Citation Nr: 1635828 Decision Date: 09/13/16 Archive Date: 09/20/16 DOCKET NO. 06-12 319 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in North Little Rock, Arkansas THE ISSUE Entitlement to service connection for a gastrointestinal disorder, diagnosed as gastroesophageal reflux disease (GERD), hiatal hernial and irritable bowel syndrome. WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD B. Thomas Knope, Counsel INTRODUCTION The Veteran served on active duty from July 1974 to July 1978. This matter is on appeal from a May 2005 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in North Little Rock, Arkansas. The Veteran testified before the undersigned Veterans Law Judge in December 2006. A transcript of the hearing is of record. This appeal was remanded by the Board in August 2007, November 2009 and July 2011 before it was denied in an August 2014 decision. The Veteran appealed this decision to the Court of Appeals for Veterans Claims which, in an August 2015 memorandum decision, vacated the Board's decision and remanded the appeal for additional development. The Board remanded the appeal in December 2015 for the required development, and the appeal is now ready for disposition. The Board apologies for the delays in the adjudication of this case. In an April 2014 rating decision, the Veteran disagreed with the assigned rating for his erectile dysfunction, and was also denied entitlement to a compensable rating based on multiple service-connected disabilities. He submitted a notice of disagreement to these issues in April 2014. As the Veteran's electronic file indicates that the RO has acknowledged receipt of this timely notice of disagreement, the Board declines to take jurisdiction over these issues until they have been properly perfected and certified to the Board for review. Cf. Manlincon v. West, 12 Vet. App. 238 (1999). While the Veteran has submitted additional evidence since the most recent adjudicative decisions, the Board has reviewed this evidence and finds that it is has been previously reviewed by the RO or does not relate to the issue on appeal. Therefore, review of the claims at the point would not result in any prejudice to the Veteran. This appeal is comprised entirely of documents contained in the Virtual VA paperless claims processing system as well as the Veterans Benefits Management System (VBMS). Accordingly, any future documents should be incorporated in the Veteran's VBMS file. FINDING OF FACT The Veteran's gastrointestinal and gastroesophageal disorders were not shown in service and are not related to service. CONCLUSION OF LAW The criteria for entitlement to service connection for a gastrointestinal disorder, diagnosed as GERD, hiatal hernial and irritable bowel syndrome have not been met. 38 U.S.C.A. §§ 1110, 1131, 5103(a), 5103A (West 2014 & Supp. 2015); 38 C.F.R. §§ 3.159, 3.303, 3.304, 3.307, 3.309, 3.310 (2015). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran is claiming entitlement to service connection for a gastrointestinal and gastroesophageal disorder, which he asserts is related to active duty service. He has specifically asserted that he experienced an episode of gastroenteritis in service, and he has experienced somewhat continuous symptoms since that time. Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131 (West 2014 & Supp. 2015). Generally, the evidence 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); Caluza v. Brown, 7 Vet. App. 498, 505 (1995). As an initial matter, the Board notes that the Veteran has displayed both gastrointestinal symptoms (such as loose stools, stomach aches, etc.) as well as gastroesophageal symptoms (such as GERD and a hiatal hernia). While these symptoms have typically been considered collectively under a single claim, it is within province of the Board's to note that these are actually separate disorders. Indeed, the symptoms considered for rating a disorder such as a hiatal hernia or GERD are entirely different that rating a disorder such as irritable bowel syndrome. See 38 C.F.R. § 4.114, DCs 7346, 7319. Therefore, while entitlement to service connection is considered for both, they must be evaluated separately. Nevertheless, after a review of the record, the Board determines that service connection is not warranted for any of the disorders on appeal. First, the service treatment records do not reflect complaints of, treatment for, or a diagnosis related to a gastroesophageal disorder in service such as GERD or a duodenal ulcer. As for any gastrointestinal symptoms, the service treatment records are notable for an evaluation in July 1975, where the Veteran complained of stomach pain, loss of appetite and vomiting. After a physical examination, he was diagnosed with gastroenteritis, and he was placed on a liquid diet for 24 hours. In April 1977, the Veteran was again seen for complaints of nausea and vomiting for two days. However, in each case, it does not appear that such symptoms were representative of a chronic disorder. In both cases, there is no evidence of any follow-up treatment. In fact, while the Veteran experienced gastrointestinal symptoms in April 1977, he returned to receive medical treatment for a laceration on his forearm only days later, but did not mention any gastrointestinal symptoms whatsoever. Finally, and significantly, the Veteran's separation physical examination in May 1978 fails to document any complaints of or observed symptoms related any type of digestive disorder at all. While he asserted at his hearing before the Board in December 2006 that this examination form was completed without an examination, and the Board has taken this question very seriously, the fact remains that he signed the form himself, affirming that he was in good health. Next, the post-service evidence does not reflect symptoms related to either a stomach or abdominal disorder was not until November 1981, where the Veteran complained of stomach pain and, difficult bowel movements, cramps and nausea. The Board emphasizes that these symptoms are approximately three years after the Veteran left active duty service. Even though service connection for a disorder such as this may not be shown simply based on continuity of symptoms, see Walker, 708 F.3d at 1331, such a large gap in treatment also weighs against the Veteran's claim that his gastrointestinal or gastroesophageal disorders are related to service. The Board recognizes the Veteran's statements regarding his history of symptoms since active duty. In this regard, while the Veteran is not competent diagnose a disorder such as GERD, irritable bowel syndrome, hiatal hernia or any other similar disorder, as they may not be diagnosed by their unique and readily identifiable features, and thus requires a determination that is "medical in nature," he is nonetheless competent to testify about the presence of observable symptomatology, which may provide sufficient support for a claim of service connection, if credible, regardless of the lack of contemporaneous medical evidence. Jandreau v. Nicholson, 492 F.3d 1372, 1376 (Fed. Cir. 2007). See Barr v. Nicholson, 21 Vet. App. 303, 307 (2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). However, the Board determines that the Veteran's reported history of continued symptomatology since active service, while competent, is nonetheless not accurate. Specifically, the evidence of record includes treatment notes from 1979 and 1980, which do not reflect any complaints of gastrointestinal or gastroesophageal disorders. In fact, these records also indicate that he underwent an annual occupational physical examination in April 1979, which was normal. Therefore, continuity is not established based on the clinical evidence of record or the Veteran's statements. Next, service connection may also be granted when the evidence establishes a medical nexus between active duty service and current complaints. In this case, the Board finds that the weight of the competent evidence does not attribute the Veteran's claimed disorders to active duty, despite his contentions to the contrary. First, in addition to the fact that neither GERD nor a hiatal hernia was shown in service, none of the treatment records have indicated that this disorder is related to active duty service, nor has any treating physician indicated that such a relationship exists. As for the Veteran's complaints of gastrointestinal distress, which has been specifically characterized as stomach pain, cramping and loose stools, the Board places significant value on the results of a VA examination in March 2016 and opinions of a VA physician who reviewed the record and provided an opinion in April 2016. On that occasion, the physician reviewed the results of a VA examination in March 2016 (where an opinion was not provided), which included a diagnosis of gastritis and chronic constipation. The physician also specifically noted the treatment the Veteran received in July 1975, where he was diagnosed with gastroenteritis. After the review was completed, the VA physician opined that the Veteran's gastritis and other similar conditions were less likely than not related to his active duty service. In providing this opinion, the physician determined that the symptoms the Veteran experienced in 1975 were not indicative of a chronic disorder, and the symptoms he displayed in 1977 were more likely related to a genitourinary disorder, rather than a digestive disorder. Therefore, there was no disorder in service that could serve as the basis for his subsequent symptoms, which were not shown for three years after he left active duty. The Board finds that the VA physician's opinion, which applied the results of a VA examination in March 2016, was adequate for evaluation purposes. Specifically, the physician reviewed the claims file, which included a very recent physical examination. There is no indication that the VA physician was not fully aware of the Veteran's past medical history or that he misstated any relevant fact. In arriving at this conclusion, the Board has also considered the statements made by the Veteran relating his gastrointestinal and gastroesophageal disorders to his active service. The Federal Circuit has held that "[l]ay evidence 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." Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (quoting Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007)). In this case, however, the Veteran is not competent to provide testimony regarding the etiology of gastrointestinal and gastroesophageal disorders. See Jandreau, 492 F.3d at 1377, n.4. Because these types of disorders are not diagnosed by unique and readily identifiable features, they do not involve a simple identification that a layperson is competent to make. Therefore, the unsubstantiated statements regarding the claimed etiology of the Veteran's claimed disorders are found to lack competency. In light of the above discussion, the Board concludes that the preponderance of the evidence is against the claim for service connection and there is no doubt to be otherwise resolved. As such, the appeal is denied. VA Duty to Notify and Assist The Board has given consideration to the Veterans Claims Assistance Act of 2000 (VCAA), which includes an enhanced duty on the part of VA to notify a veteran of the information and evidence necessary to substantiate claims for VA benefits. 38 U.S.C.A. §§ 5103, 5103A (West 2014 & Supp 2015); 38 C.F.R. § 3.159 (2015). The VCAA also redefines the obligations of VA with respect to its statutory duty to assist veterans in the development of their claims. 38 U.S.C.A. §§ 5103, 5103A (West 2014 & Supp. 2015). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his 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) (West 2014 & Supp. 2015); 38 C.F.R. § 3.159(b) (2015); 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. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In this case, the Veteran was provided notice letters informing him of both his and VA's obligations. Moreover, there is no indication of a failure to notify. See Scott v. McDonald, 789 F.3rd 1375 (Fed. Cir. 2015). Therefore, additional notice is not required and any defect in notice is not prejudicial. With respect to the duty to assist, VA must obtain "records of relevant medical treatment or examination" at VA facilities. 38 U.S.C.A. § 5103A(c)(2). All records pertaining to the conditions at issue are presumptively relevant. See Moore v. Shinseki, 555 F.3d 1369, 1374 (Fed. Cir. 2009); Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2010). In addition, where the Veteran "sufficiently identifies" other VA medical records that he or she desires to be obtained, VA must also seek those records even if they do not appear potentially relevant based upon the available information. Sullivan v. McDonald, 815 F.3d 786, 793 (Fed. Cir. 2016) (citing 38 C.F.R. § 3.159(c)(3)). Here, the Board finds that all necessary assistance has been provided to the Veteran. Specifically, all VA treatment records and relevant private treatment records have been obtained. The Veteran has also been provided with a VA examination. Upon review of this report, the Board observes that the VA physicians reviewed the Veteran's past medical history, recorded his current complaints and history, conducted appropriate evaluations and rendered appropriate diagnoses and opinions consistent with the remainder of the evidence of record. The VA examination and opinions are collectively adequate for the purpose of rendering a decision on appeal. 38 C.F.R. § 4.2 (2015); Barr v. Nicholson, 21 Vet. App. 303 (2007). Hence, no further notice or assistance is required to fulfill VA's duty to assist in the development of the above-cited claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). ORDER Service connection for a gastrointestinal disorder, diagnosed as GERD, hiatal hernial and irritable bowel syndrome is denied. ____________________________________________ JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs