Citation Nr: 1603048 Decision Date: 02/01/16 Archive Date: 02/11/16 DOCKET NO. 13-16 479 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Honolulu, Hawaii THE ISSUES 1. Entitlement to service connection for migraine headaches. 2. Entitlement to service connection for a skin disorder. 3. Entitlement to service connection for a stomach ulcer, claimed as bleeding ulcers. 4. Entitlement to service connection for gastroesophageal reflux disease (GERD), claimed as secondary to service-connected posttraumatic stress disorder (PTSD). REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD B. Lam, Associate Counsel INTRODUCTION The Veteran served on active duty in the U.S. Navy from June 1969 to February 1973. This appeal to the Board of Veterans' Appeals (Board) is from a December 2011 and June 2012 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Honolulu, Hawaii. In September 2014, the Veteran testified at a hearing at the RO before the undersigned Veterans Law Judge; a transcript of this hearing has been associated with the claims folder. This appeal was processed using the Veteran Benefits Management System (VBMS) and the Virtual VA paperless claims processing systems. Accordingly, any future consideration of this appellant's case should take into consideration the existence of these electronic records. The issues of entitlement to service connection for GERD is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. In September 2014, prior to the promulgation of a decision in the appeals, the Veteran requested a withdrawal of his appeal concerning the claims for service connection for migraine headaches and a skin condition. 2. The competent, probative evidence does not indicate that the Veteran has, or any time pertinent to the appeal, had a bleeding ulcer condition. CONCLUSIONS OF LAW 1. The criteria are met for withdrawal of the appeal concerning the claims for service connection for migraine headaches and a skin condition. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2014); 38 C.F.R. §§ 20.202 , 20.204 (2015). 2. The criteria for establishment of service connection for bleeding ulcers have not been met. 38 U.S.C.A. § 1101, 1110, 1112, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Withdrawn Claims The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C.A. § 7105. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204. Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 20.204. The Veteran, during his September 2014 Travel Board hearing, withdrew the claims for service connection for migraine headaches and a skin condition. The Veteran has withdrawn these claims on appeal and, hence, there remain no allegations of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review the appeal, and it must be dismissed. II. VA's Duties to Notify and Assist Under applicable law, VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100 , 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102 , 3.156(a), 3.159, 3.326(a) (2015). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA must inform the claimant of any information and evidence not of record: (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and, (3) that the claimant is expected to provide. This notice must be provided prior to an initial unfavorable decision on a claim by the Agency of Original Jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). The Board finds that the content requirements of a duty-to-assist notice letter have been fully satisfied. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). A letter from the RO dated in May 2012 provided the Veteran with an explanation of the type of evidence necessary to substantiate his claims, as well as an explanation of what evidence was to be provided by him and what evidence the VA would attempt to obtain on his behalf. The letter also provided the Veteran with information concerning the evaluations and effective dates that could be assigned should service connection be granted, pursuant to Dingess v. Nicholson, 19 Vet. App. 473 (2006). Accordingly, VA has no outstanding duty to inform the Veteran that any additional information or evidence is needed. VA also has a duty to assist the Veteran in the development of the claims. This duty includes assisting the Veteran in the procurement of service treatment records (STRs) and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. Here, the Board finds that all relevant facts have been properly developed, and that all evidence necessary for equitable resolution of the issues has been obtained. His STRs and post-service VA and private treatment records have been obtained. The Board does not have notice of any additional relevant evidence that is available but has not been obtained. The duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on a claim, as defined by law. Under McLendon v. Nicholson, 20 Vet. App. 79 (2006), in disability compensation claims, VA must provide a VA medical examination when there is: (1) competent evidence of a current disorder or persistent or recurrent symptoms of a disorder; and, (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies; and, (3) an indication that the disorder, or persistent or recurrent symptoms of a disorder, may be associated with the Veteran's active military service or with another service-connected disability; but, (4) insufficient competent medical evidence on file for the VA Secretary to make a decision on the claim. Regarding the bleeding ulcer claim, the Board notes that while a VA examination has not been provided, the Board finds however, that the competent evidence of record does not reveal that the Veteran has a current diagnosis or recurrent symptoms for bleeding ulcers. As service and post-service treatment records provide no basis to grant this claim, the Board finds no basis for a VA examination or medical opinion to be obtained. Furthermore, the Veteran was afforded a Board hearing in September 2014. A Board member has two duties at a hearing: (1) a duty to fully explain the issues still outstanding that are relevant and material to substantiating the claim; and, (2) a duty to suggest that a claimant submit evidence on an issue material to substantiating the claim when the record is missing any evidence on that issue or when the testimony at the hearing raises an issue for which there is no evidence in the record. See 38 C.F.R. § 3.103(c)(2) (2014); Procopio v. Shinseki, 26 Vet. App. 76 (2012) (citing Bryant v. Shinseki, 23 Vet. App. 488, 492, 496 (2010)). Here, during the hearing, the VLJ specifically noted the issues as shown on the title page of this decision. The Veteran was assisted at the hearing by an accredited representative. The VLJ and the representative asked the Veteran questions regarding the elements of the claims that were lacking to substantiate the claims for benefits. The representative and the VLJ also asked the Veteran questions to ascertain whether he had submitted evidence in support of these claims. In addition, the VLJ and the representative sought to identify any pertinent evidence not currently associated with the claims folder that might have been overlooked or was outstanding that might substantiate the claims. Moreover, neither the Veteran nor his representative has asserted that VA failed to comply with the hearing requirements, nor identified any prejudice in the conduct of the Board hearing. By contrast, the hearing focused on the elements necessary to substantiate the claims, and the Veteran, through his testimony, demonstrated that he had actual knowledge of the elements necessary to substantiate his claims for benefits. As such, the Board finds that the VLJ complied with the aforementioned hearing duties, and that any error in notice provided during the Veteran's hearing constitutes harmless error. For the foregoing reasons, the Board concludes that all reasonable efforts were made by the VA to obtain evidence necessary to substantiate the Veteran's claim. Therefore, no further assistance to the Veteran with the development of evidence is required. III. Service Connection Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after the military discharge, when all the evidence, including that pertinent to the period of military service, establishes that the disease was incurred during the active military service. 38 U.S.C.A. § 1113(b); 38 C.F.R. § 3.303(d). The determination as to whether the requirements for service connection are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. 38 U.S.C.A. § 7104(a) (West 2014); Baldwin v. West, 13 Vet. App. 1 (1999); see 38 C.F.R. § 3.303(a). Service connection for certain chronic diseases, including a proper diagnosis of gastric or duodenal ulcer (peptic ulcer), will be presumed if they manifest to a compensable degree within one year following the active military service. This presumption, however, is rebuttable by probative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. 38 C.F.R. § 3.309 also provides that "[a] proper diagnosis of gastric or duodenal ulcer (peptic ulcer) is to be considered established if it represents a medically sound interpretation of sufficient clinical findings warranting such diagnosis and provides an adequate basis for a differential diagnosis from other conditions with like symptomatology; in short, where the preponderance of evidence indicates gastric or duodenal ulcer (peptic ulcer). Whenever possible, of course, laboratory findings should be used in corroboration of the clinical data." Presumptive periods are not intended to limit service connection to diseases so diagnosed when the evidence warrants direct service connection. The presumptive provisions of the statute and VA regulations implementing them are intended as liberalizations applicable when the evidence would not warrant service connection without their aid. 38 C.F.R. § 3.303(d). For the showing of a chronic disease in service, there must be a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time. If chronicity in service is not established, evidence of continuity of symptoms after discharge is required to support the claim. 38 C.F.R. § 3.303(b). However, the use of continuity of symptoms to establish service connection is limited only to those diseases listed at 38 C.F.R. § 3.309(a) and does not apply to other disabilities which might be considered chronic from a medical standpoint. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In order to prevail under a theory of secondary service connection, there must be: (1) evidence of a current disorder; (2) evidence of a service-connected disability; and, (3) medical nexus evidence establishing a connection between the service-connected disability and the current disorder. See Wallin v. West, 11 Vet. App. 509, 512 (1998). In addition, the regulations provide that service connection is warranted for a disorder that is aggravated by, proximately due to, or the result of a service-connected disease or injury. 38 C.F.R. § 3.310. Any additional impairment of earning capacity resulting from an already service-connected disability, regardless of whether or not the additional impairment is itself a separate disease or injury caused by the service-connected disability, should also be compensated. Allen v. Brown, 7 Vet. App. 439 (1995). When service connection is thus established for a secondary disorder, the secondary disorder shall be considered a part of the original disability. Id. The Board notes that 38 C.F.R. § 3.310 was amended, effective October 10, 2006. Under the revised § 3.310(b) (the existing provision at 38 C.F.R. § 3.310(b) was moved to sub-section (c)), any increase in severity of a non-service-connected disease or injury proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the disease, will be service-connected. In reaching this determination as to aggravation of a non-service-connected disorder, consideration is required as to what the competent evidence establishes as the baseline level of severity of the non-service-connected disease or injury (prior to the onset of aggravation by service-connected disability), in comparison to the medical evidence establishing the current level of severity of the non-service-connected disease or injury. These findings as to baseline and current levels of severity are to be based upon application of the corresponding criteria under the Schedule for Rating Disabilities (38 C.F.R. part 4) for evaluating that particular non-service-connected disorder. See 71 Fed. Reg. 52,744-47 (Sept. 7, 2006). When there is an approximate balance of positive and negative evidence regarding a material issue, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); see 38 C.F.R. §§ 3.102. If the Board determines that the preponderance of the evidence is against the claim, it has necessarily found that the evidence is not in approximate balance, and the benefit of the doubt rule is not applicable. Ortiz, 274 F.3d at 1365. A. Bleeding Ulcers The Veteran seeks entitlement to service connection for bleeding ulcers, to include as secondary to his service-connected posttraumatic stress disorder. Regarding the first element of service connection (i.e., a current diagnosis), the medical evidence of record does not document that the Veteran has a current diagnosis. In this regard, an October 2014 opinion from Dr. A.C.D., the Veteran's private physician, relied on the Veteran's report of treatment for bleeding ulcers in the 1970s while under the care of a former physician, Dr. W.L., but he never provided any indication of current treatment or diagnosis for bleeding ulcers. At the September 2014 Board hearing, the Veteran testified that he received treatment for bleeding ulcers from his former physician, Dr. W.L., who is now deceased. Likewise, an April 2011 upper gastrointestinal (UGI) series examined the stomach and found normal fold pattern without mass, ulceration, or focal wall irregularities. The small bowel also demonstrated normal fold pattern without mass, ulcerations, or other focal irregularities. The clinician concluded normal upper gastrointestinal contrast examination in the esophagus, stomach, and proximal small bowel. The April 2011 VA examiner, following a review of the claims file and a physical examination of the Veteran, provided no diagnosis of bleeding ulcers. Similarly, VA and private treatment records do not contain any diagnosis for bleeding ulcers. Under the applicable regulation, the term "disability" means impairment in earning capacity resulting from diseases and injuries and their residual conditions. 38 C.F.R. § 4.1 (2014); see Hunt v. Derwinski, 1 Vet. App. 292, 296 (1991); Allen v. Brown, 7 Vet. App. 439 (1995). Thus, a symptom without a diagnosed or identifiable underlying malady or disorder, does not, in and of itself, constitute a "disability" for which service connection may be granted. See Sanchez-Benitez, 13 Vet. App. at 282 (dismissed in part and vacated in part on other grounds by Sanchez-Benitez, 239 F.3d at 1356). The requirement that a current disorder be present is satisfied when a claimant has a disorder at the time a claim for VA disability compensation is filed or during the pendency of that claim, even if the disorder resolves prior to the adjudication of the claim. See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). In this case, a clinical diagnosis related to the Veteran's bleeding ulcers has not been of record since the service connection claim was initially filed in February 2012. In the absence of proof of a present disorder (and, if so, of a nexus between that disorder and the active military service), there can be no valid claim for service connection. Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). This principle has been repeatedly reaffirmed by the Federal Circuit, which has stated that "a veteran seeking disability benefits must establish . . . the existence of a disability [and] a connection between the veteran's service and the disability." Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000). Accordingly, service connection for bleeding ulcers is not warranted because the Veteran has not satisfied the first requirement of service connection, i.e., a current diagnosis. See 38 C.F.R. § 3.303; see again Gilpin, 155 F.3d at 1353; Brammer, 3 Vet. App. at 225. In reaching this decision, the Board has considered the lay statements and hearing testimony, all submitted in support of the Veteran's claim. Although laypersons are competent to provide opinions on some medical issues, see Kahana, 24 Vet. App. at 435, as to the specific issue in this case, neither the record nor the Veteran indicates that he been treated or diagnosed bleeding ulcers since service connection claim was filed in February 2012. Jandreau, 492 F.3d at 1377 n.4 (laypersons not competent to diagnose cancer). Specifically, during the September 2015 hearing, he testified that he was treated for bleeding ulcers by his former physician, Dr. W.L., who is now deceased. The Veteran reported that he is treated by Dr. A.C.D., who did not provide that the Veteran has been diagnosed or is currently treated for bleeding ulcer while under his care. Thus, as previously stated, the medical evidence does not support the Veteran's claim for service connection. In reaching the above conclusion, the Board has considered the benefit of the doubt doctrine; however, as the preponderance of the evidence is against the claim of entitlement to service connection for bleeding ulcers, that doctrine does not apply. 38 U.S.C.A. § 5107(b). The claim of entitlement to service connection for a bleeding ulcers is denied. ORDER The appeal for the issue of entitlement to service connection migraine headaches is dismissed. The appeal for the issue of entitlement to service connection for a skin disorder is dismissed. Entitlement to service connection for bleeding ulcers, to include as secondary to the service-connected disabilities, is denied. REMAND With respect to the remaining issues on appeal, the Board finds that a remand is necessary in order to ensure that there is a complete record upon which to decide the Veteran's claim for service connection for an acquired psychiatric disorder so that he is afforded every possible consideration. 38 U.S.C.A. § 5103A (West 2014); 38 C.F.R. § 3.159(c) (2015). The Veteran contends that his GERD is secondary to service-connected PTSD. The Veteran was afforded a VA examination in April 2011 to determine the nature and etiology of his GERD. The VA examiner confirmed a diagnosis of GERD but noted that the Veteran has never been diagnosed with PTSD. The VA examiner opined that it does not appear at least as likely as not that the Veteran's acid reflux disorder is secondary to anxiety and psychological stress. The examiner found no direct causal and effect relationship between the Veteran's GERD and anxiety. However, he found that "anxiety may worsen the GERD symptoms, it is not causative of the GERD." Similarly, the examiner also found that it does not appear at least as likely as not that the Veteran's acid reflux disorder is secondary to PTSD. The examiner noted that "there does appear to be greater sensitivity to acid reflux in people experiencing greater stress" and that "it is possible for the Veteran to have worsening symptom of GERD from the stress, anxiety, and other findings related to PTSD." The Court has held that that use of equivocal language makes a statement by an examiner speculative in nature. See Bostain v. West, 11 Vet. App. 124, 127-28 (1998), citing Obert v. Brown, 5 Vet. App. 30, 33 (1993) (medical opinion expressed in terms of "may" also implies "may or may not" and is too speculative to establish medical nexus). Given these findings, a remand is necessary in order to obtain an opinion regarding whether the Veteran's GERD has been aggravated or permanently worsened beyond normal progression of the disorder by his service-connected PTSD. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). Accordingly, the case is REMANDED for the following action: 1. Return the Veteran's claims file and a copy of this remand to the examiner that performed the April 2011 examination for an addendum opinion. If the requested VA examiner is no longer available, another examiner should be asked to review the claims file and answer the questions posed below, or if this examiner determines that another examination would be helpful, the Veteran should be scheduled for a new examination. The VA examiner should answer the following questions: Whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran's current gastroesophageal reflux disorder (GERD) was 1) caused, or 2) aggravated by his service-connected posttraumatic stress disorder (PTSD). In giving an opinion, the examiner should comment on April 2011 VA examiner's opinion that "anxiety may worsen the GERD symptoms," "there appears to be a greater sensitivity to acid reflux in people experiencing greater stress," and "it is possible that the Veteran may have worsening symptom of GERD from stress, anxiety, and other findings related to PTSD." If aggravation is present, the examiner should indicate, to the extent possible, the disability attributable to aggravation. In so doing, the approximate level of severity of the GERD (i.e., a baseline) before the onset of the aggravation should be identified. The examiner is advised that the term "aggravated" refers to a permanent worsening of the underlying condition, as contrasted to temporary or intermittent flare-ups of symptomatology which resolve with return to the baseline level of disability. A complete rationale must be provided for any opinions expressed. If any opinion cannot be expressed without resorting to mere speculation, then the examiner should explain why this is so and provide a supporting rationale. 2. After completing the above, the Veteran's claim should be readjudicated based on the entirety of the evidence. If the claims remain denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claim s 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 2014). ______________________________________________ K. OSBORNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs