Citation Nr: 1324329 Decision Date: 07/31/13 Archive Date: 08/07/13 DOCKET NO. 12-34 437 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUE Entitlement to service connection for a gastrointestinal disability, to include peptic ulcer disease. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD A. Haddock, Associate Counsel INTRODUCTION The Veteran served on active duty from December 1952 to November 1954. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2010 rating decision by the Winston-Salem, North Carolina Department of Veterans Affairs (VA) Regional Office (RO). In his December 2012 substantive appeal, the Veteran requested a hearing before a member of the Board at a local VA office. However, in a March 2013 statement, the Veteran withdrew his request for a hearing and asked that his claim be decided based on the evidence that was already of record. Therefore, the Veteran's hearing request is considered withdrawn. The Board has not only reviewed the Veteran's physical claims file but also the Veteran's file on the "Virtual VA" system to insure a complete review of the evidence. 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 The relevant competent evidence is in relative equipoise as to whether the Veteran's current gastrointestinal disability is related to his active service, to include any treatment for ulcers therein. CONCLUSION OF LAW The criteria for service connection for a gastrointestinal disability have been met. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303(a) (2012). Service connection may also be granted for certain chronic diseases (including peptic ulcer disease and duodenal ulcers), when such disease is manifested to a compensable degree within one year of separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309; See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). If there is no showing of a chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Service connection may 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 general, service connection requires (1) evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Under the benefit-of-the-doubt rule embodied in 38 U.S.C.A. § 5107(b), in order for a claimant to prevail, there need not be a preponderance of the evidence in the Veteran's favor, but only an approximate balance of the positive and negative evidence. In other words, the preponderance of the evidence must be against the claim for the benefit to be denied. Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1994). In this case the Veteran contends that his current gastrointestinal disability was incurred in or caused by his active service. Specifically, he alleged that in October 1954, while on active service, he received inpatient treatment at Ft. Belvoir, Virginia, for ulcers, and that he has continued to suffer from ulcers ever since separation from active service. The Board notes that the Veteran's service treatment records are not available for review. A November 2010 memorandum to the file indicates that after correctly following all procedures, it was determined that the Veteran's records were not available. The Veteran was made aware of the unavailability of his service treatment records in a November 2010 letter and advised to submit any service treatment records that might be in his possession. The Board notes that the Veteran has not submitted any service treatment records. In order to support his assertions regarding his in-service treatment for ulcers, the Veteran has submitted a lay statement from his spouse and a lay statement from a member of his former U.S. Army unit. In her August 2010 statement, the Veteran's spouse, stated that she was married to the Veteran while he was on active service. She stated that during the last part of his service he was admitted to the Army hospital at Ft. Belvoir and was treated for stomach ulcers. She further stated that following his active service he sought private treatment from a Dr. C.M.M. at Shelley Medical Association for his ulcer condition, but that Dr. C.M.M. had since died and the records of that treatment have been destroyed. She stated that he then sought treatment from Dr. C.T. and Dr. D.D., also at Shelley Medical Association and that the Veteran has continued to require treatment and medication for his ulcer condition since separation from active service. In an April 2011 statement, Mr. C.H., a member of the Veteran's former Army unit, stated that in October 1954, he picked the Veteran up at the Army hospital at Ft. Belvoir and took him to the Veteran's home. He further stated that he had known the Veteran was receiving care for an ulcer condition. Also of record are postservice treatment records that show the Veteran receives regular care for a variety of medical conditions, including his gastrointestinal disability. The earliest indication from these records that the Veteran suffered from some sort of gastrointestinal disability is an August 1967 treatment record where it is noted that he is required to take antacids. A subsequent record from September 1970 treatment record noted that the Veteran had a history of an ulcer. Later treatment records show that the Veteran received ongoing treatment for a gastrointestinal disability that was variously diagnosed as peptic ulcer disease, duodenal ulcers, and gastroesophageal reflux disease (GERD), and that he was prescribed various medications. The most recent treatment records show that his gastrointestinal disability was well controlled with his medication. The Board finds that the record, as it currently stands, contains both evidence for and against the Veteran's claim. Notably, the Veteran's own statements and the supporting lay statements provided by his spouse and Mr. C.H., claiming that the Veteran received treatment for ulcers while on active service, tend to support his claim. Further the Veteran's statements and the statement by his spouse that he has continued to receive treatment for ulcers since his separation from active service and the postservice private treatment records noting that in August 1967 he was noted to be taking antacids and in September 1970 he was noted to have a history of ulcers also support his claim for service connection. The evidence against the claim consists of the lack of supporting medical evidence showing continuity of symptomatology immediately following the Veteran's separation from active service. However, the Board acknowledges the Veteran's and his spouse's statements that he received treatment for his ulcers immediately following separation from active service, but that those treatment records are no longer available. The Board has found no reason to doubt the Veteran's credibility in this regard. The Board notes that as the Veteran's service treatment records are not available for review, VA has a heightened duty to assist in the development of the Veteran's claim. O'Hare v. Derwinski, 1 Vet. App. 365 (1991). This duty includes a search for alternate source medical records, as well as a heightened obligation on the Board's part to explain its findings and conclusions, and carefully consider the benefit-of-the-doubt rule. See Cromer v. Nicholson, 19 Vet. App. 215 (2005). In this case, the Veteran has stated that the symptoms of his current gastrointestinal disability had their onset during his active service, and that such symptoms have continued since his separation from active service. Significantly, the United States Court of Appeals for Veterans Claims (Court) has held that lay testimony is competent when it relates to readily observable features or symptoms of injury or illness and "may provide sufficient support for a claim of service connection." Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also 38 C.F.R. § 3.159(a)(2). In this regard, the Court has emphasized that 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. In this case, the Board has found no reason to doubt the credibility of the Veteran's statements, or of the lay statements that he has submitted in support of his claim, to include those regarding his treatment for ulcers while on active service. Thus, upon review of the record, the evidence regarding the issue of whether the Veteran's gastrointestinal disability had its onset during active service, and continued since, is in relative equipoise, i.e., about evenly balanced for and against the claim. In these situations, the Veteran is given the benefit of the doubt. Consequently, resolving all reasonable doubt in the Veteran's favor, the Board finds that the Veteran's gastrointestinal disability was incurred in service. 38 C.F.R. § 3.102. See Ashley v. Brown, 6 Vet. App. 52, 59 (1993), citing 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102 (under the "benefit- of-the-doubt" rule, where there exists "an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter," the Veteran shall prevail upon the issue). As such, the Board will grant this appeal. Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the 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); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). In this case, the Board is granting in full the benefits sought on appeal. Accordingly, assuming, without deciding, that any error was committed with respect to either the duty to notify or the duty to assist, such error was harmless and will not be further discussed. ORDER Entitlement to service connection for a gastrointestinal disability, to include peptic ulcer disease, is granted. ____________________________________________ JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs