Citation Nr: 1342873	
Decision Date: 12/26/13    Archive Date: 01/07/14

DOCKET NO.  10-43 688	)	DATE
	)
	)

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


THE ISSUES

1.  Entitlement to service connection for left elbow tendonitis.

2.  Entitlement to service connection for gastroesophageal reflux disease (GERD).

3.  Entitlement to service connection for pancreatitis.


REPRESENTATION

Appellant represented by:	Texas Veterans Commission


ATTORNEY FOR THE BOARD

D. Johnson, Counsel



INTRODUCTION

The Veteran served on active duty from September 2006 to December 2006 and from May 2007 to September 2008.

This matter is before the Board of Veterans' Appeals (Board) on appeal of a June 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas.


FINDING OF FACT

There is no competent lay or medical evidence of a current diagnosis of left elbow tendonitis, GERD, or pancreatitis.


CONCLUSIONS OF LAW

1.  The criteria for service connection for left elbow tendonitis have not been met.  38 U.S.C.A. §§ 1110, 5103A (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.303 (2013).

2.  The criteria for service connection for GERD have not been met.  38 U.S.C.A. §§ 1110, 5103A (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.303 (2013).

3.  The criteria for service connection for pancreatitis have not been met.  38 U.S.C.A. §§ 1110, 5103A (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.303 (2013).



REASONS AND BASES FOR FINDING AND CONCLUSIONS

Duties to Notify and Assist

Upon receipt of a complete or substantially complete application, VA has a duty to notify and assist claimants in substantiating a claim for VA benefits.  VA must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide.  A letter sent in April 2009 satisfied the duty to notify provisions.  38 U.S.C.A. § 5103(a); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); 38 C.F.R. § 3.159(b) (1).  This letter also notified the Veteran of regulations pertinent to the establishment of an effective date and of a disability rating.  Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).  The Veteran was informed of the need to show the impact of disabilities on daily life and occupational functioning.  Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), rev'd in part sub nom. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009).  

In any event, the Veteran has neither alleged nor demonstrated any prejudice with regard to the content or timing of the notice.  See Shinseki v. Sanders, 129 S.Ct. 1696 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination.); see also Mayfield v. Nicholson, 444 F.3d 1328, 1333-34 (Fed. Cir. 2006).

The Veteran's service treatment records and VA medical treatment records have been obtained.  38 U.S.C.A. § 5103A, 38 C.F.R. § 3.159.  The Veteran has not indicated, and the record does not contain evidence, that he is in receipt of disability benefits from the Social Security Administration.  38 C.F.R. § 3.159 (c)(2).  

A VA examination was conducted in January 2013 for the claimed disability of pancreatitis.  The Veteran has not argued, and the record does not reflect, that this examination was inadequate for rating purposes.  38 C.F.R. § 3.159(c)(4); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007).   As the examination report contains pertinent medical history and clinical findings, the report is adequate to decide the claim.  See Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007).

The Veteran was not afforded a VA examination to evaluate his claimed disabilities of left elbow tendonitis or GERD.  However, as there is no current diagnosis of these disorders and no lay testimony describing current symptoms of these disorders; an examination is not necessary.  See McLendon v. Nicholson, 20 Vet. App. 79 (2006) (discussing circumstances when a VA examination is required). 

There is no indication in the record that any additional evidence, relevant to the issues decided, is available and not part of the claim file.  See Pelegrini v. Principi, 18 Vet. App. 112 (2004).  As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of the case, the Board finds that any such failure is harmless.  See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); Shinseki v. Sanders/Simmons, 129 S. Ct. 1696 (2009); see also Dingess/Hartman, 19 Vet. App. at 486.  

Analysis

Service connection will be granted if it is shown that the Veteran suffers from a disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty, during active military service.  38 U.S.C.A. § 1110, 1131; 38 C.F.R. § 3.303.  

The conditions at issue are not "chronic diseases" listed under 38 C.F.R. § 3.309(a); therefore, the presumptive provisions based on "chronic" symptoms in service and "continuous" symptoms since service at 38 C.F.R. § 3.303(b) do not apply.  Walker v. Shinseki, 708 F.3d 1331, 1338-39 (Fed. Cir. 2013).

Disorders diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d). 

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 include statements conveying sound medical principles found in medical treatises.  Competent medical evidence may include statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses.  38 C.F.R. § 3.159(a)(1).

Competent lay evidence is 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(a)(2).  This may include some medical matters, such as describing symptoms or relating a contemporaneous medical diagnosis.  Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007).

In determining whether service connection is warranted for a disability, 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.  38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

The Veteran's service treatment records show no complaints or treatment of a left elbow injury or chronic left elbow condition, to include left elbow tendonitis.  

A clinic note dated in January 2008 shows the Veteran reported his appetite fluctuated from eating too much to eating too little.  No diagnosis was provided with respect to this subjective report.  The records contain no diagnosis of GERD.  

In May 2008, the Veteran was evaluated for a complaint of severe abdominal pain.  A computed tomography (CT) of the abdomen showed mild inflammatory changes around the pancreas, particularly the tail of the pancreas, which was thought to 'probably represent acute pancreatitis.'  No other abnormalities were seen.  In June 2008, the Veteran was evaluated for a complaint of upper abdominal pain.  A repeat CT of the abdomen and pelvis was negative.  

Post-service VA treatment records do not reflect diagnoses of left elbow tendonitis, GERD, or any subjective report of left elbow or GERD symptoms.  A January 2009 clinic note indicates the Veteran reported symptoms of pancreatitis.

The Veteran was afforded a VA examination in January 2013 to determine whether he currently has pancreatitis and if so, whether it represented a progression of the pancreatitis in service or the development of a new and separate condition.  The VA examiner reviewed the entire claim file and noted that there was a history of acute pancreatitis in May 2008 that had resolved and no chronic pancreatitis condition was currently found.  The examiner indicated that the basis for this finding was the review of the medical evidence of record and the Veteran's history obtained during the examination.  

The Veteran seeks service connection for pancreatitis, left elbow tendonitis, and GERD, however, there is no competent lay or medical evidence showing that these disabilities currently exist.  

As a layperson, the Veteran is competent to identify a simple medical condition, a contemporaneous medical diagnosis, or symptoms that later support a diagnosis by a medical professional.  Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (citing Jandreau, 492 F.3d at 1377).  Pancreatitis, GERD, and left elbow tendonitis are not simple medical conditions that the Veteran is competent to diagnose because these conditions fall outside the realm of common knowledge of a lay person.  That is, their presence cannot be determined based on mere personal observation, which comes through sensory perception.  Rather, these represent complex medical conditions that require medical expertise to diagnose.  And it is not argued or shown that the Veteran is qualified through specialized education, training, or experience to make medical diagnoses or present opinions regarding complex medical issues.  

The Veteran also has not provided any evidence of contemporaneous medical diagnoses and has he not reported any symptoms that have supported a diagnosis by a medical professional.  For these reasons, the Veteran's lay opinion that he currently has disabilities of pancreatitis, GERD, and left elbow tendonitis, is neither competent nor probative evidence supporting his claim.  See Davidson, 581 F.3d at 1316; Jandreau, 492 F.3d at 1376-77 (lay persons not competent to diagnose cancer). 

The only competent medical evidence with respect to the question of whether the Veteran currently has pancreatitis is the January 2013 VA examiner's findings.  The VA examiner has determined that there is no current diagnosis of chronic pancreatitis, and there is no contrary medical finding or opinion in the record.  This opinion is persuasive.

The Veteran was not afforded a VA examination to evaluate his claimed disabilities of left elbow tendonitis or GERD.  However, as there is no current diagnosis of these disorders and no lay testimony describing current symptoms of these disorders; an examination is not necessary.  See McLendon v. Nicholson, 20 Vet. App. 79 (2006).  

In the absence of a current disability, service connection cannot be granted.  Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992).  The preponderance of the evidence is against the claims of service connection, there is no doubt to be resolved; and service connection is not warranted for left elbow tendonitis, GERD, and pancreatitis. 

ORDER

Service connection for left elbow tendonitis is denied.

Service connection for GERD is denied.

Service connection for pancreatitis is denied.


____________________________________________
RONALD W. SCHOLZ
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs