Citation Nr: 21070472 Decision Date: 11/24/21 Archive Date: 11/24/21 DOCKET NO. 15-36 524 DATE: November 24, 2021 ORDER Entitlement to service connection for ulcers is denied. Entitlement to service connection for a low back disorder is denied. FINDINGS OF FACT 1. The Veteran does not have ulcers that manifested in service or within one year thereafter or that are otherwise related to his military service. 2. The Veteran's low back disorder did not manifest in service or within one year thereafter and is not otherwise related to his military service. CONCLUSIONS OF LAW 1. Ulcers were not incurred in active service and may not be presumed to have been so incurred. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. A low back disorder was not incurred in active service, nor may arthritis be presumed to have been so incurred. 38 U.S.C. §§ 1112, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 1969 to March 1971. This matter is before the Board of Veterans' Appeals (Board) on appeal from an October 2013 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). A hearing was held before the undersigned Veterans Law Judge in July 2018. A transcript has been associated with the claims file. The Board remanded the case for additional development in December 2018. That development was completed, and the case has since been returned to the Board for appellate review. Law and Analysis Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C. §§ 1110, 1131. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. As arthritis and peptic ulcers (gastric or duodenal) are considered to be chronic diseases for VA compensation purposes, if chronicity in service is not established, a showing of continuity of symptoms after discharge may support the claim. 38 C.F.R. §§ 3.303(b), 3.309; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In addition, for veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, including arthritis and peptic ulcers, are presumed to have been incurred in service if they manifested to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. VA shall consider all information and lay and medical evidence of record in a case and when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the weight of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). Ulcers In considering the evidence of record under the laws and regulations as set forth above, the Board finds that the Veteran is not entitled to service connection for ulcers. The Veteran's service treatment records are negative for any complaints, treatment, or diagnosis of ulcers, and his November 1970 separation examination found his abdomen and viscera to be normal. He reported that he was "in the best of health." In January 1975, almost four years after his separation from service, the Veteran complained of sudden-onset abdominal pain and cramping, and he was diagnosed with a perforated gastric ulcer. He was hospitalized and underwent a vagotomy and antrectomy with Billroth II in January 1975. A follow-up examination in February 1975 indicated that he was doing well. In June 2012, an upper gastrointestinal (GI) endoscopy showed hyperplastic polyps and gastritis with helicobacter pylori. He was diagnosed with gastric polyps and chronic active gastritis. See June 2012 VA treatment records. The Veteran has claimed that his ulcers began in service and that he continues to suffer residual symptoms related to the January 1975 surgery. See April 2014 notice of disagreement (NOD); October 2015 VA Form 9; July 2018 hearing transcript at 4. He also testified at the July 2018 hearing that stress may have caused the disorder. The Veteran further testified that he continues to undergo regular endoscopies to check the lining of his stomach. A December 2016 upper GI endoscopy revealed mild portal hypertensive gastropathy in the gastric fundus and in the gastric body, but was otherwise normal with no esophageal varices seen and a patent Billroth II gastrojejunostomy. See December 2016 VA treatment records. Peptic ulcers (gastric or duodenal) are an enumerated condition under 38 C.F.R. § 3.309(a); Walker, 708 F.3d 1331. However, to determine that a chronic disease was "shown in service," the disease identity must be established and the diagnosis not subject to legitimate question. 38 C.F.R. § 3.303 (b); Walker, supra. As previously noted, the Veteran's service treatment records do not note any complaints, treatment, or diagnosis of ulcers. The disability was not shown as chronic in service, and the evidence does not show that that disorder manifested to a compensable degree within one year thereafter. Thus, the Veteran is not entitled to service connection for peptic ulcers, either as a chronic disease incurred during service or within one year of service. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307(a)(3), 3.309(a); Walker, 708 F.3d 1335-7. The Board does acknowledge the Veteran's statements that he had stomach pain in service for which he sought treatment and was given "tiger mints." He also stated that sick call was discouraged and that "you were supposed to suck it up and take it." He explained that they would give him pain medication and sent him back to his unit. See, e.g., April 2014 NOD; July 2018 Board hearing transcript. The Veteran is competent to report his experience and symptoms in service and thereafter. Layno v. Brown, 6 Vet. App. 465, 469 (1994); Barr v. Nicholson, 21 Vet. App. 303 (2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). A veteran can attest to factual matters of which he or she has first-hand knowledge, e.g., experiencing pain in service, reporting to sick call, being placed on limited duty, and undergoing physical therapy. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). The Federal Circuit has held that lay evidence is one type of evidence that must be considered, and competent lay evidence can be sufficient in and of itself. The Board, however, retains the discretion to make credibility determinations and otherwise weigh the evidence submitted, including lay evidence. See Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006). Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno v. Brown, 6 Vet. App. 465 (1994) (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted")); see also Barr v. Nicholson, 21 Vet. App. 303 (2007). In this case, although the Veteran is competent to report symptoms since service, the Board finds that such statements are not reliable or credible. The allegations are inconsistent with the contemporaneous record. As previously noted, his service treatment records are silent for any complaints, treatment, or diagnosis of stomach problems. In addition, a November 1970 separation examination revealed a normal clinical evaluation, and the Veteran stated that he was "in the best of health." Although the Veteran stated that sick call was discouraged in the military and that he was just supposed to "suck it up," the Board notes that he sought treatment for various other medical problems, including right knee pain, a wrist injury, bronchitis, a tender scrotum, and a sore throat. Therefore, his assertion that he was reluctant to seek treatment for stomach pain is not credible. Moreover, the January 1975 treatment records show that the Veteran was seen for symptoms with a sudden-onset, which was nearly four years after his separation from service. Such a report suggests an onset after his military service rather than one that had been present for several years. Based on the foregoing, the competent, credible, and most probative evidence does not show that the Veteran had ulcers that manifested in service or within one year thereafter or that he had continuity of symptomatology. In addition to the lack of evidence showing that ulcers manifested during active service or within close proximity thereto, the weight of the evidence of record does not link any current ulcers to the Veteran's military service. A November 2019 VA examiner opined that it was less likely than not that the Veteran has ulcers that were incurred in or caused by the claimed in-service injury, event, or illness. She noted that he had a diagnosis of a history of peptic ulcer disease that had required surgery in 1975, which was almost four years after his separation from service. She commented that there is no objective evidence of an acute or chronic abdominal condition or complaint, nor any evidence indicating symptoms related to a gastric/peptic ulcer during his military service. The examiner acknowledged the Veteran's report that he had stomach pain in service that continued and worsened thereafter; however, she noted that the record does not document any complaint of or treatment for abdominal pain in service and that he had the sudden onset of abdominal pain and cramping in 1975 for which he was diagnosed with a perforated gastric ulcer. The examiner also noted that there has not been any record of recurrence of gastric or peptic ulcers per EGD studies or the medical records and that the last upper gastrointestinal endoscopy performed in December 2016 showed a normal esophagus without any varices or ulcers. During the examination, the Veteran had also stated that he does not know if he still has ulcers and indicated that he was not taking ulcer medications. In an August 2020 addendum, another VA examiner found that there was no evidence of peptic ulcer disease in service, at time of separation, or until 1975. It was noted that the Veteran had presented with acute epigastric pain and underwent an emergency EGD with the diagnosis of perforated ulcer in January 1975. The examiner found that it was clearly remote from service. Therefore, given the acute presentation, he opined that it was less likely than not that the Veteran's peptic ulcer disease developed service and that it is highly unlikely to have been a chronic problem since service. The examiner observed that additional information had been obtained, including records regarding polyps, positive H. pylori, and gastritis diagnosed on EGD in 2012, but concluded that it did not change the negative opinion. The examiner explained that there is no evidence of the condition in service or at separation and that the disorder developed acutely, approximately four years post-service. There is no medical opinion otherwise relating the Veteran's ulcers to his military service. The Board acknowledges the statements of the Veteran that his ulcers are related to his military service. Although lay persons are competent to provide opinions on some medical issues, as to the specific issues in this case, the diagnosis and etiology of the disease falls outside the realm of common knowledge of a lay person, particularly in light of the delayed onset and the internal processes involved. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011); Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). Moreover, even assuming that the Veteran is competent to opine on these medical matters, the Board finds that the VA examiners' opinions are more probative, as they were provided by medical professionals with knowledge, training, and expertise and are supported by rationale. The VA examiners reviewed the claims file and considered the Veteran's reported history and lay statements. Based on the foregoing, the Board finds that a preponderance of the evidence is against the Veteran's claim for service connection for ulcers. Because the preponderance of the evidence is against the Veteran's claim, the benefit of the doubt provision does not apply. Accordingly, the Board concludes that service connection for ulcers is not warranted. Low Back Disorder In considering the evidence of record under the laws and regulations as set forth above, the Board finds that the Veteran is not entitled to service connection for a low back disorder. The Veteran's service treatment records are negative for any complaints, treatment, or diagnosis of a low back disorder, and his November 1970 separation examination found his spine to be normal. He also told the examiner that he was "in the best of health." See November 1970 report of medical examination. There is no evidence that the Veteran had arthritis at the time of his separation from service or within one year thereafter. Indeed, the Veteran testified during the July 2018 hearing that he did not seek treatment for back problems until 1979, which would have been years after his separation from service. Arthritis must be objectively confirmed by x-ray. 38 C.F.R. § 4.71a, Diagnostic Code 5003. Thus, the Veteran is not entitled to service connection for arthritis of the spine, either as a chronic disease incurred during service or within one year of service. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307(a)(3), 3.309(a); Walker, 708 F.3d 1335-7. The Veteran has claimed that he injured his back in service and has experienced ongoing back problems since that time. See July 2018 hearing transcript at 10-13; April 2014 NOD. He has acknowledged that his service treatment records do not document complaints, treatment, or diagnosis of a low back disorder, but he has stated that sick call was discouraged in the military. See April 2014 NOD. He has also denied having any post-service back injuries. See July 2018 hearing transcript at 16. The Veteran is competent to report his experience and symptoms in service and thereafter. Layno v. Brown, 6 Vet. App. 465, 469 (1994); Barr v. Nicholson, 21 Vet. App. 303 (2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). A veteran can attest to factual matters of which he or she has first-hand knowledge, e.g., experiencing pain in service, reporting to sick call, being placed on limited duty, and undergoing physical therapy. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). The Federal Circuit has held that lay evidence is one type of evidence that must be considered, and competent lay evidence can be sufficient in and of itself. The Board, however, retains the discretion to make credibility determinations and otherwise weigh the evidence submitted, including lay evidence. See Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006). Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno v. Brown, 6 Vet. App. 465 (1994) (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted")); see also Barr v. Nicholson, 21 Vet. App. 303 (2007). In this case, although the Veteran is competent to report an in-service injury and ongoing symptoms since service, the Board finds that such statements are not reliable or credible. The allegations are inconsistent with the contemporaneous record. As previously noted, his service treatment records are silent for any complaints, treatment, or diagnosis of a back disorder or injury. In fact, the November 1970 separation examination found his spine to be normal. Thus, there was actually affirmative evidence showing that he did not have a low back disorder at the time of his separation from service. The Board acknowledges the Veteran's statement that sick call was discouraged in the military. However, as previously discussed, he sought treatment in service for other medical issues, including knee pain, a wrist injury, bronchitis, a tender scrotum, and a sore throat. Therefore, his assertion that he was reluctant to seek treatment for a back injury or chronic low back pain is not credible. A February 2003 VA treatment record also indicates that the Veteran had been treated for arthritis in his back for several years, and in subsequent VA treatment records, it was noted that there was no known mode of onset for his back pain. There were no reports of a back injury in service. Based on the foregoing, the competent, credible, and most probative evidence does not show that the Veteran had a back disorder that manifested in service or within one year thereafter or that he had continuity of symptomatology. In addition to the lack of evidence showing that a low back disorder manifested during active service or within close proximity thereto, the weight of the evidence of record does not link any current low back disorder to the Veteran's military service. The Veteran was afforded a VA examination in November 2019 at which time the examiner diagnosed him with degenerative arthritis of the lumbar spine, intervertebral disc syndrome (IVDS), and bilateral lower extremity radiculopathy. The examiner acknowledged the Veteran's reported history of a low back injury during basic training in 1969, but opined that his current low back disorder was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. She explained that there is no evidence of a low back disorder or related complaint during the Veteran's military service and noted that the separation examination did not document any spine or other musculoskeletal health concern at the time of discharge. In an August 2020 addendum, another VA examiner found that there was no evidence of a chronic back condition in service and noted that the separation examination was negative with the Veteran also reporting that he was in the best of health at that time. The examiner als observed that the Veteran's back complaints did not arise until approximately three decades after service. Therefore, he concluded that it is less likely than not that the Veteran's back disorder is due to or was incurred in military service. In addition, the examiner stated that degenerative disc disease and degenerative joint disease are the root cause of the IVDS and radiculopathies. He explained that degenerative spine disease is an age-related condition due to natural wear and tear and that degenerative disc disease involves desiccation of the discs through natural aging processes. The examiner noted that more than 50 percent of men over the age of 50 have evidence of degenerative spine disease, even in the absence of antecedent events or chronic conditions. He stated that it is highly unlikely that the Veteran could have gone that length of time without seeking care with a significant lumbar spine condition arising in service. There is no medical opinion otherwise relating the Veteran's current low back disorder to his military service. The Board acknowledges the statements of the Veteran that his low back disorder is related to his military service. Although lay persons are competent to provide opinions on some medical issues, as to the specific issues in this case, the diagnosis and etiology of the disorder falls outside the realm of common knowledge of a lay person, particularly in light of the delayed onset. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011); Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). Moreover, even assuming that the Veteran is competent to opine on these medical matters, the Board finds that the VA examiners' opinions are more probative, as they were provided by medical professionals with knowledge, training, and expertise and are supported by rationale. The VA examiners reviewed the claims file and considered the Veteran's reported history and lay statements. Based on the foregoing, the Board finds that a preponderance of the evidence is against the Veteran's claim for service connection for a low back disorder. Because the preponderance of the evidence is against the Veteran's claim, the benefit of the doubt provision does not apply. Accordingly, the Board concludes that service connection for a low back disorder is not warranted. J.W. ZISSIMOS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D.S. Chilcote 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.