Citation Nr: 21074868 Decision Date: 12/16/21 Archive Date: 12/16/21 DOCKET NO. 18-41 170 DATE: December 16, 2021 ORDER Entitlement to service connection for stomach disorder is denied. FINDING OF FACT The Veteran's stomach disorder was not etiologically related to his active duty service. CONCLUSION OF LAW The criteria for service connection for stomach disorder have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 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 Air Force from February 1958 to August 1961. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2015 rating decision of the Department of Veterans Affairs (VA) RO. The Veteran died during the pendency of this appeal in January 2021 and the Veteran's spouse has been deemed eligible for substitution of the Veteran and has become the Appellant in this case. An October 2019 Board decision denied entitlement to service connection for stomach disorder. The Veteran appealed this determination to the United States Court of Appeals for Veterans Claim (Court). In June 2020, the Court granted a Joint Motion for Partial Remand and remanded the claim to the Board for action consistent with the Joint Motion. The Board remanded this claim in November 2020 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). This appeal has been advanced on the docket. 38 C.F.R. § 20.902. Entitlement to service connection for stomach disorder For the reasons that follow, the Board finds that service connection is not warranted. As an initial matter, the record shows that the Appellant contacted the Board requesting withdrawal of her appeal and a copy of the claims file as she "will not receive enough funds thus it is not worth it for her." See September 2021 Report of Contact. The Board notes that except when made on the record at a hearing, appeal withdrawals must be in writing and in compliance with 38 C.F.R. § 20.205. On October 20, 2021, a follow up letter was sent to the Appellant requesting clarification as to her appeal withdrawal request. The Appellant did not respond. As such, the Appellant's September 2021 oral request is not a valid withdrawal under 38 C.F.R. § 20.205. Thus, the claim of entitlement to service connection for stomach disorder remains pending before the Board. As to the Appellant's request for a copy of claims file, in her September 2021 communication with the Board, she explicitly withdrew her Privacy Act request. The Board finds that there are no outstanding Privacy Act requests. The Board also notes that the Appellant has not asked to appear at a hearing. Accordingly, the Board will proceed with its appellate review. 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 there is a chronic disease shown as such in service or within the presumptive period under 38 C.F.R. § 3.307, so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. 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). 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 stomach disorders, to include gastroesophageal reflux disease (GERD), gallbladder disease, and gastritis. See December 2020 VA opinion. As such, the first element for service connection has been met. Next, as to the second element of service connection, the Veteran's service treatment records (STRs) show complaints of upset stomach, nausea, and stomach pain. See June 1958 and May 1960 STRs. Based on the foregoing, the Board finds that the in-service incurrence element of service connection has been established. As to the nexus element, the Board finds that the Veteran's stomach disorder is not shown to be etiologically related to his service. Specifically, a March 2018 VA opinion was initially obtained. The examiner opined that the Veteran's gastrointestinal (GI) issues were less likely than not related to his active military service. The examiner based this opinion on the fact that there is no evidence of current diagnosis of a stomach disorder. The examiner noted that any previous complaints of stomach issues that the Veteran was experiencing in service completely resolved on its own, as evidenced by his separation examination in July 1961. The examiner also noted that the Veteran specifically reported no stomach or intestinal trouble at his separation. The examiner concluded that any subjective symptoms that the Veteran was presently experiencing were less likely than not due to military service, as he separated more than half a century ago. Pursuant to the November 2020 Board's remand directives, December 2020 VA opinion was obtained. Upon review of all of the evidence of record, the examiner opined that the Veteran's stomach disorder was less likely than not etiologically related to his active military service. The examiner based this opinion on the fact that while the Veteran's STRs documents GI symptoms of nausea following meals, he did not receive any diagnostic studies, he was treated with nonspecific medication, and he was undiagnosed. The examiner noted that the Veteran's post-service treatment records show GI issues, to include nausea, vomiting, epigastric pain, and occasional diarrhea as early as 1994. However, the examiner added that there does not appear to be any continuity between the Veteran's GI complaints in service and his stomach disorder with onset almost 35 years after his separation. Further, the examiner noted that the Veteran was diagnosed with gastroesophageal reflux disease (GERD) following his separation and he was treated with acid blocking medication. However, the examiner concluded that there is no documentation to support a diagnosis of GERD during service. The examiner pointed out that despite extensive evaluation over the years, the Veteran never received a specific diagnosis for his chronic GI complaints. The examiner explained that diagnostic considerations included GERD, gallbladder disease, and gastritis. Unrelated diagnoses included sigmoid diverticulosis and clostridia difficile colitis treated with fecal transplant. The examiner noted that imaging also revealed colitis but there is no evidence that the Veteran was evaluated for this finding. The examiner found no evidence in the medical records to support a diagnosis of Crohn's disease. The examiner noted that the Veteran's cirrhosis with end stage liver disease aggravated his stomach disorder. The examiner further explained that a diagnosis that should have been considered was the possibility of mesenteric vascular insufficiency, given the Veteran's documented aortic atherosclerosis and portal/mesenteric vein thrombosis, as inadequate blood flow to the intestine can cause abdominal pain and nausea with mealsthe major complaint reported by the Veteran. The examiner added that other relevant considerations are GERD, gallbladder disease, and GI adverse effects from lactulose. Based on the foregoing, the examiner concluded that the medical records and STRs do not support a contention that the Veteran's stomach disorder was due to in-service events or injury, specifically his complaints of nausea and stomach pain in service. The Board accords great probative weight to the December 2020 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). The Veteran's post-service treatment records are also consistent with the December 2020 VA opinion. Most importantly, there is no contrary medical opinion of record. The Board also notes that the examiner attributed the Veteran's disorder to nonservice-connected disabilities. Thus, the Board finds the VA opinion highly probative to address the Veteran's claim. The Board acknowledges the statements of the Appellant and her 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). The December 2020 VA opinion is more probative to address the Appellant'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 stomach disorder 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, while GI complaints and treatment were documented during service, no stomach disorder or related GI issues were noted on the Veteran's separation examination in July 1961. His blood test results were within normal limits. On his July 1961 Report of Medical History, the Veteran also denied experiencing any problems with frequent indigestion, stomach, liver, or intestinal trouble. 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). Additionally, a review of the Veteran's medical records shows that his first post-service complaints of GI issues were in December 1994, more than 30 years after his separation from active duty service. See private treatment records. 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. The Board acknowledges that the Veteran's VA treatment records suggesting that he had a Crohn's disease. See e.g., January 2018 VA treatment record. Nonetheless, the Board finds these records to be less probative as it appears this finding was based upon the Veteran's self-reported history. The determination that the Veteran had a diagnosis of Crohn's disease required examination, laboratory and diagnostic testing, and knowledge of an impact of certain activities on the disease. A clinical diagnosis of Crohn's disease is not of record. This finding is also supported by the December 2020 VA examiner's medical opinion confirming lack of past or present diagnoses of Crohn's disease. Thus, the Board finds that the objective, persuasive evidence substantiates the December 2020 VA opinion. In sum, upon review of all of the evidence of record, the Board finds that entitlement to service connection for a stomach disorder 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 claim, that doctrine is not applicable. See 38 U.S.C. § 5107(b); Gilbert, supra. 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.