Citation Nr: 1325772 Decision Date: 08/14/13 Archive Date: 08/16/13 DOCKET NO. 05-09 796 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama THE ISSUE Entitlement to service connection for a gastrointestinal disorder, claimed as a hiatal hernia. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Harold A. Beach, Counsel INTRODUCTION The Veteran served on active duty from April 1969 to January 1972. He had service in the Republic of Vietnam from October 1969 to October 1970. The issue of service connection for a hiatal hernia was before the Board of Veterans' Appeals (Board) in January and August 2010 and May 2013. Each time, it was remanded for further development to the Appeals Management Center (AMC) in Washington, D.C. Pursuant to that development, the Veteran had an April 2010 hearing before the undersigned. In addition, the AMC received a September 2011 statement from a former fellow serviceman. Finally, in May 2013, VA examined the Veteran to determine the nature and etiology of any gastrointestinal disorder found to be present. There was substantial compliance with the Board's remand directives. See Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). Following the requested development, the AMC confirmed and continued the denial of entitlement to service connection for a hiatal hernia. Thereafter, the case was returned to the Board for further appellate action. To date, VA has characterized the Veteran's gastrointestinal disorder as a hiatal hernia. However, after reviewing the record, the Board finds that the Veteran has diagnoses of several gastrointestinal disorders. Therefore, the issue on the title page has been characterized to more accurately reflect the scope of the Veteran's claim. A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal. FINDING OF FACT A gastrointestinal disorder, claimed as a hiatal hernia, was first manifested many years after service, and the preponderance of the = evidence of record is against a finding that it is in any way related thereto. CONCLUSION OF LAW A gastrointestinal disorder, claimed as a hiatal hernia, is not the result of disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110, 5103, 5103A (West 2002 and Supp. 2013); 38 C.F.R. § 3.159, 3.303 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION VA's Duty to Notify and Assist Prior to consideration of the merits of the Veteran's appeal, the Board must determine whether VA has met its statutory duty to assist him in the development of the issue of entitlement to service connection for a hiatal hernia. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159. After reviewing the record, the Board finds that VA has met that duty. Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the Veteran and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim, and to indicate which information and evidence VA will obtain and which information and evidence the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). VCAA notice requirements apply to all five elements of a service connection claim: (1) veteran status; (2) existence of a disability; (3) a connection between the Veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 486 (2006). The notice must be provided to the Veteran prior to the initial adjudication of his claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). In May 2003, VA received the Veteran's claim, and there is no issue as to providing an appropriate application form or completeness of the application. Following the receipt of that application, VA notified the Veteran of the information and evidence necessary to substantiate and complete his claim, including the evidence to be provided by him and notice of the evidence VA would attempt to obtain. VA informed him of the criteria for service connection, as well as that for rating service-connected disabilities and for assigning effective dates, should service connection be granted. Following the notice to the Veteran, VA fulfilled its duty to assist him in obtaining identified and available evidence necessary to substantiate his claim. VA obtained or ensured the presence of the Veteran's service treatment and personnel records; records reflecting his treatment by or through VA from September 1972 through October 2009; statements from former fellow servicemen, dated in August 1979, December 1980, and September 2011; records reflecting his treatment by or through private health care providers from November 1979 through February 2010; the Veteran's Social Security records; the transcript of the Veteran's April 2010 hearing before the undersigned; and an April 2010 statement from a longtime acquaintance and co-worker. In March 1981, April and July 1985, May 1997, January 2007, February and October 2009, June 2012, and May 2013, VA also examined the Veteran in conjunction with various claims for VA benefits. As noted above, the latter examination was performed, specifically, to determine the nature and etiology of any gastrointestinal disorder found to be present. The May 2013 report shows that the examiner reviewed the Veteran's medical history, interviewed and examined the Veteran, documented his gastrointestinal disorders, reviewed pertinent medical research, and rendered diagnoses and opinions consistent with the remainder of the evidence of record. The examiner provided a sufficient rationale for the opinion rendered. Therefore, the Board concludes that the VA May 2013 examination is adequate for evaluation purposes. See 38 C.F.R. § 4.2 (2012); see also Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). With respect to the Veteran's April 2010 hearing, the transcript of the hearing shows the presiding Acting Veterans Law Judge identified the material issue, provided the Veteran's representative an opportunity to question the Veteran, clarified the Veteran's treatment for gastrointestinal symptoms in service, clarified the Veteran's duties in service, asked the Veteran whether he would be willing to report for a VA examination, and asked the Veteran if he had anything to add before the hearing was closed. In addition, the Acting Veteran's Law Judge noted that at a pre-hearing conference, the Veteran had stated that he was going to obtain a statement from a former fellow serviceman. She reminded the Veteran that he would have to waive his rights, if he wished her to consider that statement prior to the RO. 38 C.F.R. § 20.1304(c) (2012). In light of the foregoing, the conduct of the hearing was performed in accordance with the provisions of 38 C.F.R. § 3.103(c)(2). Therefore, there was no prejudice to the Veteran's claim as a result of the conduct of that hearing. See Bryant v. Shinseki, 23 Vet. App. 488, 498 (2010) (citing to 38 U.S.C. § 7261(b)(2); Shinseki v. Sanders, 129 S. Ct. 1696, 1704 (2009)). In sum, the Veteran has been afforded a meaningful opportunity to participate in the development of his appeal. He has not identified any outstanding evidence which could support his claim; and in June 2013, he reported that he did not then have any additional evidence to submit regarding his appeal. Therefore, there is no evidence of any VA error in notifying or assisting the Veteran that could result in prejudice to him or that could otherwise affect the essential fairness of the adjudication. Accordingly, the Board will proceed to the merits of the appeal. The Merits of the Appeal Initially, the Board will discuss the relevant law it is required to apply. This includes statutes enacted by Congress and published in Title 38, United States Code (38 U.S.C.A.); regulations promulgated by VA under the law and published at Title 38 of the Code of Federal Regulations (38 C.F.R.); and the precedential rulings of the Court of Appeals for the Federal Circuit (as noted by citations to "Fed. Cir.") and the United States Court of Appeals for Veterans Claims (Court) (as noted by citations to "Vet. App."). The Board is bound by statute to set forth specifically the issue under appellate consideration and its decision must also include separately stated findings of fact and conclusions of law on all material issues of fact and law presented on the record, and the reasons or bases for those findings and conclusions. 38 U.S.C.A. § 7104(d); see also 38 C.F.R. § 19.7 (implementing the cited statute); Vargas-Gonzalez v. West, 12 Vet. App. 321 (1999); Gilbert v. Derwinski, 1 Vet. App. 49 (1990) (Board's statement of reasons and bases for its findings and conclusions on all material facts and law presented on the record must be sufficient to enable the claimant to understand the precise basis for the Board's decision, as well as to facilitate review of the decision by courts of competent appellate jurisdiction; the Board must also consider and discuss all applicable statutory and regulatory law, as well as the controlling decisions of the appellate courts). Service connection connotes many factors but basically it means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. 38 U.S.C.A. § 1110. Generally, the evidence must show (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. See Cuevas v. Principi, 3 Vet. App. 542 (1992). 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, as distinguished from merely isolated findings or a diagnosis including the word chronic. When the disease identity is established, there is no requirement of evidentiary showing of continuity. 38 C.F.R. § 3.303(b). Continuity of symptomatology is required only where the condition noted during service (or in the presumptive period) 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. Id. The Veteran's claimed disability is not a chronic condition as set forth in 38 C.F.R. § 3.303(a). Therefore, the theory of continuity of symptomatology is not applicable in this case. 38 C.F.R. § 3.303(a),(b); see also Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Apart from the foregoing law and regulations, 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). During his April 2010 hearing before the undersigned, the Veteran testified that his hiatal hernia had first manifested in service. He stated that the primary manifestations were heartburn and chest pain and that he had continued to receive treatment for those symptoms after service. He noted that, ultimately, he needed surgery for a hiatal hernia. Therefore, he maintained that service connection was warranted. After carefully considering the claim in light of the record and the applicable law, the Board finds that the preponderance of the evidence is against the claim of entitlement to service connection for a hiatal hernia. Accordingly, the appeal will be denied. The Veteran is competent to report what he experienced in and after service. For example, he is competent to report that his heartburn had started in service and that it had been chronic since that time. See Layno v. Brown, 6 Vet. App. 465 (1994). In certain instances, lay evidence can be competent and sufficient to establish a diagnosis of a condition. King v. Shinseki, 700 F.3d 1339 (2012) (the Court of Appeals for the Federal Circuit discussing 38 U.S.C.A. § 5107(b), 38 C.F.R. § 3.307(b) , and its holdings in Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) and Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009)). Such cases may occur under the following circumstances: (1) when a layperson is competent to identify the medical condition, (2) when a layperson is reporting a contemporaneous medical diagnosis, or (3) when a lay person describes symptoms which are subsequently diagnosed by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). 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, whether the symptoms the Veteran experienced in service were manifestations of the currently claimed disability, falls outside the realm of common knowledge of a lay person. See Jandreau, 492 F.3d at 1377 n.4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer). Therefore, the Veteran's opinion, without more, is not competent and does not provide probative evidence in support of his claim. 38 C.F.R. § 3.159(a). Competency must be distinguished from weight and credibility, which are factual determinations going to the probative value of the evidence. See Rucker v. Brown, 10 Vet. App. 67 (1997). In weighing credibility, VA may consider interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of the witness. Caluza v. Brown, 7 Vet. App. 498 (1995). The Board may weigh the absence of contemporaneous medical evidence against the lay evidence in determining credibility, but the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. Buchanan, 451 F.3d at 1336-37. In deciding this appeal, the Board must weigh the evidence and decide where to give credit and where to withhold the same and, in so doing, accept certain medical opinions over others. Schoolman v. West, 12 Vet. App. 307 (1999); Evans v. West, 12 Vet. App. 22 (1998). The probative value of a medical opinion is generally based on the scope of the examination or review, as well as the relative merits of the expert's qualifications and analytical findings. The probative weight of a medical opinion may be reduced if the examiner fails to explain the basis for an opinion. Sklar v. Brown, 5 Vet. App. 140 (1993). In this regard, contemporaneous evidence has greater probative weight than a history reported by the Veteran. Curry v. Brown, 7 Vet. App. 59 (1994). However, medical evidence that is speculative, general or inconclusive in nature cannot support a claim. See Obert v. Brown, 5 Vet. App. 30 (1993). A review of the evidence discloses that during the Veteran's April 1969 service entrance examination, there were no complaints or clinical findings of a gastrointestinal disorder. In March 1971, he was treated for complaints of heartburn, epigastric discomfort, and watery diarrhea. However, there were no findings of a chronic, identifiable gastrointestinal disorder. During his remaining 9 months of active duty, there were no gastrointestinal complaints or any clinical findings of a gastrointestinal disorder. Indeed, at the time of his December 1971 service separation examination, his abdomen and viscera were found to be normal. During his April 2010 hearing, the Veteran testified that he continued to have gastrointestinal problems in 1973, shortly after service. Although an April 2010 statement from a longtime friend and co-worker tends to support that testimony, the preponderance of the evidence shows otherwise and for the reasons discussed below, the lay evidence is considered not credible. Medical records from private health care providers, as well as VA, dated from September 1972 to 1985, are negative for any complaints or clinical findings of a hiatal hernia or manifestations of heartburn or chest pain. For example, in November 1979, during treatment for a back disorder at the South Georgia Medical Center, the Veteran's abdomen was reportedly negative. Moreover, the report of a March 1981 VA examination shows that the Veteran's digestive system was normal, and the report of a July 1985 VA examination shows no abdominal masses, tenderness, or guarding. During the latter examination, the Veteran specifically denied any medical problems other than a back injury. Indeed, the record is negative for any medical evidence of a hiatal hernia until October 1989. At that time, during treatment for a back disorder at the Northeast Alabama Regional Medical Center, it was noted that the Veteran had a history of a hiatal hernia. In addition to a hiatal hernia, the Veteran had gastrointestinal disorders that were first manifested in the 1990's. They were diagnosed, primarily, as gastroesophageal reflux disease (GERD), esophageal stricture, and achalasia. The Court has indicated that the normal medical findings at the time of a veteran's separation from service, as well as the absence of any medical records of a diagnosis or treatment for many years after service is probative evidence against the claim. See Mense v. Derwinski, 1 Vet. App. 354, 356 (1991) (affirming Board where it found that the Veteran failed to account for the lengthy time period after service for which there was no clinical documentation of low back condition); see also Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (A prolonged period without medical complaint can be considered, along with other factors concerning a claimant's health and medical treatment during and after military service, as evidence of whether an injury or a disease was incurred in service which resulted in any chronic or persistent disability.); Forshey v. West, 12 Vet. App. 71, 74 (1998), aff'd sub nom. Forshey v. Principi, 284 F.3d 1335, 1358 (Fed. Cir. 2002) (noting that the definition of evidence encompasses "negative evidence" which tends to disprove the existence of an alleged fact). The lack of any complaints or clinical findings of a hiatal hernia for many years after service is further supported by the fact that the Veteran did not file his initial claim for service connection for that disorder until May 2003. Had he been having chronic gastrointestinal problems since service, it is reasonable to expect that he would have filed an earlier claim. The evidence shows that he knew how to do so, having filed a claim for service connection for other disorders, as early as July 1978. That he did not do so with respect to a hiatal hernia further provides evidence against his claim. 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). For these reasons, the Veteran's lay assertions are considered not credible, and therefore are not afforded probative weight in support of his claim. Nevertheless, due to his gastrointestinal complaints in service, and the reports of his continuing complaints after service, VA examined the Veteran in May 2013 to determine the nature and etiology of any gastrointestinal disorder found to be present. Following the May 2013 VA examination, the diagnoses were gastroesophageal reflux disease (GERD), a hiatal hernia, esophageal stricture, and achalasia. The examiner noted that GERD and a hiatal hernia had been present since the early 1990's. The esophageal stricture and achalasia had reportedly been present since 1995 and 1999 respectively. After a review of the claims file, an interview with and an examination of the Veteran, and a review of the relevant medical literature, the examiner opined that it was less likely than not that his gastrointestinal disorders were related to, or caused by, the Veteran's time in service. The VA examiner gave multiple reasons for his opinion. First, he stated that more likely than not, the Veteran's gastrointestinal symptoms in service were related to infectious gastritis/esophagitis (likely viral). In so stating, the VA examiner cited the self-limiting nature of the Veteran's symptoms. He noted that the disorders in service were not the same as those currently diagnosed and that they did not predispose the Veteran to his current disorders. Second, the VA examiner noted that detailed medical records from the early 1980's and 1990's showed that the Veteran's gastrointestinal symptoms had their onset in the early-to-mid-1990's. Third, the VA examiner stated that the timing of the Veteran's gastrointestinal symptoms coincided with the typical age of onset for such conditions. Fourth, the VA examiner stated that the medication which the Veteran was taking for his non-service-connected back disorder was known to cause gastritis, esophagitis, and a low gastrointestinal tone. The VA examiner concluded that the likely causes of the Veteran's gastrointestinal symptoms were aging, dietary factors, and the medication which the Veteran was taking. The only evidence of chronic gastrointestinal problems since service remains that from the Veteran and his longtime friend and co-worker. However, the diagnoses of a hiatal hernia, GERD, esophageal stricture, and achalasia are, generally, beyond the knowledge of a lay persons, as discussed above. Moreover, there is no evidence that he reported a contemporaneous medical diagnosis or that he described symptoms during the many years after service which were subsequently diagnosed by a medical professional. Accordingly, he does fit the exceptions in Jandreau to warrant a diagnosis of a gastrointestinal disorder for many years after service. In sum, the preponderance of the evidence is against a finding of a chronic, identifiable disorder of either shoulder in service. The preponderance of the evidence is also against a finding of a nexus between the Veteran's current gastrointestinal disorder and any incident in service. Therefore, the Veteran does not meet the criteria for service connection for a disorder in either shoulder. Accordingly, service connection is not warranted; and the appeal is denied. In arriving at this decision, the Board has considered the doctrine of reasonable doubt. However, that doctrine is only invoked where there is an approximate balance of evidence which neither proves nor disproves the claim. In this case, the preponderance of the evidence is against the Veteran's claim. Therefore, the doctrine of reasonable doubt is not applicable. 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2012). ORDER Entitlement to service connection for a gastrointestinal disorder, claimed as a hiatal hernia, is denied. ____________________________________________ D. MARTZ AMES Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs