Citation Nr: 0002543 Decision Date: 02/02/00 Archive Date: 02/10/00 DOCKET NO. 94-01 427 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office and Insurance Center in Philadelphia, Pennsylvania THE ISSUES Entitlement to service connection for the residuals of injuries to the jaw. Entitlement to service connection for a gastrointestinal disorder, to include peptic ulcer disease. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Elizabeth Gallagher, Counsel INTRODUCTION The veteran had active service from February 1971 to January 1973. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 1989 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) and Insurance Center in Philadelphia, Pennsylvania. The veteran appeared at a personal hearing before a Hearing Officer at the RO in March 1992, and at personal hearings before a Member of this Board sitting at the VA Central Office in Washington, D.C. in April 1994, and September 1999. In March 1996, the Board remanded this case for the development of additional medical evidence. The requested development having been completed, to the extent possible, this matter is now ready for appellate review. FINDINGS OF FACT 1. Sufficient evidence necessary for an equitable disposition of the issue on appeal has been obtained by the RO. 2. A jaw disability was not manifested during service and is not related to any inservice incident. 3. The veteran experienced acute episodes of stomach pain in service; no findings of an ulcer were made. 4. The veteran now has a chronic gastrointestinal disability, which has been variously diagnosed as gastroenteritis or peptic ulcer disease. 5. The veteran has service-connected post-traumatic stress disorder which is manifested by anxiety and hyperarousal, inter alia; a VA examiner has opined that although it is most unlikely that the veteran's post-traumatic stress disorder caused his gastrointestinal disability, it is likely that the veteran's anxiety and hyperarousal aggravates his gastrointestinal disability. 6. The evidence of now of record confirms that the veteran's gastrointestinal disability was not incurred or aggravated during service and is not proximately due to or the result of his service connected disabilities. 7. The current record establishes a reasonable probability that the veteran has had some increase in the severity of his gastrointestinal disability as the result of the symptoms of his service-connected post-traumatic stress disorder. CONCLUSIONS OF LAW 1. A jaw disability was not incurred in or aggravated by the veteran's active service. 38 U.S.C.A. §§ 1131, 5107 (West 1991); 38 C.F.R. § 3.303 (1999). 2. Service connection is in order for the veteran's gastrointestinal disability to the extent that the condition has been aggravated as the result of the symptoms of his service-connected post-traumatic stress disorder. Allen v. Brown, 7 Vet. App. 439, 448 (1995); 38 U.S.C.A. §§ 1110, 5107 (West 1991); 38 C.F.R. §§ 3.303, 3.310 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Residuals of Injuries to the Jaw Initially, the Board notes that the veteran's claim is well- grounded within the meaning of 38 U.S.C.A. § 5107 and that sufficient evidence is contained in the claims file to render an equitable decision on the issue on appeal. Service connection may be granted for a disability which is shown to have been incurred in or aggravated by active military service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303. When a disease was not initially manifested during service, the veteran may establish the "required nexus" for service connection by evidence demonstrating a medical relationship between the current disability and the service. See 38 U.S.C.A. § 1113(b); 38 C.F.R. § 3.303(d); Godfrey v. Derwinski, 2 Vet. App. 352, 356 (1992). In that regard, the United States Court of Veterans Appeals has determined that establishing "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); Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992). The veteran's service medical records show that during his October 1970 pre-induction physical examination, the veteran reported that he had been struck by a car in December 1963, and sustained fractures to the head, arm and thy [sic]. No problems with the veteran's jaw were complained of or noted on examination in October 1970. In October 1971, it was noted that the veteran had fallen on his hand and fractured a finger on his left hand. No jaw problems were complained of or noted on the veteran's December 1972 service separation examination. In January 1973, the veteran reported that he had fallen on the ice. It was found that he had dislocated the proximal interphalangeal joint of his left ring finger, and injured his left knee. The report of the veteran's February 1982 quadrennial Reserves examination noted he gave a history of having had a head injury at the age of 11 years from a motor vehicle accident, as well as a history of fractures of the mandible, left elbow, and wrist, and an osteotomy on the right side of the jaw. The report of the veteran's June 1977 VA examination noted that he reported having dislocated his jaw in the field in service in approximately November 1971. The examiner did not note any findings of a jaw disability. The claims file contains several statements and some treatment records from the veteran's private physician, Victor Weinstein, M.D., of Queens, New York, all of which have been reviewed by this Board. In a treatment record, dated in January 1980, Dr. Weinstein noted that the veteran presented with complaints of pain in the jaw. The doctor observed that the veteran had an overgrowth of the right mandible. The diagnosis was developmental jaw defect. In a letter received in September 1989, Dr. Weinstein stated that he had known the veteran since 1968, and that in March 1973 it was noted that the veteran's jaw was deviated to the right. In a letter received in April 1994, Dr. Weinstein stated that the veteran gave a history of two episodes of jaw trauma which occurred while he was in the military. He developed a gradually increasing jaw misalignment, and objective findings were noticed by the medical profession after he left the military. In a letter received in May 1996, Dr. Weinstein indicated that the veteran's health had been excellent prior to his entry into active service. In January 1980, the veteran was admitted to the Downstate Medical Center for surgery on his right mandible, due to facial asymmetry and malocclusion. The veteran underwent a right mandibular osteectomy from the inferior border, exposure and repositioning of the interior alveolar nerve superiorly, and a sliding genioplasty. He gave a history of having received a blow to his mandible following a fall in 1972 in service, and reported that he had been diagnosed with a jaw fracture at that time. The claims file contains the report of an operation performed on the veteran's jaw at Bellevue Hospital, in New York, New York, in January 1983. The reported noted that surgery was required due to the veteran's functional masticatory insufficiency secondary to right condylar hyperplasia present since adolescence. The report of the veteran's treatment at the Beth Israel Medical Center in December 1985 noted that he reported having sustained a right subcondylar fracture in service for which he received no treatment. He further reported that over a period of several years he noted a continuing asymmetry of his face with deviation of the mandible to the left, and an elongation of the ramus area on the right. The veteran was found to have compensatory hyperplasia of the right maxilla causing an occlusal cant, and condylar hypertrophy on the right, causing limitation of mandibular movement. The veteran had a history of having undergone three mandibular surgeries, as well as a right costochondral rib graft, necessitated by serious complications from those surgeries. The veteran testified at personal hearings before a Hearing Officer at the RO in March 1992, and before a Member of this Board sitting at the VA Central Office in Washington, D.C. in April 1994 and September 1999. He presented photographs of his face taken prior to and following his jaw surgeries, and asserted that his jaw was injured during his active service on two occasions. He reported that on the first occasion, he fell during a fire fight and broke his left wrist, and the butt of his weapon hit his jaw. He stated he just had a little discomfort in the jaw after that incident. On the second occasion, he was hit in the right jaw during a fight at a non-commissioned officer's club, and sought treatment first at the Aid Station, and then at a hospital in Phu Bai. He stated he was asked to open and close his jaw, which he was able to do. He further stated that he believed he broke his jaw in service, but acknowledged that his jaw was not X-rayed and he did not receive any treatment for his jaw at that time. Upon review of all the evidence of record, the Board finds that the preponderance of the evidence is against a grant of service connection for the residuals of injuries to the jaw. Although the veteran's private physician, Dr. Weinstein, and certain of the physician's who treated him at various private hospitals, stated that he received trauma to his jaw in service which led to an increasingly severe asymmetry of his jaw, their statements appear to have been based on the oral history provided by the veteran, and not upon a review of the medical records contained in his claims file. Because of this the Board accords them small probative weight. The Board accords more probative weight to Dr. Weinstein's actual treatment record from January 1980 in which he found that the veteran' jaw defect was developmental in nature, and to the January 1983 surgical report from Bellevue Hospital, in New York, New York. That report noted that the veteran's right condylar hyperplasia had been present since adolescence. The Board takes special note of the fact that the service medical records do not show any complaints or findings of a jaw fracture, or other jaw problem. Although it is true that sometimes, in combat situations, records of medical treatment are lost or are not kept, the Board believes that if the veteran's jaw had been fractured or seriously injured while in active service, in the fight he described, which was not a combat situation, he would have required treatment which would have been recorded. Furthermore, such a significant injury would have been noted at the time of his service separation examination. While the veteran may well believe that his current jaw disability is causally related to his active service, he is not a medical professional. As such, he is not considered legally competent to render opinions concerning questions of medical diagnosis or causation. See Grottveit v. Brown, 5 Vet. App. 91, 93 (1993); Espiritu v. Derwinski, 2 Vet. App. 492, 494-95 (1992). On the basis of the above analysis the only competent medical evidence supporting the veteran's claim is of small probative weight, and the veteran's assertions and testimony are not competent medical evidence. All other competent medical evidence supports a finding that the veteran did not seriously injure his jaw during his active service, and that his current jaw disability had its origin in a developmental problem and is not related to his military service. Therefore, a preponderance of the evidence is against a finding that the veteran's current jaw disability is causally related to his active service. The evidence with regard to this matter is not so evenly balanced as to raise doubt as to any material issue. 38 U.S.C.A. § 5107. II. Gastrointestinal Disability Initially, the Board notes that the veteran's claim is well- grounded within the meaning of 38 U.S.C.A. § 5107, and that all relevant facts have been properly developed for this appeal. Service connection may be granted for a disability which is shown to have been incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131 (West 1991). Service connection may also be granted for disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310. When aggravation of a veteran's non-service connected condition is proximately due to or the result of a service-connected condition, such veteran shall be compensated for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation. Allen v. Brown, 7 Vet.App. 439 (1995); See 38 C.F.R. § 3.310. The veteran is service-connected for post-traumatic stress disorder which is manifested by anxiety and hyperarousal, inter alia. That disability is currently evaluated as 30 percent disabling. The veteran contends that he has a gastrointestinal disability which is entitled to service connection either directly, or as secondary to his post-traumatic stress disorder. Further, the veteran has asserted that, consistent with the Court's holding in Allen v. Brown, 7 Vet.App. 439 (1995), he is entitled to service connection for his gastrointestinal disability to the extent that it is aggravated by his service-connected post-traumatic stress disorder. The veteran's service medical records show that in January 1972, he presented with complains of stomach pain and nausea, which was relieved by lying down. The impression was gas pain. In July 1972, he complained of spitting up blood. Physical examination findings were entirely within normal limits. In August 1972, he presented with complaints of pain in his left side. The impression was costal neuralgia. In September 1972, he reported a three week history of pain in his left upper quadrant and a two day history of vomiting after physical training. He stated he had a history of treatment for peptic ulcer disease while a civilian, but did not present any documentation. The impression was questionable peptic ulcer disease, and Maalox was prescribed. The report of the veteran's service separation examination contained no findings of any gastrointestinal disability. In a January 1973 entry in the veteran's dental records, he reported that he had been treated for ulsers [sic] from September to December 1970. The report of the veteran's December 1987 quadrennial Reserve examination noted a history of an ulcer in 1972 for which he used to take Tagamet. While hospitalized at the Wyckoff Heights Hospital in Brooklyn, New York, in November and December 1973, the veteran reported having had severe crampy abdominal pain, nausea, diarrhea, weakness, dizziness, and episodes of panic, for the past several weeks. An intravenous pyelogram, barium enema, and gastrointestinal series tests were unremarkable. There were no positive physical findings with the exception of some episodes of severe mid-abdominal crampy pain with profuse sweating and high pitched bowel sounds. The diagnosis was acute gastroenteritis, syncope, anxiety, and neurosis. The claims file contains several statements and some records from Victor Weinstein, M.D., of Queens, New York. A treatment note dated in January 1980 stated that the veteran had a prior history of peptic ulcer disease, and that GI (gastrointestinal) series test results were abnormal. It was not specified in what way the test results were abnormal, and no test findings were contained in the records submitted. In a letter dated in September 1989, the Doctor stated that he had known the veteran since 1968, and that his general health was excellent prior to his entry into military service. He further stated that the veteran's peptic ulcer had been uncovered after January 1973. In a letter dated in June 1990, Dr. Weinstein stated that the veteran had been under his care for peptic ulcer disease after his discharge from the Army. In an April 1994 letter, the doctor stated that the veteran has had severe peptic ulcer disease. Dr. Weinstein has not submitted any test results showing that ulceration was ever discovered. The veteran received treatment from Roy W. Simpson, M.D., of Peckville, Pennsylvania, from January 1990 through July 1996. In a March 1992 note, Dr. Simpson stated that the veteran suffered from gastrointestinal and nerve problems. During his March 1992 personal hearing before a Hearing Officer at the RO, the veteran testified that when he reported in service that he had had prior treatment for an ulcer, he did not know what the term meant. He stated he had thought the term ulcer meant "virus". The veteran was treated by Nayna Shah, M.D., of Carbondale, Pennsylvania, during the period from August to December 1992. In December 1992, he underwent an esophagogastroduodenoscopy and biopsy which revealed mild gastritis in the antrum, and moderate duodenitis in the bulb of the duodenum with deformity scar tissue. No ulceration was noted. The impression was duodenitis and gastritis. The veteran was afforded VA intestinal and mental disorders examinations in April 1996. Results of an upper GI endoscopy were normal. A biopsy of the antrum was positive for Helicobacter pylori. The medical examiner listed a diagnosis of history of peptic ulcer disease without evidence of activity or complications. The psychiatric examiner opined that it was most unlikely that the veteran's post-traumatic stress disorder caused him to develop peptic ulcer disease. That examiner further opined, however, that the veteran's anxiety and hyperarousal was an aggravating factor in his claimed stomach condition. In support of his claim, the veteran submitted letters from Victor J. DeFazio, M.D., of Great Neck, New York, dated in December 1997, and September 1999. In his December 1997 letter, Dr. DeFazio stated that there was a high degree of certainty that the veteran's development of a psychosomatic disorder was a result of the stress he experienced in the military. In his September 1999 letter, Dr. DeFazio stated that the veteran was obsessed with his physical health and condition. He listed an Axis I diagnosis of chronic post-traumatic stress disorder, and an Axis III diagnosis of peptic ulcer disease. During his October 1998 VA post-traumatic stress disorder examination, the veteran stated his belief that his stomach problems in service were due to stress. The veteran appeared at personal hearings before a Member of this Board sitting at the VA Central Office in Washington, D.C., in April 1994, and in September 1999. He testified that he began having violent upset stomachs after he killed his first enemy soldier in Vietnam. He stated he went to Dr. Weinstein in March 1993 complaining about his stomach problems, and was treated at the Wyckoff Heights Hospital in late 1973 for an ulcer. Upon consideration of all the evidence of record, the Board does not believe that direct service connection or secondary service connection is warranted for all of the veteran's gastrointestinal disability, as the medical records do not support his contention that he developed a chronic gastrointestinal disability in service, or that his gastrointestinal disability was actually caused by his post-traumatic stress disorder. The service medical records contain no findings of an ulcer, and the report of the veteran's service separation examination do not show findings of any chronic gastrointestinal disability. The Wyckoff Heights Hospital treatment records from late 1973 show a diagnosis of acute gastroenteritis, with a several week long history of symptoms. Further, although Dr. Weinstein's 1980 treatment note refers to the veteran's history of peptic ulcer disease, he did not submit any test results showing any actual ulcer was ever documented. However, based in large part on the opinions expressed by the VA examiner in April 1996, the Board finds that a grant of service connection for a gastrointestinal disability is warranted to the extent that it is aggravated by the symptoms of the veteran's service-connected post-traumatic stress disorder, as contemplated by the decision of the Court of Veterans Appeals in the case of Allen v. Brown, 7 Vet.App. 439 (1995); see 38 C.F.R. § 3.310. The Board observes that the evaluation to be assigned for the gastrointestinal disability service-connected is a rating question. The benefit of the doubt has been resolved in the veteran's favor. 38 U.S.C.A. § 5107. ORDER Service connection for the residuals of injuries to the jaw is denied. Pursuant to the discussion above, service connection is in order for that degree of disability (but only that degree) by which the veteran's gastrointestinal disability has been aggravated, by the symptoms of post-traumatic stress disorder, over and above the level of disability which would be present otherwise. 38 C.F.R. § 3.322. To this limited extent, the appeal is granted. _____________________________ ROBERT D. PHILIPP Member, Board of Veterans' Appeals