Citation Nr: 21074160 Decision Date: 12/14/21 Archive Date: 12/14/21 DOCKET NO. 18-07 157 DATE: December 14, 2021 ORDER Entitlement to service connection for ulcers, to include residuals of ulcer removal surgery, is denied. REMANDED Entitlement to service connection for right leg arthritis is remanded. Entitlement to service connection for left leg arthritis is remanded. Entitlement to service connection for peripheral vascular disease, to include as due to exposure to herbicide agents, is remanded. FINDING OF FACT The evidence of record does not show the Veteran to have a current diagnosis of ulcers or any residual disability related to his prior ulcer removal surgery, and no such diagnosis has been rendered proximate to or since the filing of the claim for service connection. CONCLUSION OF LAW The criteria for entitlement to service connection for ulcers, to include residuals of ulcer removal surgery, have not been met. 38 U.S.C. §§ 1101, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Marine Corps from February 1966 to May 1992, including service in the Republic of Vietnam. The Veteran is in receipt of the Purple Heart. These matters are before the Board of Veterans' Appeals (Board) on appeal from a September 2014 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). In April 2018, the Veteran's representative requested a Board hearing on the Veteran's behalf. However, in August 2021 correspondence, the Veteran notified the Board that he wished to cancel his hearing request. Accordingly, the hearing request is considered withdrawn. 38 C.F.R. § 20.704(e). Duties to Notify and Assist With respect to the claim decided herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C. §§ 5100, 5102, 5103, 5103A; 38 C.F.R. § 3.159. The Veteran or his representative have not advanced any procedural arguments in relation to VA's duties to notify and assist; therefore, the Board will proceed with appellate review. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015). Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Generally, service connection requires: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. See Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Service connection may also be granted for any disease diagnosed after discharge when the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Entitlement to service connection for ulcers, to include residuals of ulcer removal surgery The Veteran filed a service connection claim for "ulcer removal." He contends that he had surgery to remove a bleeding ulcer from his stomach in 1993, within one year of separation from service. He asserts that he continues to take medication for the ulcer. See May 2015 notice of disagreement. The Board has reviewed the Veteran's service and post-service treatment records. His service treatment records do not document any complaints, treatment, or diagnosis for ulcers or a stomach condition indicative of ulcers. The Veteran has not identified or submitted any medical records associated with his 1993 diagnosis and treatment for a bleeding ulcer. The Veteran's VA treatment records contain references to a past medical history of surgical repair for a bleeding ulcer in 1993, as reported by the Veteran. In a May 2015 vascular surgery attending note, the Veteran specifically denied ulcers. In a February 2016 internal medicine outpatient note, the Veteran was noted to be "post partial removal of stomach in 1994 for bleeding ulcer." The treating physician further noted that the Veteran "continues on omeprazole," but he "will try to taper off as [he] states he has never had any symptoms." Based on a careful review of the subjective and clinical evidence of record, the Board finds that the preponderance of the evidence weighs against finding service connection for ulcers, to include residuals of ulcer removal surgery, is warranted. The existence of a current disability is the cornerstone of a claim for VA disability compensation; consequently, failure to establish a current disability results in the denial of a claim. 38 U.S.C. § 1110; 38 C.F.R. § 3.303; Degmetich v. Brown, 104 F.3d 1328 (Fed. Cir. 1997). Specifically, a claimant must have a disability in order to be considered for service connection. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). In this case, the medical evidence of record does not reflect a current diagnosis of ulcers, or any residual symptoms related to ulcer removal surgery, at any time during, or proximate to, the pendency of the claim. Romanowsky v. Shinseki, 26 Vet. App. 289 (2013); McClain v. Nicholson, 21 Vet. App. 319 (2007). In making this finding, the Board does not dispute the Veteran's claim that he underwent a surgical procedure in 1993 to remove a bleeding ulcer. However, significantly, the Veteran did not file a claim for service connection for "ulcer removal" until November 2013. During the pendency of the claim, the Veteran has not provided any lay or medical evidence that he has sought treatment for any stomach or gastrointestinal symptoms indicative of an ulcer or for any residual disability of his previous ulcer removal surgery. In fact, he has denied having ulcers to his VA physicians and in February 2016, reported that he has not had any symptoms of an ulcer since undergoing the removal surgery in 1994. Thus, the Board finds that the weight of the evidence is against a finding that the Veteran has a current diagnosis of ulcers, to include any residuals of ulcer removal surgery. In making this determination, the Board is cognizant that the Veteran has not been afforded a VA examination, and that a formal medical nexus opinion has not been obtained. However, the Board finds that such development is not necessary as there is no competent evidence of record indicating that the Veteran has a current disability. See McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). In this regard, while the Veteran is competent to report his medical history or current symptoms of disability, he does not have the specialized medical training to render a medical diagnosis for ulcers. Layno v. Brown, 6 Vet. App. 465, 470 (1994); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Moreover, the Veteran has not provided any other competent or credible evidence of the existence of a current disability. As such, the Board finds that the weight of the probative evidence is against a finding that the Veteran has a current diagnosis for ulcers, or any residual disability related to his prior removal surgery. Congress specifically limits entitlement to service-connected disease or injury to cases where such incidents have resulted in a disability. See 38 U.S.C. § 1110. In the absence of proof of current disability there can be no valid claim for service connection. See Brammer, 3 Vet. App. at 225. Thus, in the absence of competent evidence showing a current disability, it is unnecessary to address the remaining elements of the claim for service connection. See id. Accordingly, the Board finds that the preponderance of the evidence weighs against the Veteran's claim for service connection for ulcers, to include residuals of ulcer removal surgery. Because the evidence fails to establish that the Veteran has a currently disability, the claim does not satisfy the criteria for service connection. Therefore, the benefit-of-the-doubt rule does not apply and the claim must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 53. REASONS FOR REMAND Unfortunately, the issues remaining on appeal must be remanded for further development. Although the Board regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide these claims so that the Veteran is afforded every possible consideration. Entitlement to service connection for bilateral leg arthritis is remanded. The Veteran seeks service connection for arthritis of the bilateral legs, which he contends is due to the wear and tear on his body during 26 years of military service. The Veteran's VA treatment records contain references to a past medical history of osteoarthritis, as well as the Veteran's self-report of an episode of rheumatoid arthritis that is now in remission. In an April 2015 treatment note, a VA physician noted that the Veteran "had poorly defined inflammatory arthritis and was on Plaquenil for short term with mostly [osteoarthritis] documented in notes and no account of [rheumatoid arthritis]." These records do not specify the anatomical location of the Veteran's osteoarthritis. To date, the Veteran has not been afforded a VA examination with respect to his claim for service connection for arthritis of the legs. In light of competent evidence of a current diagnosis of arthritis and a potential nexus to the Veteran's lengthy period of military service, the Board finds that remand is necessary to afford the Veteran a VA examination and medical opinion to determine the nature and etiology of any current arthritis before it can render an informed decision on the Veteran's claim. 38 U.S.C. § 5103A(d); McLendon v. Nicholson, 20 Vet. App. 79 (2006); see also Douglas v. Shinseki, 23 Vet. App. 19, 26 (2009). Entitlement to service connection for peripheral vascular disease, to include as due to exposure to herbicide agents, is remanded. The Veteran filed a claim for service connection for "angioplasty, both legs," claimed as due to "long-term use of anticoagulants." Given the Veteran's current diagnosis of peripheral vascular disease (PVD), and his past history of undergoing angioplasty on his legs due to PVD, the Board has expanded the scope of his service connection claim accordingly, as noted above. See Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). The Veteran further contends that his disability is due to gamma globulin injections he received during service. He asserts that he was advised by a doctor when he first entered service not to take the injections because they could cause blood issues in the future; however, during service he reports that he received two gamma globulin shots. See May 2015 notice of disagreement. Furthermore, the Board observes that on his claim form, the Veteran also noted "possible exposure to contam[inating] agents," which, given the Veteran's service in Vietnam, the Board has construed as a claim based on exposure to herbicide agents. The Board has recharacterized the Veteran's claim to account for this theory of entitlement on a direct basis. See Combee v. Brown, 34 F.3d 1039, 1043-44 (Fed Cir. 1994). The Veteran underwent a VA artery and vein conditions examination in September 2014. Upon examination, the VA examiner noted a diagnosis of peripheral vascular disease and angioplasty of the bilateral legs. The Veteran reported a history of sudden onset of blood clots in his lower legs, which required angioplasty in 1995, with no problems since then. The VA examiner opined that the Veteran's disability was less likely than not incurred in or caused by service. To support this opinion, the VA examiner stated that there is no evidence of record that vascular insufficiency was service-related and there was no history of vascular insufficiency before the onset of blood clots in 1995. The Board finds the September 2014 medical opinion inadequate because it does not contain sufficient medical rationale to support its conclusion. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008) (holding that it is the factually accurate, fully articulated, and sound reasoning for the conclusion that contributes to the probative value of a medical opinion). Further, the examiner did not consider or discuss the Veteran's lay contentions as to the onset of his disability, to include whether his PVD is due to herbicide agent exposure and/or gamma globulin injections during service. See Dalton v. Nicholson, 21 Vet. App. 23, 39-40 (2007); see also Smith v. Derwinski, 2 Vet. App. 137, 140 (1992). Finally, the Board notes that the VA examination no longer reflects the current state of the Veteran's disability, as he underwent another peripheral angioplasty of the left common iliac artery shortly after the examination, in November 2014. Once VA undertakes the effort to provide an examination or opinion when developing a service connection claim, even if not statutorily obligated to do so, it must provide one that is adequate for purposes of the determination being made. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). As such, remand is required to obtain an adequate medical opinion before the Board can render an informed decision on the claim. See Douglas v. Shinseki, 23 Vet. App. 19, 26 (2009). Finally, evidence of record indicates that the Veteran has received private treatment for his PVD, to include at Swedish Medical Center, where he underwent peripheral angioplasty of the left common iliac artery in November 2014. However, these potentially relevant medical records have not been requested or associated with the claims file. Therefore, on remand, the Veteran should be asked to identify any pertinent outstanding private treatment records and the RO must make appropriate efforts to obtain any identified records. Accordingly, the matters are REMANDED for the following actions: 1. Obtain any outstanding VA treatment records. 2. Contact the Veteran and request that he provide information as to any outstanding private treatment records pertinent to his peripheral vascular disease and/or angioplasty of the bilateral legs, to include any records of treatment at Swedish Medical Center. After obtaining the necessary authorization from the Veteran, the RO must make reasonable efforts to obtain any identified records. 3. Schedule the Veteran for VA examinations with the appropriate VA physician to determine the nature and etiology of his claimed disabilities of arthritis of the bilateral legs and peripheral vascular disease. The examiner must review the claims file in its entirety, including this REMAND, and must note that review in the examination report. All appropriate diagnostic tests or studies (to include x-rays) must be accomplished, and all clinical findings reported in detail. A complete history of symptoms must be elicited from the Veteran. Thereafter, the examiner is asked to provide a fully-articulated medical opinion addressing the following: Arthritis (a) Does the Veteran have a current diagnosis of arthritis of the bilateral legs? (b) If so, is it at least as likely as not (50 percent or greater probability) that arthritis had its onset during active duty service, within one year of separation, or is otherwise related to any in-service injury, illness, or event? In providing the above, the examiner must adequately consider and address the Veteran's lay contention that his arthritis is due to the wear and tear on his body during 26 years of military service as a combat engineer. Peripheral Vascular Disease (a) Is it at least as likely as not (50 percent or greater probability) that that peripheral vascular disease had its onset during active duty service or is otherwise related to any in-service injury, illness, or event, to include exposure to herbicide agents? In providing the above, the examiner is advised that the sole basis of a negative opinion cannot be that PVD is not among the diseases subject to presumptive service connection based on exposure to herbicide agents. Moreover, the examiner must adequately consider and address the Veteran's lay contention that his disability may be caused by gamma globulin injections he received during service. The examiner is reminded that the term "at least as likely as not" does not mean "within the realm of possibility." Rather, it means that the weight of the medical evidence both for and against the claim is so evenly divided that it is as medically sound to find in favor of the claim as it is to find against it. The examiner is advised that the Veteran is competent to report his medical history, including when his symptoms began, and such reports must be acknowledged and considered in formulating any opinion. The Veteran's lay contentions must be considered and weighed in making the determination as to whether a nexus exists between the claimed disability and military service. It should be noted that a lack of documented treatment for the given disability in service, while probative, cannot serve as the sole basis for a negative finding. (Continued on next page) The examiner must provide a complete rationale for any opinion expressed, citing to the examiner's clinical experience, medical expertise, and established medical principles, as necessary. If the examiner is unable to provide an opinion without resorting to speculation, he or she should fully explain why that is so and what, if any, additional evidence would be necessary before an opinion could be rendered. J. NICHOLS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Melissa Barbee, 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.