Citation Nr: 1324043 Decision Date: 07/29/13 Archive Date: 08/07/13 DOCKET NO. 07-23 799 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUES 1. Entitlement to service connection for a lumbar spine disability. 2. Entitlement to service connection for a cervical spine disability. 3. Entitlement to service connection for gastroesophageal reflux disease (GERD) REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD K. M. Schaefer, Counsel INTRODUCTION The Veteran served on active duty from May 1986 to May 1990. This case is before the Board of Veterans' Appeals (BVA or Board) on appeal from a December 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois, which denied the benefits sought on appeal. In March 2011, the Board remanded the appeal for further development, and it now returns to the Board for appellate review. In his July 2007 substantive appeal (VA Form 9), the Veteran requested a personal hearing before a Veterans Law Judge. This hearing was scheduled for December 2009, but the Veteran did not attend. As no further communication from the Veteran with regard to a hearing has been received, the Board considers his request for a hearing to be withdrawn. See 38 C.F.R. §§ 20.702(d), (e); 20.704(d),(e) (2012). The issues of entitlement to service connection for lumbar spine and cervical spine disabilities are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT GERD was not present in service nor shown to be causally or etiologically due to a disease, incident, or injury in service. CONCLUSION OF LAW GERD was not incurred in or aggravated by active service. 38 U.S.C.A. §§ 1131, 5103A, 5107 (West 2002); 38 C.F.R. § 3.303 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. Stegall Considerations The Board observes that this case was remanded by the Board in March 2011. The United States Court of Appeals for Veterans Claims (Court) has held "that a remand by this Court or the Board confers on the Veteran or other claimant, as a matter of law, a right to compliance with the remand orders." See Stegall v. West, 11 Vet. App. 268, 271 (1998). The purpose of the remand was to obtain outstanding records from the Social Security Administration (SSA). The post-remand record reflects that these records were associated with the claims file. Therefore, the Board determines that the RO/AMC substantially complied with the Board's orders in the March 2011 remand, and that the Board may now proceed with adjudication of the claims. II. VA's Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000), enacted November 9, 2000 (codified at 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002)) imposes certain duties upon VA to notify the claimant of the shared obligations of the claimant and VA in developing his or her claim and to assist the claimant by making reasonable efforts to obtain relevant evidence in support of the claim. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). VA must inform a claimant about the information and evidence not of record that is necessary to substantiate the claim, the information and evidence that VA will seek to provide, and the information and evidence that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1) (revised 73 Fed. Reg. 23353-23356, April 30, 2008); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Additionally, in the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), the Court held that VCAA notice requirements also apply to the evidence considered in determinations of the degree of disability and effective date of the disability once service connection has been established. VCAA notice must be provided before the initial unfavorable AOJ decision on the claim for VA benefits. Pelegrini v. Principi, 18 Vet. App. 112 (2004). In this case, the Veteran was provided with a VCAA notification letter July 2005, prior to the initial unfavorable AOJ decision issued in December 2005. The Board observes that the pre-adjudicatory VCAA notice informed the Veteran of the type of evidence necessary to establish service connection, how VA would assist him in developing his claim, and his and VA's obligations in providing such evidence for consideration. With regard to the notice requirements dictated in Dingess/Hartman, the Veteran did not receive a letter informing him about disability ratings and effective dates until after the initial adjudication of the claim, but the Board finds that no prejudice to the Veteran has resulted. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993) (where the Board addresses a question that has not been addressed by the agency of original jurisdiction, the Board must consider whether the Veteran has been prejudiced thereby). As the Board herein concludes that the preponderance of the evidence is against the Veteran's service connection claim, any questions as to the assignment of disability ratings and effective dates are rendered moot. Therefore, the Board finds that the Veteran was provided with all necessary notice under VCAA prior to the initial adjudication of his claim. Accordingly, the Board determines that the content requirements of VCAA notice have been met and the purpose of such notice, to promote proper development of the claim, has been satisfied. See Mayfield v. Nicholson, 444 F.3d 1328, 1333 (Fed. Cir. 2006). Based on the above, the Board finds that further VCAA notice is not necessary prior to the Board issuing a decision. VA has also fulfilled its duty to assist the Veteran in making reasonable efforts to identify and obtain relevant records in support of the Veteran's claim and providing him with a VA examination. The Veteran's service treatment records, private treatment records, disability records from the Social Security Administration, and the report of an October 2005 VA examination were reviewed by both the AOJ and the Board in connection with adjudication of the claim. The Veteran has not identified any additional, relevant treatment records the Board needs to obtain for an equitable adjudication of the claim. With regard to the VA examinations, the Board notes that once 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). In this case, the examiner reviewed the claims file, noting relevant documents in service treatment records and post-service treatment evidence, documented the Veteran subjective complaints and medical history, and examined the Veteran. Thereafter, the examiner provided an opinion supported by a rationale based on all the available evidence. There is nothing to suggest that the examiner's opinion is not sufficiently based on the facts of the case or that an arbitrary conclusion was reached. 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). In light of the above, the Board concludes that the medical evidence of record is sufficient to adjudicate the Veteran's claim without further development and additional efforts to assist or notify the Veteran in accordance with VCAA would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to requirements of the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the Veteran). Therefore, the Board determines that the Veteran will not be prejudiced by the Board proceeding to the merits of the claim. III. Service Connection Service connection may be granted for disability arising from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1131 (West 2002); 38 C.F.R. § 3.303(a). Service connection may also be granted 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). In order to establish direct service connection for a disorder, there must be (1) competent evidence of the current existence of the disability for which service connection is being claimed; (2) competent evidence of a disease contracted, an injury suffered, or an event witnessed or experienced in active service; and (3) competent evidence of a nexus or connection between the disease, injury, or event in service and the current disability. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); cf. Gutierrez v. Principi, 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999)). In many cases, medical evidence is required to meet the requirement that the evidence be "competent". However, when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). The Board notes that with chronic disease shown as such in service (or within the presumptive period under § 3.307) so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. Id. When a chronic disease identity is established in service (or within the presumptive period under § 3.307), there is no requirement of evidentiary showing of continuity. Id. Chronic diseases subject to presumptive service connection are listed at 38 C.F.R. § 3.309(a). Continuity of symptomatology is required only when the condition noted during service (or within the presumptive period under § 3.307) is not, in fact, shown to be chronic, or where the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. However, a recent Court decision has held that the theory of continuity of symptomatology can be used only in cases involving those conditions noted as chronic in § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (holding that the term "chronic disease" in 38 C.F.R. § 3.303(b) is limited to a chronic disease listed at 38 C.F.R. § 3.309(a)). GERD is not such a chronic disease; therefore, these provisions do not apply. Nevertheless, a veteran's lay statements may be sufficient evidence in any claim for service connection. 38 C.F.R. § 3.303(a) ("Each disabling condition shown by a veteran's service records, or for which he seeks a service connection[,] must be considered on the basis of ... all pertinent medical and lay evidence."); see also 38 U.S.C. § 1154(a) (requiring VA to include in its service connection regulations that due consideration be given to "all pertinent medical and lay evidence"). Initially, the Board observes that the Veteran has a currently diagnosed disability of GERD as documented by private physicians and by the October 2005 VA examiner. Therefore, the criterion of a current disability has been met for this claim. Service treatment records reflect the following relevant complaint, treatment, and diagnoses. In January 1987, the Veteran was treated for viral gastroenteritis. Gastroenteritis was also diagnosed in January 1988 and April 1988. In May 1988, the Veteran was diagnosed with viral illness which had associated complaints of vomiting. A June 1988 service treatment record reports that the Veteran was referred by Command because of concern over his frequent bouts of gastroenteritis, but there were no symptoms at that time. In July 1988, an upper GI and small bowel follow through were all within normal limits. In September 1988, the Veteran was treated for gastroenteritis. The Veteran was again treated for a viral syndrome in February 1989. An April 1989 service treatment note shows complaints of stomach upset. An upper GI and small bowel work-up later that month were negative. A May 1989 service treatment note reflected the impression of suspected stress syndrome for gastric upset. The Veteran's May 1990 clinical examination at separation was normal. Thus, as there is evidence of a current disability and treatment in service, the remaining question is whether the Veteran's GERD is etiologically a result of disease, or an event or injury sustained in his military service. There are conflicting opinions of record in this regard. The Board must determine, as a question of fact, both the weight and credibility of the evidence. Equal weight is not accorded to each piece of material contained in a record; every item of evidence does not have the same probative value. The Board must account for the evidence which it finds to be persuasive or unpersuasive, analyze the credibility and probative value of all material evidence submitted by and on behalf of a claimant, and provide the reasons for its rejection of any such evidence. See Struck v. Brown, 9 Vet. App. 145, 152 (1996). A July 2007 opinion by a registered nurse, MC, noted that there were no tests in service to confirm the diagnosis of GERD. Therefore, she concluded that it would be difficult to ascertain that the disability did not come from service work. However, first, the Board notes that the Veteran had an Upper GI/small bowel workup twice in service, and that both test series were negative. Further, the opinion does not express a likelihood of the Veteran's GERD being a result of service, but that it would be difficult to determine a connection because of the lack of testing. For these reasons, the Board affords the opinion no probative weight. In a September 2007 letter, Dr. RMP indicated that the Veteran's symptoms could just as easily have developed in service as at any other time in his adult life. Again, this opinion does not express a likelihood of onset in service, but rather reflects an inability to determine onset. However, this statement lacks a supporting rationale, and is therefore, also not probative of the issue. See Stefl v. Nicholson, 21 Vet. App. 120, 125 (2007) (holding that a medical opinion "must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions"). In contrast, there is the October 2005 VA examination, at which the examiner noted the aforementioned in-service bouts of gastroenteritis and stomach upset and the Veteran's current treatment and complaints in detail. She also observed that the claims file reveals that the Veteran is a smoker and consumes alcohol in excess. The examiner noted that in service, the Veteran's complaints were related around the periumbilical area and more directly in the abdomen itself and he was treated for acute gastroenteritis ranging from gastroenteritis to stomach upset, as well as being assessed for stress disorder. The examiner found that the Veteran's current GERD is not related to the isolated treatment of incidences in service. This determination was made in light of the Veteran's excess alcohol consumption and tobacco use. As this opinion considered in detail, the Veteran's in-service and post-service gastrointestinal symptoms and treatment and general medical history, the Board affords the opinion great probative weight. The Board has considered the Veteran's own statements in support of his claim. The Veteran is competent to describe his symptoms, such as heartburn and stomach upset. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). However, the Veteran has not been shown to have had the requisite training to render him competent to diagnose those symptoms or assess their etiology in the context of a complex medical disability such as GERD. As reflected by the Veteran's medical history, there are multiple causes of gastrointestinal symptoms. The Veteran stated in his notice of disagreement that in service they did not know what to call his disorder; however, there is no competent medical evidence that suggests that the diagnoses assigned in service were incorrect. The Board further notes that a June 2003 private treatment note reports that the Veteran had a recent diagnosis of reflux and had been on Prevacid for 3 months. In September 2002, Dr. SJW noted that the Veteran was taking Prilosec for gastrointestinal symptoms. Based on this information, the Veteran did not have a diagnosis of GERD for at least a decade after his discharge from service. The lapse in time between service and the first complaints and diagnoses weighs against the Veteran's claims. The Board may, and will, consider in its assessment of a service connection the passage of a lengthy period of time wherein the Veteran has not complained of the malady at issue. See Maxson v. West, 12 Vet. App. 453, 459 (1999), aff'd sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000); see also Forshey v. Principi, 284 F.3d 1335, 1358 (Fed. Cir. 2002) (en banc). As for the Veteran's alcohol consumption, the Board notes that the record does not reflect that the Veteran smoked or drank to excess in service. However, for the sake of argument, even if he had, direct service connection may be granted only when a disability or cause of death was incurred or aggravated in line of duty, and not the result of the Veteran's own willful misconduct; or, for claims filed after October 31, 1990, not the result of abuse of alcohol or drugs. 38 C.F.R. § 3.301(a). For the purpose of this paragraph, drug abuse means the use of illegal drugs (including prescription drugs that are illegally or illicitly obtained), the intentional use of prescription or non-prescription drugs for a purpose other than the medically intended use, or the use of substances other than alcohol to enjoy their intoxicating effects. 38 C.F.R. § 3.301(d); see also 38 U.S.C.A. § 105 (West 2002); 38 C.F.R. § 3.1(m). VA's General Counsel has confirmed that direct service connection for a disability that is a result of a claimant's own abuse of alcohol or drugs is precluded for purposes of all VA benefits for claims filed after October 31, 1990. See VAOGCPREC 7-99, published at 64 Fed. Reg. 52,375 (June 9, 1999); VAOGCPREC 2-98, published at 63 Fed. Reg. 31,263 (February 10, 1998). In addition, for claims filed after June 8, 1998, service connection is prohibited for disability or death on the basis that it resulted from disease or injury attributable to the use of tobacco products during the Veteran's active service. 38 U.S.C.A. § 1103(a); 38 C.F.R. § 3.300. The Veteran filed his claim in May 2005. Therefore, to the extent the Veteran's GERD could be related to tobacco and alcohol in service, service connection is disallowed by law. Based on the above, the Board concludes that a preponderance of the competent and probative evidence is against the Veteran's claim of entitlement to service connection for GERD. Accordingly, the Board determines that the preponderance of the evidence is against the Veteran's claim of entitlement to service connection for GERD. 38 U.S.C.A. § 5107 (West 2002); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Therefore, his claim for service connection for GERD must be denied. ORDER Entitlement to service connection for GERD is denied. REMAND The Board determines that a remand is necessary to afford the Veteran another VA examination to assess the etiology of his diagnosed lumbar and cervical spine disabilities. An October 2005 VA examiner opined that the Veteran's degenerative disc disease, spondylosis, and disc herniations are not related to his two treatments in service for mechanical back pain, but to his extended work history and physically demanding occupations, which the examiner described as more than 15 years of physical labor. However, in his February 2006 notice of disagreement, the Veteran stated that his work as a hull mechanic in service was also a very physically demanding occupation. The Board notes that his DD Form 214 confirms the Veteran's military occupational specialty of hull maintenance technician, and the Veteran is competent to speak to his duties during service. The October 2005 VA examiner made extensive note of the Veteran's post-service activities and treatment and the in-service complaints and treatment as documented in service treatment records, but the examination report does not reflect that the examiner considered the Veteran's duties in service. For these reasons, the Board determines that the lumbar and cervical spine issues should be remanded so that the Veteran may be scheduled for a VA orthopedic examination to assess the etiology of these disabilities. Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for a VA orthopedic examination to assess the etiology of his cervical and lumbar spine disabilities. The claims file must be available for review, and the examination report must reflect that review of the claims file occurred. All pertinent symptomatology and findings must be reported in detail. The examiner must record all pertinent medical complaints, symptoms, and clinical findings, and must review the results of any testing prior to completion of the report. Upon review of record and examination of the Veteran, the examiner should address the following: a. Is it at least as likely as not (i.e. a 50 percent probability or more) that any diagnosed lumbar spine disability is a result of military service, to include physical labor as a hull maintenance technician? b. Is it at least as likely as not (i.e. a 50 percent probability or more) that any diagnosed cervical spine disability is a result of military service, to include physical labor as a hull maintenance technician? The Veteran is competent to speak to his history of lumbar and cervical spine symptoms and to his duties in service, and such statements throughout the claims file and at the examination should be contemplated by the examiner as he or she forms the opinion. The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of a certain conclusion as it is to find against it. A complete rationale for any opinion offered must be provided. 4. Notify the Veteran that it is his responsibility to report for any scheduled examination and to cooperate in the development of the claim. The consequences for failure to report for any VA examination without good cause may include denial of one or more of his claim. See 38 C.F.R. §§ 3.158, 3.655 (2012). 5. After completing the above actions, and any other development deemed necessary, readjudicate the issues on appeal. If any benefit sought remains denied, provide a supplemental statement of the case to the Veteran and his representative, and return the appeal to the Board for appellate review, after the Veteran has had an adequate opportunity to respond. The Veteran has the right to submit additional evidence and argument on the 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). ____________________________________________ U. R. POWELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs