Citation Nr: 1329123 Decision Date: 09/11/13 Archive Date: 09/17/13 DOCKET NO. 10-36 257 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to service connection for a digestive disorder, to include gastroesophageal reflux disease (GERD), hiatal hernia, and gastritis. REPRESENTATION Appellant represented by: Georgia Department of Veterans Services ATTORNEY FOR THE BOARD J. Barone, Counsel INTRODUCTION The Veteran had active service from March 1969 to August 1971. This appeal came before the Board of Veterans' Appeals (Board) from an August 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. When the appeal was before the Board in August 2011, service connection for tinnitus was granted. The Board remanded the issues of service connection for bilateral hearing loss disability and GERD for additional development. While the appeal was in remand status, service connection for bilateral hearing loss disability was granted. As that action by the RO constituted a full grant of benefits sought on appeal, the Board need not further address that issue. The United States Court of Appeals for Veterans Claims (Court) addressed the scope of a claim in regard to a claimed disability in Clemons v. Shinseki, 23 Vet. App. 1 (2009). In Clemons, the Court held that, in determining the scope of a claim, the Board must consider the claimant's description of the claim; symptoms described; and the information submitted or developed in support of the claim. Id. at 5. In light of the Veteran's assertions that he has digestive system symptoms resulting from severe seasickness symptoms in service and the diagnoses of record, the issue has been recharacterized as reflected on the title page, which will provide the most favorable review of the Veteran's claim in keeping with the Court's holding in Clemons. In December 2012 the Board remanded the issue of entitlement to service connection for digestive disorders, including GERD, hiatal hernia, and gastritis for an addendum opinion from a VA examiner. The appeal has been returned to the Board for appellate consideration. The Board notes that the record includes Virtual VA (VVA) and VBMS electronic files, which have been reviewed in the adjudication of this appeal. FINDING OF FACT A digestive disorder, to include GERD, hiatal hernia, and gastritis, was not manifest in service and is unrelated to service. CONCLUSION OF LAW A digestive disorder was not incurred in service. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. § 3.303 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION The Veterans Claims Assistance Act of 2000 (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); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 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) (West 2002); 38 C.F.R. § 3.159(b) (2012); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper 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 RO decision on a claim. See Pelegrini v. Principi, 18 Vet. App. 112 (2004); Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). On March 3, 2006, the Court of Appeals for Veterans Claims (Court) issued a decision in the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), which held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 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. The Court held that upon receipt of an application for a service-connection claim, 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating or is necessary to substantiate the elements of the claim as reasonably contemplated by the application. Id. at 486. A letter dated in August 2008, prior to the adjudication of the Veteran's claim, discussed the evidence necessary to support a claim for service connection. The evidence of record was listed and the Veteran was informed of the allocation of responsibilities between himself and VA. He was also advised of the manner in which VA determines disability ratings and effective dates. The Board finds that the content of the preadjudicatory notice provided to the Veteran fully complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) regarding VA's duty to notify. With respect to VA's duty to assist, VA and private treatment records have been obtained and associated with the record. A VA examination has been conducted, and an addendum report was requested. The Board finds that the examination and the addendum report are adequate, in that the examination was conducted by a clinician who reviewed the record, interviewed the Veteran, and performed appropriate physical examinations. She subsequently reviewed the record and provided a reasoned basis for her conclusions. The Veteran has not otherwise identified any additional available evidence or information which could be obtained to substantiate the claim. The Board is also unaware of any such outstanding evidence or information. Therefore, the Board is also satisfied that VA has complied with the duty to assist requirements of the VCAA and the implementing regulations. For the foregoing reasons, it is not prejudicial to the appellant for the Board to proceed to a final decision in this appeal. Analysis The Veteran seeks service connection for digestive disorders, including gastroesophageal reflux disease (GERD), hiatal hernia, and gastritis. He essentially maintains that they are related to episodes of vomiting caused by severe motion sickness that he experienced during service. Entitlement to VA compensation may be granted for disability resulting from disease or injury incurred in or aggravated by active duty. 38 U.S.C.A. §§ 1110 (wartime service), 1131 (peacetime service); 38 C.F.R. § 3.303. To establish a right to compensation for a present disability, a claimant 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"-the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). 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. 38 C.F.R. § 3.303(b). If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. A recent decision of the U. S. Court of Appeals for the Federal Circuit (Federal Circuit), however, clarified that this notion of continuity of symptomatology since service under 38 C.F.R. § 3.303(b), which as mentioned is an alternative means of establishing the required nexus or linkage between current disability and service, only applies to conditions identified as chronic under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). In Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C.A. § 7104(a). Moreover, the Court has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b). Service treatment records indicate that in August 1970, the Veteran was seen for chronic sea sickness. The provider noted that the Veteran had sea sickness at no other time except while deployed on a ship, and stated that it was apparent that no pathology or apparent cause existed. Chronic sea sickness wag again noted in April 1971. In June 1971 a medical consultation revealed no evidence of organic disease, and transfer to a shore station or administratively discharge from service was recommended. At the time of his September 1971 separation examination, his abdomen and viscera were normal and the Veteran certified that he was informed of and understood the provisions of BUMED instruction 6120.6c. A March 2007 VA treatment record includes a history of GERD. In August 2008 the Veteran stated that he regularly used over the counter antacid medication, and that he had been taking Zantac since September 1994. He indicated that he had suffered from gastrointestinal symptoms since service. An August 2010 private treatment record indicates a diagnosis of chronic GERD, refractory to medication. In September 2010 the Veteran was found to be positive for H. pylori, hiatal hernia, and gastritis. On VA examination in September 2011, the Veteran's history was reviewed. The examiner provided diagnoses of GERD and hiatal hernia. She concluded that these diagnoses were not related to service. In December 2012 the Board determined that the September 2011 examination was inadequate and remanded so that the claims file could be returned to the examiner for review and an addendum report. In January 2013 the previous examiner reviewed the claims file. She concluded that it was less likely as not that GERD, hiatal hernia, and gastritis were etiologically related to episodes of sea sickness during service. She recited incidences of sea sickness during service and noted that the Veteran was eventually recommended for transfer to a shore station or for administrative separation. She further noted that the separation examination report was negative for any nausea, vomiting, or hiatal hernia. She indicated that the medical literature was limited in its association of sea sickness with GERD, hiatal hernia, and gastritis. She pointed out that the risk factors for GERD included obesity, hiatal hernia, smoking, dry mouth, asthma, diabetes, delayed stomach emptying, and connective tissue disorders. She stated that the Veteran's GERD was not etiologically related to the in-service sea sickness. She indicated that risk factors for gastritis included bacterial infection, regular use of pain relievers, age, excessive alcohol use, bile reflux disease, autoimmune gastritis, and diseases such as Chron's disease. She concluded that the Veteran's gastritis had no etiological relationship to his in-service sea sickness. Finally, she noted that risk factors for hiatal hernia included being age 50 or older and obesity. She stated that hiatal hernia was not etiologically related to the in-service sea sickness. Upon careful consideration of the foregoing evidence, the Board concludes that service connection is not warranted. While the evidence reveals that the Veteran has diagnoses referable to his digestive system, the most competent and probative evidence of record does not etiologically link any such diagnosis to service or any incident therein. In this regard, the Board observes that although the Veteran has indicated that he has had digestive system symptoms since service, the first notation in the record of any relevant history dates to 2007, many years following service. The Board may, and will, consider in its assessment of a service connection claim 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 (Feb. Cir. 2002) (en banc). The Veteran also stated in September 2011 that he talked to his private physician after service, who told him that sea sickness "would have probably caused damage if it happened over and over, and it did for approx. 2 yr's." However, there is no indication as to what type of damage would occur and accordingly such statement, while a competent recitation of what a physician told him, is outweighed by the more probative VA medical opinion. The VA examiner concluded that the Veteran's diagnosed digestive disorders are not related to service. She provided a reasoned opinion based on a complete review of the Veteran's history, interview, and examination. In assigning high probative value to this opinion, the Board notes that the examiner reviewed the record, obtained a history from the Veteran, and conducted a complete examination. There is no indication that the examiner was not fully aware of the Veteran's past medical history or that she misstated any relevant fact. The Board thus finds the examiner's opinion to be of greater probative value than the Veteran's assertions to the contrary. The Board also acknowledges the Veteran's own assertions that a digestive disorder is related to service, to include incidences of sea sickness. The Veteran may attest to factual matters of which he has first-hand knowledge, such as subjective complaints, and his assertions in that regard are entitled to some probative weight. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). He is competent to report incidents in service and symptoms since then. He is not, however, competent to render an opinion as to the cause or etiology of the currently diagnosed digestive disorder because he does not have the requisite medical knowledge or training and because such matters are beyond the ability of a lay person to observe. See Rucker v. Brown, 10 Vet. App. 67, 71 (1997). As discussed, the VA examiner considered the Veteran's description of in-service events and the documented history, but ultimately concluded that GERD, hiatal hernia, and gastritis were not related to service. The Board finds the most probative evidence of record to be this opinion by the competent VA health care provider. Even if the Veteran's statements that a digestive disorder is due to sea sickness or any other incident of service were found to be competent, credible and probative, they are still outweighed by the examiner's opinion. The opinion was provided by a medical professional who reviewed the history, interviewed the Veteran and provided an opinion supported by a rationale. It is also noted that the Veteran's diagnosed disorders are not chronic diseases pursuant to 38 C.F.R. § 3.309(a) and, therefore, the Veteran's reports of continuity of symptomatology do not assist him in obtaining service connection. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In summary, no medical professional has attributed the Veteran's current digestive disorders to service. In that regard, the Board places much more weight on the opinion of the competent VA health care provider who conducted physical examination and reviewed the record, than on the Veteran's assertions that his current digestive disorder is related to service. The grant of service connection requires competent evidence to establish a diagnosis and, as in this case, relate the diagnosis to the Veteran's service. While the record contains diagnoses of digestive disorders, the preponderance of the evidence is against finding that these particular diagnosed disabilities are related to any injury or disease in service. The Board finds that the negative record at service discharge and for years following service is more probative than the Veteran's more recent statements. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Absent credible and competent lay or medical evidence relating this claimed disability to service, the Board concludes that the claim of entitlement to service connection must be denied. The preponderance of the evidence is against the Veteran's claim and the doctrine of reasonable doubt is not applicable in the instant appeal. Gilbert v. Derwinski, 1 Vet. App. 49, 58 (1990); 38 C.F.R. § 3.102 (2012). ORDER Entitlement to service connection for a digestive disorder, to include GERD, hiatal hernia, and gastritis, is denied. ____________________________________________ S. S. TOTH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs