Citation Nr: 1410073	
Decision Date: 03/12/14    Archive Date: 03/20/14

DOCKET NO.  10-22 218	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Togus, Maine


THE ISSUES

1.  Entitlement to service connection for a back disorder, for health care treatment only under Chapter 17 of Title 38 of the United States Code.

2.  Entitlement to service connection a digestive disorder, including ulcers, diverticulosis, and gastroesophageal reflux disease (GERD), for health care treatment only under Chapter 17 of Title 38 of the United States Code.

3.  Entitlement to service connection for an acquired psychiatric disorder, including posttraumatic stress disorder (PTSD), for health care treatment only under Chapter 17 of Title 38 of the United States Code.

4.  Entitlement to service connection for alcohol dependence, including as secondary to the acquired psychiatric disorder, for health care treatment only under Chapter 17 of Title 38 of the United States Code.



REPRESENTATION

Appellant represented by:	The American Legion


WITNESSES AT HEARING ON APPEAL

The Appellant and his wife


ATTORNEY FOR THE BOARD

D. Bredehorst


INTRODUCTION

The appellant had active duty service from February 1984 to January 1986.

This appeal to the Board of Veterans' Appeals (Board/BVA) is from February and June 2009 decisions of the Department of Veterans Affairs (VA) Regional Office (RO).

In July 2010, in support of his claims, the appellant testified at a hearing at the RO before a local Decision Review Officer (DRO).  He more recently in June 2013 testified at another hearing at the RO, this time however before the undersigned Veterans Law Judge (VLJ) of the Board.  This latter type of hearing is often and more commonly referred to as a Travel Board hearing.  Transcripts of these hearings are in claims file and electronic ("Virtual VA") records processing system.


The appellant initially asserted that he had an ulcer related to his service, but more recently he expanded his claim to additionally include diagnoses of diverticulosis and GERD, so this claim has been recharacterized more generally as for a digestive disorder.  The U. S. Court of Appeals for Veterans Claims (Court/CAVC) has held that the scope of a claim for a disability includes any disability that reasonably may be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record.  Clemons v. Shinseki, 23 Vet. App. 1, 5-6 (2009); see also Brokowski v. Shinseki, 23 Vet. App. 79, 85 (2009) (A claimant's identification of the benefit sought does not require any technical precision), citing Ingram v. Nicholson, 21 Vet. App. 232, 256-57 (2007) (It is the pro se claimant who knows what symptoms he is experiencing and that are causing him disability); see, too, Robinson v. Nicholson, 21 Vet. App. 545, 552 (2008) (The Board is required to consider all issues raised either by the claimant or the evidence of record).

Clemons concerned VA's failure to consider a claim of entitlement to benefits for a disorder other than the one specifically claimed, even though it shared the symptomatology for which the Veteran was benefits.  The Clemons Court found that, where a Veteran's claim identifies a condition, without more, it cannot be a claim limited only to that diagnosis, rather must be considered a claim for any disability that reasonably may be encompassed by the evidence of record.  The Clemons Court indicated that, when a claimant makes a claim, he is seeking benefits for symptoms regardless of how those symptoms are diagnosed or labeled.

The claims of entitlement to service connection for an acquired psychiatric disorder and alcohol dependence, however, require further development before being decided on appeal, so the Board is remanding these claims to the RO via the Appeals Management Center (AMC) in Washington, DC.  Whereas the Board, instead, is going ahead and deciding the remaining claims for a digestive disorder and back disorder.



FINDINGS OF FACT

1.  The more probative evidence, meaning competent and credible, indicates the appellant does not have a current low back disorder related to his military service.

2.  The appellant's digestive disorders initially manifested several years after his service and there is no probative evidence linking these disorders to his service.


CONCLUSIONS OF LAW

1.  The appellant's low back disorder was not incurred in or aggravated by his service and may not be presumed to have been.  38 U.S.C.A. §§ 1101, 1112, 1113, 1131, 1137, 1153 (West 2002); 38 C.F.R. §§ 3.303, 3.304, 3.306, 3.307, 3.309 (2013).

2.  His digestive disorders also were not incurred in or aggravate by his service and may not be presumed to have been.  38 U.S.C.A. §§ 1101, 1112, 1113, 1131, 1137, 1153 (West 2002); 38 C.F.R. §§ 3.303, 3.304, 3.306, 3.307, 3.309 (2013).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Duties to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duties to notify and assist a claimant in substantiating a claim for VA compensation and other benefits upon receipt of a complete or substantially complete application.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013).  


To this end, VA must:  (1) inform the claimant of the information and evidence not of record that is necessary to substantiate the claim; (2) inform him of the information and evidence that VA will obtain; and (3) inform him of the information and evidence he is expected to provide.  See Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002).

When the claim is for service connection, the notice should address all five elements of the claim:  (1) Veteran status, (2) existence of a disability, (3) relationship between the disability and service, but also the "downstream" (4) disability rating, and (5) effective date in the eventuality service connection is granted.  See Dingess v. Nicholson, 19 Vet. App. 473, 486 (2006); aff'd sub nom.  Hartman v. Nicholson, 483 F.3d 1311 (2007).

April and September 2008 pre-decisional letters satisfied these obligations.  VCAA notices errors, even when shown to have occurred, are not presumptively prejudicial, rather, must be judged on a case-by-case basis.  And as the pleading party attacking the agency's decision, the appellant, not VA, has this burden of proof of not only establishing error, but, above and beyond that, showing how it is unduly prejudicial, meaning outcome determinative of the claim, i.e., more than harmless.  Shinseki v. Sanders, 129 S. Ct. 1696 (2009).  There is no such pleading, much less showing, in this particular instance.

Typically, VA provides claimants further notice during hearings.  The appellant as mentioned twice has testified at hearings, initially in July 2010 before a local DRO and more recently in June 2013 before the undersigned VLJ of the Board.  In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that, pursuant to 38 C.F.R. § 3.103(c)(2), a hearing officer chairing a hearing must satisfy two duties consisting of:  (1) fully explaining the issue or issues; and (2) suggesting the submission of evidence that may have been overlooked and that may be potentially advantageous to the claimant's position. 


Importantly, though, the rule of prejudicial error applies in assessing any deficiency with respect to the hearing officer's duties under section 3.103(c).  See id. at 498.  Citing Sanders, 556 U.S. at 407, 410, the Court noted in this regard that the rule of prejudicial error requires a case-by-case determination as to whether the error in question was harmless.  Id.  The Court further held that, although the hearing officer did not explicitly lay out the material issues of medical nexus and current disability, the "clarity and completeness of the hearing record was intact" and the purpose of section 3.103(c)(2) fulfilled because the record reflected that these issues were developed by VA, including the provision of a VA examination, and there was no indication the appellant had any additional information to submit.  Id. at 498-99.

The DRO satisfied these requirements by correctly identifying the issues, identifying potentially relevant evidence, noting the importance of nexus evidence, and discussing how service connection claims are considered.  The VLJ did not fully satisfy these duties, but any decision to proceed in adjudicating these claims is harmless, not prejudicial to the appellant or affecting the essential fairness of the adjudication of this claims.  Conway v. Principi, 353 F.3d 1369, 1374 (Fed. Cir. 2004); Bernard v. Brown, 4 Vet. App. 384 (1993).  This is especially true recognizing actual knowledge was shown based on the discussion from the earlier hearing of the type of evidence, such as nexus evidence, and information needed to substantiate the claims.  Dalton v. Nicholson, 21 Vet. App. 23, 30-31 (2007).  (Actual knowledge is established by statements or actions by the claimant or the claimant's representative demonstrating an awareness of what is necessary to substantiate the claim.)

Consider also that VA has developed these claims by obtaining all identified records and arranging for an examination, when one was needed.  The claimant has been provided opportunities to respond to VA correspondence and over the course of the appeal has had multiple opportunities to submit and identify evidence potentially supportive of his claims.  He therefore has been provided meaningful opportunity to participate effectively in the processing of his claims.  See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004).

Neither the appellant nor his representative asserts that VA failed to comply with VCAA's notice provisions or the requirements of Bryant. 

VA also has a duty to assist the Veteran in obtaining evidence necessary to substantiate the claims.  38 U.S.C.A. § 5103A(a) ("The Secretary shall make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the . . . claim").  This duty includes assisting the claimant in obtaining records and providing medical examinations or obtaining medical opinions when necessary to make a decision on a claim.  38 U.S.C.A. § 5103A(b), (c), (d) (setting forth the Secretary's various duties to claimant).

Service treatment and personnel records have been obtained and associated with the appellant's claims file for consideration, as have his VA Medical Center (VAMC) outpatient treatment records.  Records also from several private treatment providers he identified have been obtained.

As for an examination and opinion, they were provided for the low back disorder but not for the digestive disorder.  Regarding the latter, however, the Board finds that a VA examination is not needed to decide this claim as the even the relatively low standards set forth in McLendon v. Nicholson, 20 Vet. App. 79 (2006), have not been met.  According to McLendon, VA must provide a medical examination in a service-connection claim when there is: (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (2) evidence establishing that an event, injury, or a disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication the disability or persistent or recurrent symptoms of a disability may be associated with the Veteran's service or a service-connected disability, but (4) insufficient competent medical evidence on file for the VA to make a decision on the claim.  Id. at 81.  See also 38 U.S.C.A. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4).  See, too, Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010) (When determining whether a VA examination and opinion are required under 38 U.S.C. § 5103A(d)(2), the law requires competent evidence of a disability or persistent or recurrent symptoms of a disability, but does not require competent evidence of a nexus, only that the evidence suggest an association between the disability and service or a service-connected disability.).  See, as well, Colantonio v. Shinseki, 606 F.3d 1378, 1382 (Fed. Cir. 2010) (Medically competent evidence is not required in every case to "indicate" that the claimant's disability "may be associated" with the claimant's service).

This is not to say or suggest however that VA is obligated to provide an examination for a medical nexus opinion merely as a matter of course.  See Duenas v. Principi, 18 Vet. App. 512, 519 (2004).  If such were the case, this would circumvent the craftily tailored language of the statute and regulation governing when examinations and opinions should be obtained and require provision of an examination and opinion in virtually every instance, so virtually without exception.

Here, as discussed in greater detail below, there is no competent and credible evidence the appellant had a digestive disorder in service or that the current disabilities that manifested many years later are related to his service.  Therefore, pertinent factors in determining whether a medical examination and opinion are necessary are not satisfied, and the Board resultantly declines to afford him an examination concerning this claim.  On these facts, then, no examination is required.  See Bardwell v. Shinseki, 24 Vet. App. 36, 39-40 (2010) (holding that VA is not required to provide a medical examination when there is not credible evidence of an event, injury, or disease in service).  His mere personal belief that he has these conditions because of his military service are insufficient to trigger the duty to assist by arranging for a VA compensation examination and opinion, because if that were the case every known appellant imaginable could simply make such an assertion and, on that basis alone, claim consequent entitlement to a VA examination and opinion.  To reiterate, VA is not required to schedule an examination for a medical opinion merely as a matter of course.  See again Duenas v. Principe, 18 Vet. App. 512, 519 (2004) (indicating that, generally, VA is not obligated to provide an examination for a medical nexus opinion based on unsubstantiated lay statements alone).  Accordingly, the Board finds that remand for a VA medical examination and opinion is unwarranted.

For all of these reasons, it is the Board's determination that VA has comported with its duties to notify and assist the appellant with these claims, and thus, no additional assistance or notification is required.  He has suffered no prejudice that would warrant a remand of these claims being decided, and his procedural due process rights have not been abridged.  See Bernard v. Brown, 4 Vet. App. 384 (1993). 

Legal Criteria and Analysis

In deciding these claims, the Board has reviewed all of the evidence in the claims file, both the physical claims file and electronic portion of it ("Virtual VA" and Veterans Benefits Management System ("VBMS")).  The Board has an obligation to provide an adequate statement of reasons or bases supporting this decision.  See 38 U.S.C.A. § 7104 (West 2002); Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000).  But while the Board must review the entire record, it need not discuss each and every piece of evidence, certainly not in exhaustive detail.  See Gonzales, 218 F.3d at 1380-81.  The Board's analysis, therefore, focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, concerning the claims.  The appellant must not assume the Board has overlooked pieces of evidence that are not explicitly discussed.  The law requires only that the Board address its reasons for rejecting evidence favorable to him.  See Timberlake v. Gober, 14 Vet. App. 122 (2000).

As an initial matter, the Board emphasizes the claims on appeal are limited to whether the appellant is eligible for health care only as he was discharged Under Other Than Honorable Conditions.  38 U.S.C.A. Chapter 17 essentially allows treatment where a condition could be service connected but for the character of discharge from service.  See 38 C.F.R. § 3.360 (2013).  The eligibility criteria for making this determination are the same as are used and applicable to determinations of service incurrence and in the line of duty when there is no character of discharge bar.  So while these claims are being adjudicated under the same criteria as a traditional claim for service connection, it is only with the ultimate goal of the Veteran receiving VA medical care, not monetary compensation.

Service connection is granted for disability resulting from disease or injury incurred in or aggravated by active military service in the line of duty.  38 U.S.C.A. § 1131; 38 C.F.R. § 3.303(a).  Service connection may be granted for any disease diagnosed after discharge when the evidence, including that pertinent to service, establishes the disease was incurred in service.  38 C.F.R. § 3.303(d).

In interpreting section 1131 of the statutes and section 3.303(a) of the regulations, the Federal Circuit Court held that a three-element test must be satisfied in order to establish entitlement to service connection.  Specifically, the evidence must show (1) the existence of a current disability; (2) in-service incurrence or aggravation of a relevant disease or an injury; and (3) a causal relationship between the current disability and the disease or injury incurred or aggravated during service (the "nexus" requirement).  Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (citing Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004))). 

Under 38 C.F.R. § 3.303(b), claims for certain chronic diseases - namely those listed in 38 C.F.R. § 3.309(a) - benefit from a somewhat more relaxed evidentiary standard.  See Walker, supra (holding that "[t]he clear purpose of the regulation is to relax the requirements of § 3.303(a) for establishing service connection for certain chronic diseases.").  When a chronic disease is established during active service, then subsequent manifestations of the same chronic disease at any later date, however remote, will be entitled to service connection, unless clearly attributable to causes unrelated to service ("intercurrent causes").  38 C.F.R. § 3.303(b).  In order to establish the existence of a chronic disease in service, the evidence must show a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic."  Id.  Thus, the mere manifestation during service of potentially relevant symptoms (such as joint pain or abnormal heart action in claims for arthritis or heart disease, for example) does not establish a chronic disease at that time unless the identity of the disease is established and its chronicity may not be legitimately questioned.  Id.  If chronicity in service is not established, then a showing of continuity of symptoms after discharge is required to support the claim.  Id.  

That an injury occurred in service alone is not enough; there must be chronic (i.e., permanent) disability resulting from that injury.  If there is no showing of a resulting chronic condition during service, or this is legitimately questionable, then a showing of continuity of symptomatology after service is required to support a finding of chronicity and the claim.  38 C.F.R. § 3.303(b).  The Federal Circuit Court has clarified, however, that this notion of continuity of symptomatology as an alternative means of showing chronicity of disease or injury in service to alternatively link the currently claimed disability to service only pertains to chronic diseases specifically listed in 38 C.F.R. § 3.309(a).  See Walker, supra.

The Federal Circuit Court noted that the requirement of showing a continuity of symptomatology after service is a "second route by which a veteran can establish service connection for a chronic disease" under subsection 3.303(b).  Id.  Showing a continuity of symptoms after service itself "establishes the link, or nexus" to service and also "confirm[s] the existence of the chronic disease while in service or [during the] presumptive period."  Id. (holding that section 3.303(b) provides an "alternative path to satisfaction of the standard three-element test for entitlement to disability compensation").  Significantly, the Federal Circuit Court indicated that showing a continuity of symptomatology after service is a lesser evidentiary burden than the nexus requirement of the three-part test discussed above:  "The primary difference between a chronic disease that qualifies for § 3.303(b) analysis, and one that must be tested under § 3.303(a), is that the latter must satisfy the 'nexus' requirement of the three-element test, whereas the former benefits from presumptive service connection . . . or service connection via continuity of symptomatology"  Id.  

Not all diseases that may be considered "chronic" from a medical standpoint qualify for the relaxed evidentiary standard under section 3.303(b).  Rather, the Federal Circuit Court held that this subsection only applies to the specific chronic diseases listed in 38 C.F.R. § 3.309(a).  Id.  Thus, if the claimant does not have one of the 

chronic diseases enumerated in section 3.309(a), then the more relaxed continuity-of-symptomatology standard does not apply, and "medical nexus of a relationship [sic] between the condition in service and the present condition is required."  Walker, supra. (holding that the claimant's allegation of a continuity of hearing loss ever since active service was not sufficient to support the claim under subsection 3.303(b), as hearing loss was not among the chronic diseases listed in section 3.309(a)). 

Arthritis and peptic ulcers (duodenal and gastric) are defined as a chronic diseases in section 3.309(a).  Thus, the provisions of subsection 3.303(b) for chronic disabilities apply to this aspect of the service-connection claims and these claims resultantly may be supported by evidence of a continuity of symptomatology since service.

Lay evidence nonetheless 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.  Jandreau v. Nicholson, 492 F.3d 1372   (Fed. Cir. 2007).  Lay persons can also provide an eye-witness account of an individual's visible symptoms.  See Davidson v. Shinseki, 581 F.3d 1313 (2009) (noting that a layperson may comment on lay-observable symptoms).

Competency of evidence differs from its credibility and ultimate probative weight.  The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted.  Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify").


In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, both lay and medical, account for the evidence that it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant.  See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 

The standard of proof to be applied in decisions on claims for Veterans' benefits is set forth in 38 U.S.C.A. § 5107.  A Veteran is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence.  See also 38 C.F.R. § 3.102.  When a Veteran seeks benefits and the evidence is in relative equipoise, the Veteran prevails.  See Gilbert, supra.  The preponderance of the evidence must be against the claim for benefits to be denied.  See Alemany v. Brown, 9 Vet. App. 518 (1996).

A.  Low Back Disorder

Although the appellant was shown to have had a low back injury in service, the most probative evidence of record tends to show that his current low back disorder is unrelated to his service, including to that documented injury.

Service treatment records (STRs) dated in April 1984 show he presented with complaints of back pain, albeit with no trauma involved that was found to be referable to the thoracic and lumbar areas.  The diagnostic assessment was para vertebra muscular strain.  No other STRs either prior to or subsequent to that incident note any complaints or findings of back pain or other symptoms, including the eventual separation examination and medical history report.  The claimant's service ended in January 1986.

More recent treatment records show he has current diagnoses of lumbar degenerative disc disease (DDD) and osteoarthritis.  See January and April 2010 private treatment records and the March 2010 VA examination report.


But service connection on a presumptive basis for the osteoarthritis as a chronic disease, per se, is impermissible since there is no evidence this disorder initially manifested to a compensable degree within the first post-service year, meaning by January 1987.  See 38 C.F.R. §§ 3.307, 3.309.  A February 2003 record indicates a magnetic resonance imaging (MRI) had revealed lumbosacral degenerative changes, but that was still many years after the claimant's service had concluded.

Under 38 C.F.R. § 3.303 (b), this "nexus" requirement alternatively may be satisfied for a chronic disability on the basis of continuity of symptoms after service.  Walker, supra.  The essence of 38 C.F.R. § 3.303(b) is continuous symptoms, not necessarily treatment for them.  See Wilson v. Derwinski, 2 Vet. App. 16, 19 (1991).

Here, though, the Board finds there is no probative evidence of continuing symptoms since service.  The appellant's October 2002 disability claim with the Social Security Administration (SSA) shows he reported his back problems began in the 1980s.  Noting that both the in-service injury and a post-service injury had occurred in the 1980s, it is unclear which injury he was referencing.  However, even when affording him the benefit of the doubt that his statement was in reference to the injury in service, as opposed to the additional injury after, the Board finds it lacks credibility and that the more probative evidence of record does not link the disability to his service.  In this regard, he noted on his separation medical history report that he had not had recurrent back pain, which is in direct conflict with any later assertion of continuing symptoms since the injury in service, and there additionally was no objective evidence of a then current back problem on objective physical examination.  That more contemporaneous evidence is more probative of whether he was having relevant symptoms at the time and whether he since has continued to experience them on a continual basis.  See Curry v. Brown, 7 Vet. App. 59, 68 (1994) (contemporaneously dated evidence has greater probative value than a contrary history as reported by the appellant long after the fact).


He also has offered a different time period for the onset of his back symptoms, so in this way has given an inconsistent history of his symptoms, which in turn tends to undermine his credibility regarding just how long he has had them.  See Harvey v. Brown, 6 Vet. App. 390, 394 (1994) (upholding a Board decision assigning more probative weight to a contemporaneous medical record report of cause of a fall than subsequent lay statements asserting different etiology); Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997) (upholding Board decision giving higher probative value to a contemporaneous letter the Veteran wrote during treatment than to his subsequent assertion years later).

To wit, a February 2003 private treatment record shows he was evaluated for physical therapy due to low back pain.  He reported his initial episode of injury was in the 1990s.  In April 2005, he reported falling in 1990 and of having low back and leg pain ever since.  A January 2010 treatment record shows he reported a 20-year history of pain, which would date the onset to 1990, but he also reported his back pain had started during his service.  These records reflect inconsistencies in the reported onset of symptoms and resultantly further diminish his credibility as to them incepting during his service.  As fact finder, when considering whether lay evidence is satisfactory, the Board may properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted by or on the claimant's behalf, and his demeanor when testifying at a hearing when he has testified.  See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996).  See, too, Macarubbo v. Gober, 10 Vet. App. 388 (1997) (similarly holding that the credibility of lay evidence can be affected and even impeached by inconsistent statements, internal inconsistency of statements, inconsistency with other evidence of record, facial implausibility, bad character, interest, bias, self-interest, malingering, desire for monetary gain, and witness demeanor).  Therefore, the Board finds due to inconsistencies, diminished credibility, and probative evidence to the contrary, continuity of symptoms is not established.  The Federal Circuit Court has held that, while the absence of contemporaneous medical records does not, in and of itself, render lay testimony not credible, the Board may weigh the absence of contemporaneous records 

when assessing the credibility of lay evidence.  See Buchanan, 451 F.3d at 1336 ("Nor do we hold that the Board cannot weigh the absence of contemporaneous medical evidence against the lay evidence of record.").  Moreover, although the Board cannot reject a claimant's statements merely because he is an interested party, the claimant's interest may affect the credibility of his testimony when considered in light of the other factors.  See Cartright, 2 Vet. App. at 25; accord Buchanan, 451 F.3d at 1337 (holding that "the Board, as fact finder, is obligated to, and fully justified in, determining whether lay evidence is credible in and of itself, i.e., because of possible bias . . . .").

The most competent and credible - and therefore most probative - evidence of record addressing the etiology of the disability was offered by the March 2010 VA examiner who ultimately determined it is not as likely as not that the low back condition or thoracic spine condition is related to the claimant's service or aggravated by his service.  The examiner pointed out there was no evidence of significant low back problems in service, other than the one notation in 1984; the appellant had mild spasms in the low back at that time and all neurologic signs were normal.  He had no other low back complaints over the remaining 2 years of his service or within one year after his separation from service.  The examiner additionally observed that the appellant had done heavy construction work over the years and had sustained a new, work-related, injury in August 1987.  Records in 2005 also indicate he was struck by a car in a parking lot and knocked down, injuring his low back and neck, so still additional trauma worth mentioning.

This opinion is highly probative since it is based on an examination and review of the claims file.  It is also consistent with the record since there is no evidence of continuing low back problems in service and no indication of a back problem post-service until the back injury in August 1987; the December 2005 low back injury is also documented in the record and, as stated previously, the Veteran reported another back injury in 1990.  No probative evidence has been obtained or submitted linking his current low back disorder to any incident of his service, including to any prior injury during his service.

For these reasons and bases, the preponderance of the evidence is against his claim, in turn meaning the benefit-of-the-doubt doctrine is inapplicable, and that the claim must be denied.  See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990).

B.  Digestive Disorder

The appellant's STRs do not reflect any complaints, findings, or diagnoses suggestive of a digestive disorder of any sort, including of ulcers, diverticulosis, and GERD.  When complaints and symptoms such as nausea and vomiting were noted, they were not associated with a digestive disorder.  See records in November 1985.

With regard to ulcers, this condition was first noted in 2003 when the appellant had complaints of burning abdominal pain; he was diagnosed with having peptic ulcer disease (PUD).  Records during this time also show an assessment of duodenitis.  See January 2003 treatment records.  Although he reported having similar episodes previously, there is no indication these episodes or any associated symptoms dated back 17 years to when he was in service.  So service connection cannot be established on a presumptive basis under 38 C.F.R. § 3.309 for a peptic ulcer as a chronic disease since there is no evidence this disorder initially manifested to a compensable degree within the first post-service year.  

Indeed, a review of his records shows there is no evidence since he filed his claim in March 2008 that he has had an ulcer.  The existence of a current disability is the cornerstone of a claim for VA disability compensation.  38 U.S.C.A. § 1131; see Degmetich v. Brown, 104 F.3d 1328 (1997).  It is well-settled that in order to be considered for service connection, a claimant must first have a disability.  In Brammer v. Derwinski, 3 Vet. App. 223 (1992), the Court noted that Congress specifically limited entitlement for service-connected disease or injury to cases where such incidents had resulted in a disability.  See also Gilpin v. Brown, 155 F.3d 1353 (Fed. Cir. 1998) (service connection may not be granted unless a current disability exists).  Hence, there is no basis to grant service connection for the claimed disability because the appellant has not shown that he currently has an ulcer disorder or that he has at any point since the filing of this claim.  According to the holding in Degmetich v. Brown, 8 Vet. App. 208 (1995); 104 F.3d 1328 (1997), VA compensation only may be awarded to an applicant who has disability existing on the date of application, not for past disability).  But see, too, McClain v. Nicholson, 21 Vet. App. 319 (2007) (further clarifying that this requirement of current disability is satisfied when the claimant has the disability at the time the claim for VA disability compensation is filed or during the pendency of the claim and that a claimant may be granted service connection even though the disability resolves prior to VA's adjudication of the claim).  Here, though, there has not been any such showing at any time since the filing of this claim.  A May 2010 private emergency room treatment record shows the claimant was seen for abdominal complaints and that his wife reported a duodenal ulcer in the past, but the diagnosis was gastritis with questionable history of duodenal ulcer disease.  So even then no ulcer was actually found.

Regarding other digestive disorders, the appellant has had rather recent diagnoses of gastritis, diverticulitis, and GERD.  See private treatment records in April and May 2010, and in January and March 2012.  But he is not shown to have had symptoms or a diagnosis of a digestive problem until 1990, long after his service had ended.  At that time, a private treatment record shows he was seen for complaints of epigastric upset with occasional burning retrosternal chest pain, and heartburn.  He denied having a previous history of similar problems; the diagnosis was acute (meaning sudden-onset) gastritis/esophagitis.  See September 1990 treatment record.  In January 1991, he reported having a weak stomach.  Similar complaints were reported in April 1991, but no diagnosis of a digestive problem was made.

Essentially, then, there is no evidence of a digestive disorder of any sort in service or of probative evidence etiologically linking the disorders that eventually were diagnosed to the claimant's military service.  See Watson v. Brown, 4 Vet. App. 309, 314 (1993) ("A determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or a disease incurred in service.").

Moreover, there is a 4 year lapse between the appellant's separation from service and the earliest findings of a digestive disorder.  The lengthy period between the conclusion of his service and the earliest indication of a digestive disorder tends to refute any notion that he had had any digestive disorder since his military service.  In the appropriate circumstance, such as here, the Board may consider the absence of any indication of a relevant medical complaint until so relatively long after service as one factor, just not the only or sole factor, in determining whether a disease or an injury in service resulted in chronic or persistent residual disability.  See Maxson v. West, 12 Vet. App. 453, 459 (1999), aff'd sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000).  See, too, Mense v. Derwinski, 1 Vet. App. 354 (1991) (holding that VA did not err in denying service connection when the Veteran had failed to provide evidence demonstrating continuity of symptomatology since service and had failed to account for the lengthy time period following his service during which there was no clinical documentation of the claimed disorder).

In Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006), the Federal Circuit Court recognized lay evidence as potentially competent to support the presence of the claimed disability, both during service and since, even where not corroborated by contemporaneous medical evidence such as actual treatment records.  The Federal Circuit Court went on to indicate in Buchanan, however, that the Board retains the discretion to make credibility determinations and otherwise weigh the evidence submitted, including lay evidence.  See Buchanan, 451 F.3d at 1336 ("Nor do we hold that the Board cannot weigh the absence of contemporaneous medical evidence against the lay evidence of record.").   Consider also that, 
for non-combat Veterans providing non-medical related lay testimony regarding an event during service, or since, Buchanan is distinguishable; the lack of documentation in service records and evidence since service must be weighed against the appellant's statements.  See Bardwell v. Shinseki, 24 Vet. App. 36 (2010).  So it is permissible in this circumstance for the Board to draw a negative inference from the absence of any documented complaints or findings in the STRs and intervening post-service evaluation and treatment records, assuming, as concerning the STRs, they are complete or substantially complete in relevant part, which by all indications this appellant's are.  See Kahana v. Shinseki, 24 Vet. App. 428 (2011).  The Federal Circuit Court has recognized the Board's "authority to discount the weight and probity of evidence in light of its own inherent characteristics and its relationship to other items of evidence."  Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997).

That said, negative evidence, meaning actual evidence weighing against a party, must not be equated with the absence of substantive evidence.  Forshey v. West, 12 Vet. App. 71, 74 (1998), aff'd sub nom.  Forshey v. Principi, 284 F.3d 1335, 1358 (Fed. Cir. 2002) (noting that the definition of evidence encompasses "negative evidence" which tends to disprove the existence of an alleged fact).  Still though, ultimately, the Board must consider all the evidence relevant to the claim, including the availability of medical records, the nature and course of the disease or disability, the amount of time that has elapsed since military service, and any other pertinent facts.  Cf. Dambach v. Gober, 223 F.3d 1376, 1380-81 (Fed. Cir. 2000).  Thus, when appropriate, the Board may consider the absence of evidence during and since service, prior to when first shown, when engaging in a fact-finding role.  See Jordan v. Principi, 17 Vet. App. 261 (2003) (Steinberg, J., writing separately) (noting that the absence of evidence may be considered as one factor in rebutting the aggravation part of the section 1111 presumption of soundness).

Therefore, to reiterate, there is no competent and credible evidence in the file establishing the required nexus or correlation between the appellant's eventual diagnosis of a digestive disorder and anything that had several years earlier occurred during the course of his military service.

In arriving at this decision, the Board again acknowledges that he has not been examined by VA to determine the nature and etiology of his digestive disorders, including especially in terms of whether they are related or attributable to his military service or date back to his service.  Such an examination is scheduled when the medical evidence accompanying a particular claim is inadequate for rating purposes.  38 C.F.R. 3.326(a) (2013).  In this case, however, the medical evidence in service is adequate for rating purposes as it is completely devoid of any complaints or clinical findings of a digestive disorder, which is to be expected since the appellant indicated in 1990 that he had had no prior similar episodes.  The same is true for the 4 years after service during which there was no evidence of this claimed disorder.  Even more so there is no competent and credible evidence otherwise suggesting a relationship or correlation between his digestive disorders, even once diagnosed, and his service.  Because, then, the preponderance of the evidence is against his claim for service connection for a digestive disorder, there is no reasonable doubt concerning his entitlement to be resolved in his favor.  38 U.S.C.A. § 5107; 38 C.F.R. § 3.102.  See also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).  Thus, the claim must be denied.


ORDER

Service connection for a low back disorder for treatment purposes is denied.

Service connection for a digestive disorder for treatment purposes also is denied.


REMAND

As for the remaining claims, a remand is necessary so that VA may satisfy its duties to notify and assist the Veteran in obtaining evidence needed to substantiate these claims.

S. W., the appellant's private physician, stated the appellant had PTSD prior to service due to an abusive home life (early childhood abuse) and that it was aggravated by his service, including because of the threatened sexual abuse in service.  There are also treatment records in 1995 in which the appellant reported coming from an abusive home.  This commenting physician also indicated the appellant's alcohol use and intoxication during service was in response to the PTSD that already existed.  See physician statements dated in August 2006, December 2007, June 2008, and March 2013.

Although the appellant was afforded a VA examination to determine the etiology of his acquired psychiatric disorders, the opinion did not include his more recent assertions of harassment and threatened sexual assault.  Moreover, it did not address the question of aggravation of a preexisting mental health disorder raised by the appellant's physician.

The appellant also has not received legally sufficient notice of the development required in personal-assault cases.  38 C.F.R. § 3.304(f)(5) currently provides that:

If a [posttraumatic stress disorder (PTSD)] claim is based on 
in-service personal assault, evidence from sources other than the veteran's service records may corroborate the veteran's account of the stressor incident.  Examples of such evidence include, but are not limited to:  records from law enforcement authorities, rape crisis centers, mental health counseling centers, hospitals, or physicians; pregnancy tests or tests for sexually transmitted diseases; and statements from family members, roommates, fellow service members, or clergy.  Evidence of behavior changes following the claimed assault is one type of relevant evidence that may be found in these sources.  Examples of behavior changes that may constitute credible evidence of the stressor include, but are not limited to:  a request for a transfer to another military duty assignment; deterioration in work performance; substance abuse; episodes of depression, panic attacks, or anxiety without an identifiable cause; or unexplained economic or social behavior changes.  VA will not deny a post-traumatic stress disorder claim that is based on in- service personal assault without first advising the claimant that evidence from sources other than the veteran's service records or evidence of behavior changes may constitute credible supporting evidence of the stressor and allowing him or her the opportunity to furnish this type of evidence or advise VA of potential sources of such evidence.  VA may submit any evidence that it receives to an appropriate medical or mental health professional for an opinion as to whether it indicates that a personal assault occurred.

The Federal Circuit Court has observed that 38 C.F.R. § 3.304(f)(5) specifically states that a medical opinion may be used to corroborate a personal-assault stressor, noting "medical opinion evidence may be submitted for use in determining whether the occurrence of a stressor is corroborated."  See Menegassi v. Shinseki, 683 F.3d 1379, 1382 (Fed. Cir. 2011) (Observing that the Court erred when it determined that a medical opinion based on a post-service examination of a Veteran cannot be used to establish the occurrence of a stressor); see also Patton v. West, 12 Vet. App. 272, 280 (1999) (Rejecting the requirement that "something more than medical nexus evidence is required for 'credible supporting evidence' " in personal-assault cases). 

The appellant is also seeking eligibility for alcohol abuse treatment.  Disability resulting from alcohol or drug abuse, since it is willful misconduct, generally cannot be service connected.  38 U.S.C.A. § 105(a); 38 C.F.R. §§ 3.1(m), 3.303(c)(3) and (d).  VA's General Counsel has confirmed that direct service connection for disability that is a result of a claimant's abuse of alcohol or drugs is precluded for purposes of all VA benefits for a claim, as here, filed after October 31, 1990.  See VAOPGCPREC 7-99 (June 9, 1999); VAOPGCPREC 2-98 (Feb. 10, 1998).

On the other hand, there is a very limited exception to this general rule, when the converse occurs, that is, when a disability instead causes a Veteran to abuse drugs or alcohol - such as to relieve, mask or alleviate the symptoms associated with that precipitating disability.  In Allen v. Principi, 237 F.3d 1368 (Fed. Cir. 2001), the Federal Circuit Court held that compensation could not be awarded pursuant to 38 U.S.C.A. § 1110 and 38 C.F.R. § 105(a) either for a primary alcohol/drug abuse disability incurred during service or for any secondary disability that resulted from primary alcohol/drug abuse during service.  Id., at 1376.  But in further clarifying this, the Federal Circuit Court explained that Veterans may only recover if they can "adequately establish that their alcohol or drug abuse disability is secondary to or is caused by their primary service-connected disorder." Id. at 1381.  An award of compensation on such a basis would only result "where there is clear medical evidence establishing that the alcohol or drug abuse disability is indeed caused by a veteran's primary service-connected disability, and where the alcohol or drug abuse disability is not due to willful wrongdoing."  Id.

Therefore, Veterans can only recover if they can adequately establish that their alcohol and drug disability is secondary to or caused by their primary service-connected disorder.  Therefore, the Board finds the claim for disability due to alcohol dependence is "inextricably intertwined" with the claimed psychiatric disorder.  See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (holding that two claims are inextricably intertwined when they are so closely tied together that a final Board decision on one issue cannot be rendered until the other issue has been considered); see also Tyrues v. Shinseki, 23 Vet. App. 166, 177 (2009) (en banc) (explaining that claims are inextricably intertwined where the adjudication of one claim could have a significant impact on the adjudication of another claim).

Accordingly, these remaining claims are REMANDED for the following additional development and consideration:

1.  Complete all development necessary regarding claims of entitlement to service connection for PTSD when, as here, at least partly based on a personal or sexual assault.  Further, in accordance with 38 C.F.R. § 3.304(f)(5), the appellant must be advised of the alternate sources of evidence for substantiating his account of personal-assault stressor during his service.

2.  With the claimant's authorization, obtain copies of his ongoing private treatment records for his claimed psychiatric disorders.

3.  Upon receipt of all additional records, the appellant must be provided an examination to determine the current nature and etiology of his psychiatric disorders.  

The claims folder must be made available to the examiner for review of the relevant history in conjunction with the examination, and said review must be affirmed in the report.  The examiner is specifically requested to consider and comment on the following:

a) In light of the reports of childhood abuse, even by the appellant himself, offer an opinion as to whether it is undebatable (clear and unmistakable evidence) his PTSD pre-existed his service. 

b) If so, then also offer an opinion as to whether it also is undebatable (clear and unmistakable evidence) that this preexisting PTSD did not increase in severity during his service, i.e., was not aggravated during or by his service beyond its natural progression - including especially due to the claimed personal/sexual assault or threat of same that he says occurred during his service.

c) If instead the examiner determines the PTSD did not exist prior to the claimant's service, then offer an opinion as to the likelihood (unlikely, as likely as not, very likely) the diagnosis of PTSD is the result of the personal/sexual assault or threat of same that is said to have occurred during the claimant's service.

d) Also determine whether the Veteran has mental disorders other than PTSD and, if he does, specify these additional diagnoses.  As for each non-PTSD diagnosis, the examiner must also opine on the likelihood (unlikely, as likely as not, very likely) the disorder incepted during the Veteran's service, or, if a psychosis (see 38 C.F.R. § 3.384), within a year of his service, or is otherwise related or attributable to his service. 

e) If the mental impairment, regardless of the specific diagnosis (e.g., PTSD or whatever) is linked to the Veteran's service either on the basis the disorder started during his service or, if pre-existing, was aggravated by his service, then comment is additionally needed concerning the likelihood (unlikely, as likely as not, very likely) his documented alcohol abuse in service was a means of self-medicating his PTSD or any other acquired psychiatric disorder related to his service.

f) It is most essential the examiner discuss the underlying medical rationale for his/her opinions, regardless of whether they are favorable or unfavorable to the claims, if necessary citing to specific evidence in the file supporting conclusions.

4.  Then readjudicate these remaining claims in light of this and all other additional evidence.  If these remaining claims continue to be denied, send the claimant and his representative a Supplemental Statement of the Case (SSOC) and give them time to respond to it before returning the file to the Board for further appellate consideration of these claims.

The appellant has the right to submit additional evidence and argument concerning these claims the Board is remanding.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

These claims must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2013).



______________________________________________
KEITH W. ALLEN
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs