Citation Nr: 1618841 Decision Date: 05/10/16 Archive Date: 05/19/16 DOCKET NO. 13-18 957 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUES 1. Entitlement to service connection for superior mesenteric artery syndrome. 2. Entitlement to service connection for a back disorder, to include as secondary to service-connected disability. REPRESENTATION Veteran represented by: Veterans of Foreign Wars ATTORNEY FOR THE BOARD D.M. Casula, Counsel INTRODUCTION The Veteran served on active duty from July 1951 to March 1954, and from April 1958 to March 1961. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2012 rating decision issued by the above Regional Office (RO) of the Department of Veterans Affairs (VA). This appeal was processed using the Veterans Benefits Management System (VBMS) and the Virtual VA electronic claims file. Virtual VA contains documents that are either duplicative of the evidence in the VBMS electronic claims file or not relevant to the issue on appeal. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C.A. § 7107(a)(2) (West 2014). FINDINGS OF FACT 1. The preponderance of the evidence demonstrates that there is no current superior mesenteric artery syndrome or residuals thereof. 2. The preponderance of the evidence demonstrates that the Veteran's back disorder is not related to service or caused or aggravated by a service-connected disability. CONCLUSIONS OF LAW 1. Superior mesenteric artery syndrome was not incurred in or aggravated by a period of active service. 38 U.S.C.A. §§ 1110, 1131 (West 2014); 38 C.F.R. § 3.303 (2015). 2. A back disorder was not incurred in or aggravated by active service, and is not proximately due to, the result of, or aggravated by a service-connected disability. 38 U.S.C.A. §§ 1110, 1131 (West 2014); 38 C.F.R. §§ 3.303, 3.310 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duty to Notify and Assist Upon receipt of a substantially complete application for benefits, VA must notify the claimant of what information or evidence is needed in order to substantiate the claim and it must assist the claimant by making reasonable efforts to get the evidence needed. 38 U.S.C.A. §§ 5103(a), 5103A; 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The notice required must be provided to the claimant before the initial unfavorable decision on a claim for VA benefits, and it must (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. 38 U.S.C.A. §§ 5103(a); 38 C.F.R. § 3.159(b)(1); Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004). Upon receipt of an application for a service connection claim, 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating, or is necessary to substantiate, each of the five elements of the claim, including notice of what is required to establish service connection and that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The RO provided the Veteran with notice in August and September 2010, prior to the initial decision on the claims in 2012. The letters informed the Veteran of the information and evidence needed to substantiate his claims for service connection and notified him of the division of responsibilities in obtaining such evidence. The letters also explained how disability ratings and effective dates are determined. Therefore, the duty to notify has been met. In addition, the duty to assist the Veteran has also been satisfied in this case. VA has obtained all identified and available service and post-service treatment records for the Veteran. Additionally, he underwent VA examinations in 2015 which included a review of the claims folder and a history obtained from the Veteran, and examination findings were reported, along with diagnoses/opinions, which were supported in the record. These VA examination reports are adequate for rating purposes. See Barr v. Nicholson, 21 Vet. App. 303, 310-11 (2007). It appears that all obtainable evidence identified by the Veteran relative to his claim has been obtained and neither he nor his representative has identified any other pertinent evidence which would need to be obtained for a fair disposition of this appeal. Finally, in January 2015, the Board remanded this matter in order to obtain any additional treatment records, provide appropriate VCAA notice, and obtain VA examinations with opinions. Review of the record shows that the RO substantially complied with the January 2015 remand directives. Stegall v. West, 11 Vet. App. 268 (1998). For these reasons, the Board concludes that VA has fulfilled the duty to assist the Veteran in this case. Hence, there is no error or issue that precludes the Board from addressing the merits of this appeal. II. Factual Background Service treatment records (STRs) reflect that the Veteran was treated for a duodenal peptic ulcer in May 1960. Though the ulcer healed, she continued to report gastrointestinal complaints until her discharge in March 1961. A report of medical examination dated in January 1961, just prior to discharge, noted normal clinical evaluation of the spine, vascular system, genitourinary system, and stomach. A duodenal peptic ulcer was noted in May 1960. On VA examination in July 1963, the Veteran reported that her symptoms of diarrhea, right lower quadrant pain, vomiting, and recurrent back pain had continued. She complained of low back pain. The examiner noted an increase in lumbar lordosis and the Veteran expressed that she felt that her lordotic posture had some bearing on her abdominal symptoms. She underwent an upper GI (gastrointestinal) series, which revealed narrowing of the duodenal loop immediately distal to the duodenal bulb, of an undetermined cause. A lumbar spine x-ray revealed no definitely pathologic changes in the lumbar vertebrae. An upper GI series dated in April 1964 revealed a duodenal ulcer and arterio-mesenteric occlusion of the third portion of the duodenum-intermittent. A private hospitalization report dated in April 1964 reflects that the Veteran underwent duodeno-jejunostomy for duodenal obstruction of the mesenteric artery. At that time physical examination revealed moderate grade II lordosis. In a letter dated in June 1964, a private physician, Dr. A, noted the Veteran's difficulty was a mesenteric artery syndrome with obstruction of the third portion of the duodenum, for which a duodenojejunostomy was done. Dr. A opined that the Veteran's "symptoms due to an ulcer were not relative here" and that there was "some question of an ulcer on x-ray, but none that [he] could see at operation." A VA treatment report dated in 1966 indicates that the Veteran continued to report similar symptoms as prior to the 1964 surgery. A January 1976 upper GI series revealed findings consistent with a duodenojejunal anastomosis in the proximal third portion of the duodenum. A1985 private medical record noted a diagnosis of lumbar strain. On VA examination in January 1977, the Veteran reported a continued history of right upper quadrant and left lower quadrant abdominal pain with associated heartburn and backache. At that time, she was diagnosed with history of duodenal ulcer, history of esophagitis and hiatal hernia, and history of irritable colon. A March 1998 VA treatment report indicates a diagnosis of status-post superior mesentery artery stenosis. A VA treatment record dated in May 2010 showed that the Veteran was seen in the emergency room for a complaint of acute back pain and evidence of scoliosis and kyphosis. On a VA examination in August 2010 it was noted that in 1964, the Veteran's initial ulcer happened when she was a flight nurse in service and that after this she had ischemic bowel with obstruction with ulcer, which, according to the Veteran, needed surgery. It was also noted that ever since then she had developed GERD and irritable bowel syndrome. For employment history, it was noted that the Veteran's usual occupation was as a nurse, that she had been retired since 1989, that the cause of her retirement was eligible by age or duration of work. The examiner summarized that the Veteran's diagnoses included GERD controlled with medication, duodenal ulcer in remission, and irritable bowe1 disease on remission. On a VA examination in May 2015, the examiner noted that the Veteran underwent resection of the small intestine in 1964 and that the reason for the surgery was superior mesenteric artery syndrome. The examiner also noted that the Veteran is a nurse, and that the Veteran indicated that the diagnosis of mesenteric bowel syndrome had been in 1964, three years following service, but that this had been a continuation of the ulcer symptoms that she had during service. The Veteran reported current ongoing symptoms of reflux disease, but that her vomiting was improved. The examiner noted that the Veteran was naturally concerned regarding the mesenteric bowel syndrome because it can be very serious, and this is why the duodenojejunostomy had been required. The examiner noted an extensive review of the record, including the medical evidence, and opined that superior mesenteric artery syndrome was less likely than not due to service. As rationale, the examiner noted that the Veteran's surgeon had noted that the SMA in 1964 was not related to the in-service ulcer. The VA examiner noted that a review of STR's showed that the Veteran did continue to have possible symptoms of GERD and IBS (irritable colon syndrome) status post duodenal ulcer, but also noted that the surgeon's note of 1964 indicated that duodenal ulcer resolved. The examiner noted that the Veteran continued to report symptoms of reflux disease and possible IBS, but that based upon review of the record, these symptoms do appear to be caused by or aggravated by military service and presently were rated appropriately. The VA examiner concurred with the surgeon's opinion from 1964, and opined that the Veteran's SMA, was a resolved issue of concern, and was less likely as not related to or caused by her service connected duodenal ulcer, IBS, and GERD. Furthermore, the examiner noted that there was no current diagnosis of SMA, as noted in the 1998 vascular study. On a VA DBQ examination of the back in May 2015, the examiner noted that Veteran was asked about her lower back and reported that she realized, given her current age, it may be difficult to discern causes of her current lower back condition. She worried that Omeprazole therapy/PPI (proton pump inhibitor) therapy could lead to worsening osteoporosis and increase the risk for potential bone fracture. The examiner noted that such concern was valid per review of the medical literature, but also noted that the Veteran is a nurse, and well informed and intelligent regarding medications and risks thereof. The examiner also indicated that review of the record showed no diagnosis of osteoporosis. The examiner noted that chronic lower back pain was documented, and that the Veteran reported having pain off and on. The impressions of an x-ray study of the lumbar spine included limited evaluation secondary to body habitus, but multilevel degenerative changes. The examiner opined that the Veteran's back disorder was less likely than not incurred in or caused by service, to include her work as a flight nurse decades ago in service, and not caused or aggravated by service-connected condition of duodenal ulcer, irritable colon syndrome, GERD, and/or mesenteric artery syndrome, based on the current evaluation. As rationale, the examiner noted that the current findings appeared to be appropriate for the Veteran's age and body habitus, noting a remarkably excellent examination for the Veteran's age and body habitus. III. Analysis Service connection may be established for disability resulting from injury suffered or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). The term "chronic disease," whether as manifest during service or manifest to a compensable degree within a presumptive window following service, applies only to those chronic diseases listed in 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). With respect to the current appeal, this list includes arthritis. 38 C.F.R. § 3.309(a). For veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, including arthritis, are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307(a), 3.309(a). However, in order for the presumption to apply, the evidence must indicate that the disability became manifest to a compensable degree within one year of separation from service. 38 C.F.R. § 3.307. Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In order to establish entitlement to service connection for a disability, the Veteran must show: (1) the existence of a present disability; (2) 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. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). In addition, service connection may be established on a secondary basis for a disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. 38 C.F.R. § 3.310(a); Allen v. Brown, 7 Vet. App. 439 (1995). Lay testimony is competent to establish a diagnosis where the layperson is competent to identify the medical condition, is reporting a contemporaneous medical diagnosis, or describes symptoms that support a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). When there is an approximate balance in the evidence regarding the merits of an issue material to the determination of the matter, reasonable doubt will be resolved in each such issue in favor of the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. An appellant need only demonstrate that there is an approximate balance of positive and negative evidence in order to prevail. To deny a claim on its merits, the evidence must preponderate against the claim. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Alemany v. Brown, 9 Vet. App. 518 (1996). The existence of a current disability is the cornerstone of a claim for VA disability compensation. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The Court has held that the presence of a chronic disability at any time during the claim process can justify a grant of service connection, even where the most recent diagnosis is negative. McClain v. Nicholson, 21 Vet. App. 319 (2007). 1. Superior Mesenteric Artery Syndrome The Veteran contends that superior mesenteric artery syndrome had its onset in service. She has reported that in May 1964 she had an intestinal obstruction and underwent bypass surgery for superior mesenteric artery syndrome. She claimed she was born with a swayed back (lordosis), and that her back pushes into the aorta and mesenteric artery. She also reported that as a flight nurse in service she had to carry everything she needed for a flight and claimed that the extra flights aggravated her problem and that she did calisthenics to help to relieve stress on the lordosis, and to relieve pressure on the aorta and mesenteric artery. The record reflects that the Veteran is service-connected for duodenal ulcer with irritable colon syndrome and GERD. In considering her claim, the Board initially notes that STRs show no report or finding of superior mesenteric artery syndrome. Post-service, however, in 1964, the Veteran underwent duodeno-jejunostomy for duodenal obstruction of the mesenteric artery. Subsequent to 1964, however, the competent evidence of record shows no finding of superior mesenteric artery syndrome or residuals thereof. In fact, the 2015 VA examiner expressly noted that there was no current superior mesenteric artery syndrome or residuals. As noted above, the existence of a current disability is the cornerstone of a claim for VA disability compensation and the threshold requirement for service connection to be granted is competent medical evidence of the current existence of the claimed disorder. Brammer, 3 Vet. App. at 225. Although the Veteran underwent surgery in 1964 to treat superior mesenteric artery syndrome, and a diagnosis of status-post superior mesentery artery stenosis was noted in 1998, the Board notes that there is no other indication in the record that she has a current diagnosis or residual of superior mesenteric artery syndrome at any time during the claim process. See McClain, 21 Vet. App. 319. Although the Veteran is competent to report residuals of superior mesenteric artery syndrome, she does not do so - she reports that she had 1964 surgery for this condition, but does not alleged residuals separate from her service-connected gastrointestinal disabilities. Additionally, her general medical opinion that she has superior mesenteric artery syndrome is outweighed by the statements of the 2015 VA examiner who reviewed the relevant evidence of record and provided a definitive statement. Thus, the Board finds the VA examiner's opinion to be the most probative and persuasive opinion as to whether the Veteran has a current diagnosis of superior mesenteric artery syndrome that may be related to service, or has residual disability related to her duodeno-jejunostomy - other than those for which she is already service-connected. Accordingly, the Board assigns more weight to the opinion rendered by the VA examiner in 2015. The preponderance of the evidence is against a finding that the Veteran has a current disability of superior mesenteric artery syndrome or residuals thereof. Thus, the benefit-of-the-doubt rule does not apply, and the claim for service connection for superior mesenteric artery syndrome must be denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). 2. Back Disorder The Veteran contends that her back problems began in service. She has also contended that her back problems are related to her service-connected duodenal ulcer and irritable colon syndrome with GERD, or to the claimed superior mesenteric artery syndrome. She also claims they are due to her nursing duties during service. The Veteran has not alleged she has had back pain since service discharge. The Board initially notes that the Veteran does have a current back disability. VA and private treatment records have shown a history chronic low back pain and lumbar strain. The May 2015 VA examination report diagnosed multilevel degenerative changes. As for in-service findings, the STRs show no report or finding of any back problems. The discharge examination contained a normal clinical evaluation of the spine. The Veteran's military occupational specialty during service, however, was nurse. The question to be resolved, therefore, is whether the Veteran's back disorder is causally related to service or to a service-connected disability. First, the degenerative changes were not diagnosed within one year of service discharge and were not noted during service. Second, the May 2015 VA examiner found that the Veteran's disorder was not related to service or caused or aggravated by the service-connected disorders. The Board accords this opinion significant weight because it was based upon a review of the records and provided a supporting rationale. Although the Veteran is competent to provide her etiological opinion, her opinions is essentially conclusory and she does not provide specific supporting rationale. The Board finds the VA examiner's opinion to be more probative and persuasive on the issue as to whether the Veteran has a back disorder that is related to service or to a service-connected disability. Accordingly, the Board assigns more weight to the VA examiner's opinion. The preponderance of the evidence is therefore against the claim of service connection for a back disorder on both a direct basis and as secondary to service-connected disability, and the claim must be denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, supra. ORDER Service connection for superior mesenteric artery syndrome is denied. Service connection for a back disorder is denied. ____________________________________________ K. MILLIKAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs