Citation Nr: 1806800 Decision Date: 02/01/18 Archive Date: 02/14/18 DOCKET NO. 12-27 164A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to service connection for a gastrointestinal disability. 2. Entitlement to an acquired psychiatric disorder, to include as secondary to a gastrointestinal disability. REPRESENTATION Appellant represented by: Leonard Danley, Attorney at Law ATTORNEY FOR THE BOARD E. Miller, Associate Counsel INTRODUCTION The Veteran served on active duty from August 21, 1958 to September 8, 1958. This matter is on appeal before the Board of Veterans' Appeals (Board) from a September 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California, and a May 2011 rating decision issued by the RO in Atlanta, Georgia. This matter was previously before the Board in November 2014 when the Board remanded this matter for further development to the RO. The RO has completed the requested development and returned the case to the Board for appellate review. The Board notes that in November 2017, the RO granted service connection for tinnitus. As this decision represents a full grant of the benefits sought on appeal, that claim is no longer before the Board. AB v. Brown, 6 Vet. App. 35 (1993). This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (West 2014). The issue of entitlement to service connection for an acquired psychiatric disorder is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT Resolving doubt in favor of the Veteran, the available evidence supports that the Veteran has a gastrointestinal disability related to his active service. CONCLUSION OF LAW The criteria for service connection for a gastrointestinal disorder have been met. 38 U.S.C. §§ 1131, 5107(b) (West 2014); 38 C.F.R. §§ 3.102, 3.303 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duty to Notify and Assist In the decision below, the Board has granted the Veteran's claim for service connection for gastrointestinal disorder. Therefore, the benefit sought on appeal has been granted in full. Accordingly, regardless of whether the notice and assistance requirements have been met with regard to this issue, no harm or prejudice to the Veteran has resulted. See, e.g., Bernard v. Brown, 4 Vet. App. 384 (1993); VAOPGCPREC 16-92. The Board finds that the Agency of Original Jurisdiction (AOJ) has substantially complied with the Board's November 2014 remand directives to obtain additional medical treatment records, request information regarding the Veteran's service treatment and personnel records, social security records, and to provide the Veteran with a VA examination. See Stegall v. West, 11 Vet. App. 268 (1998). II. Service Connection The Veteran contends that he has a gastrointestinal disorder which is related to active service. Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active service. 38 U.S.C. § 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009). A veteran who served during peacetime is presumed to have been in sound condition when examined, accepted and enrolled in service, except for defects noted at the time of entrance, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C. § 1132; see VAOPGCPREC 3-2003 (July 16, 2003) (holding that, to rebut this presumption of soundness, VA must show by clear and unmistakable evidence both that the disease or injury existed prior to service and that the disease or injury was not aggravated by service). According to 38 C.F.R. § 3.304(b), the term "noted" denotes only such conditions that are recorded in examination reports. A 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); Crowe v. Brown, 7 Vet. App. 238 (1994). A pre-existing disease will be presumed to have been aggravated by military service when there has been an increase in the disability during service beyond its natural progress. 38 C.F.R. § 3.306(a). This presumption can only be rebutted by clear and unmistakable evidence that the increase in severity was due to the natural progression of the disease. In the absence of such evidence, service connection may be granted. 38 C.F.R. § 3.306(b). Mere temporary or intermittent flare-ups of a preexisting injury or disease are not sufficient to be considered aggravation unless the underlying condition, as contrasted to symptoms, is worsened. Jensen v. Brown, 4 Vet. App. 304, 306-07 (1993); Hunt v. Derwinski, 1 Vet. App. 292 (1991). Service connection may also be granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Additionally, service connection may be granted for disability resulting from disease or injury incurred in or aggravated while performing active duty training (ACDUTRA), or for injury incurred in or aggravated in the line of duty while performing inactive duty training (INACDUTRA). 38 U.S.C. §§ 101 (24), 106 (West 2014); 38 C.F.R. § 3.6 (2017). ACDUTRA, among other things, is full-time duty in the Armed Forces performed by Reserves for training purposes or by members of the National Guard of any state. 38 U.S.C. § 101 (22); 38 C.F.R. § 3.6(c)(1). It usually covers the two weeks of training done during each summer ("summer camp"), whereas INACDUTRA generally encompasses the one weekend of training done each month ("weekend warrior" training). When a claim is based on a period of INACDUTRA, there must be evidence that the individual concerned died or became disabled as a result of an injury incurred or aggravated in the line of duty (unless the claim involves myocardial infarction, cardiac arrest, or cerebrovascular accident which occurred during such training, which are not at issue in this appeal). In the absence of such evidence, the period of INACDUTRA would not qualify as "active military, naval, or air service." Certain evidentiary presumptions, such as the presumption of sound condition at entrance to service, the presumption of aggravation during service of preexisting diseases or injuries which undergo an increase in severity during service, and the presumption of service incurrence for certain diseases which manifest themselves to a degree of disability of 10 percent or more within a specified time after separation from service - which are provided by law to assist Veterans in establishing service connection for a disability or disabilities - are not applicable where a claim is based on a period of active duty for training or inactive duty for training. 38 U.S.C. §§ 1111, 1112; 38 C.F.R. §§ 3.304 (b), 3.306, 3.307, 3.309. Paulson v. Brown, 7 Vet. App. 466, 470-71 (1995) (noting that the Board did not err in not applying presumptions of sound condition and aggravation to appellant's claim where he served only on ACDUTRA and had not established any service-connected disabilities from that period); McManaway v. West, 13 Vet. App. 60, 67 (citing Paulson, 7 Vet. App. at 469-70, for the proposition that, "if a claim relates to period of [ACDUTRA], a disability must have manifested itself during that period; otherwise, the period does not qualify as active military service and [the claimant] does not achieve Veteran status for purposes of that claim."); Biggins v. Derwinski, 1 Vet. App. 474, 477-78 (1991). Lay evidence can be competent and sufficient to establish the elements of service connection 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. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). In short, when considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent on the issues of diagnosis and medical causation. Kahana v. Shinseki, 24 Vet. App. 428, 438 (2011). For instance, a layperson is competent to identify such disorders as varicose veins, tinnitus, and flat feet. 38 C.F.R. § 3.159(a)(2); Barr v. Nicholson, 21 Vet. App. 303, 310 (2007); Charles v. Principi, 16 Vet. App. 370, 374 (2002); Falzone v. Brown, 8 Vet. App. 398, 405 (1995). In contrast, a layperson is not competent to identify medical conditions that require scientific, technical, or other specialized knowledge, such as in identifying bronchial asthma. 38 C.F.R. § 3.159(a)(1); Layno v. Brown, 6 Vet. App. 465, 469 (1994). The Board must assess the competence and credibility of lay statements. Barr, 21 Vet. App. at 308. The Federal Circuit has held that the Board can favor competent medical evidence over lay statements offered by the Veteran, as long as the Board neither deems lay evidence categorically incompetent nor improperly requires a medical opinion as the sole way to prove causation. King v. Shinseki, 700 F.3d 1339, 1344 (2012). In determining whether statements submitted by a veteran are credible, the Board may consider internal consistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498 (1995). The Board is not required to accept an appellant's uncorroborated account of his active service experiences. Wood v. Derwinski, 1 Vet. App. 190 (1991). Competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). If the evidence is credible, the Board, as fact finder, must determine the probative value or weight of the admissible evidence, that is, does the evidence tend to prove a material fact. Washington v. Nicholson, 19 Vet. App. 362, 369 (2005). If the evidence is not credible, the evidence has no probative value. In determining whether service connection is warranted, the Board shall consider the benefit-of-the-doubt doctrine. 38 U.S.C. 5107(b); 38 C.F.R. § 3.102; Alemany v. Brown, 9 Vet. App. 518 (1996); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Upon review of the evidence of record, the Board finds that the Veteran is entitled to service connection for a gastrointestinal disorder. Although the Veteran initially enlisted in the United States Naval Reserve in 1957, his DD-214 reflects that he was called to active duty on August 21, 1958 and was granted an honorable discharge on September 8, 1958. The Veteran's available service treatment records (STRs) show that his entrance examination in June 1957 and his discharge examination in August 1958 documented normal gastrointestinal functions. There was no notation pertaining to gastrointestinal issues on these examinations. Post- service, the record contains numerous medical treatment records documenting the Veteran's long history with gastrointestinal issues. Treatment records from April 1970, the month that the Veteran had gastrointestinal surgery, reflect multiple notations that the Veteran stated he had been having stomach problems for about 13 years, which would be during the time of his active service in the Navy, around 1957. The Veteran's sister submitted a statement dated April 2009 in which she recalled that the Veteran had stomach issues since his time in the Navy. The Veteran submitted a statement from his mother dated March 2010 in which she also recalled the Veteran having stomach issues since his time in the Navy. The Veteran himself stated that he was ill with stomach issues during his time in the Navy and was treated at naval health facilities. The lay statements of the Veteran, his mother, and his sister are competent and credible as they describe symptoms of gastrointestinal distress which concluded with the Veteran obtaining surgery as documented by contemporaneous medical treatment records. In a July 2010 statement, a private physician noted that he had been treating the Veteran since 2003 for a history of severe peptic ulcer disease that required surgery to remove a part of the Veteran's stomach in 1970. The Veteran had an ongoing history of recurring reflux, abdominal discomfort and diarrhea. A November 26, 2010 VA treatment note contains a statement by a physician that the Veteran's abdominal problems are as likely as not related to his active service. The Veteran underwent a VA examination in June 2016. That examiner opined that due to the Veteran's risk factors like previously being a smoker, using alcohol, and family history, his gastrointestinal issues were less likely than not related to active service. The examiner explained that the Veteran had undergone surgery in April 1970 for peptic ulcer disease, which had resolved, and the Veteran's current problem with chronic diarrhea was a lingering effect of surgery. The examiner also diagnosed the Veteran as status post vagotomy with pyloroplasty. The electronic claims file contains a June 2017 notice from the RO stating that the Veteran's STRs from 1956 to 1960 at Great Lakes Naval Hospital are unable to be located. When STRs are lost or missing, the Court has held that VA has a heightened duty "to consider the applicability of the benefit of the doubt rule, to assist the claimant in developing the claim, and to explain its decision when the Veteran's medical records have been destroyed." Cromer v. Nicholson, 19 Vet. App. 215, 217-18 (2005) citing Russo v. Brown, 9 Vet. App. 46, 51 (1996). See also Cuevas v. Principi, 3 Vet. App. 542, 548 (1992); O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). Thus, the June 2016 VA examiner may have based his opinion on missing records which may contain evidence favorable to the Veteran. The Veteran asserts that he was treated for stomach issues during active service, but records appear to be missing from that time period. However, as the Board is making a favorable determination, there is no prejudice to the Veteran at this time with respect to any missing STRs. Bernard v. Brown, 4 Vet. App. 384, 394 (1993). Resolving doubt in the Veteran's favor (as mandated by law under 38 C.F.R. § 3.102), the Board concludes that competent medical evidence, as well as the Veteran's competent and credible lay statements about his in-service and post-service symptoms, the favorable nexus opinion from a VA doctor, and the fact that medical records closer to the time of service reflect that he had complaints since leaving active service, all support a finding that the Veteran's gastrointestinal disorder began in service and has persisted since that time. Accordingly, service connection for a gastrointestinal disorder is warranted. ORDER Entitlement to service connection for a gastrointestinal disorder is granted. REMAND Upon review of the record, the Board concludes that further evidentiary development is necessary. Although the Board sincerely regrets this delay and is appreciative of the Veteran's service to his country, a remand is necessary to ensure VA provides the Veteran with appropriate process and assistance in developing his claim prior to final adjudication. The Veteran's medical treatment records show he has been diagnosed with both posttraumatic stress disorder and major depressive disorder. A private medical opinion noted that the Veteran's physical health problems were a contributing factor to his mental health diagnosis. The Veteran himself also claims that his time in service relates to his mental health diagnoses. However, the Veteran has not been afforded a VA examination or opinion for psychiatric disorders by a VA examiner. The low threshold for showing that his current disability may be associated with active service has been met. 38 U.S.C. § 5103A(d) (West 2014); 38 C.F.R. § 3.159(c)(4) (2017); McLendon v. Nicholson, 20 Vet. App. 79 (2006). Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. Obtain all updated VA treatment records and associate them with the record. Any negative responses should be properly documented in the record. 2. Schedule the Veteran for a VA psychiatric examination by a VA professional qualified to make psychiatric examinations. The claims file and a copy of this remand must be made available to and reviewed by the examiner in conjunction with the examination. The examiner must state that the claims file was reviewed. All necessary tests should be conducted. Based on the review of all the evidence of record, the VA examiner is asked to address the following questions: (a) The VA examiner shall list all of the Veteran's current psychiatric disorder diagnoses. (b) For each diagnosis, the examiner should set forth a medical opinion as to whether it is at least as likely as not (i.e., 50 percent or greater probability) that any identified psychiatric disorder(s) was incurred in or is otherwise related to service. (c) The examiner should set forth a medical opinion as to whether it is at least as likely as not (i.e., 50 percent or greater probability) that any of the Veteran's diagnosed psychiatric conditions are secondary to any of the Veteran's service-connected disabilities. A rationale for any opinion reached should be provided. If the VA examiner concludes that an opinion cannot be offered without engaging in speculation then he/she should indicate this and explain the reason why an opinion would be speculative and explain if there is any additional information that would assist him or her in producing a non-speculative opinion. 3. After all development has been completed, the RO should readjudicate the issue. If the benefits sought remain denied, the Veteran and his representative should be furnished a supplemental statement of the case, and be given an opportunity to submit written or other argument in response before the claims file is returned to the Board for further appellate consideration. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims 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. §§ 5109B, 7112 (West 2014). ______________________________________________ DAVID L. WIGHT Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs