Velez v. West

11 Vet. App. 148, 1998 U.S. Vet. App. LEXIS 349, 1998 WL 133623
CourtUnited States Court of Appeals for Veterans Claims
DecidedMarch 25, 1998
DocketNo. 96-47
StatusPublished
Cited by47 cases

This text of 11 Vet. App. 148 (Velez v. West) is published on Counsel Stack Legal Research, covering United States Court of Appeals for Veterans Claims primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Velez v. West, 11 Vet. App. 148, 1998 U.S. Vet. App. LEXIS 349, 1998 WL 133623 (Cal. 1998).

Opinion

STEINBERG, Judge:

The appellant, World War II combat veteran Medaldo Velez, appeals through counsel an October 31,1995, decision of the Board of Veterans’ Appeals (Board or BVA) denying service connection for a chronic gastrointestinal disability. Record (R.) at 9, 16. Both parties have filed briefs. This appeal is timely, and the Court has jurisdiction pursuant to 38 U.S.C. §§ 7252(a) and 7266(a). For the reasons that follow, the Court will affirm the decision of the Board.

I. Facts and Procedural History

The appellant, a combat veteran who was awarded the Purple Heart for wounds received in action in August 1944, served on active duty in the U.S. Army from February 1941 to June 1945. R. at 22, 78. The report of his medical examination at induction does not reflect any gastrointestinal disability. R. at 19-20. Undated service medical records, apparently from early June 1945, report complaints related to shrapnel wounds to his right upper extremity incurred in August 1944 and “anorexia” and weight loss. R. at 24-25. A physical examination dated May 31, 1945, noted: “Abdomen: negative”, “Hernia: none”, “Genito-urinaRy: apparently normal”, and “Anus and Rectum: apparently normal”. R. at 29. He was certified for discharge as a result of his shrapnel wounds, but that certificate records no diagnosis related to a gastrointestinal disorder. R. at 32-33.

In June 1945, the veteran filed with a Veterans’ Administration (now Department of Veterans Affairs) (VA) regional office (RO) an application for VA service-connected disability compensation or non-service-connected pension, claiming a shrapnel-related shoulder injury and “stomach trouble”. See R. at 59. A July 1945 VARO decision granted a 50% disability rating for a right-shoulder injury as a result of the shrapnel wound, but that decision “deferred” a rating for stomach trouble pending the completion of a VA medical examination. R. at 60. Subsequent VA examinations in 1946, 1947, and 1949 recorded no diagnoses of a gastrointestinal condition (see R. at 62-70, 117-26) but did note complaints of nausea and lack of appetite (R. at 65) and “stomach trouble” (R. at 66-67, 117-18). Private medical records dated between 1955 and 1963 reflect treatment for hemorrhoids, an urethral block, and an anal fissure characterized by rectal bleeding. R. at 129-31, 139-52. The veteran underwent a right inguinal herniorrhaphy in March 1966; the reported history was that he had a three-year history of abdominal pain, suggestive of urological disease, for which he had been seen and evaluated by two urologists. R. at 158-62. In a letter dated in June 1980, a private physician, Dr. Nar-verud, reported that the veteran had a hiatal hernia and symptoms of esophageal reflux (R. at 165), and private medical records reflected diagnoses of gastroesophageal reflux in 1986 and 1987 (R. at 168-71).

In September 1989, the veteran made a request to “reopen” his claim for a right-shoulder disability, apparently a claim for an increased rating for that condition, and stated that he believed that he was service connected for a stomach disability but that he was unsure because he had not received a letter subsequent to an examination in July 1945. R. at 182. A November 1989 RO decision noted: “Advise vet[eran] that he is not S[ervice] C[onnected] for stomach disability”. R. at 186. In November 1989, the veteran (1) once again requested information from VA on whether he was service connected for stomach problems; (2) stated that while in the service tubes were run from his mouth into his stomach area; (3) and conceded that although he had had stomach problems for years after he left the service, he did not consult a doctor until the early 1960s. R. at 188. In December 1989, VA notified the veteran that service connection for a stomach disability had not been estab[151]*151lished. R. at 200. In a June 1990 letter, he filed a Notice of Disagreement (NOD) and requested a copy of the decision denying his claim for a stomach disability. R. at 202. VA then issued an October 1990 Statement of the Case (SOC), which noted that the veteran had never been informed that his 1945 claim for a stomach disability had been denied. R. at 206. In April 1993, after reviewing the appellant’s claim de novo, the Board denied service connection for a gastrointestinal condition. R. at 241^16. In March 1994, the Court — finding insufficient the Board’s statement of reasons or bases pursuant to 38 U.S.C. § 7104(d)(1) — vacated the Board’s April 1993 decision and remanded the matter “for the Board to seek to obtain the records expressly sought by the appellant or to explain why it has not done so”. R. at 249-50.

On remand, the veteran submitted lay statements from his wife and a friend. His wife noted that she had been aware of his “chronic digestive problems” since she met him in 1950 and that he had related that he had had no problems prior to service, and his friend noted that the veteran had complained of a “continued stomach disorder” when she knew him in 1949. R. at 252-54. In a statement submitted in April 1994, the veteran asserted that his stomach/bowel condition may have been misdiagnosed and that the same symptoms had continued since service. R. at 258. In August 1994, the Board remanded the veteran’s claim to the RO for further development and clarification. R. at 267-71. In a September 1994 statement, the veteran asserted that he felt that all gastrointestinal or digestive disabilities (including hiatal hernia with esophageal reflux, hemorrhoids, and divertieulae) should be service connected. R. at 275. In that same response, he stated that he had received treatment from Kaiser Permanente for his stomach problems since the early 1950s and attempted to recall treatment received at military facilities and their respective dates. R. at 275-77. The RO sought additional private and VA medical records (see R. at 284-85, 286, 288-92, 294; see also R. at 316-17), but the only relevant evidence in the record on appeal (ROA) stemming from those attempts was a summary of data on hospital admission cards compiled by the Army Surgeon General that references the right-shoulder injury (R. at 292). In July 1995, the RO confirmed its prior denial of service connection for “all” chronic gastrointestinal disorders, specifically including a hi-atal hernia with gastroesophageal reflux, diverticulisi/diverticulitis, and' hemorrhoids. R. at 302-04.

In August 1995, the RO requested an opinion from a “qualified [VA] medical examiner” to determine if any of the gastrointestinal and digestive disabilities (including hiatal hernia with esophageal reflux, hemorrhoids, and diverticulosis) were medically related to the stomach problem first claimed in 1945. R. at 324. In an August 1995 response to the RO’s question, Dr. Hailstone asserted that a careful evaluation of all the medical records in the claims file showed no in-service documentation of any of these conditions and that there was no objective evidence that a hiatal hernia, hemorrhoids, or diverticulosis had occurred in service. R. at 326-27. An August 1995 RO decision, relying in part upon Dr. Hailstone’s report, again confirmed its prior denial (R. at 329-31), and the RO issued a Supplemental SOC (SSOC) that referred to that report (R. at 334-36).

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Bluebook (online)
11 Vet. App. 148, 1998 U.S. Vet. App. LEXIS 349, 1998 WL 133623, Counsel Stack Legal Research, https://law.counselstack.com/opinion/velez-v-west-cavc-1998.