active duty service and current complaints. In this case, the Board finds that the weight of the competent evidence does not attribute the Veteran's GI disorders to active duty, despite his contentions to the contrary. To that end, the Board places significant probative value on a VA examination in November 2011undertaken specifically to address the issue on appeal. Initially, the Board notes that the October 2011 VA opinion was inadequate. The examiner found speculation would be required to determine if GERD was incurred in active service. However, the November 2012 VA examinations were adequate and probative for opinions concerning the Veteran's GI disorders and any relation to active service. During a November 2012 VA intestinal condition examination, the examiner noted that the Veteran complained of symptoms secondary to his upper GI tracts and his upper GI study shows GERD up to the level of his midesophagus. He does not have any significant symptoms related to his GI tract except for come obstipation. He does have colonic diverticulitis but has not had any acute diverticulitis. As his service treatment records do not have any diagnosis of either of these conditions, the examiner reported he could not relate the disorders to service. During a November 2012 VA GERD examination, the examiner found that there were only two complaints GI complaints during service: a January 1977 complaints of epigastric pain, and a February 1980 complaints for diarrhea after eating chicken. The examiner noted that though the February 1980 evaluation included the abbreviation "IBS" the Veteran did not have a diagnosis of irritable bowel syndrome, but rather this was the abbreviation for increase bowel sounds. The earliest complaints of reflux and duodentitis/ulcer were in 1997, and the earliest for diverticulitis was in 2006. The examiner opined that the one incidence for which he was treated for dyspepsia while in the service is not sufficient to link his present complaints of reflux because although he and his buddy statement indicate continuous symptoms from service, his separation physical clearly indicates no ongoing GI problems and his post-service initial VA examination also indicates no GI complaints with an normal examination. A GI problem as not diagnosed until 1997. He does have complaints of obstipation but this would not be due to diverticulitis and there is no finding of this on active duty, therefore, there is no relationship to service. The Board notes that the Veteran has provided no evidence to rebut the November 2012 examiner's opinion in this regard. The Board finds that the examinations were adequate for evaluation purposes. Specifically, the examiners reviewed the claims file, interviewed the Veteran, and conducted a physical examination. There is no indication that the VA examiners were not fully aware of the Veteran's past medical history or that he misstated any relevant fact. Moreover, there is no contradicting medical evidence of record. Therefore, the Board finds the VA examiners' opinions to be of great probative value. In light of the above discussion, the Board concludes that the preponderance of the evidence is against the claim for service connection for a GI disorder, and there is no doubt to be otherwise resolved. See generally Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F.3d 1361 (Fed Cir. 2001). As such, the appeal is denied. ORDER Entitlement to service connection for a gastrointestinal (GI) disorder, characterized as gastroesophageal reflux disease (GERD) and irritable bowel syndrome (IBS), is denied. ____________________________________________ C. TRUEBA Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs