Citation Nr: 1335657 Decision Date: 11/04/13 Archive Date: 11/13/13 DOCKET NO. 06-31 970A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Manila, the Republic of the Philippines THE ISSUES 1. Entitlement to service connection for peptic ulcer disease. 2. Entitlement to service connection for irritable bowel syndrome ("IBS"). 3. Entitlement to service connection for an anxiety disorder characterized by insomnia. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD T. Y. Hawkins, Counsel INTRODUCTION The Veteran served on active duty, including recognized Philippine guerilla service, from September 1944 to March 1945. These matters come before the Board of Veterans' Appeals ("Board") on appeal from an August 2004 rating decision issued by the Department of Veterans Affairs ("VA") Regional Office ("RO") in Manila. The Board has previously considered these issues. In September 2010, the Board remanded the Veteran's appealed claims in order to afford him a VA examination and opinion regarding whether any of his claimed disorders are the result of military service. The claims folder indicates that, although the Veteran was notified of the scheduled examination, he failed to appear. The Manila RO subsequently issued two Supplemental Statements of the Case ("SSOC"), whereby it continued to deny the appellant's claims. In January 2013, the Board again remanded the claims in order to afford the Veteran another opportunity to undergo a VA examination in association with his claims. In March 2013, the RO was notified that the Veteran again failed to appear. In May 2013, the Board once again remanded the claims in order to afford the Veteran another opportunity for a VA examination. However, in July 2013, the RO received notice from the Veteran that he was too weak to attend a VA examination. Accordingly, the scheduled examinations were canceled; the claims folder has been returned to the Board for further appellate proceedings. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. The Veteran has not been shown to be a former prisoner of war during active duty service in World War II. 2. The Veteran's peptic ulcer disease is not shown by the competent and probative evidence of record to be causally related to a disease, injury or event in service, either directly or presumptively. 3. The Veteran is not shown by the probative medical evidence of record to have a current diagnosis of IBS that was either caused by, or related to active military service. 4. The Veteran is not shown by the probative medical evidence of record to have a current, separate diagnosis of an anxiety disorder (apart from symptoms related to his already service-connected posttraumatic stress disorder ("PTSD") ) that was either caused by, or related to active military service. CONCLUSIONS OF LAW 1. The Veteran's peptic ulcer disease was neither incurred in, nor aggravated by, active duty service, and may not be presumed to have been. 38 U.S.C.A. §§ 1110, 1153, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.303, 3.304, 3.307, 3.309 (2012). 2. IBS was neither incurred in, nor aggravated by, active duty service. 38 U.S.C.A. §§ 1110, 1153, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.303, 3.304 (2012). 3. An anxiety disorder characterized by insomnia was neither incurred in, nor aggravated by, active duty service. 38 U.S.C.A. §§ 1110, 1153, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.303, 3.304 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Veterans Claims Assistance Act of 2000 ("VCAA") With respect to the Veteran's claims decided herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2012). A.) Duty to Notify Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his or her representative, if any, of any information and 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). In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) ("Pelegrini II"), the United States Court of Appeals for Veterans Claims ("Court") 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 seek to provide; (3) that the claimant is expected to provide; and (4) request that the claimant provide any evidence in his or her possession that pertains to the claim. Element (4), however, the requirement of requesting that the claimant provide any evidence in his possession that pertains to the claim, was eliminated by the VA Secretary (the "Secretary") during the course of this appeal. See 73 Fed. Reg. 23353 (final rule eliminating fourth element notice as required under Pelegrini, effective May 30, 2008). The VCAA notice requirements apply to all five elements of a service connection claim. These are: (1) veteran status; (2) existence of a disability; (3) a connection between a veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd, Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). Of particular importance, in Dingess/Hartman, the Court held that the VCAA notice must include notice that a disability rating and an effective date of the award of benefits will be assigned if service connection is awarded. In this case, a pre-adjudication letter, dated in June 2004, afforded the Veteran notice of the types of evidence needed in order to substantiate his service connection claims, the division of responsibility between himself and VA for obtaining the required evidence, and requested that he provide any information or evidence in his possession that pertained to such claims. 38 U.S.C.A. §5103(a); 38 C.F.R. § 3.159(b). A subsequent April 2007 letter satisfied the requirements of Dingess by advising the Veteran of how VA determines the disability rating and effective date elements of a claim. B.) Duty to Assist The Board concludes that VA's duty to assist has been satisfied. The claims file contains the Veteran's service and post-service treatment records. The claims folder also contains several sworn statements from the Veteran's friends and former service members. Additionally, the claims file contains the Veteran's statements in support of his claims. The Veteran has not referenced any outstanding, available records that he wanted VA to obtain or that he felt were relevant to his claim that have not already been associated with the claims folder. The Board notes that in the case of McLendon v. Nicholson, 20 Vet. App. 79 (2006), the Court held that an examination is required when (1) there is evidence of a current disability, (2) evidence establishing an "in-service event, injury or disease," or a disease manifested in accordance with presumptive service connection regulations occurred which would support incurrence or aggravation, (3) an indication that the current disability may be related to the in-service event, and (4) insufficient evidence to decide the case. In November 2010, the Veteran was scheduled for a December 2010 VA compensation and pension examination. However, the Veteran failed to report for the examination or notify the RO that he would not be there. As there was some question as to whether the notification letter was sent to the correct address, the claims were remanded to the RO to afford the Veteran another opportunity for an examination. The RO then scheduled a new examination for March 2013. Again, however, the Veteran failed to appear. In May 2013, the Board again remanded the claims to allow the Veteran one more opportunity to appear for a VA examination. In July 2013, the RO contacted the Veteran regarding additional evidence he submitted. At that time, however, he advised the RO that he would be unable to attend the scheduled VA examination because he said he was very weak. In conjunction with this statement, he has submitted a medical certificate from a private physician indicating that he was hospitalized from June to July 2013, and is not fit to travel. He has also submitted a signed and notarized statement appointing his daughter as his power-of-attorney. The Court has also held that "[t]he duty to assist is not always a one-way street. If a veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence." Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Under VA regulations, it is incumbent upon the Veteran to cooperate with the process so that his claim may be fully developed. Unfortunately, in this instance, the Veteran has been afforded multiple opportunities for a VA examination, but has now reported that his health does not permit him to travel for an examination. Neither the Veteran, his veterans' service organization representative, nor his daughter has provided any information that would suggest that the Veteran would be able to attend a VA examination at some point in the future. Accordingly, the Board finds that VA has fully complied with the notice and assistance requirements of the VCAA and its regulations. The appellant has been provided with every opportunity to submit evidence and argument in support of his claims, and to respond to the VCAA notice. The purpose behind the notice requirement has been satisfied because the appellant has been afforded a meaningful opportunity to participate effectively in the processing of his appealed claims. Accordingly, the Board will proceed to a decision on the merits. II. Discussion. The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case, the claim is denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Board has thoroughly reviewed all the evidence in the Veteran's claims folder. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, the evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claims. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. 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 Veteran). Under 38 U.S.C.A. § 1154(a), VA is also required to give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability or death benefits. In Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007), the United States Court of Appeals for the Federal Circuit ("Federal Circuit") held that "[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3), lay testimony describing symptoms at the time supports a later diagnosis by a medical professional." (footnote omitted). However, the Court has held that "[t]he type of evidence that will suffice to demonstrate entitlement to service connection, and the determination of whether lay evidence may be competent to satisfy any necessary evidentiary hurdles, depends on the type of disability claimed." Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). In order to establish a right to compensation for a present disability, a veteran must show: "(1) the existence of a present disability; (2) the 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). The Federal Circuit has recently held that for purposes of 3.303(b), where the veteran asserts entitlement to a chronic condition, but there is insufficient evidence of a diagnosis in service, the veteran can establish service connection by demonstrating a continuity of symptomatology since service, but only if the chronic disease is listed under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331, 1337-39 (Fed. Cir. 2013), aff'g Walker v. Shinseki, No. 10-2634, 2011 WL 2020827 (Vet. App. May 25, 2011). (emphasis added). For disabilities that are not listed as chronic under 38 C.F.R. § 3.303(b), the only avenue for service connection is by a showing of in-service incurrence or aggravation under 38 C.F.R. § 3.303(a), or by showing that a disease that was first diagnosed after service is related to service under 38 C.F.R. § 3.303(d). Additionally, service connection for certain chronic diseases, such as peptic ulcer disease, may be established on a presumptive basis by showing that the disease manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 C.F.R. §§ 3.307(a)(3), 3.309(a) (2012). The existence of a current disability is the cornerstone of a claim for VA disability compensation. See Degmetich v. Brown, 104 F. 3d 1328 (1997); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The Veteran contends that he has peptic ulcer disease, IBS and an anxiety disorder characterized by insomnia as a result of being held as a prisoner of war ("POW") by the Japanese army during World War II. He therefore appears to aver that he is entitled to service connection for each of these conditions pursuant to the provisions of 38 C.F.R. § 3.309(c). This regulation provides that veterans who are former prisoners of war and who were interned for not less than 30 days shall be service-connected for certain listed diseases, including any of the anxiety states, IBS and peptic ulcer disease, if manifested to a degree of 10 percent or more at any time after discharge or release from active service. This is the case even if there is no record of such disease during service, provided the rebuttable presumption provisions of § 3.307 are also satisfied. The Veteran claims that he was captured by the Japanese army on April 1, 1943, and was released on April 29, 1943. In this regard, the Board notes that, in an August 2007 Administrative Decision, the RO determined that the Veteran may not be recognized as a former POW. In that decision, the RO determined, in pertinent part, that no official records and/or corroboration evidence was submitted to support his claimed POW incarceration. Moreover, it noted that the Service Department certified that the Veteran's only recognized military service in service of the Armed Forces of the United States was for the period September 1, 1944 to March 31, 1945 as a member of the recognized guerrilla service. VA is bound by Service Department certification of his guerrilla service. Thus, any status that he may have had as a POW of the Japanese was shown to have occurred prior to the beginning of the date of his recognized active duty service. Moreover, as to IBS and peptic ulcer disease, the Board notes that even if it were determined that the Veteran was held as a POW between April 1, 1943 and April 29, 1943, as this period constitutes less than 30 days, the requirements for POW status-post under 38 C.F.R. § 3.309(c) would still not have been met. Even if it is determined that the Veteran is not entitled to service connection on the basis of legal presumptions including that related to prisoner of war status under the aforementioned provisions of 38 C.F.R. § 3.309(c), a claimant is not precluded from establishing service connection for a disease as long as there is proof of such direct causation. See Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994) (a finding that service connection is not warranted on a presumptive basis does not preclude the claimant from establishing service connection with proof of actual direct causation); see also McCartt v. West, 12 Vet. App. 164, 167 (1999). As an initial matter, a review of the Veteran's available service treatment records reveals no evidence that he complained of, was treated for, or was diagnosed with peptic ulcer disease, IBS or anxiety during service. His August 1946 service discharge examination report shows normal psychiatric and genitourinary findings. Although the Veteran has submitted lay evidence attesting to the presence of peptic ulcer disease in service and soon thereafter, the Board finds that a diagnosis of such disorder is not susceptible to lay perception in that such a diagnosis requires medical skill and expertise. As noted, lay evidence that is both competent and credible may establish the presence of a condition during service, post-service continuity of symptomatology, and a nexus between the present disability and the post-service symptomatology. Barr, 21 Vet. App. at 307-09. But "[t]he type of evidence that will suffice to demonstrate entitlement to service connection, and the determination of whether lay evidence may be competent to satisfy any necessary evidentiary hurdles, depends on the type of disability claimed." Id. at 308. In this case, while such affiants may be able to attest to the presence of gastrointestinal symptomatology in service and thereafter, the Board finds that medical expertise is required to attribute those symptoms to a diagnosis and then that diagnosis to the Veteran's service. The Board further notes that, with respect to presumptive service connection for peptic ulcers, a proper diagnosis of gastric or duodenal ulcer (peptic ulcer) is to be considered established if it represents a medically-sound interpretation of sufficient clinical findings warranting that diagnosis and provides an adequate basis for a differential diagnosis from other conditions with like symptomatology; thus, the diagnosis is warranted where the preponderance of evidence indicates gastric or duodenal ulcer. 38 C.F.R. § 3.309. Whenever possible, laboratory findings should be used to corroborate the clinical data. Id. The Board is cognizant that it is not required that an ulcer be diagnosed in the presumptive period, but only that there be then shown by acceptable medical or lay evidence characteristic manifestations of the disease to the required degree, followed without unreasonable time lapse by definite diagnosis. See 38 C.F.R. § 3.307(c). However, in the present case, there is clearly an unreasonable time lapse between the lay statement indication of gastrointestinal complaints in service and within one year of service, and the diagnosis of peptic ulcer disease shown years later. Thus, the Board finds that there is no competent and credible evidence of peptic ulcer disease in service or within one year of service discharge. Accordingly, service connection for this disorder on a presumptive basis under the provisions of 38 C.F.R. §§ 3.307(a)(3) is not for application. Post-service treatment reports of record show that, during an initial visit to establish a relationship with the Chicago, Illinois, VA Medical Center ("VAMC") in June 2004, the Veteran was noted to have a history of peptic ulcer disease without any history of bleeding. While subsequent treatment reports continued to list peptic ulcer disease under his list of conditions, they showed no diagnosis of IBS or an anxiety disorder (as mentioned above, the Veteran has been service-connected for PTSD). During a September 2005 gastroenterology consultation, an endoscopy was performed. It was noted that, other than a small nodule found in the upper esophagus, the findings were within normal limits and no cause for the Veteran's complaints of chronic abdominal pain was found. An esophagogastroduodenoscopy was also found to be negative. However, the Veteran was diagnosed with gastroesophageal reflux disease ("GERD"), constipation, peptic ulcer disease, and GB (Guillain-Barré) syndrome. In addition to the treatment reports of record, the claims folder also contains several letters from the Veteran's treating physicians. In an August 2004 letter, the Veteran's private physician, S.M. Martinez, stated that he had been treating the Veteran since 1993, and that the Veteran developed anxiety neurosis with insomnia after the war and also has IBS and peptic ulcer disease. However, Dr. Martinez does not provide a nexus between any of the Veteran's claimed diseases and active military service or indicate when the diagnosis of IBS and peptic ulcer disease were made. Moreover, despite his statement that the Veteran has IBS, there are no treatment reports from Dr. Martinez to show a current diagnosis or treatment for this condition. In an April 2007 letter, the Veteran's VA physician, Dr. D.O., wrote that the Veteran was a patient at the Jesse Brown VAMC and had been followed by him since June 2004. While he noted that the Veteran had a history of several disorders, including GERD, he did not note that the Veteran had peptic ulcer disease, IBS or an anxiety disorder apart from PTSD. Significantly, Dr. D.O. wrote that while the Veteran said "that many of his conditions started immediately after the war," he specifically noted "I do not have any specific records from that time to confirm or deny [the Veteran's assertion]." Based on a review of the complete evidence of record, the Board concludes that the preponderance of the evidence is against the Veteran's claims of entitlement to service connection for peptic ulcer disease, IBS and an anxiety disorder characterized by insomnia. As previously discussed, there is no competent medical evidence to suggest that any current diagnosis of peptic ulcer disease is the result of, or is otherwise related to active duty service. In this regard, the Board notes that a prolonged period without complaints or symptoms of a disability 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. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). Here, the record indicates that the Veteran was not diagnosed with peptic ulcer disease until decades after military service. The amount of time that passed between service and the first symptoms or treatment of record is evidence that weighs against the Veteran's claim on both a direct and presumptive basis. With regard to his claimed conditions of IBS and an anxiety disorder, as noted above, the threshold requirement for service connection to be granted is competent medical evidence of the current existence of the claimed disorder. See Degmetich v. Brown, supra; Brammer v. Derwinski, supra. In this case, there is no medical evidence of record demonstrating that the Veteran has a current diagnosis of IBS or a separate anxiety disorder apart from his service-connected PTSD related to his recognized military service. It fact, it is unclear from the record if such diagnoses are even currently active. In addition to the medical evidence, the Board has considered the Veteran's lay reports that his peptic ulcer disease is a result of his active duty service, as well as the written statements from his friends and fellow service men regarding their observations of peptic ulcer disease, IBS and anxiety in service and thereafter. In this regard, the Court has held that a claimant is competent to attest to factual matters of which he or she has first-hand knowledge. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). However, although the Veteran and his friends are competent to report what comes to them through their senses, there has been no evidence presented that any of them have the medical knowledge or training that would permit them to either diagnose, or determine the etiology of peptic ulcer disease, IBS or an anxiety disorder. See Layno v. Brown, 6 Vet. App. 465, 469-70 (1994); Jandreau v. Nicholson, 492 F.3d 1372, supra. As such, although the Board acknowledges the Veteran's belief that his current disease is the result of military service, his statements in this regard, as well as those of his friends, are not deemed competent. Finally, to the extent that the Veteran had submitted his own statements as well as those of his friends to establish continuity of symptomatology (applicable only to peptic ulcer disease as a "chronic" disease under 38 C.F.R. § 3.309), the Board finds that as noted above, this particular disability is not the type of disability for which lay evidence is competent to establish the diagnosis or a nexus to service. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d at 1376-77; Kahana v. Shinseki, 24 Vet. App. 428 (2011). Further, as noted above, the Board has attempted to obtain such competent evidence through VA examination and the Veteran has failed to report for such. Accordingly, the Board concludes that the preponderance of the evidence is against the Veteran's claims of entitlement to service connection. In arriving at the decision to deny the claims, the Board has considered the applicability of the "benefit-of-the-doubt" rule. However, as there is not an approximate balance of evidence, that rule is not applicable in this case. See generally Gilbert, supra; see also Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). (Continued on next page) ORDER Entitlement to service connection for peptic ulcer disease is denied. Entitlement to service connection for IBS is denied. Entitlement to service connection for an anxiety disorder characterized by insomnia is denied. ____________________________________________ S. L. Kennedy Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs