judge_norm: P M DILORENZO

text:
Citation Nr: 1315000
Decision Date: 05/07/13    Archive Date: 05/15/13

DOCKET NO.  10-49 108	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Boston, Massachusetts

THE ISSUES

1.  Entitlement to service connection for gastroresophageal reflux disease (GERD).

2.  Entitlement to service connection for status post testicular cancer, right orchiectomy.

REPRESENTATION

Appellant represented by:	Disabled American Veterans

WITNESS AT HEARING ON APPEAL

Appellant

ATTORNEY FOR THE BOARD

H. Bunker, Associate Counsel

INTRODUCTION

The Veteran served on active duty from September 1982 to September 1985.

This case comes before the Board of Veterans' Appeals (Board) on appeal from a May 2010 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO).  The Veteran testified at a Board hearing at the RO in Boston, Massachusetts in April 2012.  This transcript has been associated with the file.

Also at the April 2012 Board hearing, the Veteran submitted additional evidence.  However, the Veteran and his representative waived RO review of this evidence and therefore, Board adjudication of the current appeal may go forward without remanding the appeal for a supplemental statement of the case.  See 38 C.F.R. � 20.1304(c) (2012).

The issue of entitlement to service connection for status post testicular cancer is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.

FINDING OF FACT

The preponderance of the evidence is against a finding that GERD is related to service.

CONCLUSION OF LAW

The criteria to establish service connection for GERD have not been met.  38 U.S.C.A. � 1131 (West 2002); 38 C.F.R. � 3.303 (2012).

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veterans Claims Assistance Act of 2000 (VCAA)

The VCAA describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. �� 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. �� 3.102, 3.156(a), 3.159 and 3.326(a).

The notice required by 38 U.S.C.A. � 5103(a) should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim.  Pelegrini v. Principi, 18 Vet. App. 112 (2004); see also Mayfield v. Nicholson, 19 Vet. App. 103 (2005).  That was done in this case.

The notice requirements were met in this case by a letter sent to the Veteran in February 2010.  This letter advised the Veteran of the information necessary to substantiate his claims and of his and VA's respective obligations for obtaining specified types of evidence.  See Quartuccio v. Principi, 16 Vet. App. 183 (2002); 38 C.F.R. � 3.159(b).  This letter also advised the Veteran of how disability ratings and effective dates are determined.  See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).

The Veteran has not alleged that VA failed to comply with the notice requirements of the VCAA, and he was afforded a meaningful opportunity to participate effectively in the processing of his claim, and has in fact provided additional arguments at every stage.  See Mayfield v. Nicholson, 19 Vet. App. 103 (2005).

The Veteran's service treatment records and VA treatment records are in the file.  Available private treatment records have also been obtained and associated with the claims file.  The Veteran was notified in December 2011 that he could submit releases for the RO to obtain additional private treatment records.  He did not submit any releases.  At his hearing in April 2012, he stated that his private treatment records from Morton Hospital were no longer available.  He also submitted his private records from New England Medical Center.  The duty to assist with obtaining medical records has been satisfied.

The duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim, as defined by law.  The case of McLendon v. Nicholson, 20 Vet. App. 79 (2006), held that an examination is required when (1) there is evidence of a current disability, (2) evidence establishing an "in-service event, injury or disease," or a disease manifested in accordance with presumptive service connection regulations occurred which would support incurrence or aggravation, (3) an indication that the current disability may be related to the in-service event, and (4) insufficient evidence to decide the case.

The Veteran was afforded a VA medical examination in April 2010 for his GERD claim.  This opinion was rendered by a medical professional following a thorough examination and interview of the Veteran and review of the claims file.  The examiner obtained an accurate history.  The examiner provided a detailed conclusion for the conclusions that were reached.  Therefore, the Board finds that the examination is adequate.  Barr v. Nicholson, 21 Vet. App. 303, 311 (2007).

The Board also highlights that, in April 2012, the Veteran was provided an opportunity to set forth his contentions at a hearing before the undersigned.  The record reflects that at the hearing, the Veterans Law Judge set forth the issue to be discussed at the hearing, focused on the elements necessary to substantiate the claim, and sought to identify any further development required to help substantiate the claim.  These actions satisfied the Veterans Law Judge's duty to fully explain the issue on appeal and suggest the submission of any evidence that may have been overlooked.  Bryant v. Shinseki, 23 Vet. App. 488, 493-94 (2010) (holding that the requirements of 38 C.F.R. � 3.103(c)(2) apply to hearings before the Board).  Notably, neither the Veteran nor his representative have asserted that VA failed to comply with 38 C.F.R. � 3.103(c)(2), nor have they identified any prejudice in the conduct of the hearing.

In light of the foregoing, all relevant facts have been adequately developed to the extent possible; no further assistance to the Veteran in developing the facts pertinent to the issue on appeal is required to comply with the duty to assist.  38 U.S.C.A. �� 5103, 5103A; 38 C.F.R. � 3.159.

Service Connection

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.A. � 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).

In order to establish service connection for the claimed disorder on a direct basis, generally there must be probative evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the current disability.  See Hickson v. West, 12 Vet. App. 247, 253 (1999).

The Veteran contends that his GERD began in-service and he was seen for gastrointestinal complaints.  For the reasons that follow, the Board concludes that service connection is not warranted.

In reviewing the Veteran's service treatment records, the Board observes that at his April 1982 entrance examination the Veteran did not report any gastrointestinal problems.  He was qualified for entrance to service.  In a November 19, 1984 treatment record the Veteran reported abdominal pain after eating in the mess hall.  He also reported problems with weight control and requested separate rations and to buy his own food.  The examiner doubted the Veteran had an ulcer, but said it could be possible.  He was prescribed Mylanta and given a dietician consultation.  In a follow up treatment record, he was also noted to be taking Pepto Bismol.  He was instructed to avoid food that irritated his stomach.  In a November 24, 1984 treatment record, the Veteran was still noted to have epigastric discomfort, although he was still taking Mylanta.  Again, in December 1984, the Veteran reported with epigastric complaints.  He was given a temporary separate ration profile.

At separation from service at his August 1985 examination, the Veteran had no defects noted with regard to GERD and was qualified for separation from service.  He specifically denied any pain or pressure in his chest, frequent indigestion, or intestinal trouble.

After service, the Veteran was afforded a VA examination in October 1985.  In his narrative history, he did not report any gastrointestinal problems.  Examination of the digestive system was normal.

Even if a chronic condition was not shown during service, service connection may be established under 38 C.F.R. � 3.303(d) if the evidence shows a chronic disease first diagnosed after service was incurred in service.  The term 'chronic disease', whether as manifest during service or manifest to a compensable degree within a presumptive window following service, applies only to those disabilities listed in 38 C.F.R. � 3.309(a); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).

VA outpatient treatment records show that the Veteran was noted to have GERD as early as April 2005.  In a January 2010 VA treatment record the Veteran reported heartburn and he was prescribed an additional medication to take at night.

The Veteran was afforded a VA examination in April 2010 for his GERD claim.  He reported his symptoms began while in service in Germany when he had discomfort after eating at the mess hall.  He was allowed to buy his own food, but there was minimal improvement with his symptoms, even using over the counter medications.  His current treatment was diet restriction and prescription medication.

The examiner opined that the Veteran's GERD was not related to service.  Her rationale was that while he was treated in November 1984, there was no discussion at that time of GERD or heartburn.  Following this the Veteran did not take any regular medications in service.  Finally, she noted on the Veteran's separation examination he did not complain of frequent indigestion, stomach, liver, or intestinal problems, nor were any diagnosed.

In a February 2012 VA treatment record the Veteran reported upper gastrointestinal symptoms since the 1980s with dyspepsia and heartburn/reflux.  He was noted to still be on prescription medication.

At the Veteran's April 2012 Board hearing, he testified he received over the counter treatment in service for his GERD, and that he believed it was related to the food he was eating at the mess hall.  He testified the first time post service he received treatment was approximately 1989 or 1990, but that the records were not available.  The Veteran also testified he has since been followed by the VA and prescribed various medications to help control his symptoms.

A preponderance of the evidence of record weighs against the Veteran's assertion that his GERD is related to service.  While the Veteran was treated for epigastric complaints during service, he was not diagnosed as having GERD.  There is no evidence of a chronic condition in service.  Separation examination in August 1985 and post-service VA examination in October 1985 revealed no gastrointestinal complaints and a normal physical examination.  In addition, a VA physician has opined that it is less likely than not that the Veteran's GERD is related to service.  There is no medical evidence to the contrary.

The Veteran has provided statements and testimony indicating that he believes his GERD began in service.  Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet.App. 428, 435 (2011), the specific issue in this case, diagnosis of GERD, falls outside the realm of common knowledge of a lay person.  See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer).  The Board finds that the opinion of the April 2010 VA examiner, a trained medical professional, to carry more weight than that of the Veteran.  The Veteran's assertion has been investigated by competent medical opinion, and found to be without merit.  See Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007).

The Board also finds that the Veteran's statements that he has continued to suffer with gastrointestinal symptoms since service not to be credible, in light of his denial of any such symptoms at the time of his separation examination and the normal clinical examinations in August 1985 and October 1985.

Accordingly, the Board concludes that the preponderance of the evidence is against the claim for service connection for GERD and the benefit of the doubt rule does not apply.  See 38 U.S.C.A. � 5107 (West 2002); Gilbert v. Derwinski, 1 Vet.  App. 49, 56 (1990).

ORDER

Entitlement to service connection for GERD is denied.

REMAND

The Veteran contends that his testicular cancer began in service.  During service in October 1982, the Veteran reported with complaints of right groin pain for one week.  He was suspected to have pulled his groin muscle.  A July 1983 record indicates the Veteran was seen with complaints of groin pain, mainly in his right testes.  He reported that the pain came and went, but had existed for the previous 2 months.  The doctor noted that he had right testicular pain of unknown etiology.

The Veteran was diagnosed with testicular cancer in 1989 and is currently status post right orchiectomy.  See e.g., October 2009 VA treatment record.  Accordingly, the Veteran should be provided with a VA examination to determine if it is at least as likely as not that his testicular cancer and subsequent right orchiectomy are related to service.

On remand, updated VA treatment records should be obtained and efforts should be undertaken to obtain the Veteran's treatment records from Boston University Hospital.

Accordingly, the case is REMANDED for the following action:

1.  Make arrangements to obtain the Veteran's VA treatment records, dated since January 2010.

2.  Make arrangements to obtain the Veteran's treatment records from Boston University Hospital, dated since 1989.

3.  Thereafter, schedule the Veteran for an appropriate VA examination to determine the etiology of his status post testicular cancer and right orchiectomy.

a) The entire claims file (i.e. any medical records contained in Virtual VA, CAPRI, and AMIE), to include this REMAND, must be reviewed by the examiner in conjunction with the examination.  If the examiner does not have access to Virtual VA, any relevant treatment records contained in Virtual VA file that are not available on CAPRI or AMIE must be printed and associated with the paper claims file so they can be available to the examiner for review.  The examiner should indicate on the examination report that (s)he has reviewed the folder in conjunction with the examination.

b) The examiner(s) must conduct any appropriate interviews and clinical testing.

c) The examiner should then state whether the Veteran's status post testicular cancer and right orchiectomy had its clinical onset during active service or is related to any in-service disease, event, or injury.  In providing this opinion, the examiner should consider the service treatment records dated in October 1982 and July 1983 showing treatment for right testes/groin pain.

d) The examiner is requested to provide a fully reasoned explanation for his or her opinions, based on his or her clinical experience, medical expertise, and established medical principles.

e) The examiner is advised that by law, an examiner's statement that an opinion is based on the medical expertise of the examiner, but without a fully reasoned explanation, is not a legally sufficient opinion and will likely result in a return of the claim to the examiner.

4.  After the above has been completed, review the claims file and ensure that all of the foregoing development actions have been conducted and completed in full.  If any development is incomplete, appropriate corrective action must be implemented.  If any report does not include adequate responses to the specific opinions requested, it must be returned to the providing examiner for corrective action.

5.  Finally, readjudicate the Veteran's claim.  If the benefit sought on appeal is not granted, the Veteran and his representative should be furnished with a supplemental statement of the case and afforded a reasonable opportunity to respond before the record is returned to the Board for further review.

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.A. �� 5109B, 7112 (West Supp. 2012).

______________________________________________
P.M. DILORENZO
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs


series: legacy

judge_norm: KEITH W ALLEN

disposition: granted

text: Service connection is granted for disability due to disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). [is remanded]

text:
Citation Nr: 1316000
Decision Date: 05/15/13    Archive Date: 05/15/13

DOCKET NO.  08-04 502	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Jackson, Mississippi

THE ISSUE

Entitlement to service connection for an acquired psychiatric disorder, including mental inaptitude and schizophrenia claimed as a nervous condition, depression, and paranoid traits.

REPRESENTATION

Appellant represented by:	Peter J. Meadows, Attorney

WITNESSES AT HEARING ON APPEAL

The Veteran and his spouse

ATTORNEY FOR THE BOARD

H. Bunker, Associate Counsel
INTRODUCTION

The Veteran served on active duty in the military for a total of 1 month and 16 days, from October 28 to December 13, 1971.

This appeal to the Board of Veterans' Appeals (Board) is from November and December 2006 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi.

As support for the petition to reopen this claim, the Veteran and his spouse testified at a hearing at the RO in May 2008 before a local Decision Review Officer (DRO).  They also more recently testified at another hearing at the RO in September 2008, this time before the undersigned Veterans Law Judge of the Board - also referred to as a Travel Board hearing.

In March 2010, the Board denied the petition to reopen the claim, and the Veteran appealed the Board's decision to the U. S. Court of Appeals for Veterans Claims (Court/CAVC).  In July 2010 Order, granting a Joint Motion, the CAVC vacated the Board's decision and remanded the claim to the Board for further development and readjudication in compliance with directives specified in the Joint Motion.

The Veteran's attorney subsequently submitted additional evidence and argument in June 2011, including a brief and a May 2011 letter from C.L.K., LPC, of Progressive Rehabilitation Systems.  The Veteran's attorney waived the right to have the RO initially consider this additional evidence.  38 C.F.R. �� 20.800, 20.1304 (2012).  And because of this additional letter, since it was new and material evidence, the Board reopened the claim in a decision issued later in June 2011.  But rather than immediately readjudicating the claim on its underlying merits, the Board instead then proceeded to remand the claim to the RO for further development and consideration - including especially to have the Veteran undergo another VA compensation examination for a medical nexus opinion concerning whether his military service either caused or aggravated his mental illness.

He had this requested VA compensation examination in June 2012.  The examiner, however, apparently mistakenly checked the wrong box when responding, so the RO obtained additional comment in July 2012 resolving this discrepancy.  And based on the ultimately unfavorable opinion, the RO continued to deny the claim in an August 2012 supplemental statement of the case (SSOC).  The Veteran's attorney later inquired in April 2013 about the discrepancy in the examiner's opinion and was provided a response in a separate e-mail explaining why the opinion, in actuality, was unfavorable and not favorable to the claim.

The examiner needs to provide additional comment, however, since he did not respond to all of the questions the Board asked when previously remanding this claim.  In Stegall v. West, 11 Vet. App. 268, 271 (1998), the CAVC held that a remand by the Board confers upon the Veteran the right to compliance with its remand directives, and that the Board itself commits error as a matter of law in failing to ensure compliance with the terms of its remand because this is a concomitant duty.  The Board therefore is again remanding this claim to the RO.

REMAND

Unfortunately, another remand of this claim is required.  Although the Board sincerely regrets the additional delay that inevitably will result, it is necessary to ensure there is a complete record upon which to decide this claim so the Veteran is afforded every possible consideration.

The RO has not substantially complied with the Board's prior June 2011 remand directives, so the Board has no discretionary authority but to again remand this claim.  See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999).

In the prior June 2011 remand, the Board instructed the RO to obtain a medical nexus opinion concerning whether the Veteran's 1 month and 16 days of military service from October 28 to December 13, 1971, had caused or aggravated his mental illness - irrespective of the specific diagnosis of it.  The Board explained that it was unclear from a May 2011 supporting letter from C.L.K. of Progressive Rehabilitation Systems and review of the file whether he was concluding the "mental inadequacy" (mental inaptitude) cited as reason for discharging the Veteran from service after such a relatively short time (just 1 month and 16 days from October to December 1971) represented the initial manifestation of the Veteran's mental illness, i.e., incurrence of a mental disorder in service, versus aggravation of a pre-existing condition since he also said the Veteran's mental status obviously had changed while in the military, despite having been examined for induction and determined to have been both physically and psychiatrically "fit".

C.L.K. essentially had acknowledges both possibilities by stating it is more likely than not the Veteran had a mental illness that had developed or was aggravated by the stress of military service and therefore was related to his active military service.  C.L.K. also had indicated the Veteran since had received diagnoses of schizophrenia and depression, but did not indicate whether these additional diagnoses were related to the mental inadequacy noted in service, such as in terms of whether there was a misdiagnosis in service or they represented the eventual progression of the Veteran's mental illness or inadequacy to these other diagnoses.  See 38 C.F.R. � 4.125(b) (indicating that if a diagnosis of a mental disorder is changed, the rating agency shall determine whether the new diagnosis represents progression of the prior diagnosis, correction of an error in the prior diagnosis, or development of a new and separate condition.  If it is not clear from the available records what the change of diagnosis represents, the rating agency shall return the report to the examiner for a determination.).

Service connection is granted for disability due to disease or injury incurred in or aggravated by active military service.  38 U.S.C.A. � 1110; 38 C.F.R. � 3.303(a).

The presumption of soundness attaches where, as here, there has been an induction examination during which the disability about which the Veteran later complains was not detected ("noted").  38 C.F.R. � 1111; 38 C.F.R. � 3.304(b).  See also Bagby v. Derwinski, 1 Vet. App. 225, 227 (1991).

The regulation provides expressly that the term "noted" denotes "[o]nly such conditions as are recorded in examination reports," 38 C.F.R. � 3.304(b), and that "[h]istory of pre-service existence of conditions recorded at the time of examination does not constitute a notation of such conditions."  Id., at (b)(1).

In this circumstance, to rebut this presumption of soundness at entry into service, VA has the burden of proof of showing by clear and unmistakable evidence both that the Veteran had a mental disorder prior to service and that it was not aggravated during or by his service beyond its natural progression.  See VAOPGCPREC 3-2003 (July 16, 2003) and Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004).

"Clear and unmistakable evidence" is a more formidable evidentiary burden of proof than the preponderance of the evidence standard.  See Vanerson v. West, 12 Vet. App. 254, 258 (1999) (noting that the "clear and convincing" burden of proof, while a higher standard than a preponderance of the evidence, is a lower burden to satisfy than that of "clear and unmistakable evidence."). It is an "onerous" evidentiary standard, requiring that the preexistence of a condition and the
non-aggravation result be "undebatable."  Cotant v. Principi, 17 Vet. App. 116, 131 (2003), citing Laposky v. Brown, 4 Vet. App. 331, 334 (1993).

But as the Board also pointed out, all of this also must be considered in light of 38 C.F.R. � 3.303(c) indicating that, in regards to pre-service disabilities noted in service, there are medical principles so universally recognized as to constitute fact (clear and unmistakable proof), and when in accordance with these principles existence of a disability prior to service is established no additional or confirmatory evidence is necessary.  Section 3.303(c) goes on to indicate this determination includes situations where the manifestation of symptoms of chronic disease from the date of enlistment, or so close thereto, that the disease could not have originated in so short a period will establish pre-service existence thereof.

The Board therefore needed the benefit of this additional medical comment to assist in making these important determinations regarding causation and etiology of the Veteran's mental disorder, especially, again, in terms of whether his military service had caused or aggravated it.  See McLendon v. Nicholson, 20 Vet. App. 79 (2006), 38 U.S.C.A. � 5103A(d)(2); 38 C.F.R. � 3.159(c)(4).

To this end, in June 2012 the RO obtained this requested medical nexus opinion.  However, the examiner only commented on the likelihood that the Veteran's mental disorder was related to his service, i.e., was incurred in service, without also addressing whether there was pre-existing mental illness and, if so, whether the Veteran's military service had aggravated this pre-existing mental illness beyond its natural progression.

Although, as mentioned, the examiner apparently mistakenly checked the wrong box when responding (which the RO later confirmed by having a VA staff psychologist provide addendum comment in July 2012), that June 2012 examiner ultimately concluded there was no continuity of diagnosis or treatment establishing a nexus or connection between the Veteran's military service and his adjustment disorder.  Thus, the examiner determined it was less likely than not that the adjustment disorder was incurred in or caused by the claimed in-service injury, event or illness.

The cited rationale was that:

THE CLAIMS FILE SHOWS MH [mental health] TREATMENT AT JVAMC [the Jackson, Mississippi, VA Medical Center] SINCE 1988 BUT NO RECORDS ARE FOUND OF EARLIER TREATMENT.  NO CONTINUITY OF DIAGNOSIS OR TREATMENT ESTABLISHES A NEXUS OR CONNECTION BETWEEN CLAIMANT'S MILITARY SERVICE AND HIS ADJUSTMENT DISORDER.  ADJUSTMENT REACTION IS A TIME[-]LIMITED CONDITION REACTIVE TO LIFE CIRCUMSTANCES.  ACCORDINGLY, NO NEXUS OR CONNECTION WITH MILITARY SERVICE IS IMPLIED.

The June 2012 examiner, however, did not offer any opinion regarding whether, alternatively, the Veteran's mental illness clearly and unmistakably pre-existed his service and, if so, whether it clearly and unmistakably was not aggravated during or by his 1 month and 16 days of service from October 28 to December 13, 1971, beyond its natural progression.  Comment also was and is still needed concerning this additional possibility.

As well, the examiner's opinion only references an adjustment disorder as being unrelated to the Veteran's service, without providing any comment concerning the several other diagnoses that either have been made or claimed to have been made, either during service or since, of mental inaptitude and schizophrenia, nervous condition, depression, and paranoid traits.  The CAVC has held that the scope of a claim for service connection for a mental disability includes any mental disability that reasonably may be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record.  Clemons v. Shinseki, 23 Vet. App. 1, 5-6 (2009); see also Brokowski v. Shinseki, 23 Vet. App. 79, 85 (2009) (A claimant's identification of the benefit sought does not require any technical precision), citing Ingram v. Nicholson, 21 Vet. App. 232, 256-57 (2007) (It is the pro se claimant who knows what symptoms he is experiencing and that are causing him disability); see, too, Robinson v. Nicholson, 21 Vet. App. 545, 552 (2008) (The Board is required to consider all issues raised either by the claimant or the evidence of record).

Clemons concerned VA's failure to consider a claim of entitlement to service connection for a psychiatric disorder other than the one specifically claimed, even though it shared the psychiatric symptomatology for which the Veteran was seeking service connection.  The Clemons Court found that, where a Veteran's claim identifies a condition without more, it cannot be a claim limited only to that diagnosis, rather must be considered a claim for any mental disability that reasonably may be encompassed by the evidence of record.  The Clemons Court indicated that, when a claimant makes a claim, he is seeking service connection for symptoms regardless of how those symptoms are diagnosed or labeled.

The June 2012 VA examiner also seems to equate continuity of symptomatology with continuity of diagnosis or treatment in disassociating any current mental illness from the Veteran's service.  Symptoms, not treatment, however, are the essence of continuity of symptomatology under 38 C.F.R. � 3.303(b).  See also Forshey v. Principi, 284 F.3d 1335, 1358 (Fed. Cir. 2002) (en banc) (cautioning that negative evidence, meaning actual evidence weighing against a party, must not be equated with the absence of substantive evidence).

So while it is permissible for the examiner to perhaps have expectation that the Veteran would have been treated for mental illness prior to 1988, if indeed his mental illness dates back to his service that ended in 1971, this cannot be the only or sole reason or basis for concluding he did not have mental illness during those many intervening years.  It is nonetheless evidence tending to refute this notion.  In the appropriate circumstance, the Board may consider the absence of any indication of a relevant medical complaint until relatively long after service as one factor, just not the only or sole factor, in determining whether a disease or an injury in service resulted in chronic or persistent residual disability.  See Maxson v. West, 12 Vet. App. 453, 459 (1999), aff'd sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000).  See, too, Mense v. Derwinski, 1 Vet. App. 354 (1991) (holding that VA did not err in denying service connection when the Veteran had failed to provide evidence demonstrating continuity of symptomatology and had failed to account for the lengthy time period following service for which there was no clinical documentation of the claimed disorder).

In a statement the Veteran since has submitted in August 2012, he alleges that, when discharged from service, he simply did not know about the Veterans' Hospital (so presumably was unaware of the services it offered, such as treatment for mental illness), until told of this by a fellow Marine.  So he seemingly is offering this as explanation for why he was not treated sooner after the conclusion of his service.

In Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006), the U. S. Court of Appeals for the Federal Circuit (Federal Circuit Court) recognized lay evidence as potentially competent to support the presence of the claimed disability during and since service, even when, as here, not corroborated by contemporaneous medical evidence such as actual treatment records.  The Federal Circuit Court went on to indicate in Buchanan, however, that the Board retains the discretion to make credibility determinations and otherwise weigh the evidence submitted, including lay evidence.  The Federal Circuit Court has recognized the Board's "authority to discount the weight and probity of evidence in light of its own inherent characteristics and its relationship to other items of evidence."  Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997).  Moreover, if a disability is not alleged to have been incurred in combat, Buchanan is distinguishable; the lack of documentation in service records and in records since service must be weighed against the Veteran's statements.  See Bardwell v. Shinseki, 24 Vet. App. 36 (2010).

Ultimately, the Board must consider all the evidence relevant to the claim, including the availability of medical records, the nature and course of the disease or disability, the amount of time that has elapsed since military service, and any other pertinent facts.  Cf. Dambach v. Gober, 223 F.3d 1376, 1380-81 (Fed. Cir. 2000).  Thus, when appropriate, the Board may consider the absence of evidence when engaging in a fact-finding role.  See Jordan v. Principi, 17 Vet. App. 261 (2003) (Steinberg, J., writing separately) (noting that the absence of evidence may be considered as one factor in rebutting the aggravation part of the section 1111 presumption of soundness).

The Veteran is competent to say he has experienced continuous mental health related symptoms since his military service that ended many years ago, so even prior to 1988 when actually first treated.  If a condition is diagnosable by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation.  In such cases, the Board is within its province to weigh that testimony and make a credibility determination as to whether the evidence supports a finding of service incurrence and continuity of symptomatology sufficient to establish service connection.  See Barr v. Nicholson, 21 Vet. App. 303, 310 (2007).

So medical evidence is not always or categorically required when the determinative issue involves either medical diagnosis or etiology, but rather such issue may, depending on the facts of the particular case, be established by competent and credible lay evidence under 38 U.S.C.A. � 1154(a).  See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009).  Lay evidence can be competent and sufficient to establish a diagnosis of a condition when:  (1) a layperson is competent to identify the medical condition (e.g., a broken leg, separated shoulder, pes planus (flat feet), varicose veins, tinnitus (ringing in the ears), etc., but other times not, such as a form of cancer), (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, 1377 (Fed. Cir. 2007).

So whether a Veteran's lay testimony, even if both competent and credible (and therefore ultimately probative), is sufficient to establish the required linkage or correlation between his current disability and service depends entirely on the type of condition being claimed.  This determination, then, is on a case-by-case basis.  Kahana v. Shinseki, 24 Vet. App. 428 (2011).

But consider also that another recent precedent decision of the Federal Circuit Court clarified that this notion of continuity of symptomatology since service, as an alternative means of establishing this required causation or correlation between current disability and service by way of 38 C.F.R. � 3.303(b), only applies to conditions specifically identified as "chronic" under 38 C.F.R. � 3.309(a).  See Walker v. Shinseki, 708 F.3d 1331, 1333 (citing Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004))).  Psychoses are on the list of conditions identified in � 3.309(a) as chronic, per se, so entitled to this pleading and proof exception.  But according to 38 C.F.R. � 3.384, a "psychosis" includes only the following specific disorders:  brief psychotic disorder, delusional disorder, psychotic disorder due to general medical condition, psychotic disorder not otherwise specified (NOS), schizoaffective disorder, schizophrenia, schizophreniform disorder, shared psychotic disorder, and substance-induced psychotic disorder.  So to the extent the Veteran has other psychiatric disorders, including adjustment disorder, he cannot establish the required linkage between the disorder and his military service merely by showing continuity of symptomatology since service, again, even assuming also that his lay testimony concerning this is both competent and credible.

Nevertheless, the Court has held that once VA undertakes to provide a medical examination for a medical nexus opinion in a service-connection claim, even if not statutorily obligated to, it must ensure the examination and opinion are adequate, else, explain why an adequate examination and opinion cannot be provided.  See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007); see also Daves v. Nicholson, 21 Vet. App. 46, 51 (2007), citing Green v. Derwinski, 1 Vet. App. 121, 123-124 (1991); Bowling v. Principi, 15 Vet. App. 1, 12 (2001) (emphasizing the Board's duty to return an inadequate examination report "if further evidence or clarification of the evidence... is essential for a proper appellate decision").

This claim therefore has to be again remanded for a supplemental opinion, including especially to reconcile all diagnoses to date, to address the Veteran's lay testimony as to why he was not earlier treated after the conclusion of his service,  and to determine whether there is the required clear and unmistakable evidence that his psychiatric disorder pre-existed his service and clear and unmistakable evidence that it was not aggravated during or by his service beyond its natural progression.

Accordingly, the claim is again REMANDED for the following additional development and consideration:

1.  Have the VA examiner that evaluated the Veteran in June 2012, following and as a result of the Board's prior remand, provide supplemental comment concerning the etiology of the Veteran's mental illness.

*If, for whatever reason, that examiner is unavailable to provide this supplemental comment (addendum opinion), then have someone else do it that is qualified to make the necessary determinations - such as the staff psychologist who already provided supplemental comment in July 2012.

If it is determined the Veteran needs to be reexamined to provide this additional comment, then have him reexamined.  But this is left entirely to the designee's discretion as to whether another examination is needed or the additional responses can be provided merely by reviewing the existing evidence.  If it is determined another examination is needed, the Veteran hereby is advised of 38 C.F.R. � 3.655 and the consequences of his failing to report for this additional examination, which would require considering his claim based on the existing evidence of record.

Opinion is specifically needed concerning the following:

a.  Reconcile all diagnoses to date.  In other words, does the Veteran only have an adjustment disorder or does he also have or has he also previously had other disorders, including at any point since his initial treatment, post service, in 1988 or thereabouts?

b.  If there are other diagnoses, please also specify them, including in relation to the adjustment disorder diagnosed at the conclusion of the June 2012 VA examination.

c.  If, as the June 2012 VA examiner apparently considered significant, there is no suggestion of diagnosis or treatment of mental health related issues prior to 1988, whey then is this significant if also considering the Veteran claims to have been unaware of the possibility of receiving treatment at his local VAMC from the time of his discharge from service in 1971 until first treated in 1988 or thereabouts.  In other words, the VA examiner cannot equate the absence of treatment during those intervening years with the absence of symptoms, seeing as though the Veteran is competent to say he nonetheless was experiencing continuous symptoms.  The Board eventually will have to decide whether his lay testimony concerning this also is credible (so not just competent) to ultimately have probative value.  But, in the meantime, please discuss if there is reason, other than the lack of treatment from 1971 to 1988, to conclude the Veteran was not experiencing symptoms during those several intervening years - if, as the June 2012 VA examiner concluded, this is reason for disassociating any current mental illness from the Veteran's service.

d.  but even if it is again determined the Veteran's current mental illness (whatever the specific diagnosis) is not directly or presumptively related to his service, i.e., was no incurred during his service, please also indicate whether there is clear and unmistakable evidence that it pre-existed his service and if so, whether there also is clear and unmistakable evidence that it was not aggravated during or by his service beyond its natural progression.

*In other words, not only is medical comment needed concerning causation (as the June 2012 VA examiner previously provided), but also the additional possibility of aggravation (which he did not additionally mention).  But when providing this additional comment concerning the possibility of aggravation, please also consider the different standard of proof requiring clear and unmistakable evidence both of pre-existence and no aggravation rather than addressing this in terms of the likelihood (very likely, as likely as not, or unlikely) as was done when addressing direct or presumptive incurrence in service.

To facilitate providing this additional necessary comment, the entire claims file (i.e., any medical records contained in Virtual VA, CAPRI, and AMIE), including this REMAND and the Board's prior REMAND, must be reviewed by the examiner for the pertinent history.  If the examiner does not have access to Virtual VA, any relevant treatment records contained in Virtual VA file that are not available on CAPRI or AMIE must be printed and associated with the paper claims file so they can be available to the examiner for review.  The examiner should confirm in the examination report that (s)he has reviewed the folder.

This additional comment regarding possible aggravation is needed since the Veteran served for such a relatively short time (just a total of 1 month and 16 days from October 28 to December 13, 1971), he was discharged from service on account of mental inaptitude, and there was no indication of a mental disorder of any sort when he was earlier examined for enlistment into the military.  So to now conclude instead that he had a pre-existing mental disorder and rebut the presumption of soundness when entering service, there has to be clear and unmistakable evidence of a pre-existing mental disorder and clear and unmistakable evidence it was not aggravated during or by his service beyond its natural progression.

The examiner must discuss the underlying medical rationale for all opinions provided, whether favorable or unfavorable, if necessary citing to specific evidence in the file supporting conclusions.  Conversely, if the examiner concludes that an etiological opinion cannot be provided without resorting to mere speculation, he or she should clearly and specifically so specify in the examination report but, as importantly, provide explanation as to why this requested medical comment is not possible or feasible, such as by indicating whether additional evidence or other procurable data is needed, there are multiple possible etiologies with none more prevalent than another and the limits of medical knowledge have been exhausted, or whatever may be the reason he or she cannot respond more definitively.  In other words, merely saying he/she cannot comment will not suffice.

2.  Ensure the opinion is responsive to these determinative issues, that is, not just of causation (as the June 2012 VA examiner limited his opinion to), but also the possibility of aggravation, or provides sufficient explanation as to why it cannot be.  If it is not, take any needed corrective action.  See Stegall v. West, 11 Vet. App. 268 (1998); 38 C.F.R. � 4.2.

3.  Then readjudicate this claim in light of this and all other additional evidence.  If this claim continues to be denied, send the Veteran and his attorney another SSOC and give them an opportunity to submit additional evidence and/or argument in response before returning the file to the Board for further appellate consideration of this claim.

The Veteran has the right to submit additional evidence and argument concerning this claim the Board is remanding.  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.A. �� 5109B, 7112 (West Supp. 2012).

_________________________________________________
KEITH W. ALLEN
Veterans Law Judge, Board of Veterans' Appeals

Under 38 U.S.C.A. � 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims.  This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal.  38 C.F.R. � 20.1100(b) (2012).


judge_norm: MARJORIE A AUER

text: Service connection for IBS is granted.

disposition: denied

condition: gi

disposition: remanded

text:
Citation Nr: 1317000
Decision Date: 05/23/13    Archive Date: 05/31/13

DOCKET NO.  03-26 721	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Nashville, Tennessee

THE ISSUES

1.  Entitlement to service connection for irritable bowel syndrome (IBS).

2.  Entitlement to service connection for a gastrointestinal disability other than IBS.

3.  Entitlement to service connection for tinnitus.

4.  Entitlement to service connection for posttraumatic stress disorder (PTSD).

5.  Entitlement to an initial compensable rating for bilateral hearing loss.

REPRESENTATION

Appellant represented by:	Disabled American Veterans

ATTORNEY FOR THE BOARD

T. Mainelli, Counsel

INTRODUCTION

Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. � 20.900(c) (2012).  38 U.S.C.A. � 7107(a)(2) (West 2002).

The Veteran had active service from July 1951 to July 1955.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2003 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee.  In pertinent part, the RO determined that new and material evidence had not been received sufficient to reopen a previously denied claim of service connection for a gastrointestinal disability (which was characterized as a stomach condition).

In October 2009, the Board denied the Veteran's application to reopen a claim of service connection for a gastrointestinal disability.  The Veteran, through his attorney and VA's Office of General Counsel, timely filed a Joint Motion for Remand (JMR) with the United States Court of Appeals for Veterans Claims (Court) in June 2010.  The Court granted the JMR later in June 2010, vacating and remanding the Board's October 2009 decision.  The Board subsequently remanded the Veteran's appeal to the RO, via the Appeals Management Center (AMC) in Washington, DC, in December 2010.

By decision dated July 2012, the Board reopened the Veteran's claim of service connection for a gastrointestinal disability, and remanded the claim for development on the merits.

A VA examiner in July 2012 diagnosed the Veteran as currently manifesting two separate gastrointestinal disorders - IBS and gastroesophageal reflux disease (GERD).  As a result of these separate diagnoses, the Board has rephrased the original issue of service connection for a "gastrointestinal" disability as two separate claims for administrative purposes.

The Board observes that a VA examiner in July 2012 attributed the Veteran's IBS, in part, to anxiety symptoms.  Virtual VA reflects that, in December 2009, the RO denied a claim of service connection for an adjustment disorder with anxious mood.  In May 2011, the RO denied a claim of service connection for PTSD which, as reflected in Virtual VA, has been referred to a Decision Review Officer for readjudication and, if necessary, issuance of a Statement of the Case (SOC).  Thus, the RO has already addressed, or is addressing, whether a separate anxiety disorder is of service-connected origin.

Finally, the Board notes that the RO has reviewed the additional evidence contained in Virtual VA in the February 2013 supplemental statement of the case (SSOC).

The issues of entitlement to service connection for tinnitus, entitlement to service connection for PTSD and entitlement to an initial compensable rating for bilateral hearing loss have been listed on the title page for procedural purposes only.  These issues are REMANDED to the RO via the Appeals Management Center (AMC) in Washington, DC, and are addressed in the REMAND portion of this decision.

FINDINGS OF FACT

1.  The Veteran, who is presumed to have entered active service in sound condition, is deemed to have first manifested IBS during active service.

2.  A gastrointestinal disorder other than IBS, including GERD, is not shown to have manifested until many years after service, and is not shown to be causally related to an event during active service.

CONCLUSIONS OF LAW

1.  The criteria for entitlement to service connection for IBS have been met.  38 U.S.C.A. �� 1110, 1111, 1112, 5107 (West 2002); 38 C.F.R. �� 3.303, 3.306 (2012).

2.  The criteria for entitlement to service connection for a gastrointestinal disability other than IBS have not been met.  38 U.S.C.A. �� 1110, 1111, 1112, 5107 (West 2002); 38 C.F.R. �� 3.303, 3.306 (2012).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  The Duty to Notify and the Duty to Assist

As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. �� 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. �� 3.102, 3.156(a), 3.159 and 3.326(a) (2012).

Under 38 U.S.C.A. � 5103(a) and 38 C.F.R. � 3.159(b), when VA receives a complete or substantially complete application for benefits, it will notify the claimant of the following: (1) any information and medical or lay evidence that is necessary to substantiate the claim, (2) what portion of the information and evidence VA will obtain, and (3) what portion of the information and evidence the claimant is to provide.  The notification requirements are referred to as Type One, Type Two, and Type Three, respectively.  See Shinseki v. Sanders, 129 S. Ct. 1696 (2009).

Also, the VCAA notice requirements apply to all five elements of a service connection claim.  The five elements are: 1) veteran status; 2) existence of a disability; 3) a connection between the veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability.  Dingess v. Nicholson, 19 Vet. App. 473 (2006).

Here, the Veteran filed an application to reopen a prior final denial in December 2002.  A January 2003 RO letter advised the Veteran of the types of evidence and/or information deemed necessary to substantiate a service connection claim as well as the relative duties on the part of the Veteran and VA in developing the claim.  This letter did not advise the Veteran of the basis for the prior final denial and the evidence needed to reopen the claim, as required by Kent v. Nicholson, 20 Vet. App. 1 (2006).  However, this notice error is harmless as the Veteran has successfully reopened his claim.

A November 2006 RO letter advised the Veteran of the criteria for establishing an initial disability rating and effective date of award, should service connection be established.  The timing deficiency of this aspect of notice does not result in any prejudice to the Veteran as these downstream issues are not implicated in this appeal.

The Veteran's service treatment records (STRs) are missing.  In such a situation, VA has a heightened obligation to "to consider the applicability of the benefit of the doubt rule, to assist the claimant in developing the claim, and to explain its decision."  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).  VA must provide an explanation to the Veteran regarding VA's inability to obtain his or her STRs.  Dixon v. Derwinski, 3 Vet. App. 261 (1992).

By letter dated January 2011, the RO advised the Veteran that his STRs were missing as well as the types of alternative sources of evidence which could help supplement the evidentiary record.  The RO also advised the Veteran of the alternate record searches which were being conducted on his behalf.  In September 2011, the RO contacted the Veteran by phone to determine whether he had any STRs in his possession.  Thereafter, the RO readjudicated the claim in a February 2013 supplemental statement of the case (SSOC) which cured any timing deficiency with respect to this notice requirement.  Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004).

VA has a duty to assist the Veteran in the development of the claim.  This duty includes assisting the Veteran in the procurement of STRs and pertinent treatment records and providing an examination when necessary.  38 U.S.C.A. � 5103A; 38 C.F.R. � 3.159.  The Board also finds that VA has complied with the VCAA's duty to assist by aiding the Veteran in obtaining evidence and affording him the opportunity to give testimony before the RO and the Board, although he declined to do so.  It appears that all known and available records relevant to the issues on appeal have been obtained and associated with the Veteran's claims file.  The Veteran does not contend, and the evidence does not show, that there are any relevant documents in the possession of the Social Security Administration (SSA).

The Veteran has contended that he had treatment for nervous stomach trouble during active service, but his STRs are missing.  The Court has held that VA's efforts to obtain service department records shall continue until the records are obtained or unless it is reasonably certain that such records do not exist or that further efforts to obtain those records would be futile.  Hayre v. West, 188 F.3d 1327 (Fed. Cir. 1999); see also McCormick v. Gober, 14 Vet. App. 39 (2000).

In May 2006 and January 2009, the National Personnel Records Center (NPRC) in St. Louis, Missouri, notified VA that the Veteran's STRs were missing and likely destroyed in the July 1973 fire at NPRC.  In January 2011, the RO contacted the Veteran by telephone to obtain more specific information regarding his unit and division assignments, but the Veteran could not recall.  In July 2011, the NPRC notified that the RO that the Veteran's STRs could not be reconstructed, and no additional information was obtained by an alternative records search including Surgeon General Office (SGO) reports and morning reports.

By letter dated September 19, 2011, the Veteran was advised of the unavailability of any alternative records, and further advised to submit any records in his possession.  The Veteran also was contacted by telephone in September 2011 and asked to submit any copies of his STRs that were in his possession.  The Veteran notified RO personnel who contacted him by telephone in September 2011 that he had no STRs.

The RO sent several letters to Thule Air Force Base hospital in Greenland in November 2006 and in February and April 2007 requesting any records of the Veteran's in-service hospitalization at this facility in 1955.  There is no record of a response from this facility to any of the RO's repeated requests for these records.

In response to a request for any records of the Veteran's in-service hospitalization at Thule Air Force Base hospital in Greenland, the NPRC notified VA in March 2009 that it had no such records.  The NPRC specifically informed the RO that a search of retired records from Thule Air Force Base did not include the requested records for the Veteran.

Having exhausted its efforts to obtain these records, the RO formally determined in September 2011 that the Veteran's STRs likely had been lost in the July 1973 fire at the NPRC.  The RO also formally determined in September 2011 that there were no STRs available for the Veteran's duty in Greenland, including any records of his in-service hospitalization for a tonsillectomy at Thule Air Force Base hospital.

Having reviewed the record in this case, the Board finds that the RO has attempted to obtain the Veteran's STRs to the extent possible.  The Board concludes that it is reasonably certain that these records do not exist and further efforts to obtain those records would be futile.  Notably, the tonsillectomy records would be of minimal probative value to the claim at hand.  Additionally, the Veteran's testimony has supplemented the missing STRs and has been evaluated by a medical physician to determine the onset and etiology of his gastrointestinal disorders.

VA has also obtained medical opinion in this case by a VA Chief of gastroenterology.  The July 2012 examination report reflects review of the claims folder as well as an extensive interview of the Veteran.  This examiner found two separate diagnoses related to the Veteran's reported symptoms - IBS and GERD.  With respect to IBS, the examiner opined that it was more likely than not that the Veteran's diarrhea complaints were most appropriately diagnosed as IBS which the Veteran himself described as existing prior to service.  This opinion raises the applicability of the presumption of soundness under 38 U.S.C.A. � 1111 which can be applied in favor of the Veteran.

The VA examiner further opined that there was insufficient information of record to make a well-founded assessment as to whether the Veteran's GERD either started in service or was aggravated by service.  On review of the record in its entirety, the Board finds that this aspect of the VA medical opinion is adequate for rating purposes.  The Board acknowledges that the VA examiner was unable to arrive at a definitive opinion.  However, the report reflects that the lack of definitiveness is based upon all procurable data at this point.  The Veteran's descriptions of symptomatology were accepted as true, but his descriptions were insufficient to identify the disease process of GERD absent clinical correlation.  See Jones (Michael) v. Shinseki, 23 Vet. App. 382, 390 (2010) (recognizing legitimacy of inconclusive medical opinion when inability to come to conclusion was based on all "procurable and assembled data" and required further information which was unobtainable.)

For the reasons expressed above, the Board finds that no further notice or assistance to the Veteran is required to fulfill VA's duty to assist him in the development of his claim being decided on appeal.  Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001).

II.  Applicable law

The Veteran seeks to establish his entitlement to service connection for a gastrointestinal disorder.  Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by service.  38 U.S.C.A. �� 1110; 1131; 38 C.F.R. � 3.303(a).  In general, service connection requires competent evidence showing: (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.  Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).

Certain chronic diseases, such as peptic ulcer disease, may be presumed to have been incurred in service if manifest to a compensable degree within one year from discharge from service, provided further that the rebuttable presumption provisions of 38 C.F.R. � 3.307 are also satisfied.  38 U.S.C.A. �� 1112, 1113, 1137; 38 C.F.R. � 3.309(a).

A proper diagnosis of gastric or duodenal ulcer (peptic ulcer) is to be considered established if it represents a medically sound interpretation of sufficient clinical findings warranting such diagnosis and provides an adequate basis for a differential diagnosis from other conditions with like symptomatology; in short, where the preponderance of the evidence indicates gastric or duodenal ulcer (peptic ulcer).  38 C.F.R. � 3.309(a).  Whenever possible, laboratory findings should be used in corroboration of the clinical data.  Id.

For the showing of chronic disease in service, there are required a combination of manifestations sufficient to identify a disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word chronic.  38 C.F.R. � 3.303(b).  Continuity of symptomatology is required only where the condition noted during service is not, in fact, shown to be chronic or when the diagnosis of chronicity may be legitimately questioned.  Id.  When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim.  Id.

However, the continuity and chronicity provisions of 38 C.F.R. � 3.303(b) only apply to the chronic diseases enumerated in 38 C.F.R. � 3.309(a).  Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013), overruling Savage v. Gober, 10 Vet. App. 488, 495-96 (1997) (applying 38 C.F.R. � 3.303(b) to a chronic disease not listed in 38 C.F.R. � 3.309(a) as "a substitute way of showing in-service incurrence and medical nexus.")

A veteran who served during a period of war, or after December 31, 1946, will be considered to have been in sound condition when examined, accepted and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable (obvious or manifest) evidence demonstrates that an injury or disease existed prior to service and was not aggravated by such service.  38 U.S.C.A. � 1111.  The plain language of 38 U.S.C.A. � 1111 requires that there be an examination prior to entry into the period of service on which the claim is based.  Jones v. Shinseki, 24 Vet. App. 40, 45 (2010).

When the presumption of soundness attaches to a claim but there is a question of preexisting disability, VA has the burden of establishing by clear and unmistakable evidence (1) that a disability preexisted service and (2) that there was no aggravation during service.  Wagner v. Principi, 370 F. 3d 1089, 1096 (2004).

A pre-existing injury or disease will be considered to have been aggravated during service where there is an increase in disability during service unless there is a specific finding that the increase in disability is due to the natural progress of the disease.  38 U.S.C.A. � 1153.

However, aggravation of a pre-existing injury or disease will not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during and subsequent to service.  38 C.F.R. � 3.306.  Temporary or intermittent flare-ups of symptoms of a condition, alone, do not constitute sufficient evidence aggravation unless the underlying condition worsened.  Davis v. Principi, 276 F. 3d 1341, 1346-47 (Fed. Cir. 2002); Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991).

In deciding whether a condition preexisted service, the Board must consider the veteran's medical history, accepted medical principles, evidence of the "basic character, origin and development" of the condition, and "lay and medical evidence concerning the inception, development and manifestations" of the particular condition.  38 C.F.R. � 3.304(b)(1), (2).

The claimant bears the burden of presenting and supporting his/her claim for benefits.  38 U.S.C.A. � 5107(a).  See Fagan v. Shinseki, 573 F.3d 1282 (Fed. Cir. 2009).  In its evaluation, the Board shall consider all information and lay and medical evidence of record.  38 U.S.C.A. � 5107(b).  When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Board shall give the benefit of the doubt to the claimant.  Id.  Another way to state this is that VA has an equipoise standard akin to the rule in baseball that "the tie goes to the runner."  Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  The benefit of the doubt doctrine is not applicable based on pure speculation or remote possibility.  See 38 C.F.R. � 3.102.

When there are lost or missing STRs, there is no presumption, either in favor of the claimant or against VA.  See Cromer, 19 Vet. App. at 217-18 (Court declined to apply an "adverse presumption" against VA where records had been lost or destroyed while in Government control because bad faith or negligent destruction of the documents had not been shown).

A lay claimant is competent to provide testimony concerning factual matters of which he or she has firsthand knowledge (i.e., reporting something seen, sensed or experienced).  Barr v. Nicholson, 21 Vet. App. 303 (2007); Washington v. Nicholson, 19 Vet. App. 362 (2005).  Under certain circumstances, lay statements may serve to support a benefits claim by supporting the occurrence of lay-observable events or the presence of disability, or symptoms of disability, susceptible of lay observation.  Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007).

In Barr, the Court emphasized that when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation.  In such cases, the Board is within its province to weigh that testimony and to make a credibility determination as to whether that evidence supports a finding of the presence or absence of the claimed symptomatology.

In Jandreau, the Court explained that lay evidence can be competent and sufficient to establish a diagnosis of a condition 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.  Jandreau, 492 F.3d at 1377.

However, there are clearly limitations regarding the competence of a lay claimant to speak to certain matters, such as those involving medical diagnosis and etiology.  See Jandreau, 492 F.3d at 1377 (Fed. Cir. 2007) (noting that a layperson not competent to diagnose a form of cancer).  VA has defined competent lay evidence as any evidence not requiring that the proponent have specialized education, training or experience.  38 C.F.R. � 3.159(a)(1).  Lay evidence is competent if it is provided by a person who has knowledge of the facts or circumstances and conveys matters that can be observed and described by a layperson.  Id.  Further, competent medical evidence is defined as evidence provided by a person who is qualified through education, training or experience to offer medical diagnoses, statements or opinions.  38 C.F.R. � 3.159(a)(2).

By comparison, as reflected in Fed.R.Evid 701, lay witness testimony is permissible in the form of opinions or inferences when (a) rationally based on the perception of the witness and (b) helpful to a clear understanding of the witness' testimony or the determination of a fact in issue.  Otherwise, in matters involving scientific, technical or other specialized knowledge, Fed.R.Evid 702 requires that an opinion be provided by a witness qualified as an expert by knowledge, skill, experience, training or education.

III.  Factual Summary

The Veteran's STRs are missing, and there are no pre-service medical records.  In February 1990, the Veteran filed his original service connection claim for a gastrointestinal disorder.  At that time, he described having a "Nervous Stomach - Started having problems after entering service, Was treated numerous Times at the dispensarys."

The earliest medical evidence consists of a July 1966 Report of Medical Examination for employment as an Air Traffic Controller.  This examination indicated a normal clinical evaluation of the abdomen and viscera as well as general systemic.  Additional medical examinations in July 1967, July 1968, July 1969, July 1970, July 1972, July 1974, August 1975, August 1976, August 1977, October 1978, August 1979, August 1980, August 1981, August 1983, August 1984, August 1985, August 1986 and August 1987 also reflected normal clinical evaluations of the abdomen, viscera and general systemic.

In pertinent part, a private clinic record reflects the Veteran's treatment for anxiety in 1988.  A November 1989 VA clinic record noted the Veteran's report of anxiety and sleeping problems since retiring as a flight controller.  He was diagnosed with an adjustment disorder (D/O) with anxious mood.  A private January 1990 treatment record reflected treatment for gastroenteritis.  A private August 1990 barium enema resulted in an impression of diverticulosis.

In a statement received in July 1991, the Veteran described developing a nervous stomach soon after joining service which required treatment at every base he had been stationed.

An April 2000 VA clinic record included the Veteran's report of occasional chest tightness when becoming anxious, as well as chest tightness and reflux-type sensation, which he "has had for years."  He was given an impression of chest pain which was atypical for cardiac origin, and more consistent with (c/w) gastrointestinal (GI) origin.  In June 2000, the Veteran was diagnosed with GERD and hiatal hernia following upper GI series examination.  No relevant history was provided.  He was diagnosed with diverticulitis following a colonoscopy in March 2002.  A private esophagogastroduodenoscopy and biopsy resulted in diagnoses of Grade 2 erosive esophagitis and antral hyperemia.  He was treated for acute gastroenteritis in January 2003.  His clinic records also recorded a history of peptic ulcer disease.

In June 2003, the Veteran's private treating physician, Dr. W.R.K., stated that it was "roughly accurate" that he had treated the Veteran for stomach and throat problems between 1976 to 1988.

A June 2005 statement from Dr. W.R.K. stated that it was at least as likely as not that the Veteran's stomach problems and acid reflux were related to an injury, disease or event during his active military service based upon the Veteran's description of stomach problems in service.

A statement from the Veteran's spouse, received in February 2006, asserted meeting the Veteran in 1954 during military service.  She recalled that the Veteran developed nervous stomach problems shortly after entering service.  After service, the Veteran had self-treated his symptoms with TUMS and Rolaids due to limited finances.  His stomach problems continued until he was able to obtain medical attention, wherein he was eventually prescribed Nexium on a daily basis to alleviate his symptoms.

In July 2007, the Veteran was given an impression of esophageal dysphagia.

A statement by the Veteran submitted in April 2009 again described developing a nervous stomach at the age of 17 which required frequent treatment in service, and postservice treatment with over-the-counter medications due to an inability to afford treatment by a physician.

On VA outpatient treatment in June 2009, the Veteran described a history of dysphagia for 6-7 years.  A December 2009 VA clinic record included the Veteran's report of anxiety issues and panic attacks "since the 1950's."  He reported not having sought formal mental health care due to fear of losing his job as an air traffic controller.

The Veteran underwent VA examination in July 2012 with benefit of review of his claims folder.  To avoid any potential for misinterpretation, the entirety of the examination reports is as follows:

C-Files and medical records from CPRS reviewed.
[The Veteran] was on active duty from 7/24, 1951 through 7/23/1955.

S: Presently pt takes Omeprazole 40 mg bid.  He complains of nausea on waking up every morning.  He states he has heartburn on a daily basis which occurs particularly when he burps or bends over.  He complains of his sore throat with swallowing, but he does not describe esophageal dysphagia.  He has occasional vomiting.  This occurs about once a week.  It is not related to his heartburn.  No blood in vomitus.  The last EGD that I find in the records is from Johnson City Medical Center and was done by Dr. Larry Schmidt.  It showed grade 2 esophagitis.

In reviewing his C-files this man has been treated by Dr. [K] for many years for various stomach complaints.  The only documented problem other than gastroenteritis noted is the reflux esophagitis.  [The Veteran] does state that the Omeprazole does help with his reflux symptoms.  The patient relates that he connects his present GI complaints with the military by saying that when he went into the military he was seen in the sick call frequently for a "nervous stomach".  He feels that he had a difficult time adjusting to the military and it caused him to be stressed.  His symptoms included heartburn and diarrhea.  It was associated with stress.  After getting out of the military, he continued to have these symptoms of heartburn and diarrhea.  These symptoms were treated with over the counter meds such as TUMs, Maalox and other antacids.

The patient describes himself as a perfectionist and stresses easily.  He states his father use to describe him as a perfectionist when working on the farm.  As an example, last night he had diarrhea because of worrying about his visit here today and not knowing what to expect.

O: This man is a 78 year old man in good health for his age and is alert and oriented and no acute distress.  He appears anxious.  Neck is supple.  Chest is clear on auscultation and cor is regular with a 2/6 SEM.  Abdomen is soft, non tender with normal bowel sounds.

A.  This man has gastrointestinal complaints of mainly heartburn and diarrhea.  He describes these symptoms as being aggravated when he is under stress.  When he was in high school, he would get stressed with school work.  When in the military and he had stress, he would develop the symptoms which he describes as stomach hurting, diarrhea and heartburn.  These symptoms have continued since discharge and continue to the present time.  He does have documented reflux which is well controlled with his Omeprazole.  His diarrhea seems to be stress related and would fit with a diagnosis of Irritable bowel syndrome.  In my medical opinion, this man's irritable bowel symptoms are more likely than not associated with his anxiety which he has described since he was a young man in high school.  He also described his anxiety when he left Unicoi County to join the military.  With regards to his reflux esophagitis, he describes symptoms of reflux while in the military, but there is no documentation of this and after leaving the military he has had symptoms of reflux which remain to this day.  With the information available, it is not possible to make a well founded assessment as to whether or not these complaints either started or were aggravated by his military service.  It is my medical opinion that this man more likely than not would have these same GI problems whether or not he had ever been on active duty in the military.

IV.  Analysis

In an application for VA compensation benefits in February 1990, the Veteran described numerous inservice treatments for what he self-described as a "Nervous Stomach."  The Board finds no basis in the record to impeach his testimony.  Upon interviewing the Veteran, a VA examiner in July 2012 interpreted the Veteran's report of symptomatology as describing IBS which began prior to service but continued throughout service.

In this case, the Veteran's STRs are missing through no fault of the Veteran.  Given that the Veteran entered active duty rather than a period of active duty for training (ACDUTRA) or inactive duty for training (INACDUTRA), there is a high likelihood he was provided an entrance examination.  By operation of 38 U.S.C.A. � 1111, the Veteran is presumed to have entered service in sound condition.

Here, the Veteran's descriptions regarding the severity, frequency and duration of his IBS symptoms before, during and after service are clearly insufficient to support a finding that IBS clearly and unmistakably existed prior to service.  For instance, in his original February 1990 statement, the Veteran stated that his IBS problems began "after entering service."  Accordingly, the Board finds that the Veteran, who is presumed to have entered active service in sound condition, is deemed to have first manifested IBS during active service.  This aspect of the claim, therefore, is granted.

The July 2012 VA examiner also diagnosed the Veteran with GERD.  The Veteran and his spouse have described the Veteran as manifesting "nervous stomach" and heartburn symptoms since service which he self-treated with TUMS and Rolaids for financial reasons.  The Board finds no basis in the record to impeach this testimony either.  The July 2012 VA examiner accepted this information as true, but found that the lack of medical findings contemporaneous in time to service precluded the ability to make a "well founded" assessment as to the onset of GERD.

The Board finds that the July 2012 VA opinion holds substantial probative value as it reflects a thorough review of the claims folder and accepts the lay report of symptomatology as true, but thoughtfully concludes that a medical conclusion cannot be reached without resort to speculation.  Unlike the IBS claim, the Veteran's description of symptomatology alone was insufficient to identify the disease process of GERD to a time period extending back more than 50 years.  This opinion appears to be factually consistent with 19 separate civilian workplace examination between 1966 and 1987 reflecting normal clinical evaluations of the Veteran's abdomen, viscera and general systemic.  The Veteran's private examiner did not treat the Veteran for stomach and throat problems earlier than 1976.

On the other hand, the Veteran's private physician states that it is "roughly accurate" that he had treated the Veteran for stomach and throat problems between 1976 and 1988, and finds that it is at least as likely as not that the Veteran's stomach problems and acid reflux were related to service based on the Veteran's description of stomach problems in service.

As held above, the Board has granted a claim of service connection for IBS which the Veteran has self-described as "nervous stomach" problems.  A remaining issue is whether a specific diagnosis of GERD also had its onset in service.  Here, the Board has no reason to doubt the Veteran's description of reflux symptoms which appears to provide the only basis for the private physician opinion.

However, the Board finds that the probative value of this opinion is reduced as the examiner does not describe with any specificity the exact symptoms (such as frequency, duration, and severity) which led to a conclusion that GERD first manifested in service, does not reflect knowledge that a GERD disability was not detected on 7 separate civilian examinations prior to his recollection of treating the Veteran for stomach problems beginning in 1976, or that any upper GI confirmation of GERD is not shown until more than 45 years after service discharge.  The available records from this private physician reflect very infrequent references to GERD many years after the Veteran's service discharge.

For the reasons expressed above, the Board finds that the July 2012 VA examiner opinion holds substantially more probative weight than the June 2005 private examiner opinion.

The Board has also considered the testimony of the Veteran and his spouse regarding his stomach, reflux and over-the-counter treatment methods.  The Board does not doubt the credibility of these recollections nor their competence to describe these types of events.  However, the Veteran's GERD disability is not listed as a "chronic" disease for presumptive service connection purposes and the chronicity testimony is insufficient to establish the onset of GERD in service.  Walker, 708 F.3d 1331 (Fed. Cir. 2013).  In any event, the Board finds that the opinion of the VA Chief of Gastroenterology greatly outweighs any opinion expressed by the Veteran and his spouse, as the VA examiner possesses greater training and expertise in diagnosing gastrointestinal disorders.

The Board finally notes the record includes a reference that the Veteran has a "history" of peptic ulcer disease.  None of the medical records include an actual diagnosis of peptic ulcer disease through laboratory or clinical findings.  The Veteran has not claimed the onset of peptic ulcer disease in service nor has any argument presented on his behalf suggested that a diagnosis of peptic ulcer disease is an issue in this case.  It is also not argued or shown that laboratory findings of diverticulitis, first diagnosed more than 45 years after service discharge, first manifested in service or is otherwise related to an event in service.

On the particular facts of this case, the Board finds that a gastrointestinal disorder other than IBS, including GERD, is not shown to have manifested until many years after service, and is not shown to be causally related to an event during active service.  There is no doubt of a material fact to be resolved in the Veteran's favor with respect to this aspect of the claim on appeal.  38 U.S.C.A. � 5107(b).

ORDER

Service connection for IBS is granted.

Service connection for a gastrointestinal disability other than IBS is denied.

REMAND

A review of the Virtual VA electronic records storage system and the Veterans Appeals Control and Locator System (VACOLS) reveals that the Veteran has initiated an appeal with respect to a claim for a higher initial rating for bilateral hearing loss as well as service connection claims for tinnitus and PTSD.  The RO has acknowledged receipt of the NOD, and a November 17, 2011 letter acknowledges that the Veteran has elected DRO review readjudication.

While recognizing that the RO is in the process of DRO review and issuance of an SOC, if necessary, the provisions of 38 C.F.R. � 19.9(c) state that "[i]n cases before the Board in which a claimant  has timely filed a Notice of Disagreement with a determination of the agency of original jurisdiction, but the record reflects that the agency of original jurisdiction has not subsequently granted the claim in full and has not furnished the claimant with a Statement of the Case, the Board shall remand the claim to the agency of original jurisdiction with instructions to prepare and issue a Statement of the Case . . ."  (emphasis added).  As such, the Board must remand these issues for issuance of an SOC as directed by 38 C.F.R. � 19.9(c).  See generally Manlincon v. West, 12 Vet. App. 238 (1999).

Accordingly, the case is REMANDED for the following action:

Furnish the Veteran an SOC on the issue of entitlement to a higher disability rating for service-connected bilateral hearing loss and service connection for tinnitus and PTSD.  The Veteran should be informed of his appellate rights and of the actions necessary to perfect an appeal on this issue.  Thereafter, these issues are to be returned to the Board only if an adequate and timely substantive appeal is filed.

The appellant has the right to submit additional evidence and argument on the matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).  This case must be afforded expeditious treatment.  See 38 U.S.C.A. �� 5109B, 7112 (West Supp. 2009).

____________________________________________
MARJORIE A. AUER
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs