Citation Nr: 1334072 Decision Date: 10/28/13 Archive Date: 11/06/13 DOCKET NO. 08-01 106 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for ulcers. REPRESENTATION Veteran represented by: The American Legion WITNESSES AT HEARING ON APPEAL The Veteran and his spouse ATTORNEY FOR THE BOARD Laura E. Collins, Associate Counsel INTRODUCTION The Veteran had active service from November 1969 to November 1973. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2007 decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The Veteran and his spouse testified before the undersigned Veterans Law Judge at a video-conference hearing in October 2010. A transcript of the hearing has been associated with the claims file. In February 2011 the Board remanded the claim for additional development. It now returns for further appellate review. Subsequent to the April 2012 supplemental statement of the case, the Veteran submitted additional evidence with a waiver of RO consideration. 38 C.F.R. § 20.1304 (2013). Therefore, the Board may properly consider such newly received evidence. The Veteran was denied entitlement to service connection for stomach trouble in an October 1979 rating action. In November 2006, additional relevant service department records were associated with the claims file. Although these service records were not associated with the claims file at the time of the prior rating decision, as service department records they were constructively of record. Because the newly associated service treatment records (STRs) are relevant official service department records that existed at the time of the prior denial but had not been associated with the claims file, VA must reconsider the original claim on a de novo basis. See Vigil v. Peake, 22 Vet. App. 63 (2008); 38 C.F.R. § 3.156(c) (2013). FINDING OF FACT The evidence shows that ulcers were first present in service. CONCLUSION OF LAW The criteria for service connection for ulcers have been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1154, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(c), 3.303, 3.307, 3.309 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In light of the fully favorable determination in this case, no further discussion of compliance with VA's duty to notify and assist is necessary. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection may also be shown by (a) evidence of (i) the existence of a chronic disease in service or during an applicable presumption period under 38 C.F.R. § 3.307 and (ii) present manifestations of the same chronic disease, or (b) when a chronic disease is not present during service, evidence of recurrent symptoms. 38 C.F.R. § 3.303(b). Where a Veteran served for at least 90 days during a period of war or after December 31, 1946, and manifests certain chronic diseases, including peptic ulcers (gastric or duodenal) to a degree of 10 percent within one year from the date of termination of such service, such disease shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such disease during the period of service. 38 U.S.C.A. §§ 1110, 1112 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2013). When there is an approximate balance of evidence for and against the issue, all reasonable doubt will be resolved in the Veteran's favor. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Veteran contends that his current gastrointestinal (GI) disabilities are related to his documented in-service GI complaints. Therefore, he asserts service connection is warranted. STRs show documented in-service GI complaints. Significantly, in June 1971, he was diagnosed with peptic ulcer disease (PUD). The STR notes that one and a half years prior, an upper GI series showed an ulcer. Thus, around January 1970, during active service, the Veteran had a documented ulcer. The Veteran also had three documented episodes in service of viral gastroenteritis or gastritis. While the January 1970 STR is not in the claims file, the Board notes that the STRs are incomplete. When there is evidence that a Veteran's service records are missing, as is the case here, VA has a heightened duty to consider the applicability of the benefit of the doubt rule, to assist a claimant in developing a claim, and to explain its findings and conclusions. Russo v. Brown, 9 Vet. App. 46, 51 (1996); O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991); Washington v. Nicholson, 19 Vet. App. 362, 369-70 (2005). The Board concludes that the evidence shows the existence of the chronic disease of a peptic ulcer in service. The evidence also shows manifestations thereafter of the same chronic disease. In November 1977 the Veteran was hospitalized twice for the treatment of a bleeding duodenal ulcer. At Howard University hospital, an x-ray showed a localized inflammatory lesion most probably due to severe PUD. Final discharge diagnoses included PUD and upper GI bleeding probably secondary to PUD. Shortly thereafter, at Providence Hospital, the discharge diagnosis was duodenal ulcer with bleeding. In October 1979, the Veteran was admitted to Providence again for GI bleeding and was diagnosed with an inactive duodenal ulcer, irritable bowel syndrome, and GI bleeding with undetermined etiology. In an unrelated January 1980 private treatment record, it was noted that he had missed prior appointments due to hospitalization for a bleeding ulcer. In November 1991, the Veteran was admitted to Candler General Hospital for complaints of abdominal pains for two days. He was diagnosed with PUD. Various private treatment records dated between August 2003 and August 2006 note histories of PUD and gastroesophageal reflux disease (GERD). Letters dated in November 2010 and June 2012 from private primary care physician Dr. Lumapas state that he has treated the Veteran for ulcers since 2004. Dr. Lumapas' medical records show treatment with Nexium and Prevacid. In October 2005, he referred the Veteran for a GI consult due to a rectal bleed, and in November 2006 he diagnosed GI bleeding. His treatment notes also show diagnoses and treatment of GERD and epigastric pain. In summary, the evidence shows documented peptic ulcer in service and in 1977 and 1979, as well as in 1991. Dr. Lumapas evidently treated the Veteran for ulcers from 2004 through at least June 2012. The April 2011 VA examiner opined that the Veteran's GERD and healed duodenal ulcer less likely as not had their onset in, or are otherwise causally related to, active service. She supported this opinion by stating that there was no documented PUD in service; only a historical note. However, this does not take into account the fact that the STRs are incomplete, and appears to disregard the June 1971 diagnosis of PUD. She also states that there is no objective evidence of "current" active PUD. However, this is considered a chronic disease for VA purposes under 38 C.F.R. § 3.309. Service connection may be shown by evidence of the existence of a chronic disease in service and present manifestations of the same chronic disease. 38 C.F.R. § 3.303(b). In this case, peptic ulcer is an enumerated chronic disease under 38 C.F.R. §3.309, and post service records satisfactorily show its post service manifestation. As such, the Board finds that service connection for ulcers is warranted. ORDER Service connection for ulcers is granted. ____________________________________________ MICHAEL E. KILCOYNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs