Citation Nr: 1336931	
Decision Date: 11/13/13    Archive Date: 11/26/13

DOCKET NO.  06-07 800	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas


THE ISSUE

Entitlement to service connection for a gastrointestinal disorder other than stomach
ulcers to include dyspepsia and duodenitis, including as due to aggravation of a preexisting condition.


REPRESENTATION

Veteran represented by:	Texas Veterans Commission


ATTORNEY FOR THE BOARD

N. L. Northcutt, Counsel 






INTRODUCTION

The Veteran, who is the appellant, served on active duty from March 1971 to May
1973.

This matter is before the Board of Veterans' Appeals (Board) on appeal of a rating
decision in December 2004 of a Department of Veterans Affairs (VA) Regional
Office (RO).

In March 2011, the Board reopened the claim of service connection for stomach
ulcers and remanded the claim for further development.

In March 2012, the Board sought an advisory opinion from the Veterans Health
Administration (VHA) on the questions of whether the Veteran's current
gastrointestinal symptoms were related to gastrointestinal symptoms manifested in
service.  Based on the VHA opinion, as well as additional medical evidence in the
file, the Board denied service connection for stomach ulcers, but determined that the
claim of service connection for a gastrointestinal disorder other than stomach ulcers
namely, dyspepsia and duodenitis, had been raised.

In November 2012, March 2013, and June 2013, the Board remanded the claim of service connection for a gastrointestinal disorder other than stomach ulcers to include dyspepsia and duodenitis, for further development, which has been accomplished.  

FINDING OF FACT

The Veteran reported having experienced gastrointestinal symptoms on entrance to service, and the evidence establishes that the symptoms did not increase during service, based on the evidence pertaining to the manifestation of the disability before, during, and after service.  


CONCLUSION OF LAW

The criteria for service connection for a gastrointestinal disorder other than stomach ulcers, to include dyspepsia and duodenitis, including as due to aggravation of a preexisting condition, have not been met. 38 U.S.C.A. §§ 1110, 1153 (West 2002); 38 C.F.R. §§ 3.303, 3.3.04(b), 3.306 (2013).

The Veterans Claims Assistance Act of 2000 (VCAA)

The VCAA, codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented in part at 38 C.F.R § 3.159, amended VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate a claim. 

Duty to Notify

Under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), when VA receives a complete or substantially complete application for benefits, it will notify the claimant of the following: (1) any information and medical or lay evidence that is necessary to substantiate the claim, (2) what portion of the information and evidence VA will obtain, and (3) what portion of the information and evidence the claimant is to provide. 

Also, the VCAA notice requirements apply to all five elements of a service connection claim. The five elements are: (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 of the disability.  Dingess v. Nicholson, 19 Vet. App. 473 (2006). 

The VCAA notice must be provided to a claimant before the initial unfavorable adjudication by the RO.  Pelegrini v. Principi, 18 Vet. App. 112 (2004). 



The RO provided pre-adjudication VCAA notice by letter dated in January 2004.  The Veteran was notified of the evidence needed to, substantiate the claim of service connection, namely, evidence of current disability, evidence of an injury or disease in service or event in service, causing injury or disease, and evidence of a
relationship between the current disability and the injury, disease, or event in
service.  Additionally, the Veteran was notified that VA would obtain VA records
and records of other Federal agencies, and that he could submit other records not in
the custody of a Federal agency, such as private medical records or with his
authorization, VA would obtain any such records on his behalf.

As for content of the VCAA notice, the document complied with the specificity
requirements of Quartuccio v. Principi, 16 Vet. App. 183 (2002) (identifying
evidence to substantiate a claim and the relative duties of VA and the claimant to
obtain evidence); of Charles v Principi, 16 Vet. App. 370 (2002) (identifying the
document that satisfies VCAA notice); of Pelegrini v Principi, 18 Vet. App. 112
(2004) (to the extent there was pre-adjudication VCAA notice); and of Dingess v.
Nicholson, 19 Vet. App. 473 (2006) (notice of the elements of the claim, except for
the general provisions for the effective date of a claim and for the degree of
disability assignable).

To the extent that the VCAA notice did not include the provisions for the effective
date of a claim and for the degree of disability assignable, the notice was not
compliant.  However, as the claim of service connection is denied, no effective date or degree of disability can be assigned as a matter of law.  For this reason, the
omission was not prejudicial to the Veteran's claim. 

Duty to Assist

Under 38 U.S.C.A. § 5103A, VA must make reasonable efforts to assist the
claimant in obtaining evidence necessary to substantiate a claim.  



The RO has obtained the service treatment records, as well as VA and private medical records.  The RO made an effort to obtain VA records from 1973 to 1978, but was unable to do so.  The Veteran and his representative were appropriately notified and provided the opportunity to submit additional evidence in accordance with 38 C.F.R. § 3 159(e).  

The Veteran has not identified any additional pertinent records for the RO to obtain on his behalf.

The Veteran was afforded VA gastrointestinal examinations in April 2011, in October 2011, and in April 2013, and VA obtained medical opinions in August 2013.  As the opinions in August 2013 described the disability in sufficient detail so that the Board's decision is a fully informed one, the opinions are adequate.  See Steffl v. Nicholson, 21 Vet. App. 120, 124-25 (2007) (holding an examination is considered adequate when it is based on consideration of the prior medical history and examinations, and also describes the disability in sufficient detail so that the Board's evaluation of the disability will be a fully informed one).

As there is no indication of the existence of additional evidence to substantiate the claim, the Board concludes that no further assistance to the Veteran in developing the facts pertinent to the claim is required to comply with the duty to assist. 


REASONS AND BASES FOR FINDING AND CONCLUSION

Principles of Service Connection

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. 




Generally, to establish entitlement to VA disability compensation, a Veteran must show: (1) a present disability; (2) an 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). 

Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service, or if preexisting such service, was aggravated by service.  This may be accomplished by affirmatively showing inception or aggravation during service.  38 C.F.R. § 3.303(a).

A veteran is presumed in sound condition except for defects noted when examined and accepted for service.  38 U.S.C.A. § 1111.  Clear and unmistakable (obvious and manifest) evidence that the disability existed prior to service and was not aggravated by service will rebut the presumption of soundness.  38 C.F.R. § 3.304(b).  

When a condition is properly found to have been preexisting, the presumption of aggravation provides that a preexisting injury or disease will be considered to have been aggravated by active military, naval, or air service, where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease.  38 U.S.C.A. § 1153; 38 C.F.R. § 3.306(a). 

Clear and unmistakable evidence is required to rebut the presumption of aggravation where the pre-service disability underwent an increase in severity during service.  Aggravation may not be conceded where the disability underwent no increase in severity during service, on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during, and subsequent to service.  38 U.S.C.A. § 1153; 38 C.F.R. § 3.306.


"Temporary or intermittent flare-ups during service of a preexisting injury or disease are not sufficient to be considered 'aggravation in service' unless the underlying condition, as contrasted to symptoms, is worsened."  See Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991).

Evidentiary Standards 

VA must give due consideration to all pertinent lay and medical evidence in a case where a Veteran is seeking service connection.  38 U.S.C.A. § 1154(a). 

If a Veteran was in combat, VA shall accept as sufficient proof of service connection of any disease alleged to have been incurred in or aggravated by such service satisfactory lay or other evidence of service incurrence or aggravation of such injury or disease.  So long as the evidence is consistent with the circumstances, conditions or hardships of such service, the fact that there is no official record of such incurrence or aggravation in such service is of no consequence.  38 U.S.C.A. § 1154(b). 

The presumption afforded under 38 U.S.C.A. § 1154(b) deals only with the question of whether a particular disease was occurred in service, that is, what happened then, and not the question of either current disability or nexus to service, as to both of which competent evidence is required.  Stated differently, evidence of a current disability and a nexus to service is still required.  Collette v. Brown, 82 F.3d 389   (Fed. Cir. 1996). 

Competency is a legal concept in determining whether lay or medical evidence may be considered, in other words, whether the evidence is admissible as distinguished from credibility and weight, factual determinations going to the probative value of the evidence, that is, does the evidence tend to prove a fact, once the evidence has been admitted.  Rucker v. Brown, 10 Vet. App. 67, 74 (1997).



Competency is a question of fact, which is to be addressed by the Board.  Jandreau v. Nicholson, 492 F.3d 1372, 1377 (2007).

When the evidence is admissible, the Board must then determine whether the evidence is credible. "Credible evidence" is that which is plausible or capable of being believed.  See Caluza v. Brown, 7 Vet. App. 478, 511 (1995), aff'd per curium, 78 F. 3d 604 (Fed. Cir. 1996) (the determination of credibility is a finding of fact to be made by the Board in the first instance). 

If the evidence is credible, the Board, as fact finder, must determine the probative value or weight of the admissible evidence, that is, does the evidence tend to prove a material fact.  Washington v. Nicholson, 19 Vet. App. 362, 369 (2005).  If the evidence is not credible, the evidence has no probative value. 

Evidence 

The service treatment records show that on entrance to service the Veteran gave a history of frequent indigestion, particularly after eating milk products or fish.  On pre-induction medical examination, the Veteran's abdomen and viscera were assessed as normal.  

In service, the Veteran was seen on two occasions, in September and in November 1972, for complaints of epigastric pain.  He was treated with Maalox and prescribed a bland diet.  

On separation medical examination in March 1973, the abdomen and viscera were assessed as normal.  The Veteran stated the he experienced frequent indigestion.

After service, the Veteran has described regular and intermittent gastrointestinal symptoms since service.



VA records show that in November 1974 the Veteran complained of epigastric pain of two weeks duration.  In December 1974, the Veteran complained of recurrent abdominal pain.  

In August 1977, the Veteran sought treatment for stomach pain and the diagnosis was hepatitis.  In October and November 1993, private records show assessments of peptic ulcer disease.  In July 1997, the Veteran complained of stomach pain, and the assessment was gastritis.  From June 1998 to September 2003, gastrointestinal reflux disease was included among the Veteran's listed of active problems.  Other assessments included cholelithiasis.

In August 1999, an ultrasound revealed showed no abnormalities, but an upper gastrointestinal study showed a thickened fold in the duodenal bulb and proximal duodenum, deemed to be likely related to duodenitis.  

In November 1999, a private gastroenterologist recommended that the Veteran undergo further studies to determine the etiology of his epigastric complaints.

In December 2002, the Veteran reported experiencing dyspepsia postprandially and the diagnosis was nonspecific abdominal pain.

In February 2004, a private physician stated that since 1993 the Veteran had been treated upper gastrointestinal symptoms that were thought to be stress-related.

In February 2007, the Veteran was diagnosed with diverticulitis after complaints of upper right quadrant pain and dark stools.

On VA examination in March 2011, the diagnosis was dyspepsia, non-ulcer type.  The VA examiner stated that the currently diagnosed dyspepsia likely preceded service, and the Veteran's current symptoms mimicked the symptoms prior to service and that dyspepsia was not aggravated during service.


In May 2012, a VA gastroenterologist stated that the Veteran's current abdominal complaints represent non-ulcerative dyspepsia, which likely preexisted service.  The gastroenterologist further stated that the Veteran's current abdominal complaints were related to the abdominal complaints during service.

On VA examination in April 2013, the VA examiner diagnosed duodenitis and stated that the stomach condition clearly preexisted service, as the Veteran reported symptoms on entrance to service.  However, the VA examiner relied upon an inaccurate medical history, citing service treatment records after 1973 that did not belong to the Veteran.

In August 2013, the VA physician who examined the Veteran in April 2013 conducted another review of the Veteran's file and cited an accurate medical history.  The VA examiner stated that the service treatment records indicate that the Veteran had a pre-existing condition of frequent indigestion that was not medically evaluated for a specific diagnosis, and that the separation medical examination reflects the same symptoms, once again without a clear diagnosis.  The VA examiner stated that the symptomatology of indigestion was unchanged during service and was similar to symptomatology on entrance and on separation examination.  Accordingly, the VA examiner concluded that because the Veteran's symptomatology remained unchanged during service, the symptoms were not aggravated during service.

In August 2013, another VA physician, who had not examined the Veteran, reviewed the Veteran's file and stated that based on the lack of evidence of frequent dyspepsia, ulcer, or indigestion, or any severe gastrointestinal findings from 1971 to 1973, the medical evidence did not indicate that the Veteran's preexisting history of indigestion was aggravated during service.





Analysis

As the Veteran reported experiencing gastrointestinal symptoms prior to service, and his reports of these preexisting symptoms are uncontroverted, the presumption of soundness under 38 U.S.C.A. § 1111 does not apply.  See Horn v Shinseki, 25 Vet App 231, 237 (2012) (holding that in the absence of a contention that the appellant never made statements, reporting a pre-service disability attributed to him, the statements alone may rebut the preexistence prong of the presumption of soundness); see Doran v. Brown, 6 Vet App 283, 286 (1994) (the presumption of soundness was rebutted by clear and unmistakable evidence consisting of the appellant's own admissions of a pre-service disability).  Rather, the provisions of 38 U.S.C.A. § 1153 apply.  

Under 38 U.S.C.A. § 1153, a pre-existing disease will be considered to have been aggravated by active service, where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the condition.  Aggravation may not be conceded where the disability underwent no increase in severity during service, on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during, and subsequent to service.  38 U.S.C.A. § 1153; 38 C.F.R. § 3.306.

Under certain circumstances, the Veteran as a lay person is competent to identify a simple medical condition, a contemporaneous medical diagnosis, or symptoms that later support a diagnosis by a medical professional.  Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007).  Also, the Veteran as a lay person is competent to offer an opinion on a simple medical condition.  Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (citing Jandreau).

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; see Layno v. Brown, 6 Vet. App. 465, 469 (1994) (A witness must have personal knowledge in order to be competent to testify to a matter; personal knowledge is that which comes to the witness through the use of the senses.).

Competency is a question of fact, which is to be addressed by the Board.  Jandreau at 1377.  

Although the Veteran is competent to describe increased symptoms during service, the question of aggravation of a pre-existing condition is an issue that requires an inference or a conclusion based on evidence.  However, such an inference or conclusion is not one the Veteran is competent to make based on mere personal observation.  Moreover, it is not argued or shown that the Veteran is otherwise qualified through specialized education, training, or experience to diagnose or offer an opinion on aggravation of pre-existing gastrointestinal symptoms.

For this reason, aggravation of pre-existing gastrointestinal symptoms, as opposed to merely reporting gastrointestinal symptoms, is not a matter that the Veteran is competent to identify.  To the extent that the Veteran's statements and testimony are offered as proof of aggravation, the statements and testimony are not competent evidence and cannot be considered as evidence favorable to the claim.

Since a lay person is not competent to identify aggravation, and as the question of aggravation involves a medical determination, competent medical evidence is required.  Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer a medical diagnosis or opinion.  38 C.F.R. § 3.159.


The competent medical evidence on the question of aggravation of pre-existing gastrointestinal symptoms consists of the opinions of VA physicians, who are qualified through education, training, or experience to offer a medical diagnosis or opinion.

The August 2013 VA medical opinions, authored by two VA physicians, both conclude that the Veteran's preexisting gastrointestinal symptoms did not increase in severity during service, as the reported symptoms on entrance and separation from service remained consistent.  

The opinions of the VA physicians who reviewed the Veteran's claim file in August 2013, offered well-reasoned medical opinions based on an accurate medical history.  As such, they are afforded great probative value.

As the preexisting gastrointestinal symptoms did not increase in severity during service, aggravation may not be conceded.

Absent a finding of aggravation of a preexisting condition, there is no in-service event or disease upon which to predicate a claim for service connection.  As such, there is no doubt to be resolved, and service connection is not warranted.   38 U.S.C.A. § 5107(b).

ORDER

Service connection for a gastrointestinal disorder other than stomach ulcers to include dyspepsia and duodenitis, including as due to aggravation of a preexisting condition, is denied.



____________________________________________
George E. Guido Jr.
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs