Citation Nr: 18152052 Decision Date: 11/21/18 Archive Date: 11/20/18 DOCKET NO. 11-22 568 DATE: November 21, 2018 ORDER Entitlement to service connection for a duodenal ulcer disability is denied. Entitlement to service connection for gastroesophageal reflux disease (GERD), as secondary to a duodenal ulcer disability, is denied. FINDINGS OF FACT 1. There is clear and unmistakable evidence that the Veteran’s duodenal ulcer disability pre-existed his entrance to active duty, and did not permanently increase in severity beyond its natural progression during active duty. 2. The preponderance of evidence is against finding that the Veteran’s GERD is secondary to the Veteran’s duodenal ulcer disability. CONCLUSIONS OF LAW 1. The criteria for service connection for duodenal ulcer disability are not met. 38 U.S.C. §§ 1111, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). 2. The criteria for service connection for GERD are not met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.310(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July to September 1966. The Veteran appeals an April 2010 rating decision from the Department of Veteran Affairs (VA) Regional Office (RO) in Atlanta, Georgia. This case comes to the Board from a July 2015, and September 2017 remand orders. The July 2015 Board decision remanded both issues because a VA examination was required to determine if the Veteran’s ulcer disability pre-existed service. The RO attempted to schedule the required VA exam, but the Veteran failed to receive notice of the scheduled exam, and subsequently failed to appear at the exam. As such, in September 2017, the Board remanded the case for the Veteran to undergo a VA examination. The requested VA examinations occurred in January 2018. The Veteran had a Board hearing in December 2014, and a transcript is on file. Service Connection The Veteran asserts that his duodenal ulcer disability is connected to his time in service. Further, the Veteran asserts that his GERD is caused or aggravated by the Veteran’s duodenal ulcer disability. Service connection is warranted where the evidence of record establishes that a particular injury or disease results in a present disability that incurred in the line of duty during active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. § 1110, 1131; 38 C.F.R. § 3.303(a). 1. Entitlement to service connection for a duodenal ulcer disability The Veteran asserts that his duodenal ulcer disability is connected to his time in basic training. When an issue is raised as to whether the disorder claimed by the veteran pre-existed service, the governing law provides that every veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities or disorders noted at the time of examination, acceptance, and enrollment into service, or where clear and unmistakable (obvious or manifest) evidence demonstrates that (1) an injury or disease existed before acceptance and enrollment into service (2) and was not aggravated by such service. See 38 U.S.C. § 1111; 38 C.F.R. § 3.304(b); Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004); Bagby v. Derwinski, 1 Vet. App. 225, 227 (1991). This statutory provision is referred to as the “presumption of soundness.” Horn v. Shinseki, 25 Vet. App. 231, 234 (2012). 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 (1994) (holding that 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, 1 Vet. App. at 227). Only such conditions as are recorded in examination reports are considered as noted. 38 C.F.R. § 3.304(b). History of pre-service existence of conditions recorded at the time of examination does not constitute a notation of such conditions but will be considered together with all other material evidence in determinations as to inception. 38 C.F.R. § 3.304(b)(1). Therefore, where there is evidence showing that a disorder manifested or was incurred in service, and this disorder is not noted on the veteran's entrance examination report, this presumption of soundness operates to shield the Veteran from any finding that the unnoted disease or injury preexisted service. See Gilbert v. Shinseki, 26 Vet. App. 48 (2012); Bagby, 1 Vet. App. at 227; see also 38 C.F.R. § 3.304(b) (“[o]nly such conditions as are recorded in examination reports are considered as noted.”). As noted, this presumption is only rebutted where the evidence clearly and unmistakably shows that the Veteran's disability (1) existed before acceptance and enrollment into service and (2) was not aggravated by service. See Wagner, 370 F.3d at 1096; Bagby, 1 Vet. App. at 227. The two parts of this rebuttal standard are referred to as the “preexistence prong” and the “aggravation prong.” Horn, 25 Vet. App. at 234. A preexisting injury or disease will be considered to have been aggravated by active military, naval, or air service, where there is an increase in disability during such service, unless there is specific finding that the increase in disability is due to the natural progress of the disease. 38 U.S.C. § 1153; 38 C.F.R. § 3.306. Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during, and subsequent to service. 38 U.S.C. § 1153; 38 C.F.R. § 3.306; Falzone v. Brown, 8 Vet. App. 398, 402 (1995). The Veteran’s July 1966 entrance exam does not note the presence of ulcers. In the Veteran’s July 1966 Report of Medical History, the Veteran stated that he was treated by a private doctor for ulcers. An August 1966 service treatment record, the Veteran complained of abdominal pain. The Veteran stated that he was told by a civilian doctor in January 1966 that he had ulcers, and subsequently was treated until March 1966. In a September 1966 service treatment record, a physician reported that the Veteran had a history of esophageal burning and cramping dating back to January 1966 when private doctor told him he had ulcers. The September 1966 Medical Board Report determined that the Veteran’s duodenal ulcer originated in January 1966, and thus pre-existed service. Further, the report found that the ulcer was not aggravated by service. But, the Medical Board Report noted that the ulcer is a chronic condition, and may be progressive. A July 1974 x-ray revealed a duodenal ulcer. In December 1974, the private physician opined that the Veteran had no abdominal pain, and that the Veteran’s ulcer was under control. See July-December 1974 Private Treatment Records. The evidence of record is silent to the presence of an ulcer after 1974. During the Veteran’s December 2014 Board hearing, the Veteran stated that he got sick during the last day of basic training, and that his illness was thought to be “sickle cell anemia.” He added, that his illness was later determined not to be sickle cell anemia, but the doctors told him “we gave you ulcers worrying about it.” Finally, the Veteran contends that he claimed not to have an ulcer until service, and started receiving treatment until 1967. The Veteran underwent a VA examination in January 2018. The VA examiner opined that the duodenal ulcer pre-existed service in 1966 with abdominal pain and vomiting. Further, the VA examiner stated that the Veteran’s abdominal pain and vomiting during basic training was the natural course of the ulcer, and his symptoms remained stable. The VA examiner also noted that although the Veteran still has abdominal pain, there are no current signs of duodenum conditions. The VA examiner found that there was no objective evidence of a current ulcer. Finally, the VA examiner opined that the Veteran’s current abdominal pain is due to the Veteran’s GERD. Based on the above, the Board finds the presumption of soundness is rebutted. The January 2018 VA examiner opined that there was clear evidence that the Veteran’s duodenal ulcer existed prior to service. Furthermore, such opinion is supported by the Veteran’s own reports of being treated for ulcers prior to service by a private doctor, September 1966 Service Treatment Record, and the September 1966 Medical Board Report. Although the Veteran stated that military physicians told him that they gave him ulcers with a possible sickle cell anemia diagnosis, the service treatment records do not show signs of sickle cell anemia. Additionally, the same examiner found that such pre-existing disorder clearly and unmistakably was not aggravated by service. The Board notes the evidence of record supports the VA examiner’s opinion. As stated, a private physician, in December 1974, opined that the Veteran had no abdominal pain, and that the Veteran’s ulcer was under control, clearly indicating that the problem did not become worse. As stated earlier, the evidence of record is silent for the presence of an ulcer since 1974. Further, the January 2018 VA examiner noted that there are no current signs of duodenum conditions, and that the Veteran’s current abdominal pain is related to the Veteran’s GERD. Even if the Veteran’s duodenal ulcer did not preexist the Veteran’s service, his claim still fails. The January 2018 VA examiner noted that the Veteran does not have a current diagnosis for a stomach or duodenum conditions. Further, the evidence of record is silent to a diagnosis of an ulcer. To be considered for service connection, a claimant must first have a disability. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Consequently, without a current disability, service connection for either a duodenal ulcer disability is not warranted. 2. Entitlement to service connection for GERD, as secondary to a duodenal ulcer disability The Veteran asserts that his GERD is secondary, either causally or aggravated, by his duodenal ulcer disability. Secondary service connection requires: (1) a service connected disability; (2) a nonservice connected disability; and (3) evidence that the nonservice connected disability is either (a) proximately due to or the result of the service-connected disability or (b) aggravated (increased in severity) by the service-connected disability. See 38 C.F.R. § 3.310. Here, although the Veteran has contended that his GERD is secondary to his duodenal ulcer disability, the Board found that the Veteran does not have a service connected disability for a duodenal ulcer disability (see prior section). Consequently, secondary service connection is not warranted because there is no service connected disability for his GERD to be connected. The Board finds, therefore, that secondary service connection for GERD must be denied as a matter of law. John Crowley Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Timothy A. Campbell, Associate Counsel