Citation Nr: 1336398 Decision Date: 11/07/13 Archive Date: 11/13/13 DOCKET NO. 04-10 370 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Des Moines, Iowa THE ISSUES Entitlement to service connection for a gastrointestinal disability manifested by heartburn and stomach pain, to include as secondary to service-connected posttraumatic stress disorder (PTSD) and/or degenerative joint disease of the right shoulder. (The issue of entitlement to an initial evaluation in excess of 70 percent for PTSD, for which representation by an attorney has been retained, is addressed in a separate but concurrently issued decision of the Board.) ATTORNEY FOR THE BOARD J. W. Loeb INTRODUCTION The Veteran served on active military duty from March 1967 to June 1969. This matter is before the Board of Veterans' Appeals (Board) on appeal from a March 1996 rating decision of the Department of Veterans Affairs (VA) Regional Office in Des Moines, Iowa (RO). The issue on appeal was previously before the Board in April 2009, when it was remanded for additional development. In September 2012, the Board remanded the service connection issue currently on appeal for a new examination and nexus opinion. An additional opinion was obtained in January 2013. As the requested VA nexus opinion has been obtained, there has been substantial compliance with the September 2012 remand instructions. Stegall v. West, 11 Vet. App. 268 (1998) (Holding that a remand by the Court or the Board confers on the Veteran or other claimant, as a matter of law, the right to compliance with the remand orders). FINDING OF FACT The most probative evidence of record fails to demonstrate that it is at least as likely as not that the Veteran currently has a gastrointestinal disability, manifested by heartburn and stomach pain, that was present in service, began in service, or is etiologically related to active military service, or is proximately due to or chronically aggravated by service-connected PTSD and/or degenerative joint disease of the right shoulder. CONCLUSION OF LAW The criteria for service connection for a gastrointestinal disability manifested by heartburn and stomach pain, to include as secondary to service-connected PTSD and/or degenerative joint disease of the right shoulder, have not been met. 38 U.S.C.A. §§ 1110, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION Duty to Assist and Notify The Board has considered the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 and Supp. 2012). The regulations implementing VCAA have been enacted. See 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). VA has a duty to notify the claimant of any information and evidence needed to substantiate and complete a claim. 38 U.S.C.A. §§ 5102, 5103. See also Quartuccio v. Principi, 16 Vet. App. 183 (2002). After having carefully reviewed the record on appeal, the Board has concluded that the notice requirements of VCAA have been satisfied. The notice and assistance provisions of VCAA should be provided to a claimant prior to any adjudication of the claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). Notice to the Veteran was not sent in this case until later in the claims process. However, VA may proceed with adjudication of a claim if errors in the timing or content of the notice are, as in this case, not prejudicial to the claimant. Dunlap v. Nicholson, 21 Vet. App. 112 (2007); Mayfield v. Nicholson, 19 Vet. App. 103 (2005); see also Pelegrini, 18 Vet. App. at 121. In this regard, the Board notes that the matters were readjudicated following completion of VCAA notice, including in supplemental statements of the case. A letter was sent to the Veteran in December 2003 that informed him of the requirements needed to establish entitlement to service connection. The Veteran was also informed in a March 2006 letter of the criteria for consideration in the assignment of a disability rating and effective date if his service connection claim was to be granted. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). In accordance with the requirements of VCAA, the December 2003 letter informed the Veteran what evidence and information he was responsible for and the evidence that was considered VA's responsibility. Additional private evidence was subsequently added to the claims files after the letter. VA has a duty to assist the claimant in obtaining evidence necessary to substantiate a claim. VCAA also requires VA to provide a medical examination when such an examination is necessary to make a decision on the claim. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159. A VA evaluation with nexus opinion was obtained in January 2013. 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 examination report of record obtained in this case is adequate, as it is predicated on a reading of relevant medical records and examination of the Veteran. The examiner considered all of the pertinent evidence of record and provided a rationale for the nexus opinion of record. There is adequate medical evidence of record to make a determination on the service connection issue decided in this case. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion on the issue on appeal has been met. 38 C.F.R. § 3.159(c)(4). The Veteran has been given ample opportunity to present evidence and argument in support of his claim. The Board additionally finds that general due process considerations have been complied with by VA, and the Veteran has had a meaningful opportunity to participate in the development of the claim. Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006); 38 C.F.R. § 3.103 (2007). Analysis of the Claim The Veteran seeks service connection for a gastrointestinal disability manifested by heartburn and stomach pain, to include as secondary to service-connected PTSD and/or degenerative joint disease of the right shoulder. Service connection may be granted for disability resulting from disease or injury 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). Service connection may also 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) (2013). In order to establish direct service connection for a disorder, there must be (1) competent evidence of the current existence of the disability for which service connection is being claimed; (2) competent evidence of a disease contracted, an injury suffered, or an event witnessed or experienced in active service; and (3) competent evidence of a nexus or connection between the disease, injury, or event in service and the current disability. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. Sept. 14, 2009); cf. Gutierrez v. Principi, 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999)). In many cases, medical evidence is required to meet the requirement that the evidence be "competent". However, when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). The Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The evaluation of evidence generally involves a 3-step inquiry. First, the Board must determine whether the evidence comes from a "competent" source. The Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303 at 308 (2007) (Observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible). The third step of this inquiry requires the Board to weigh the probative value of the proffered evidence in light of the entirety of the record. Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159. Lay evidence may be competent and sufficient to establish a diagnosis of a condition when: (1) a layperson is competent to identify the medical condition (i.e., when the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer); (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. Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007); see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009) (where widow seeking service connection for cause of death of her husband, the Veteran, the Court holding that medical opinion not required to prove nexus between service connected mental disorder and drowning which caused Veteran's death). In ascertaining the competency of lay evidence, the Courts have generally held that a layperson is not capable of opining on matters requiring medical knowledge. Routen v. Brown, 10 Vet. App. 183 (1997). In certain instances, however, lay evidence has been found to be competent with regard to a disease with "unique and readily identifiable features" that is "capable of lay observation." See, e.g., Barr v. Nicholson, 21 Vet. App. 303 (2007) (concerning varicose veins); see also Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007) (a dislocated shoulder); Charles v. Principi, 16 Vet. App. 370 (2002) (tinnitus); Falzone v. Brown, 8 Vet. App. 398 (1995) (flatfeet). Laypersons have also been found to not be competent to provide evidence in more complex medical situations. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (concerning rheumatic fever). Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also include statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). The Veteran's service treatment records do not reveal any relevant complaints or adverse clinical findings, including on his separation medical examination report in June 1969. He was seen for a sore throat in July 1969, which was red and swollen. He was given chloroseptic gargle and cepacol; a sore throat was diagnosed. Abdominal cramps were reported on VA treatment records dated in September 1987. Hemorrhoids were noted in August 1996. There were no gastrointestinal complaints on general VA medical evaluation in September 2003. The Veteran complained on VA general medical evaluation in April 2004 of heartburn and gastroesophageal reflux disease (GERD). GERD was diagnosed. On VA gastrointestinal consultation in April 2009, the Veteran's gastrointestinal system was described as nontender and nondistended. The Veteran testified in support of his claim at RO hearings in August 1996 and September 1998. On VA general medical evaluation in April 2010, which included review of the claims files, it was reported that the Veteran had a history of heartburn and hemorrhoids. The general diagnoses included history of heartburn, colon polyps, and hemorrhoids. The Veteran was provided a VA gastrointestinal evaluation in November 2011, which included review of the claims files. After review of the claims files and examination of the Veteran, the examiner concluded that it was less likely as not that the Veteran's current stomach condition is secondary to his PTSD or to piroxicam, the medication that he was prescribed for his right shoulder disability, because there is no causal connection in medical research or literature between GERD and any mental health condition and because he has stopped using piroxicam for a year and still has intermittent GERD, which the examiner concluded was more probably due to his hiatal hernia. On VA general evaluation in February 2012, which included review of the claims files, it was noted that he had a history of indigestion and heartburn when in a reclining position shortly after eating. July and August 2012 treatment records from T. J. Benda, Jr., M.D., reveal that the Veteran complained of dry mouth, which he thought was worse when he changed brands of generic lovastatin. The assessment was possibly a low level thrush. In response to the Board's September 2012 remand, a VA gastrointestinal evaluation was obtained in January 2013. It was noted that the Veteran complained of problems with dry mouth/throat and said that he was not having current gastrointestinal symptoms. After review of the claims files and examination of the Veteran, the examiner diagnosed GERD and concluded that it is less likely than not that the Veteran's claimed stomach and chest disorder, heartburn, stomach pain, and dry mouth/throat with burning are causally related to service because there is no evidence of a chronic problem in service and the Veteran indicated that his mouth/throat problem did not begin until approximately a year prior to this evaluation. The examiner concluded that there was no evidence of a gastric ulcer. Finally, the examiner concluded that it was less likely than not that the Veteran's history of stomach pain and GERD and ongoing complaints of dry mouth/throat with burning are caused by, secondary to, or aggravated by his service-connected PTSD or right shoulder disability because he was not taking any medication for PTSD and was not taking any medication on a regular basis for his right shoulder. It was additionally noted as rationale for the finding of not proximately due to and no chronic aggravation due to service-connected PTSD or right shoulder disability that, although stress can contribute to subjective stomach complaints and can cause an increase in stomach acid, and although the Veteran mentioned stress increased his stomach symptoms in the past, inasmuch as he has had only intermittent GERD, and has done well since 2006, symptoms from his service-connected PTSD or right shoulder disability do not appear to be closely related to the disability at issue. Based on the above evidence, the Board finds that the evidence of record fails to establish that the Veteran has a gastrointestinal disability manifested by heartburn and stomach pains as a result of either service, or proximately due to or chronically aggravated by service-connected PTSD or right shoulder disability. There were no recorded complaints or clinical findings of a gastrointestinal disability in service or for many years after final service discharge, as the initial post-service notation of a problem was not until September 1987, which is a number of years after service discharge. Moreover, the November 2011 and January 2013 nexus opinions on file, which are based on a review of the record and a physical examination, are probative evidence against the claim. There is no nexus opinion in favor of the claim. The Veteran's lay statements have been taken into consideration in this case. Although the Veteran is competent to report his subjective gastrointestinal symptoms, the Board finds that the Veteran, who does not have any medical training, is not competent to opine as to whether he currently has a gastrointestinal disability manifested by heartburn and stomach pains due to service, or as secondarily due to or chronically aggravated by a service-connected disorder because the diagnosis of a gastrointestinal disability and the determination of its etiology and/or aggravation require medical expertise to determine. In fact, the Veteran indicated on VA evaluation in January 2013 that he does not have any current gastrointestinal problem. Because all of the requirements for service connection are not shown, the Board finds that the preponderance of the evidence is against a finding that the Veteran has a gastrointestinal disability manifested by heartburn and stomach pains due to service, or proximately due to or chronically aggravated by service-connected PTSD or right shoulder disability. As the Board finds that the preponderance of the evidence is against the Veteran's service connection claim, the doctrine of reasonable doubt is not for application. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). ORDER Entitlement to service connection for a gastrointestinal disability manifested by heartburn and stomach pain, to include as secondary to service-connected PTSD and/or degenerative joint disease of the right shoulder, is denied. ____________________________________________ U. R. POWELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs