Citation Nr: 0737136 Decision Date: 11/27/07 Archive Date: 12/06/07 DOCKET NO. 05-39 323 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for an internal chemical stomach burn. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD D. Schechner, Associate Counsel INTRODUCTION The veteran served on active duty from October 1972 to October 1974. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2004 determination by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. In that decision, the RO denied service connection for internal chemical stomach burn. FINDING OF FACT There is no evidence of a diagnosis or any current existing chronic disability involving an internal chemical stomach burn. CONCLUSION OF LAW Service connection for internal chemical stomach burn is not established. 38 U.S.C.A. 1110, 1111, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2007). REASONS AND BASES FOR FINDING AND CONCLUSION The veteran had a previous claim of service connection for stomach condition, claimed as duodenal ulcer, which was denied in a Board decision dated December 1975. The veteran submitted the current claim in April 2004 as a request to "reopen [his] service connected claim for an internal chemical stomach burn". As further addressed below, the Board finds that the veteran has raised a new claim (for jurisdictional purposes) warranting de novo review. The Board will not address, however, the issue of reopening a claim of service connection for duodenal ulcer as that issue has not been fully addressed by the Board and is not on appeal at this time. Further, the Board finds that the veteran's current claim is not a claim to reopen the claim of service connection for a duodenal ulcer. The RO has adjudicated a claim of service connection for internal chemical stomach burn on the merits. See Statement of the Case (SOC) dated November 2005. The Board has an obligation to make an independent determination of its jurisdiction to review the claim on the merits regardless of findings or actions by the RO. Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996). As indicated above, the Board denied a claim of service connection for duodenal ulcer in a December 1975 decision. That claim is final and not subject to revision upon the same factual basis. 38 U.S.C.A. §§ 5108, 7104. The veteran filed the current claim as a request to reopen a prior claim for internal chemical stomach burn. The prior claim, which was adjudicated by the Board in 1975, denied service connection for aggravation of a pre-existing duodenal ulcer. The prior claim made no mention of internal chemical stomach burn or of gas chamber exposure in basic training, which the veteran has stated as the service-connected cause of his current stomach condition. Therefore, the Board will treat the current claim as a new claim for service connection rather than a reopened claim in need of new and material evidence. See Ephraim v. Brown, 82 F.3d 399, 402 (Fed. Cir. 1996) (a separate and distinct claim held to exist based upon a type of disability not previously diagnosed and considered at the time of the prior final denial). The Board will however take into account the entirety of the veteran's claims file in this decision. Service connection will be granted if it is shown that the veteran suffers from a disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty, during active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Disorders diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d); see also Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). In the absence of proof of a present disability there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or disease incurred in service. Watson v. Brown, 4 Vet. App. 309, 314 (1993); see also Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000). To establish service connection, there must be: (1) a medical diagnosis of a current disability; (2) medical or, in certain cases, lay evidence of in-service occurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between an in-service injury or disease and the current disability. Hickson v. West, 12 Vet. App. 247, 252 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd 78 F.3d 604 (Fed. Cir. 1996). The veteran has not claimed the applicability of the presumptions of 38 C.F.R. § 3.316 pertaining to the chronic effects of exposure to mustard gas and Lewisite by Word War II veterans. See 38 C.F.R. § 3.316; Pearlman v. West, 443, 446 (1998) (noting that 38 C.F.R. § 3.316 pertained to classified World War II tests of vesicant agents). Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also mean statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2). With respect to the veteran's own contentions, a layperson is generally not capable of opining on matters requiring medical knowledge. Routen v. Brown, 10 Vet. App. 183, 186 (1997). See also Bostain v. West, 11 Vet. App. 124, 127 (1998) citing Espiritu v. Derwinski, 2 Vet. App. 492 (1992) (a layperson without the appropriate medical training and expertise is not competent to provide a probative opinion on a medical matter, to include a diagnosis of a specific disability and a determination of the origins of a specific disorder). Lay testimony is competent, however, to establish the presence of observable symptomatology and "may provide sufficient support for a claim of service connection." Layno v. Brown, 6 Vet. App. 465, 469 (1994). 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 service incurrence and continuity of symptomatology sufficient to establish service connection. See Barr v. Nicholson, 21 Vet. App. 303 (2007). 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 v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Unlike varicose veins under Barr, a dislocated shoulder under Jandreau, internal chemical stomach burn is not a condition capable of lay diagnosis. The veteran's own statements contradict themselves with regard to the cause of the veteran's stomach problems. In connection with his 1974 service connection claim, he stated that the food he was given while in service aggravated his pre-existing ulcer. For the current claim, the veteran has submitted statements that his stomach problems are due to gas chamber treatment while in basic training. The veteran has placed the cause of his stomach condition on two conflicting theories in his two service connection claims. The medical evidence submitted with this claim clearly demonstrate the veteran's history of duodenal ulcer as a condition pre-existing service. His service medical records note treatment on two occasions for pain due to the ulcer. However, the evidence submitted shows no indication of internal chemical stomach burn. The service medical records are silent regarding gas chamber exposure, ingestion of chemicals, or chemical stomach burn. Overall, since the veteran's service medical records make no reference to a chronic disability due to an internal chemical stomach burn, this record provides highly probative evidence against the veteran's claim. Beyond the above, the veteran has not submitted any evidence showing that he currently suffers from residuals of an internal chemical stomach burn. Rather, these records show his continued treatment for ulcer-related gastric pain which has been the subject of a prior final denial. Since there is no medical evidence of a current disability involving residuals of an internal chemical stomach burn, his claim must be denied. See Degmetich v. Brown, 8 Vet. App. 208 (1995); 104 F.3d 1328, 1332 (1997) (holding that compensation may only be awarded to an applicant who has a existing existing); Sanchez-Benitez v. West, 13 Vet. App. 282, 285 (1999) (holding that pain alone, without a diagnosed or identifiable underlying malady or condition, does not in and of itself constitute a disability for which service connection may be granted); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) (in the absence of proof of the presently claimed disability, there can be no valid claim). Simply stated, the Board finds that the service and post- service medical record fails to indicate an internal chemical stomach burn, providing evidence against this claim, outweighing the veteran's lay statement that he has this disorder. Based on the above, the Board concludes that the preponderance of the evidence is against the veteran's claim of entitlement to service connection for internal stomach chemical burn. In denying his claim, the Board has considered the doctrine of reasonable doubt; however, as the preponderance of the evidence is against the veteran's claim, the doctrine is not for application. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. Duty to notify and assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (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. 2007); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2007). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in his possession that pertains to the claim in accordance with 38 C.F.R. § 3.159(b)(1). This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the U.S. Court of Appeals for Veterans Claims held that, upon receipt of an application for a service-connection claim, 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating, or is necessary to substantiate, each of the five elements of the claim, including notice of what is required to establish service connection and that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. In this case, although the notice provided did not address either the rating criteria or effective date provisions that are pertinent to the appellant's claim, such error was harmless given that service connection is being denied, and hence no rating or effective date will be assigned with respect to this claimed condition. Here, the VCAA duty to notify was satisfied by way of a letter sent to the appellant in May 2004 that fully addressed all four notice elements and was sent prior to the initial AOJ decision in this matter. The letter informed the appellant of what evidence was required to substantiate the claim and of the appellant's and VA's respective duties for obtaining evidence. The appellant was also asked to submit evidence and/or information in his possession to the AOJ. VA has a duty to assist the veteran in the development of the claim. This duty includes assisting the veteran in the procurement of service medical records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The veteran's service medical records are associated with the claims folder. The RO has obtained VA medical records of treatment in 1990 and Metroplex Hospital records of treatment in 2001. Significantly, neither the appellant nor his representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. Consequently, the Board satisfied its duty to obtain all treatment records. The Board also notes that a VA examination is not required to determine whether the veteran has a current disability involving residuals of an internal chemical stomach burn as a result of service. In McLendon v. Nicholson, 20 Vet. App. 79 (2006), the U.S. Court of Appeals for Veterans Claims (Court) held that VA must provide a VA medical examination when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service or with another service-connected disability, but (4) insufficient competent medical evidence on file for the VA to make a decision on the claim. In this case, since there is no evidence of a current disability and the claimed persistence of stomach symptoms since service is due to duodenal ulcer that has been subject to a prior final denial, the standards of McLendon are not met. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c)(4). Accordingly, the Board finds that no further action is necessary to meet the requirements of the VCAA. ORDER Service connection for internal chemical stomach burn is denied. ____________________________________________ JOHN J. CROWLEY, Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs