Citation Nr: 1329282 Decision Date: 09/12/13 Archive Date: 09/20/13 DOCKET NO. 07-13 695A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUE Entitlement to service connection for a gastrointestinal disorder. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD David S. Nelson, Counsel INTRODUCTION The Veteran had active service from March 1983 to July 1983 and from November 1990 to May 1991. She had subsequent service in the United States Army Reserves, including a period of active duty training in May-June 2001. This matter comes before the Board of Veterans' Appeals (BVA or Board) from a June 2005 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois. This case was previously before the Board in November 2011 and was remanded for additional development. Pertinent medical records have been added to the claims file subsequent to the February 2013 supplemental statement of the case. The Veteran, through his representative, has waived initial RO consideration of this evidence. See Statement dated July 2013. FINDING OF FACT There has been no demonstration by competent clinical evidence, or credible lay evidence, that a chronic gastrointestinal disability had its onset in service or that there is a nexus or link between a chronic gastrointestinal disability and the Veteran's service. CONCLUSION OF LAW A chronic gastrointestinal disability was not incurred in or aggravated by the Veteran's military service. 38 U.S.C.A. §§ 101, 1110, 1131, 5107 (West 2002); 38 C.F.R. § 3.303 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION VA has a duty to notify and a duty to assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. §§ 3.159, 3.326(a). Duty to Notify Proper notice from VA must inform the claimant and 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). 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. The Veteran was notified via letters dated in February 2005, March 2006, July 2007, October 2010, July 2012, and January 2013 of the criteria for establishing service connection, the evidence required in this regard, and her and VA's respective duties for obtaining evidence. She also was notified of how VA determines disability ratings and effective dates if service connection is awarded. As VCAA notice was not completed prior to the initial AOJ adjudication of the claim, such notice was not compliant with Pelegrini. However, as the case was readjudicated thereafter, there is no prejudice to the Veteran in this regard. Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). Duty to Assist Service treatment records are associated with the claims file, as are identified VA and private medical records. In December 2011 the Veteran underwent a VA examination that addresses the medical matters presented by this appeal. 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79 (2006). 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). The Board finds that the VA opinion obtained in this case is more than adequate. The December 2011 VA examiner elicited information concerning the Veteran's military service and performed a contemporaneous physical examination. The opinion considered the pertinent evidence of record and provided a rationale for its conclusions. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion has been met. 38 C.F.R. § 3.159(c)(4). The Board finds that there has been substantial compliance with its November 2011 remand instructions. D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). Significantly, as noted, in December 2011 the Veteran underwent a VA examination that addressed the medical matters presented by this appeal and contained answers to specific questions enumerated in the November 2011 remand. Further, on November 15, 2011, VA medical records available through the Compensation and Pension Records Interchange (CAPRI) were uploaded to the Veteran's electronic Virtual VA folder. While efforts to verify the Veteran's exact dates of active duty for training (ACDUTRA) service in May 2001-June 2001 have been unsuccessful, and records such as a DA Form 2173 documenting the Veteran's abdominal complaints are not of record, the Board finds that the available evidence of record does reveal that the Veteran was on ACDUTRA status at the time of the epigastric complaints as noted in the June 2001 private medical records. The Board also does not dispute that the Veteran was on drill status in February 2001 as claimed. As such, another remand for the purpose of additional attempts at verification of the Veteran's service is not necessary. The Veteran has indicated that she was hospitalized at Northwestern Memorial Hospital in February 2001 for symptoms that included abdominal pain. In a response received by VA in April 2009, the private hospital indicated that payment would be required prior to the records being sent. In an October 2009 letter the Veteran was informed that VA had no funds to obtain the records and that the Veteran would have to pay and obtain the records herself if she wished to have them considered in her appeal. She has not submitted these records. The Veteran has not referenced any other pertinent, obtainable evidence that remains outstanding. VA's duties to notify and assist are met, and the Board will address the merits of the claim. Applicable Laws-Service connection Service connection may be established for a disability resulting from personal injury suffered or disease contracted in the line of duty or for aggravation of preexisting injury suffered or disease contracted in the line of duty. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting 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). The theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic at 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). 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). To establish a right to compensation for a present disability, a veteran 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. See Hickson v. West, 12 Vet. App. 247, 253 (1999). Service connection for certain specified chronic diseases, such as peptic (gastric or duodenal) ulcers will be presumed to have been incurred in service if manifested to a degree of at least 10 percent disabling within one year after service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1131, 1137; 38 C.F.R. §§ 3.307, 3.309. The chronic disease presumption does not apply to ACDUTRA or inactive duty for training (INACDUTRA). See Biggins v. Derwinski, 1 Vet. App. 474, 477-8 (1991). The term "veteran" is defined in 38 U.S.C.A. § 101(2) as a person who served in the active military, naval, or air service, and who was discharged or released under conditions other than dishonorable. Active military, naval, or air service includes active duty. 38 U.S.C.A. § 101(24); 38 C.F.R. § 3.6(a). It also includes any period of ACDUTRA during which the individual concerned was disabled or died from a disease or injury incurred or aggravated in the line of duty and any period of INACDUTRA during which the individual concerned was disabled or died from an injury incurred or aggravated in the line of duty or from an acute myocardial infarction, a cardiac arrest, or a cerebrovascular accident which occurred during such training. Id. An individual who has served on active duty is a veteran while an individual who has served only on ACDUTRA and/or INACDUTRA must establish a service-connected disability in order to achieve veteran status. Paulson v. Brown, 7 Vet. App. 466 (1995). The fact that a claimant has established status as a "veteran" for purposes of other periods of service (e.g., the Veteran's prior period of active duty) does not obviate the need for him/her to establish that he/she is also a "Veteran" for purposes of the period of ACDUTRA where the claim for benefits is premised on that period of ACDUTRA. Mercado-Martinez v. West, 11 Vet. App. 415, 419 (1998). VA is required to evaluate the supporting evidence in light of the places, types, and circumstances of service, as evidenced by service records, the official history of each organization in which the veteran served, the veteran's military records, and all pertinent medical and lay evidence. 38 U.S.C.A. § 1154(a) (West 2002). The Board notes that although all the evidence has been reviewed, only the most salient and relevant evidence is discussed below. See Gonzales v. West, 218 F.3d 1378 (Fed. Cir. 2000) (holding that the Board must review the entire record but does not have to discuss each piece of evidence). Analysis In a January 2005 statement the Veteran asserted that she had been experiencing gastrointestinal symptoms the prior three years. She stated that she had developed polyps and gastrointestinal disease. She stated that her current symptoms included burning sensations, nausea, and a longer time to digest food. Relevant service treatment records include a February 1999 and November 2001 Report of Medical History wherein the Veteran denied that she had frequent indigestion or stomach troubles. Corresponding clinical evaluations in February 1999 and November 2001 revealed no gastrointestinal disability. A February 2001 VA emergency department nursing note indicated that the Veteran complained of constant epigastric pain. The diagnosis was gastritis. The Veteran was scheduled for follow-up treatment in April 2001. The record made no reference to any military service or to any weekend drills. An April 2001 VA record noted that the Veteran had been treated in February 2001 for nausea and abdominal pain. The Veteran indicated that since September 2000 she had experienced similar problems and also indicated that she occasionally had a sensation of food sticking in her esophagus. Examination noted a soft abdomen. The assessment included GERD symptoms. Orders from the Department of the Army 88th Regional Support Command, dated May 8, 2001, reflect that the Veteran was ordered to annual training (AT), a period of ACDUTRA, for four (4) days beginning May 29, 2001. A private treatment report, dated June 2, 2001, prepared by Provena, Saint Joseph Medical Center, reflects that the Veteran was seen with complaints of sudden epigastric/right upper quadrant pain that had its onset while she was at the firing range during a period of military service. She was diagnosed as having, in pertinent part, abdominal pain, gastroenteritis, and urinary tract infection. A December 2001 VA record noted that the Veteran denied heartburn and abdominal pain. A June 2002 VA colonoscopy revealed a portion of small bowel with non-specific chronic inflammation. The assessment included H. pylori and acute and chronic gastritis. An August 2003 private treatment record noted GERD as one of the Veteran's medical problems. In a June 2005 statement, the Veteran indicated that her gastrointestinal symptoms had first begun in February 2001 while "attending a weekend drill." She indicated that she was treated at a private hospital for symptoms including sharp abdominal pains. She stated that she had the same type of pains at the time of her June 2001 inservice episode. A June 2010 VA treatment record noted that the Veteran complained of nausea and headaches. At a December 2011 VA examination the examiner indicated that the Veteran's gastrointestinal diagnoses included gastroesophageal reflux disease (GERD), H. pylori, and diverticulitis. The examiner reviewed the Veteran's medical history, and noted that the Veteran had made complaints, including dysphagia, in September 2000. The examiner stated that the Veteran's current GERD, H. pylori, and diverticulitis were not likely related to her claimed in- service injury. The examiner's rationale, in pertinent part, was as follows: These conditions are not related to [the] incident that occurred 6/1/01 where [the Veteran] was diagnosed with a UTI. The GI conditions have no relationship to a UTI. However, it is more likely that not that the [Veteran] has GERD since 2000. This is a chronic condition and she continues with this today. The Board finds that service connection for a chronic gastrointestinal disability is not warranted. As for evidence of a link or nexus between the Veteran's gastrointestinal disability and her military service, the December 2011 VA examiner specifically stated that it was not likely that the Veteran's GERD was related to the Veteran's report of abdominal pain symptoms and urinary tract infection of June 2001. The Board affords the December 2011 VA examiner's opinion considerable probative value because the examiner performed a contemporaneous examination, made a reference to a specific clinical record, and provided a compelling and logical rationale for the ultimate conclusion. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (explaining that most of the value of a medical opinion comes from its reasoning). The December 2011 VA examiner noted that the symptoms and complaints the Veteran had made in June 2001, including the urinary tract infection, and indicated that such were not those associated with the Veteran's current GERD disability. The December 2011 VA examiner also indicated that the Veteran's GERD had likely had its onset around September 2000, months prior to the asserted February 2001 and June 2001 inservice incidents. This conclusion is essentially supported by comments the Veteran made during her April 2001 VA treatment. The December 2011 VA examiner's opinion is uncontradicted by the competent medical evidence of record. There is also no evidence suggesting that GERD disability was aggravated by the Veteran's February 2001 and June 2001 periods of service. The presumption of aggravation is not applicable to a claimant seeking service connection based on a period of ACDUTRA, and service connection will only be warranted if the evidence shows "both that a worsening of the condition occurred during the period of active duty for training and that the worsening was caused by the period of active duty for training." Smith v. Shinseki, 24 Vet. App. 40, 44-45 (2010). As noted, the Board observes that the December 2011 VA examiner has essentially indicated that the complaints the Veteran made in June 2011 were not even related to GERD. In essence, the Veteran in this case is relying on her own reports of in-service symptoms as a basis for awarding compensation benefits. To the extent that she argues that an in-service injury or event is related to her GERD or diverticulitis, the Board finds her statements are not competent evidence. Whether a layperson opinion as to a nexus or a diagnosis is competent evidence depends on the facts of the particular case. See Davidson v. Nicholson, 581 F.3d 1313 (Fed. Cir. 2009). One factor for consideration is the complexity of the question to be determined. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (providing an example in footnote 4 that a layperson would be competent to diagnose a simple condition such as a broken leg but not competent to diagnose a form of cancer). Another factor is whether the question can be answered by personal observation alone. See Layno v. Brown, 6 Vet. App. 465, 496 (1994) (explaining that a layperson is competent to report only that which he or she observed). Taking the aforementioned Davidson, Jandreau, and Layno together leads the Board to the conclusion that the complexity of the question, such as whether asserted in- service symptoms caused or aggravated her GERD, cannot be determined by direct observation and is not a simple question. Her opinion in this regard is not competent evidence and is not favorable to her claim. See King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2012). The Board acknowledges that the Veteran has also submitted lay statements in support of her claim. While the lay statements note that the Veteran currently has gastrointestinal problems, the statements do not mention any specific dates or periods of service. The Board finds that the lay statements submitted in support of the Veteran's claim are of no probative value in determining whether there is a link between the Veteran's gastrointestinal disability and her military service. The Board here notes that the Veteran has not asserted, and the evidence does not show, that a gastrointestinal disability is related to her periods of active service from March 1983 to July 1983 or from November 1990 to May 1991. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence weighs against the claim, that doctrine is not applicable. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER Service connection for a gastrointestinal disorder is denied. ____________________________________________ BARBARA B. COPELAND Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs