Citation Nr: 21002389 Decision Date: 01/13/21 Archive Date: 01/13/21 DOCKET NO. 13-10 984 DATE: January 13, 2021 ORDER Entitlement to service connection for an upper gastrointestinal (GI) disability is denied. FINDING OF FACT The Veteran’s GI disability was not incurred in, and is not etiologically related to, his active military service. CONCLUSION OF LAW The criteria for service connection for GI disability have not been met.  38 U.S.C. §§ 1101, 1110, 1112, 1113, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from May 1945 to December 1946.    This matter comes before the Board of Veterans’ Appeals (Board) on appeal from May 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO).  The Veteran died during the pendency of this appeal in November 2015 and the Veteran’s spouse has been deemed eligible for substitution of the Veteran and has become the Appellant in this case. The Board remanded the appeal in December 2017 to the agency of original jurisdiction (AOJ) for further development.  The Board’s remand directives have been substantially completed.  See Stegall v. West, 11 Vet. App. 268 (1998).     Entitlement to service connection for a GI disability. The Appellant asserts that the Veteran’s GI disability was related to his active military service. For the reasons that follow, the Board finds that the Veteran’s service connection claim must be denied.  Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated during active service.  38 U.S.C. § 1110; 38 C.F.R. § 3.303(a).  Generally, to establish service connection, there must be competent, credible evidence of 1) a current disability, 2) in-service incurrence or aggravation of an injury or disease, and 3) a nexus, or link, between the current disability and the in-service disease or injury.  See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009).  Where a veteran who served for ninety days or more during a period of war (or during peacetime service after December 31, 1946) develops certain chronic diseases, to include duodenal ulcers, to a degree of 10 percent or more within one year from separation from service, such diseases may be presumed to have been incurred in service even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. See 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). Alternatively, when a disease at 38 C.F.R. § 3.309(a) is not shown to be chronic during service or the one-year presumptive period, service connection may also be established by showing continuity of symptomatology after service. See 38 C.F.R. § 3.303(b). However, the use of continuity of symptoms to establish service connection is limited only to those diseases listed at 38 C.F.R. § 3.309(a) and does not apply to other disabilities which might be considered chronic from a medical standpoint. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant.  38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Turning to the evidence of record, prior to his death, the Veteran was diagnosed with several GI disabilities; to include Barrett’s esophagus, gastroesophageal reflux disease (GERD), and duodenal ulcer. See May 2018 VA opinion. As such, the first element for service connection has been met. However, the Veteran’s service treatment records (STRs) contain no mention of complaints, diagnosis, or treatment pertaining to a GI disability. While the Veteran’s November 1945 enlistment examination shows a history of stomach aches in July 1942, no GI abnormalities were noted. At separation examination in November 1946, all body systems were noted as normal. As such, the objective evidence of record does not support the claim and the in-service incurrence element has not been satisfied. As to the nexus element, the Veteran’s GI disability is not shown to be etiologically related to his service. Specifically, pursuant to May 2017 Board remand, May 2018 VA opinion was issued. Upon review of all of the evidence of record, the examiner opined that the Veteran’s GI disability was less likely than not etiologically related to his active military service. The examiner based this opinion on the fact that the Veteran’s STRs, including his separation examination indicate no ongoing GI issues. The examiner added that the Veteran’s hospital admissions in 1948, 1950 and 1951, over a year after discharge, provide no history as to how long his GI symptoms had been present, nor what precipitated an admission to the hospital. The examiner noted that there is no medical evidence to associate the Veteran’s duodenal ulcer, GERD, and/or Barrett’s esophagus to his active military service. The Board accords great probative weight to the May 2018 VA opinion as the examiner considered all of the pertinent evidence of record, to include the statements of the Veteran prior to his death, and provided a complete rationale, relying on and citing to the records reviewed.  The examiner also offered a conclusion with supporting data as well as reasoned medical explanations connecting the two.  See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008).  Most importantly, there is no contrary medical opinion of record.  Thus, the Board finds VA opinion probative to address the Veteran’s claim.   Further, a review of evidence of record shows that the Veteran was first hospitalized for his GI symptoms and diagnosed with duodenal ulcer in October 1948, almost two years after his separation from active duty service. Subsequently, he was hospitalized with the same diagnosis in June 1950 and February 1951. The Veteran’s GI symptoms were noted to be aggravated by greasy and fried foods. See February 1951 treatment record. An April 1992 general medical VA examination noted no specific issued related to the Veteran’s GI condition. In October 2007, the Veteran was diagnosed with Barrett’s esophagitis and he was prescribed Nexium. In June 2011, remote stomach ulcers were noted. As such, the objective evidence of record does not substantiate the service connection claim. The Board acknowledges the statements of the appellant and representative. Nonetheless, the appellant and representative are not competent to provide a nexus opinion in this case. This issue is medically complex, as it involves internal disease processes and requires knowledge of interpretation of complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). Thus, the May 2018 VA opinion is more probative to address the Veteran’s claim. The Board has considered whether service connection is warranted on a presumptive basis for chronic diseases.  38 C.F.R. § 3.309(a). The evidence does not show that the Veteran’s GI disability manifested to a degree of 10 percent or more within a year of separation from service; therefore, presumptive service connection is not warranted.  38 C.F.R. §§ 3.307(a)(3), 3.309(a). The Board also has considered whether service connection is warranted based on a continuity of symptomatology framework.  38 C.F.R. § 3.303(b). In this regard, the Board finds that the evidence contemporaneous to the Veteran’s service and following active service is more reliable in regard to the state of his health. Significantly, no GI complaints, treatment or diagnoses were noted during his military service. This evidence as to his then-existing physical condition, including his medical examination report at discharge (as opposed to his later statements of memory or belief to prove the fact remembered or believed) is particularly probative.  See Fed. R. Evid. 803(3); Rucker v. Brown, 10 Vet. App. 67, 73 (1997) (providing that although formal rules of evidence do not apply before the Board, recourse to the Federal Rules of Evidence may be appropriate).   Further, at his separation examination in November 1946, all body systems were noted as normal. Additionally, the evidence of record shows that the Veteran was diagnosed with duodenal ulcer in October 1948, almost two years after his separation from active duty service. As such, even though the Board remains sympathetic to the Veteran’s assertions prior to his death, his treatment records do not support the continuity of symptomatology statements.   In sum, upon review of all of the evidence of record, the Board finds that entitlement to service connection for a GI disability is not warranted. The Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran’s claim, that doctrine is not applicable. See 38 U.S.C. § 5107(b); Gilbert, supra. (Continued on the next page) Thus, the claim is denied.    C. CRAWFORD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Kuzniar, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.