Citation Nr: 1756891 Decision Date: 12/08/17 Archive Date: 12/15/17 DOCKET NO. 10-06 686 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUE Entitlement to service connection for a disability manifested by abdominal pain, also claimed as stomach ulcers. ATTORNEY FOR THE BOARD D. Orfanoudis, Counsel INTRODUCTION The Veteran served on active duty from September 1979 to June 1983. He received an honorable discharge from this period of service. The Veteran also had a second period of service from June 1983 to July 1985. However, he was discharged under other than honorable conditions. In a final September 2009 administrative decision, the Department of Veterans Affairs (VA), Regional Office (RO), in Roanoke, Virginia, determined that the character of the Veteran's discharge from this latter period of service was a bar to his receipt of VA benefits stemming from such service, other than health care under Chapter 17 of Title 38, United States Code. See 38 C.F.R. § 3.12 (2017). This current matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2009 rating decision by the RO. This matter was previously before the Board in January 2012 and April 2017 at which time it was remanded for additional development. It is now returned to the Board. As will be discussed further herein, the Board finds that the agency of original jurisdiction (AOJ) substantially complied with the remand orders, and no further action is necessary in this regard. In August 2017, the Veteran was scheduled for a hearing before the Board, however, he failed to appear. He has not explained his absence or requested to reschedule the hearing. Thus, his appeal will be processed as if he withdrew the hearing request. 38 C.F.R. § 20.704(d) (2017). The Veteran's claims file has been converted into a paperless claims file via the Virtual VA and Veterans Benefits Management System (VBMS) paperless claims processing systems. All records in such files have been considered by the Board in adjudicating this matter. FINDING OF FACT There is no competent evidence of a current diagnosis of a gastrointestinal disability. CONCLUSION OF LAW The criteria for the establishment of service connection for a disability manifested by abdominal pain (also claimed as stomach ulcers) have not been met. 38 U.S.C. §§ 1131, 5107 (West 2012); 38 C.F.R. §§ 3.303, 3.304, 3.306 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), 38 U.S.C. §§ 5100, 5102-5103A, 5106, 5107, 5126 (West 2012), 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2017), requires VA to assist a claimant at the time that he or she files a claim for benefits. As part of this assistance, VA is required to notify claimants of what they must do to substantiate their claims. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that the claimant is to provide; and (3) that VA will attempt to obtain. See Beverly v. Nicholson, 19 Vet. App. 394, 403 (2005). In addition, the notice requirements of the VCAA apply to all five elements of a service-connection claim, including: (1) Veteran status; (2) existence of a disability; (3) a connection between the Veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Specifically, the notice must include notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. By letter dated in November 2008 the Veteran was notified of the evidence not of record that was necessary to substantiate his claim. He was told what information that he needed to provide, and what information and evidence that VA would attempt to obtain. He was also provided with the requisite notice with respect to the Dingess requirements. Under these circumstances, the Board finds that the notification requirements of the VCAA have been satisfied. Next, the VCAA requires that VA make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate a claim. The Veteran's relevant service, VA, and private medical treatment records have been obtained. There is no indication of any additional, relevant records that the RO failed to obtain. The Veteran has been medically evaluated. The Board further observes that this case was most recently remanded in April 2017 in order to verify the Veteran's current mailing address, notify him that his representative was no longer accredited, and reschedule him for a Board hearing. Thereafter, the Veteran's current mailing address was verified in May 2017, he was notified of his rights regarding his representative in June 2017, and he was scheduled for the requested hearing by letter dated in June 2017. As such, the AOJ has substantially complied with the remand directives such that no further action is necessary. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). In sum, the Board finds that the duty to assist and duty to notify provisions of the VCAA have been fulfilled and no further action is necessary under the mandates of the VCAA. Service Connection Service connection means that the facts, shown by evidence, establish 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 during service. 38 U.S.C. § 1131 (West 2012); 38 C.F.R. §§ 3.303, 3.304 (2017). In order to prevail on the issue of service connection for any particular disability, there must be evidence of a current disability; evidence of in-service occurrence or aggravation of a disease or injury; and medical evidence, or in certain circumstances, lay evidence, of a nexus between an in-service injury or disease and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999); see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) ("[w]hether lay evidence is competent and sufficient in a particular case is a factual issue to be addressed by the Board"). Service connection for certain chronic diseases, such as peptic ulcer disease, may also be established based upon a legal "presumption" by showing that it manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C. § 1112 (West 2012); 38 C.F.R. §§ 3.307, 3.309 (2017). The option of establishing service connection through a demonstration of continuity of symptomatology rather than through a finding of nexus is specifically limited to the chronic disabilities listed in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (rejecting the argument that continuity of symptomatology in § 3.303(b) has any role other than to afford an alternative route to service connection for specific chronic diseases). In addition, service connection may be granted for any disease diagnosed after service when all the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2017). A Veteran is presumed to have been sound upon entry into active service, except as to defects, infirmities, or disorders noted at the time of the acceptance, examination, or enrollment, or where clear and unmistakable evidence demonstrates that the condition existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C.A. § 1111; 38 C.F.R. § 3.304 (b). The Veteran is not required to show that the disease or injury increased in severity during service before VA's duty under the second prong of this rebuttal standard attaches. See VAOPGCPREC 3-2003. When no pre-existing condition is noted upon examination for entry into service, a Veteran is presumed to have been sound upon entry, and the burden then shifts to VA to rebut the presumption of soundness. Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004); 38 C.F.R. § 3.304. Mere history provided by the Veteran of the pre-service existence of conditions recorded at the time of the entrance examination does not, in itself, constitute a notation of a pre-existing condition. 38 C.F.R. § 3.304 (b)(1); Paulson v. Brown, 7 Vet. App. 466, 470 (1995). Therefore, to rebut the presumption of soundness under 38 U.S.C.A. § 1111, there must be clear and unmistakable evidence that (1) a Veteran's disability existed prior to service, and (2) that the pre-existing disability was not aggravated during service. Id.; see also VAOPGCPREC 3-2003. The second prong may be rebutted with clear and unmistakable evidence establishing that either (1) the disability underwent no increase in severity during service, or (2) any increase in severity was due to the natural progression of the condition. See Quirin v. Shinseki, 22 Vet. App. 390, 396 (2009) (citing Wagner, 370 F.3d at 1096). By "clear and unmistakable evidence" is meant that which cannot be misunderstood or misinterpreted; it is that which is undebatable. Vanerson v. West, 12 Vet. App. 254 (1999). In Smith v. Shinseki, 24 Vet. App. 40, 45 (2010), it was clarified that the presumption applies when a Veteran has been "examined, accepted, and enrolled for service," and where that examination revealed no "defects, infirmities, or disorders." 38 U.S.C. § 1111. Plainly, the statute requires that there be an examination prior to entry into the period of service on which the claim is based. See Crowe v. Brown, 7 Vet. App. 238, 245-6 (1994) (the presumption of sound condition "attaches only where there has been an induction examination in which the later-complained-of disability was not detected" (citing Bagby v. Derwinski, 1 Vet. App. 225, 227 (1991)). Lay 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. Jandreau, 492 F.3d at 1377; see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) ("[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence."). Although the Veteran is competent to provide a diagnosis of an observable condition such as a headache, varicose veins, or abdominal cramps, the Veteran is not competent to provide evidence as to more complex medical questions, such as the etiology of neurologic and orthopedic pathology, as is the case here. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). The Veteran asserts that he has a gastrointestinal disability that is manifested as a result of his period of active service. The Veteran's service treatment records document complaints of stomach trouble on the February 1979 enlistment examination form, and that the examiner noted a history of occasional gastric spasms at age 17 that was treated with no sequelae. Clinical evaluation of the abdomen was normal. Records dated during 1980 and 1981 include numerous entries documenting complaints of stomach pain, cramps, and nausea. An undated service treatment record includes a diagnosis of irritable bowel syndrome. A report of medical examination dated in June 1983 shows that clinical evaluation of the abdomen and viscera was within normal limits. The Board notes that the Veteran's period of service from September 13, 1983 to July 15, 1985, was under other than honorable conditions and is a bar to VA benefits for that period of service. Therefore, service treatment records dated during this period cannot be considered herein. Following service, VA outpatient treatment records dated in April 2002, March 2004, December 2006, and October 2011 note a history of ulcers, but no current diagnosis is provided. Similarly, a treatment record dated in October 2011 shows that the Veteran reported having a stomach ache. Additional outpatient treatment record note symptoms of a stomach ache associated with withdrawal from certain illegal drug use. A VA examination report dated in August 2013 shows that the Veteran reported being treated several times in service for vague abdominal symptoms, mainly cramping and pain. He was not sure if an ulcer was found then or after leaving service. He denied chronic conditions of the stomach or intestines but rather episodic pain. He denied hematemesis, melena, anemia, or weight loss and no abdominal surgery during service. He remembered having both upper gastrointestinal and esophagogastroduodenoscopy but was not sure where or when. No chronic medication was used for a stomach or intestine condition until after leaving service. He added that he had used over-the-counter medication and even participated in a research study with Lewis Gale Hospital (around 1999 or 2000) wherein he took either a placebo or medication for 30 days while incarcerated. When asked him about pre-service stomach or intestine conditions he just stated "you know, kid stuff", but denied a known diagnosis a condition then. He denied needing specialized care for abdominal conditions during or after service. He denied current treatment for his stomach. Following examination of the Veteran and review of the claims file the VA examiner explained that there was episodic care for acute symptoms or abdominal pain and cramping during service. The evaluations he had did not reveal a chronic condition to diagnose. He had upper gastrointestinal series in 1985, revealing a possible filling defect questionably an ulcer. However, this was not confirmed and examiners after this test considered it negative. The Veteran had a re-enlistment examination in 1983, and no chronic stomach or gastrointestinal condition was identified. He was not discharged with a chronic stomach or gastrointestinal condition, and this was consistent with his testimony on examination. Further review of the claims file was silent for continuity of care requirements related to events in service. There were listings of peptic ulcer disease in his past as well as no symptoms of such consistent with this condition not being a chronic condition. Nonetheless, there was no evidence of post-service complaints or listing of any ulcerative condition related to service. The examiner interpreted the upper gastrointestinal findings as not being an ulcer. Therefore, the examiner opined that the Veteran currently did not have a diagnosed abdominal/stomach/gastrointestinal condition, nor a current diagnosis incurred in or etiologically related to active service. The evidence does not reveal the Veteran's acute in-service gastrointestinal symptoms were not pre-existing to active service. Additionally, the Veteran's post-service gastrointestinal symptoms were not a continuation of his pre-service symptoms. Each event was unique and independent of each other not a continuation of initial events. There was no chronicity of pre-existing or in-service gastrointestinal events now demonstrated during his post-service years. Having carefully considered the evidence of record, the Board finds that while a history of occasional gastric spasms at age 17 was noted at service entrance, that condition was also said to have been treated prior to service with no sequelae. Physical examination at entrance into service showed that the abdomen was within normal limits. The VA examiner in August 2013 concluded that there was no chronicity of pre-existing gastrointestinal events. There is no clear and unmistakable evidence that he was diagnosed with a chronic gastrointestinal disability at the time of his entrance into active service. As noted above, lay statements by a Veteran concerning a pre-existing condition are not sufficient to rebut the presumption of soundness. See Paulson, 7 Vet. App. at 470; see also Crowe v. Brown, 7 Vet. App. 238 (1994) (supporting medical evidence is needed to establish the presence of a pre-existing condition); Leshore v. Brown, 8 Vet. App. 406 (1995) (the mere transcription of medical history does not transform the information into competent medical evidence merely because the transcriber happens to be a medical professional.). Accordingly, the Board finds that a gastrointestinal disability was not clearly a pre-existing condition, and that the Veteran is, therefore, entitled to the presumption of soundness. Therefore, the Board's analysis must turn to the question of whether the Veteran currently suffers from a gastrointestinal disability, and, if so, whether this disorder began in or is otherwise due to his period of active service. In this regard, however, while there were intermittent complaints of gastrointestinal symptoms during service, the VA examiner in August 2013 concluded that such were acute in-service symptoms unrelated to any events demonstrated during his post-service years. Each such event was said to be unique and independent of each other not a continuation of initial events. Moreover, following service, there is no evidence of a diagnosis of peptic ulcer disease within one year following separation from active service. Additionally, the post-service medical evidence of record has shown no diagnosis of any gastrointestinal disability at any time. While a history of ulcers is noted in some treatment records, there is no diagnosis of any current gastrointestinal disability. In this regard, Congress has specifically limited entitlement to service-connected benefits to cases where there is a current disability. "In the absence of proof of a present disability, there can be no valid claim." Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). As noted above, the VA examiner indicated that the Veteran had no current diagnosed abdominal, stomach, or gastrointestinal condition, nor a current diagnosis etiologically related to active service. The Board finds the opinion of the August 2013 VA examiner to be probative as it was definitive, based upon a complete review of the Veteran's entire claims file, and supported by detailed rationale. Accordingly, the opinion is found to carry significant weight. The Veteran has not provided any competent medical evidence to rebut the opinion against the claim or otherwise diminish its probative weight. The Board recognizes the Veteran has asserted that he has current gastrointestinal disability as a result of his period of active service. When a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. In such cases, the Board is within its province to weigh that testimony and to make a credibility determination as to whether that evidence supports a finding of service incurrence and continuity of symptomatology sufficient to establish service connection. See Barr v. Nicholson, 21 Vet. App. 303 (2007); Jandreau, 492 F.3d at 1377. However, the VA examiner in August 2013 found that the in-service symptoms were unique and independent of each other, unrelated to events shown following service. The examiner based the findings, in part, on the Veteran's own statements during the interview. Thus, the contentions presented at the time of filing of the claim are outweighed by the competent medical evidence of record and are of limited probative value. There are no findings of record to show a current gastrointestinal disability for which service connection may be established. As such, the benefit of the doubt doctrine is not for application, and the Veteran's claim must be denied. See generally Gilbert, 1 Vet. App. at 49. ORDER Service connection for a disability manifested by abdominal pain (also claimed as stomach ulcers) is denied. ____________________________________________ B. T. KNOPE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs