BVA9504345 DOCKET NO. 93-08 112 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to service connection for a gastrointestinal disorder. REPRESENTATION Appellant represented by: Missouri Veterans Commission ATTORNEY FOR THE BOARD Deborah W. Singleton, Counsel INTRODUCTION The veteran served on active duty from December 1953 to September 1957, and from November 1957 to November 1963. This matter comes before the Board of Veterans' Appeals (BVA) on appeal from a September 1991 rating action of the Department of Veterans Affairs (VA) St. Louis, Missouri, Regional Office (RO) which denied entitlement to service connection for a gastrointestinal disorder, hypertension, and a sinus condition. The veteran's notice of disagreement was received by the RO in August 1992. The veteran was furnished a statement of the case in December 1992. In February 1993, the veteran filed his substantive appeal, wherein he withdrew the issues of entitlement to service connection for hypertension and a sinus condition, and continued his appeal with respect to the issue of entitlement to service connection for a gastrointestinal disorder. Accordingly, the Board's appellate review will be limited to the issue listed on page one of this decision. CONTENTIONS OF APPELLANT ON APPEAL The veteran asserts that he suffers from a gastrointestinal disorder. He contends that this condition began in service and has persisted since that time. Specifically, he avers that the stomach problems he experienced during service were sufficient, in his opinion, to establish chronicity as a basis for entitlement to service connection. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), has reviewed and considered all of the evidence and material of record in the veteran's claims file. Based on its review of the relevant evidence in this matter, and for the following reasons and bases, it is the decision of the Board that the preponderance of the evidence is against the claim for service connection for a gastrointestinal disorder . FINDING OF FACT A gastrointestinal disorder was not manifest during service or for many years later. CONCLUSION OF LAW A gastrointestinal disorder was not incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 1991); 38 C.F.R. § 3.303 (1994). REASONS AND BASES FOR FINDING AND CONCLUSION Factual Background A review of the service medical records reflects that in May 1957, the veteran was treated for complaints of severe pain in the umbilical area extending to the right lower quadrant, which was diagnosed as "pyelonephritis due to an unknown organism." When he was examined for separation in September 1957, the veteran reported no pertinent complaints, and the abdominal evaluation yielded normal findings. In November 1957, the veteran submitted to a re-enlistment examination, and, at that time, he denied a history of stomach, liver or intestinal trouble. The physician's summary indicated no gastrointestinal complaints, and the abdominal evaluation revealed normal findings. A sick call entry dated in March 1959, noted a "burning" stomach. No clinical findings were recorded. An April 1959 gastrointestinal (GI) series of the esophagus, stomach, and duodenum was reported to be negative, except for a slight delay in the passage of the barium into the bulb. In August 1960, the veteran complained burning in the swallowing tract heart burn over the prior three years. He denied diarrhea, blood in the stools, vomiting or nausea. The examiner noted the April 1959 GI series, and diagnosed the veteran as having a "gastrointestinal psycho-physical reaction." Subsequently, in February and April 1963, the veteran had complaints of nausea associated with headaches, but no vomiting was noted. The veteran was seen in consultation in February 1963, and afforded a physical examination where upon a review of the gastrointestinal system, "Rare nausea without correlation with headaches or meals. Otherwise [negative]," was recorded. In November 1963, the veteran was examined for separation, but no pertinent defects were noted. The abdomen and viscera were evaluated as normal. The veteran filed a claim for a stomach disorder in June 1991. VA outpatient treatment records dated in May and June 1991 were received. These records indicate that in May 1991, the veteran reported a history of colon surgery "seven years" previously and he requested a lower GI check-up. An abdominal examination was conducted, and showed no palpable masses. A barium enema showed diverticulosis of the sigmoid region, but no intraluminal lesion. A prior left colon resection was also noted. A June 1991 VA upper GI series revealed a hiatal hernia. Analysis At the outset, the Board finds that the veteran's claim for service connection for a gastrointestinal disorder is well grounded within the meaning of 38 U.S.C.A § 5107 (a). That is, the claim is not inherently implausible. It is also noted that there does not appear to be other obtainable evidence not already of record which would be pertinent to the claim. Specifically, the Board notes that the veteran has requested, and the RO has attempted to obtain, putative records of treatment by a Dr. Riley, and by the VA, dating from 1964 to 1969. However, in that same request, the veteran indicated that such records may no longer be available. The VA records received were duplicative of those previously of record and were destroyed by the RO. In view of the attempts by the RO to obtain such records, as well as their the apparent unavailability, no further assistance to the veteran is required to comply with the duty to assist. See Counts v. Brown, 6 Vet.App. 473, 477 (1994) (there is no breach of the duty to assist where an appellant acknowledges the unavailability of records); see also Hayes v. Brown, 5 Vet.App. 60, 68 (1993); Gobber v. Derwinski, 2 Vet.App. 470, 472 (1992); cf. Porter v. Brown, 5 Vet.App. 233, 237 (1993) ("VA [has] no duty to seek to obtain that which [does] not exist"). In order to establish service connection for a claimed disability, the facts, as shown by the evidence, must demonstrate that a particular injury or disease resulting in current disability was incurred or aggravated coincident with service in the Armed Forces. 38 U.S.C.A. § 1110, 1131; 38 C.F.R. § 3.303(a). If a disorder noted during service is not shown to be chronic, then generally a showing of continuity of symptoms after service is required for service connection. 38 C.F.R. § 3.303(b). The service medical records for the veteran's first period of active duty were negative for any complaints, treatment or diagnoses of a stomach disorder. Indeed, the September 1957 separation examination revealed normal abdomen and gastrointestinal evaluations. Similarly, the record does not evidence that a chronic gastrointestinal disorder was noted during the veteran's second period of active duty, or for many years thereafter. The gastrointestinal series in April 1959 was essentially negative, although the veteran was treated for symptoms which were felt to represent a "gastrointestinal psycho-physical reaction" in August 1960, there is no indication in the record that such symptoms persisted beyond that single treatment session. A gastrointestinal disorder was not found on service department evaluations conducted in February and November 1963. Also, there was no indication on the November 1963 separation examination of a gastrointestinal problem. A clinical evaluation was conducted, but no gastrointestinal attributable to any incident of service was present, and abdominal evaluation was reported as normal. The earliest indication of the veteran's gastrointestinal disorders (i.e., diverticulosis and a hiatus hernia) was first documented in 1991, nearly 28 years after the veteran's separation from service. While the 1991 VA medical records also indicate that the veteran reported a partial removal of the colon in the early 1980's, that was approximately 20 years after service discharge, and no clinical data have been received showing treatment during the interim between service and his colectomy. Thus, continuity of symptomatology is not demonstrated, and the medical evidence of record may not be reasonably construed to find that the veteran had any symptoms during service which could be causally related to his current gastrointestinal disorders. See generally Morton v. Principi, 3 Vet.App. 508, 509 (1992) (medical evidence of the veteran's current condition is not material to the issue of service connection). There is no medical evidence, except for the veteran's lay assertion, that the gastrointestinal disorders were caused by the stomach symptoms he experienced in service. The veteran's assertion as to medical causation is not competent evidence of a chronic gastrointestinal disorder existing since service, and, therefore is of no probative value. See Grottveit v. Brown, 5 Vet.App. 91, 93 (1993); Espiritu v. Derwinski, 2 Vet.App. 492, 495 (1992). In contrast, the absence of any medical records of the condition for years after service is highly probative evidence against the claim, as it tends to show no continuity of symptoms of the condition since service. See Mense v. Derwinski, 1 Vet.App. 354, 356 (1991). The preponderance of the evidence supports the conclusion that the gastrointestinal disorders (i.e., diverticulosis and a hiatus hernia) were not present during the veteran's periods of military service, or for many years later, and that the current disorders were not caused by an incident of service. For these reasons, service connection for a gastrointestinal disorder must be denied. The Board has considered the doctrine of reasonable doubt, but finds that the record does not provide an approximate balance of negative and positive evidence on the merits. Therefore, the Board is unable to identify a reasonable basis for grant of the benefits sought on appeal. ORDER Service connection for a gastrointestinal disorder is denied. DEREK R. BROWN Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___ (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991), a decision of the Board of Veterans' Appeals granting less than the complete benefit, or benefits, sought on appeal is appealable to the United States Court of Veterans Appeals within 120 days from the date of mailing of notice of the decision, provided that a Notice of Disagreement concerning an issue which was before the Board was filed with the agency of original jurisdiction on or after November 18, 1988. Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402 (1988). The date which appears on the face of this decision constitutes the date of mailing and the copy of this decision which you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals.