Citation Nr: 1330706	
Decision Date: 09/25/13    Archive Date: 09/30/13

DOCKET NO.  07-36 637	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Seattle, Washington


THE ISSUES

1.  Entitlement to service connection for residuals of gall bladder removal.

2.  Entitlement to service connection for a spleen disability.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

A. Dean, Associate Counsel


INTRODUCTION

The Veteran had active naval service from December 1994 to March 1995, from June 1998 to February 1999, and from May 2000 to January 2006.  He also had service in the Naval Reserves from February 1990 to May 2011, with periods of active duty for training (ACDUTRA) and inactive duty training (INACDUTRA).

This appeal to the Board of Veterans' Appeals (Board) is from a December 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO).

As support for his claims, the Veteran testified at a videoconference hearing in May 2013 before the undersigned Veterans Law Judge (VLJ) of the Board.  A transcript of the hearing is in the claims file.

Following the hearing, the Veteran submitted additional records and waived his right to have the RO initially consider this additional evidence as the Agency of Original Jurisdiction (AOJ), preferring instead to have the Board consider it in the first instance.  See 38 C.F.R. § 20.1304(c) (2012) (providing that any pertinent evidence accepted directly at the Board must be referred to the AOJ for initial review unless this procedural right is waived by the appellant).

The Board also sees the Veteran filed a timely notice of disagreement (NOD) in response to the denial of his claims of entitlement to service connection for allergic rhinitis, mandibular tori, posttraumatic stress disorder (PTSD), bilateral hand disability, lumbar spine disability, cervical spine disability, bilateral patella femoral syndrome, right ankle tendonitis, left ankle disability, left foot disability, right foot plantar fasciitis, right shoulder tendonitis, and right hip tendonitis.  However, in April 2010 he withdrew his appeal of these several other claims, so they are not before the Board, only instead the claims for residuals of gall bladder removal and spleen disability.  See 38 C.F.R. § 20.204 (2013).


FINDINGS OF FACT

1.  Despite his contentions to the contrary, it is not shown the Veteran's gall bladder removal occurred during what could be considered active military service and is not otherwise shown to be related or attributable to his service, including to any period of ACDUTRA.

2.  He also has not established he has a spleen disability or that he has at any time since the filing of this claim.


CONCLUSIONS OF LAW

1.  It is not shown the Veteran has residuals of gall bladder removal because of disease or injury incurred in or aggravated by active military service.  38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2013).

2.  It also is now shown he has spleen disability, much less on account of disease or injury incurred in or aggravated by active military service.  38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. § 3.303 (2013).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

In deciding these claims, the Board has reviewed all of the evidence in the claims file, both the physical claims file and electronic ("Virtual VA") claims file, and has an obligation to provide an adequate statement of reasons or bases supporting this decision.  See 38 U.S.C.A. § 7104(d)(1) (West 2002); Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000).  While the Board must review the entire record, it need not discuss each and every piece of evidence, certainly not in exhaustive detail.  See id.  The analysis below therefore focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claims.  See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the claimant).

The Board must assess the credibility and weight of all relevant evidence, so both the medical and lay evidence, to determine its probative value, accounting for evidence that it finds to be persuasive or unpersuasive and providing reasons for rejecting any evidence favorable to the claimant.  Caluza v. Brown, 7 Vet. App. 498, 506 (1995).

A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence.  See 38 U.S.C.A. § 5107; 38 C.F.R. § 3102.  When the evidence is in relative equipoise, the claimant prevails.  See Gilbert v. Derwinski, 1 Vet App. 49 (1990).  The preponderance of the evidence must weigh against a claim for benefits to be denied.  See Alemany v. Brown, 9 Vet. App. 518 (1996).

The Duties to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000), sets forth VA's duties to notify and assist claimants in substantiating claims for VA benefits.  The VCAA was codified as amended at 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, and the implementing regulations were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a).

Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his representative of any information and medical or lay evidence not of record that is necessary to substantiate the claim.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b).  In order to satisfy its duty to notify the claimant under the VCAA, the United States Court of Appeals for Veterans Claims (Court/CAVC) held that VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will obtain; and (3) that the claimant is expected to provide.  Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002).


Ideally, VCAA notice should be provided prior to an initial decision on a claim by the RO as the AOJ.  Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004).  However, if notice was not provided prior to initially adjudicating a claim, or if provided and it was inadequate or incomplete, the issuance of a fully compliant VCAA notification followed by readjudication of the claim, including in a statement of the case (SOC) or supplemental SOC (SSOC), is sufficient to "cure" the timing defect because the intended purpose of the notice is preserved, not frustrated, since the Veteran is still given meaningful opportunity to participate effectively in the adjudication of his claim.  See Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007); Prickett v. Nicholson, 20 Vet. App. 370 (2006). 

A claim of entitlement to service connection consists of five elements:  (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.  Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 484 (2006).  The Court has held that notification of what evidence is necessary to substantiate the claim under 38 U.S.C.A. § 5103(a) thus requires notice of all five of these elements, so including concerning the "downstream" disability rating and effective date that are assigned once service connection is granted.  See id. at 486; Quartuccio, 16 Vet. App. at 187.

In Shinseki v. Sanders, 129 S. Ct. 1696 (2009); however, the U.S. Supreme Court clarified that VCAA notice errors, even when shown to have occurred, are not presumptively prejudicial, rather, must be judged on a case-by-case basis.  And as the pleading party attacking the agency's decision, the Veteran, not VA, bears this burden of proof of not only establishing error but also, above and beyond that, showing how it is unduly prejudicial, meaning outcome determinative of his claim.

Here, prior to initially deciding these claims in December 2006, a May 2006 letter informed the Veteran of all five elements of his claims, gave examples of the types of evidence he could submit in support of his claims, and informed him of his and VA's respective responsibilities in obtaining relevant records and other evidence on his behalf that would support his claims.  He therefore received all required notice.

VA's duty to assist under the VCAA includes helping the claimant obtain relevant records, including service treatment records (STRs) and other pertinent records, such as regarding his evaluation and treatment since service, whether from VA or private healthcare providers, as well as providing an examination or obtaining a medical opinion when needed to make a decision on the claim.  See 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c).

Here, the Veteran's STRs, service personnel records (SPRs), and VA medical records are in large part on file.  The private medical records he identified as also potentially pertinent also have been obtained, as well, to the extent possible.

A November 3, 2011 Memorandum from the Seattle RO indicates the Veteran's STRs from Fairchild Air Force Base are unavailable.  The Memorandum explains that the procedures to obtain the files had been followed, that all efforts to obtain the needed evidence had been exhausted, and that further attempts would be futile.  The Board finds that the RO made sufficient attempts to obtain these records and that further attempts indeed would be futile.  See Chest v. Peake, 283 Fed. App. 814 (Fed. Cir. 2008); 38 C.F.R. § 3.159(c)(2) (providing that VA will end its efforts to obtain records from a Federal department or agency only if VA concludes the records sought do not exist or that agency advises VA the requested records do not exist or that the custodian does not have them).  The Veteran also was appropriately notified.  38 C.F.R. § 3.159(e)(1).

In addition, a review of the file reveals an undated paper stating that the Bureau of Medicine and Surgery had performed an extensive search of its records and determined that, because the Veteran is retired, discharged, IRR, or no longer in active service, no other records beyond those it had provided existed.  So the Board again finds that the RO made the required attempts to obtain these records and that further attempts would be futile.  See id.


The Veteran has not identified any other outstanding records that he wants VA to obtain or that he believes are relevant to his claims, so needing to be obtained.  Therefore, the duty to assist him in obtaining pertinent records has been satisfied.  See 38 C.F.R. § 3.159(c).

The duty to assist also, as mentioned, includes providing a medical examination or obtaining a medical opinion when necessary to make a decision on a claim.  38 U.S.C.A. § 5103A(d)(2); 38 C.F.R. §§ 3.159(c)(4), 3.326(a).  See also McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006).  When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure the examination or opinion is adequate.  Barr v. Nicholson, 21 Vet. App. 303, 312 (2007).

Here, in July 2006, the Veteran was provided the appropriate VA compensation examination.  The VA examination report provides the information needed to make an informed decision on his claims.  It is evident from the report that the examiner reviewed the claims file and medical history, performed a personal examination of the Veteran, and most importantly provided explanation for the consequent opinion that is grounded in fact and based on information in pertinent medical literature.  See Stefl v. Nicholson, 21 Vet. App. 120, 124-25 (2007) (holding that an examination is adequate when it is based on consideration of the claimant's medical history and describes the disability in sufficient detail so the Board's evaluation of the disability will be a fully informed one).  Accordingly, the Board finds that VA's duty to assist in obtaining a VA examination and opinion has been met.  See 38 C.F.R. §§ 3.159(c)(4); 3.326(a); McLendon, 20 Vet. App. at 83; Barr, 21 Vet. App. at 312.

The Veteran has received all essential notice and assistance, has had a meaningful opportunity to participate effectively in the development of these claims, and is not prejudiced by any technical notice or assistance deficiency along the way.  Under the circumstances presented, it is difficult to discern what additional guidance VA could have provided him regarding what further evidence he should submit to substantiate his claims.  See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004).

Accordingly, the Board may proceed with appellate review of these claims.

Legal Criteria

In order to establish entitlement to service connection for a claimed disability, the facts must demonstrate that a disease or an injury resulting in current disability was incurred in or aggravated by active military service.  38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303(a) (2013).

Stated somewhat differently, to establish entitlement to direct service connection for the claimed disability, there must be:  (1) competent and credible evidence confirming the Veteran has the claimed disability - or, at the very least, showing he has at some point since the filing of the claim; (2) competent and credible evidence of in-service incurrence or aggravation of a relevant disease or an injury; and (3) competent and credible evidence of a nexus or link between the disease or injury in service and the current disability.  Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004), citing Hansen v. Principi, 16 Vet. App. 110, 111 (2002).

Active military service includes any period of active duty (AD) or ACDUTRA during which the Veteran was disabled from disease or injury and any period of INACDUTRA during which the Veteran was disabled from injury - though not disease - or from an acute myocardial infarction, a cardiac arrest, or a cerebrovascular accident that occurred during such training.  38 U.S.C.A. §§ 101(21), (22), (23) , (24), 106, 1110, 38 C.F.R. §§ 3.6(a), (d), 3.303(a).  See also Harris v. West, 13 Vet. App. 509, 511 (2000); Mercado-Martinez v. West, 11 Vet. App. 415, 419 (1998); Paulson v. Brown, 7 Vet. App. 466, 470 (1995); and Biggins v. Derwinski, 1 Vet. App. 474, 478 (1991).

Certain diseases are considered chronic, per se, and therefore will be presumed to have been incurred in service if manifested to a compensable degree of at least 
10-percent disabling within one year after service.  This presumption, however, is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a).  It also does not apply to claims predicated on ACDUTRA and INACDUTRA service, only AD, and there equally are no presumptions of soundness and aggravation concerning claims premised on ACDUTRA and INACDUTRA service.  See Biggins, 1 Vet. App. at 477-78; Smith v. Shinseki, 24 Vet. App. 40 (2010).

Reserve and National Guard service generally means ACDUTRA and INACDUTRA.  ACDUTRA is full time duty for training purposes performed by Reservists and National Guardsmen pursuant to 32 U.S.C.A. §§ 316, 502, 503, 504, or 505. 38 U.S.C.A. § 101(22); 38 C.F.R. § 3.6(c).  Basically, this refers to the two weeks of annual training, sometimes referred to as "summer camp," which each Reservist or National Guardsman must perform each year.  It can also refer to the Reservist's or Guardsman's initial period of training.

INACDUTRA includes duty, other than full-time duty, performed for training purposes by Reservists and National Guardsmen pursuant to 32 U.S.C.A. §§ 316, 502, 503, 504, or 505. 38 U.S.C.A. § 101(23); 38 C.F.R. § 3.6(d).  Basically, this refers to the twelve four-hour weekend drills that each Reservist or National Guardsman must perform each year and is often referred to as "weekend warrior" training.  These drills are deemed to be part-time training.

So to the extent the Appellant is alleging he has disability as a result of injury or disease incurred or aggravated during his time in the reserves, it must be remembered that only "Veterans" are entitled to VA compensation under 38 U.S.C.A. § 1110 and 38 C.F.R. § 3.303(a).  Thus, to establish his status as a "Veteran" based upon a period of ACDUTRA, he must establish that he was disabled from disease or injury incurred or aggravated in the line of duty during that period of ACDUTRA.  38 C.F.R. § 3.1(a), (d); Harris v. West, 13 Vet. App. 509, 511 (2000); Paulson v. Brown, 7 Vet. App. 466, 470 (1995).

The same is true for establishing his entitlement to compensation for disability from injury, though not disease, incurred or aggravated during his INACDUTRA.  Id.

Service connection may be granted for a disease diagnosed after discharge, when the evidence, including that pertinent to service, establishes the disease was incurred in service.  38 C.F.R. § 3.303(d).

Reasonable doubt concerning any matters material to these determinations is resolved in the Veteran's favor.  38 C.F.R. § 3.102.

Analysis of Residuals of Gall Bladder Removal Claim

The Veteran contends that his gall bladder removal and residuals therefrom warrant service connection because it occurred during a period of ACDUTRA.  Specifically, he contends that he was called to AD as an observer for the Kosovo West Observation Mission.  He states that during that time, in late July 1999, he had surgery to remove his gall bladder.  He adds that he later saw a "natural path" because of still continuing symptoms, that the symptoms have persisted since his service, and that he now has irritable bowel syndrome (constipation) secondary to the gall bladder removal, which he treats with a self-imposed special diet.

There is no medical evidence of record specifically pertaining to his surgery.  However, there is medical evidence verifying that, at some point, he did have his gall bladder removed.  So there is no questioning he had this procedure, only instead whether it occurred during a qualifying period of service as he is alleging or that he had it because of his service.  See Watson v. Brown, 4 Vet. App. 309, 314 (1993) ("A determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or a disease incurred in service.").

Even as a layman, he is competent to report symptoms he has experienced and can attest to factual matters of which he has first-hand knowledge.  See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005).  See also Layno v. Brown, 6 Vet. App. 465, 470 (1994); Grottveit v. Brown, 5 Vet. App. 91, 93 (1993).  Whether he had surgery to remove his gall bladder is a factual matter of which he has first-hand knowledge, thus, he is competent to report undergoing this procedure.


But while there are orders in the record showing he was to report for ACDUTRA on May 31, 1999, for a period of 61 days, there is no evidence of record indicating his orders remained the same.  In fact, the orders directly contradict all other evidence of record that indicates, instead, he was on INACDUTRA from February 1999 to April 2000.  The Statement of Service for Navy Reserve Retirement for February 15, 2009 to February 14, 2010 indicates he had served 15 days of INACDUTRA and had no days of AD or ACDUTRA during that time.  His History of Assignments (NAVPERS 1070) credits him with INACDUTRA on February 11, 1999 and September 1, 1999, but does not indicate any period of ACDUTRA in that time frame.

During his hearing, the Veteran disputed the notion that he was on INACDUTRA rather than ACDUTRA at the time of his surgery.  He was thus provided an opportunity to supplement the record with evidence verifying he was actually on ACDUTRA rather than INACDUTRA.  Soon thereafter, he submitted an additional copy of his orders that were previously discussed, as well as a flight itinerary for his orders, a copy of his W-4 signed in June 1999, and a personal statement.  However, not only is there no evidence that he followed the flight itinerary, but the return flight from London Heathrow to Chicago O'Hare was the same day, July 31, 1999, that he reportedly had his gall bladder removed.  Thus, none of the information provided shows affirmative evidence of a change in his duty status from INACDUTRA to ACDUTRA during the time period in question.  Therefore, the Board finds that he had gall bladder surgery during a period of INACDUTRA, not ACDUTRA.

This critical distinction is important for the reasons already discussed because, in order to establish entitlement to service connection in relation to a period of INACDUTRA, the Veteran must have sustained an injury and not instead have contracted a disease.  Dorland's Illustrated Medical Dictionary defines an "injury" as "harm or hurt; usually applied to damage inflicted on the body by an external force.  Dorland's Illustrated Medical Dictionary 955 (31st ed. 2007).


"Disease" is defined as "any deviation from or interruption of the normal structure or function of a part, organ, or system of the body as manifested by characteristic symptoms and signs; the etiology, pathology, and prognosis may be known or unknown."  Id., at 535.  Based on these definitions, the Board finds that the Veteran's gall bladder removal was the result of a disease, not an injury.

In sum, there is no corroborated evidence of record showing the Veteran had his gall bladder removed during a period of AD or ACDUTRA.  Additionally, gall bladder removal, at least in a general sense, is considered the result of disease not injury, so it is not subject to service-connected compensation when incurred during a period of INACDUTRA.

For these reasons and bases, the preponderance of the evidence is against this claim, so in turn the benefit-of-the-doubt rule does not apply, and this claim must be denied.  38 C.F.R. § 3.102.  See also Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Dela Cruz v. Principi, 15 Vet. App. 143, 148-49 (2001).

Analysis of Spleen Disability Claim

The Veteran also claims entitlement to service connection for a spleen disability.

In his testimony during his videoconference hearing, the Veteran clarified the exact nature of this claim.  He reported that he had first learned that he had calcification in his spleen during his military separation examination ("parting physical"), that he believed the calcification was still present but did not know for certain, and that he resultantly wanted the disability on record.


The Board sees that an abdomen ultrasound performed in December 2004 indicated several calcifications within the spleen, which the examiner said were consistent with prior granulomatous disease.  However, there is no other evidence of record suggesting any current diagnosis or treatment for a spleen disability either during or since the conclusion of this appellant's service.  In addition, during the July 2006 VA compensation examination, the examiner expressly stated that he was unable to make a diagnosis related to the Veteran's claimed spleen disability, presumably because no actual disability was shown or otherwise demonstrated.

The most fundamental requirement for any claim for service connection is that the Veteran must have proof he has the condition claimed.  See Degmetich v. Brown, 8 Vet. App. 208 (1995); 104 F.3d 1328 (1997) (indicating VA compensation only may be awarded to an applicant who has disability existing on the date of application, not for past disability); but see, too, McClain v. Nicholson, 21 Vet. App. 319 (2007) (further clarifying that this requirement of current disability is satisfied when the claimant has the disability at the time the claim for VA disability compensation is filed or during the pendency of the claim and that a claimant may be granted service connection even though the disability resolves prior to VA's adjudication of the claim).

Congress has specifically limited entitlement for service-connected disease or injury to cases where such incidents have resulted in actual disability.  Brammer v. Derwinski, 3 Vet. App. 223 (1992); Rabideau v. Derwinski, 2 Vet. App. 141 (1992); Gilpin v. Brown, 155 F.3d 1353 (Fed. Cir. 1998).  A current disability means a disability shown by competent and credible evidence to exist.  Chelte v. Brown, 10 Vet. App. 268 (1997).


So, in order to warrant service connection, the evidence must show a current spleen disability - or, at the very least, the existence of this disability at some point since the filing of this claim.  There is no such evidence, however.  The VA compensation examiner determined the past indications of calcification were not tantamount to concluding the Veteran now has any consequent disability, so he has failed to satisfy this threshold minimum pleading and proof requirement.  Cf. Sanchez-Benitez v. West, 13 Vet. App. 282 (1999), appeal dismissed in part and vacated and remanded in part sub nom. Sanchez-Benitez v. Principi, 259 F.3d 1356 (Fed. Cir. 2001) (holding that mere "pain alone, without a diagnosed or identifiable underlying malady or condition, does not in and of itself constitute a disability for which service connection may be granted.").

Therefore, this claim must be denied because there is no evidence of any specific complaints of, treatment for, or diagnosis of a spleen disability at any time since the filing of this claim.

As the preponderance of the evidence is against this claim, the benefit-of-the-doubt rule is inapplicable.  See 38 U.S.C.A. § 5107(b); Gilbert, 1 Vet. App. 49, 54-56.  Thus, the appeal of this claim must be denied.


ORDER

The claim of entitlement to service connection for residuals of gall bladder removal is denied.

The claim of entitlement to service connection for a spleen disability also is denied.



____________________________________________
KEITH W. ALLEN
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs