Citation Nr: 0206117 Decision Date: 06/11/02 Archive Date: 06/20/02 DOCKET NO. 98-12 395 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Whether new and material evidence has been submitted to reopen a claim for service connection a chronic gastrointestinal disorder, variously diagnosed. REPRESENTATION Appellant represented by: Georgia Department of Veterans Service ATTORNEY FOR THE BOARD M. Ferrandino, Associate Counsel INTRODUCTION The veteran served on active duty from June 1979 to June 1983. This matter initially came before the Board of Veterans' Appeals (Board) on appeal from a rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia that denied the veteran's claim for service connection for diverticulosis. However, it is noted that the issue of entitlement to service connection for a stomach disorder has been previously denied; therefore, the Board is required to make an independent determination as to whether the evidence is new and material. Thus the issue has been recharacterized on the title page. As an initial matter, the Board notes that there has been some confusion regarding the timeliness of the veteran's substantive appeal. However, the Board finds that the veteran has filed a timely substantive appeal with respect to the issue of entitlement to service connection for diverticulosis. Specifically, he was notified of an unfavorable rating decision dated on May 16, 1997. In late July 1997, he submitted a notice of disagreement. A statement of the case was issued on July 22, 1998, and he filed a timely substantive appeal on July 28, 1998. In addition, the Board notes that the veteran also raised an earlier issue of entitlement to service connection for a bilateral knee disorder. That issue was originally denied by rating decision dated in May 1997. Subsequently, entitlement to service connection for bilateral chondromalacia was granted by rating decision dated in July 1998. It appears to the Board that the veteran's service representative may have attempted to raise the issue of an increased rating in the VA Form 646 - Statement of Accredited Representative in Appealed Case. Further, the veteran has submitted additional evidence related to the knees. If the veteran desires to pursue this issue, he and/or his representative should do so with specificity at the RO. As there has thus far been no adjudication of the increased rating issue, the Board has no jurisdiction of the issue at this time. By decision of the Board in November 1998, service connection for a chronic gastrointestinal disorder, variously diagnosed as diverticulosis and irritable bowel syndrome, was denied. This decision was appealed to the United States Court of Appeals for Veterans Claims (Court). While the appeal was pending, the veteran and the Office of General Counsel for VA both filed Motions requesting that the Court vacate the decision by the Board and remand the case for additional development of the evidence and readjudication of the claim. These Motions were made as a result of a change in the law governing the issue on appeal. In an Order in April 2001, the Court vacated the Board decision and the case was returned to the Board for compliance with the directives that were specified by the Court. In February 2002, the Board requested a Veterans Health Administration (VHA) medical opinion with regard to the veteran's claim of service connection for a chronic gastrointestinal disorder. This opinion was rendered in April 2002 and has been associated with the record. After developing additional evidence in this case, the Board informed the veteran in a April 2002 letter of the additional evidence developed, and provided an opportunity to respond and/or submit additional evidence. The veteran responded in that same month. Therefore, any assistance required in this arena has been satisfied. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the appeal on the issue before the Board has been obtained by the RO. 2. By rating decision dated in October 1983, the RO denied service connection for a stomach disorder. The notice letter regarding that decision was sent in that same month. There was no timely appeal perfected. 3. Evidence associated with the claims file since the October 1983 rating decision has not been considered previously and is so significant that it must be considered in order to fairly decide whether the veteran is entitled to service connection for a chronic gastrointestinal disorder. 4. The veteran's service medical records do not contain any complaints, findings, or diagnosis of a chronic gastrointestinal disorder. 5. In-service complaints of abdominal pain were manifestations of a disability that is shown to have been acute and transitory, and which resolved without residuals. 6. A gastrointestinal disorder, variously diagnosed, was not established until several years after service, and has not been shown to be related to service or to any occurrence or event therein. 7. It is not at least as likely as not that a chronic gastrointestinal disorder had its onset in service or is etiologically related to service. CONCLUSIONS OF LAW 1. The October 1983 decision of the regional office that denied service connection for a stomach disorder is final. 38 U.S.C.A. § 7105(c) (West 1991); 38 C.F.R. §§ 3.104, 20.302(a), 20.1103 (2001). 2. Evidence received since the October 1983 RO decision is new and material, and, thus, the claim for service connection for a chronic gastrointestinal disorder is reopened. 38 U.S.C.A. §§ 5103A, 5108 (West 1991 and Supp. 2001); 66 Fed. Reg. 45,620-32 (August 29, 2001) (to be codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326); 38 C.F.R. §§ 3.156(a), (c) (2001). 3. A chronic gastrointestinal disorder, variously diagnosed, was not incurred in or aggravated by active duty service. 38 U.S.C.A. §§ 1131, 5013A (West 1991 & Supp. 2001); 66 Fed. Reg. 45,620-32 (August 29, 2001) (to be codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326); 38 C.F.R. § 3.303 (2001). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Factual Background Service medical records reveal that the veteran sought treatment in January 1980 for right upper quadrant pain and a one week history of constipation. The clinical assessment was constipation and he was treated with Milk of Magnesia. In January 1981, he complained of mid-line abdominal pain. It was non-radiating, was not constant, and came when he ate sweets. Physical examination showed no blood in the stool or urine. There was no tenderness or edema, and bowel sounds were within normal limits. The clinical assessment was stomach pain and he was given Milk of Magnesia. In April 1983, he related a three month history of stomach ache in the middle abdomen. He had a history of the same problem in January 1981. He indicated that sweets caused the pain to increase. His stomach was tender to palpation. The clinical assessment was possible gastritis and he was given Bentyl and Mylanta. There is no further mention of abdominal symptomatology and the veteran was discharged in June 1983. There is no separation examination associated with the claims file; a May 1983 form shows that the veteran was not required to undergo a medical examination for separation and he indicated that he did not desire a separation medical examination. In July 1983, the veteran filed a claim for stomach disease. In an August 1983 VA examination report, he related that he experienced symptoms of pain or cramping in the upper part of his stomach during service and was given Mylanta. He indicated that he could not eat greasy or sweet foods and had occasional nausea and vomiting. He denied vomiting blood, passing blood in the stool, constipation, and diarrhea. Physical examination revealed that the abdomen was soft. There was pain and tenderness on pressure in the epigastrium. No masses or enlargements were palpable. Bowel sounds were normal, and there were no hemorrhoids, fissures, strictures, or prolapses. There was no muscle guarding, rigidity, or rebound tenderness noted. The examiner concluded that there was no stomach condition found on the examination. By rating decision dated in October 1983, the veteran's claim for stomach disease was denied on the basis of there being no current stomach condition. There was notice to the veteran of this decision in that same month. He did not perfect a timely appeal. There are no additional post service treatment records associated with the file until private treatment records beginning in April 1991. At that time, the veteran sought treatment for headache, fever, mid-abdominal pain, diarrhea, nausea, and vomiting. He was treated with Tylenol, liquids, and Kaopectate. There was no specific diagnosis made with respect to his gastrointestinal symptoms. In July 1994, he complained of a month history of upper abdominal pain. He reported a possible ulcer in the service. The clinical assessment was possible peptic ulcer disease, questionable Giardia. The records show the veteran was additionally treated for other disabilities not at issue in the current appeal. In January 1996, he complained of a headache and stomach problems. The clinical assessment was gastroenteritis. Motrin and Donnatal were prescribed. In June 1996, he sought treatment for spitting up blood and sharp abdominal pain, which was helped by drinking milk. At that time, he related a "several year" history of epigastric pain, worse in the previous three days. An upper gastrointestinal series had apparently been negative in the past. He had no nausea, vomiting, melena, or diarrhea but did have a cough. The clinical assessment was epigastric pain, dyspepsia, and blood-tinged secretions probably from nasopharynx. Laboratory work was ordered and a high fiber, low fat diet recommended. Two follow-up visits in September 1996 showed clinical assessments of chronic abdominal pain, quest irritable bowel syndrome; questionably related to hypercalcemia; and probable diverticulosis. In October 1996, the veteran filed a claim for entitlement to service connection for diverticulosis. In a November 1996 letter, the veteran's private treating physician indicated that the veteran had problems with chronic abdominal pain. After an extensive evaluation, the veteran was found to have only mild diverticulosis of the colon. He had also been diagnosed with mild hyperparathyroidism, resulting in minimal elevation of the serum calcium level, which was unrelated to the abdominal pain. The physician opined that the exact etiology of the veteran's pain was not clear but was probably due to irritable bowel syndrome and perhaps diverticulosis to some degree. Additional subsequent private and VA medical records show on-going treatment and follow-up for abdominal pain, including trigger point injection and maintenance for trigger point pain in March 1997. Diagnoses have included irritable bowel syndrome, trigger point, diverticulosis, peptic ulcer disease, and biliary dyskinesia. The records additionally show treatment for disabilities not at issue in the current appeal. In an April 1997 VA examination report, the veteran related a persistent knife pain in the epigastric area. He had had an extensive gastrointestinal work up and was felt to have irritable bowel syndrome. He complained of mid abdominal tenderness for 16-17 years and had variously been demonstrated to have left sided colon isolated diverticula but apparently no diverticulitis but occasional rectal spotting of blood. Medications included Hyoscine, Hyociamine, Dicyclomine, Neurontin, Pepcid, and Ultram. Physical examination revealed that his abdominal contour was lax, and bowel sounds were normal. There was slight, epigastric deep palpation tenderness but no mass discerned and no tenderness over the left or right in the course of the colon. There were no hemorrhoids and stool was hemoccult negative. The final diagnoses were diverticula of the left colon and irritable bowel syndrome. Laboratory tests showed tiny diverticula in the sigmoid colon. As part of his contentions, the veteran submitted an April 1997 report from a private physician that notes that the veteran was being treated and the doctor went over the veteran's treatment records as provided by the veteran and that most of the diagnoses since 1981 were irritable bowel syndrome. In February 2002, the Board referred this case with the claims folder and all medical records for a VHA medical opinion from a specialist. In April 2002, an opinion was furnished that laid out the evidence in the claim and provided an opinion as follows: A diagnosis of irritable bowel syndrome (IBS) is based on the absence of certain worrisome signs/symptoms or "red flags" (chiefly weight loss, fever, rectal bleeding, and anemia) and consensus - based ("Rome II") symptom criteria: These diagnostic criteria require: "at least 12 weeks or more, which need not be consecutive, in the preceding 12 months of abdominal discomfort or pain that has two out of three features: 1) Relieved with defecation; and/or 2) Onset associated with a change in frequency of stool; and/or 3) Onset associated with a change in form (appearance) of stool." Throughout the patient's various evaluations, with the exception of a few episodes of hematochezia in the mid to late 1990s, there is an absence of concerning signs or symptoms (flexible sigmoidoscopy evaluation was negative except for internal hemorrhoids). Based on the information available in the active duty medical records and the VA examination only one month after discharge, his condition during the service do (sic) not meet the criteria for IBS. More likely diagnoses during that period of time (i.e. his service years and immediate post discharge period) are gastritis, atypical gastroesophageal reflux, NSAID enteropathy, and/or nonulcer dyspepsia. There is an 8 year hiatus between his service years (and immediate post-service period) until the next abdominal episode. Although no diagnosis or impression is given by the provider for this 1991 episode, the description is completely consistent with acute viral gastroenteritis. However, beginning in 1994, there is a change in his gastrointestinal complaints. This is the first time that loose stools are reported (excluding the 1991 apparent viral gastroenteritis episode). His symptoms seem to accelerate and there are numerous evaluations between 1996 and 1997. His pain has changed in description and intensity and is now associated with up to 4 to 5 loose stools per day. Radiologic and laboratory values are unrevealing except for "minimal diverticulosis" and "biliary dyskinesia". Based on the Rome II criteria, it seems that the most likely current diagnosis is pain-predominant IBS dating back to 1994 to 1996. The upper abdominal location of his pain is somewhat atypical for IBS but does not exclude the diagnosis. The other less likely diagnosis to consider would be functional abdominal pain. It is extremely unlikely that either diagnosis was present during the service. During his service years, his reported symptoms were inconsistent with an IBS diagnosis and the natural history of functional abdominal pain would have made an 8 to 11 year hiatus before representing for medical evaluation unlikely. With respect to the diagnosis of biliary dyskinesia that was given by one of the providers who saw this patient, I believe that biliary dyskinesia is extremely unlikely to be a cause for this patient's pain, as his pain description is not consistent with this diagnosis. Biliary dyskinesia is a controversial diagnosis because many asymptomatic patients may have low gall bladder ejection fractions. Furthermore, studies have produced inconsistent data in terms of response to cholecystectomy in symptomatic patients. With respect to the diagnosis of "minimal" diverticulosis, diverticulosis is an extremely prevalent finding on colon examination. Patients become symptomatic from complications of diverticulosis, chiefly acute diverticulitis or diverticular bleeding. There is no history to suggest that this patient experienced either of these complications. Chronic abdominal pain may rarely occur as a sequelae of a severe episode of diverticulitis or repeated episodes of diverticulitis because of creation of colonic strictures and tortuosity. However, once again, there is neither a history to suggest diverticulitis nor is the patient's pain description characteristic of this diagnosis. Therefore, based on the above rationale, it is not as least as likely as not that the current disorder began while the patient was in service. It is not as least as likely as not to be in any way etiologically due to his service. II. Analysis The Board notes that during the pendency of this appeal, the Veterans Claims Assistance Act of 2000, Pub. L. No. 106-475, 114 Stat. 2096 (2000) (VCAA), was signed into law. 38 U.S.C.A. § 5100 et. seq. (West Supp. 2001). To implement the provisions of the law, VA promulgated regulations published at 66 Fed. Reg. 45, 620 (Aug. 29, 2001) (to be codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a)). The amendments to 38 C.F.R. § 3.156(a), 3.159(c) and 3.159(c)(4)(iii) apply to any claim to reopen a finally decided claim received on or after August 29, 2001. As the present appeal was initiated prior to that date, it will be decided under the older version of 38 C.F.R. § 3.156 detailed below. To the extent that provisions of the VCAA apply in the instant case, in particular regards to notice to the veteran, after reviewing the record, the Board is satisfied that all appropriate notice and development has been accomplished. See 38 U.S.C.A. § 5103A (West Supp. 2001). In this regard there has been notice as to information needed and there has been a rating decision and a statement of the case sent to the veteran. There is no indication that there is additional information on file that would lead to a different outcome in this claim. All pertinent notice has been provided in the documents sent to the veteran. The veteran and his representative through the statement of the case thereto, have been notified as to evidence and information necessary to substantiate the claim. Additionally, the Board notes that a VHA opinion has been obtained, and that all records that could be developed have been associated with the file. 38 U.S.C.A. § 5103A; 66 Fed. Reg. 45,620-32 (August 29, 2001) (to be codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326). Notice of this opinion was provided, additional comments have been received, and the Board may now proceed. It was noted in the VCAA that, with respect to previously disallowed claims, "[n]othing in (38 U.S.C.A. § 5103A) shall be construed to require the Secretary to reopen a claim that has been disallowed except when new and material evidence is presented or secured, as described in (38 U.S.C.A. § 5108)." 38 U.S.C.A. § 5103A(f) (West Supp. 2001). Therefore, the recent change to the law has not modified the requirement that a previously denied claim may not be reopened and readjudicated unless, and until, there has been a finding that new and material evidence has been submitted. Thus, it is necessary that the case be adjudicated initially on the issue of whether new and material evidence is of record to reopen the claims. If it is determined that such evidence has been presented, the claim will be reopened, any required development would be undertaken. Elkins v. West, 12 Vet. App. 209 (1999). A decision by the RO shall be final and binding on all field offices of the Department of Veterans Affairs as to conclusions based on the evidence on file at the time VA issues written notification of the decision. A final and binding agency decision shall not be subject to revision on the same factual basis except by duly constituted appellate authorities or except where there is clear and unmistakable error in the decision. 38 U.S.C.A. § 7105 (West 1991); 38 C.F.R. §§ 3.104, 20.1103 (2001). Section 5108 of Title 38 of the United States Code provides that, "[i]f new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim." The regulations provide that new and material evidence means evidence not previously submitted to agency decisionmakers which bears directly and substantially upon the specific matter under consideration, which is neither cumulative nor redundant, and which by itself or in connection with evidence previously assembled is so significant that it must be considered in order to fairly decide the merits of the claim. 38 C.F.R. § 3.156(a) (2001). Current caselaw provides for the following analysis when a claimant seeks to reopen a final decision based on new and material evidence. First, it must be determined whether new and material evidence has been presented under 38 C.F.R. § 3.156(a). Second, if new and material evidence has been presented, the merits of the claim must be evaluated after ensuring the duty to assist has been fulfilled. See Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). It is noted that the laws and regulations regarding new and material evidence have not been provided to the veteran. However, the RO adjudicated the claim on a de novo basis, apparently concluding that there was new and material evidence to reopen; the Board agrees, as further discussed below, and as such finds the veteran is not prejudiced by any failure to be provided the new and material regulations. The additional evidence submitted since the October 1983 RO decision includes evidence of current gastrointestinal disorder and as such, is sufficient to reopen the veteran's claim for service connection for a chronic gastrointestinal disorder. The evidence is new in that it has not been considered previously and it is not cumulative of evidence already of record. It is also material as it bears directly and substantially upon the matter under consideration and is so significant that it must be considered in order to fairly decide the merits of the claim. Hence, the claim for service connection for a chronic gastrointestinal disorder, variously diagnosed, is reopened by new and material evidence. Having found that the evidence is new and material and must be considered in conjunction with all the evidence of record, the VA has a duty to assist the veteran in the development of facts pertaining to his claim. This includes obtaining relevant private and VA medical records and providing the veteran with VA examinations, where such examinations may substantiate entitlement to the benefit sought. See 38 U.S.C.A. § 5103A (West Supp. 2001) for the specific requirements for developing claims. There have also been final regulations promulgated to implement the new law. See 66 Fed. Reg. 45,620-32 (August 29, 2001) (to be codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326). They are for consideration now that the claim has been reopened. As noted above, the Board finds that this duty to assist has been satisfied in this case. Further, the Board notes that the reopening of the veteran's claim raises a due process issue which was addressed by the Court in Bernard v. Brown, 4 Vet. App. 384 (1993). Pursuant to Bernard, the Board must consider whether addressing the veteran's claim on a de novo basis would cause prejudice to the veteran if it was not so considered by the RO. In this case, the RO adjudicated the veteran's claim on a de novo basis, therefore, there is no prejudice to the veteran in adjudicating his claim. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1131 (West 1991 & Supp. 2001). If a chronic disease is shown in service, subsequent manifestations of the same chronic disease at any later date, however remote, may be service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b) (2001). However, continuity of symptoms is required where the condition in service is not, in fact, chronic or where diagnosis of chronicity may be legitimately questioned. 38 C.F.R. § 3.303(b) (2001). In addition, service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 U.S.C.A. § 1113(b) (West 1991 & Supp. 2001); 38 C.F.R. § 3.303(d) (2001). The Board must determine whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either case, or whether the preponderance of the evidence is against the claim, in which case, service connection must be denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Based on the evidence outlined above, the Board finds that there is no etiological or causal relationship between the veteran's current gastrointestinal disorder and his in- service complaints of abdominal pain, his contentions to the contrary notwithstanding. Significantly, none of the medical examiners have attributed his gastrointestinal symptomatology to his active service, nor have they indicated evidence that it was of long standing duration. To the extent examiners have reported the veteran's in-service symptoms, they were based on the veteran's statements. However, the Board is not obligated to accept medical opinions premised on the veteran's recitation of medical history. See Godfrey v. Brown, 8 Vet. App. 113 (1995). While the veteran's private provider in April 1997 reported that most of the veteran's diagnoses since 1981 were irritable bowel syndrome, it is agreed that the veteran has been diagnosed currently with irritable bowel syndrome, however, there is no competent evidence to show that the veteran had this in service and the private provider's notation does not state that the veteran had irritable bowel syndrome in service. Further, in the VHA opinion, based on a thorough review of the evidence and providing reasons and bases for the opinion, it is clearly stated that it is not at least as likely as not that the veteran's current disorder of irritable bowel syndrome or functional abdominal pain began in service or is etiologically related to service. The Board finds that the independent medical opinion constitutes significantly probative evidence inasmuch as it entails a comprehensive review of the veteran's medical history performed by a specialist in the field of gastroenterology. Because the objective evidence of record fails to establish a relationship between the veteran's in-service complaints of abdominal pain and his current gastrointestinal symptomatology, variously diagnosed in private and VA treatment records and diagnosed in the VHA opinion as irritable bowel syndrome or functional abdominal pain, the Board must conclude that the preponderance of the evidence is against the veteran's claim for service connection. Even accepting that the veteran experienced some symptoms of abdominal pain in service, available competent evidence has failed to demonstrate continuity of symptoms sufficient to support of claim of entitlement to service connection for a gastrointestinal disorder, variously diagnosed. As previously noted, he did not seek treatment for an abdominal disorder until, at the earliest, 1994, or 11 years after separation from service. Thus, the 11 year gap between separation from service and treatment in this case fails to satisfy the continuity of symptomatology required to support the claim for entitlement to service connection. In the absence of competent, credible evidence of continuity of relevant symptomatology, service connection is not warranted. The Board has considered the veteran's statements that he has continually suffered from gastrointestinal symptoms since separation from service in 1983. Although the veteran's statements are probative of symptomatology, they are not competent or credible evidence of a diagnosis, date of onset, or medical causation of a disability. Espiritu v. Derwinski, 2 Vet. App. 492, 494-95 (1992). The veteran's assertions are not deemed to be credible in light of the other objective evidence of record showing no continuing findings indicative of a chronic gastrointestinal disorder. The veteran lacks the medical expertise to offer an opinion as to the existence of current gastrointestinal pathology, as well as to medical causation of any current disability. Id. In the absence of competent, credible evidence of continuity of relevant symptomatology, service connection is not warranted for a chronic gastrointestinal disorder, variously diagnosed. ORDER New and material to reopen a claim for service connection for a chronic gastrointestinal disorder, variously diagnosed has been submitted and the claim is reopened. The appeal is allowed to this extent. Entitlement to service connection for a chronic gastrointestinal disorder, variously diagnosed, is denied. MICHAEL D. LYON Member, Board of Veterans' Appeals IMPORTANT NOTICE: We have attached a VA Form 4597 that tells you what steps you can take if you disagree with our decision. We are in the process of updating the form to reflect changes in the law effective on December 27, 2001. See the Veterans Education and Benefits Expansion Act of 2001, Pub. L. No. 107-103, 115 Stat. 976 (2001). In the meanwhile, please note these important corrections to the advice in the form: ? These changes apply to the section entitled "Appeal to the United States Court of Appeals for Veterans Claims." (1) A "Notice of Disagreement filed on or after November 18, 1988" is no longer required to appeal to the Court. (2) You are no longer required to file a copy of your Notice of Appeal with VA's General Counsel. ? In the section entitled "Representation before VA," filing a "Notice of Disagreement with respect to the claim on or after November 18, 1988" is no longer a condition for an attorney-at-law or a VA accredited agent to charge you a fee for representing you.