Citation Nr: 0717176 Decision Date: 06/08/07 Archive Date: 06/18/07 DOCKET NO. 05-17 312 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUE Entitlement to service connection for an abdominal disorder. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD W.L. Pine, Counsel INTRODUCTION The veteran had active service from April 1990 to June 2003, with approximately four months of prior, unverified, active service. This appeal is from an August 2004 rating decision of the Department of Veterans Affairs (VA) Oakland, California, Regional Office (RO). The veteran's appeal initially included entitlement to service connection for a back disorder, which the RO granted in January 2006. That matter is moot for purposes of this decision. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997) (down stream elements of VA compensation claims subject to separate appeal filing subsequent to award of service connection). FINDING OF FACT The veteran has persistent left lower quadrant abdominal pain unassociated with a diagnosed abdominal disease or injury. CONCLUSION OF LAW Current abdominal disability is not the result of disease or injury incurred in or aggravated by service, nor may any such incurrence or aggravation be presumed. 38 U.S.C.A. §§ 1101, 1112, 1113, 1131, 1132, 1137 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2006). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duty to Notify and to Assist The Veterans Claims Assistance Act of 2000 (VCAA), (codified at 38 U.S.C.A. §§ 5100, 5102-5103A, 5106, 5107, 5126 (West 2002)), imposes obligations on VA in terms of its duty to notify and assist claimants. Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2006); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II), the United States Court of Appeals for Veterans Claims (Court) held that 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) request that the claimant provide any evidence in his possession that pertains to the claim. VCAA notice must be provided prior to the initial unfavorable adjudication by the RO. Id. at 120. VCAA notice requirements apply to all five elements of a service connection claim. Those five elements include: 1) veteran status; 2) existence of a disability; (3) a connection between the veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Dingess v. Nicholson, 19 Vet. App. 473 (2006). In this case, the veteran was provided with notice as to ratings or assignment of effective dates by letter of March 2006, subsequent to the most recent adjudication of his claim. However, the belated notice does not prejudice his claim, because the Board is denying the claim, thus rendering moot any question as to assignment of ratings or of an effective date. VA satisfied the remaining duty to notify by means of a letter dated in June 2004, prior to the initial adjudication by the RO, addressing the claim at issue. Mayfield v. Nicholson, 20 Vet. App. 537 (2006). The veteran was informed of the requirements of successful claims for service connection, i.e., of establishing current disability, incurrence or aggravation of disease or injury in service, and a link between current disability in service. He was informed of his and VA's respective duties in obtaining evidence and asked to submit information and/or evidence, which would include that in his possession, to the RO. The content and timing of this notice complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b). Records and reports from service and VA health care providers are associated with the claims file. VA examinations and medical opinions were performed and obtained in June 2004 and September 2005. The veteran has not reported any private evidence that VA must obtain. Therefore, the Board finds that VA has satisfied its duty to notify and the duty to assist pursuant to the VCAA. See 38 U.S.C.A. §§ 5102 and 5103 (West 2002); 38 C.F.R. §§ 3.159(b), 20.1102 (2006); Dingess, 19 Vet. App. 473; Pelegrini II, 18 Vet. App. 112; Quartuccio, 16 Vet. App. The veteran has not claimed that VA has failed to comply with the notice requirements of the VCAA. II. Service Connection In seeking VA disability compensation, the veteran must establish that current disability results from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131 (West 2002). Such a disability is called "service connected." 38 U.S.C.A. § 101(16) (West 2002). "Generally, to prove service connection, a claimant must submit (1) medical evidence of a current disability, (2) medical evidence, or in certain circumstances lay testimony, of in- service incurrence or aggravation of an injury or disease, and (3) medical evidence of a nexus between the current disability and the in-service disease or injury." Pond v. West, 12 Vet. App. 341, 346 (1999). The evidence of record includes February 1990 service entrance medical history and examination reports, both negative for any history, complaint, or finding of abdominal disorder. The first record of abdominal complaint is a May 1992 service treatment note of no nausea, vomiting, or diarrhea since earlier that month, assessed as resolved UGI (upper gastrointestinal). In December 1996, the veteran complained of two episodes of nausea and vomiting the night before and diarrhea that morning. Abdominal examination was negative. On physical examination in July 1997, the veteran had no abdominal complaint and examination was normal. In April 2001 at a service medical facility, the veteran complained of left abdominal discomfort for three days and of no bowel movement for the past four. He had left and mid abdominal tenderness assessed as constipation. In April 2002, he complained of left abdominal discomfort for three days. Examination was essentially negative, with no significant localized tenderness. The assessment was non- acute abdominal pain, clinically stable, rule out constipation. On May 2002 follow-up for the same complaint, the veteran had left lower quadrant pain, which had been treated for mild constipation. He reported ongoing pain with normal stools and no nausea, vomiting, or diarrhea. He mentioned had increased the number of sit-ups he was doing. The assessment was abdominal muscle strain. The veteran was seen at a VA clinic in January 2003. He complained of left lower quadrant pain and occasional right lower quadrant pain, which started a few months ago. He reported treatment by a service facility with Dulcolax, the Colace. He reported normal bowel movements once or twice a day, with two or three a day when he had pain. He denied diarrhea, blood in the stool, melena, nausea, or vomiting. He said the episodes lasted two days, with crampy pain, which started during a divorce. The assessment was increased abdominal pain, somewhat stress related. He reported to a VA clinic in April 2003 that bloating and gas had decreased when he decreased the amount of dairy he ate. In June 2004, it was noted his initial VA clinic examination was unremarkable, and gas had subsided and pain was better since then. The veteran reported his symptoms waxed and waned, so he was unsure if he was really better or if symptoms were just in a waning phase. VA psychiatric treatment records of June 2004 noted significant signs of depression, including a 10-pound weight loss; there was no comment about abdominal complaints or symptoms. On VA compensation examination in June 2004, the examiner noted the veteran's history of left lower quadrant pain since 2001 without associated consistent diarrhea or constipation. Examination revealed definite left lower quadrant tenderness without rebound tenderness and with minimal guarding. The examiner commented the cause was unclear; the diagnosis was abdominal pain. In February 2005, the veteran sought VA treatment for a greater than four-year history of left lower quadrant abdominal pain approximately twice a week with dull discomfort at other time. He reported history of bright red blood per rectum and on toilet paper, but no associated symptoms of fever, chills, diarrhea, constipation, or rash. There was no history of travel, injury, change of medication, or family history of colorectal cancer to cause concern. He reported pain was slightly improved with defecation and with sexual activity. Finding no cause for alarm and the history of bleeding, the veteran was sent for sigmoidoscopy, then colonoscopy, then possibly imaging if indicated. The examiner opined the pain may likely be irritable bowel syndrome, which should be the diagnosis of exclusion. April 2005 sigmoidoscopy found a benign polyp and hemorrhoids, neither of which were felt to explain his pain symptoms. Colonoscopy in June 2005 also found some benign polyps, which were removed. Colonoscopy was felt not to explain the veteran's symptoms. An August 2005 abdominal Computed Tomography (CT) study was negative. August 2005 VA outpatient treatment records noted the veteran's complaint of left upper [sic] quadrant pain for four years, intermittent and dull, unrelated to eating, without complaint of nausea, vomiting, melena, bright red blood per rectum, or unexplained weight loss. The clinician noted that colonoscopy and CT scan had not explained the veteran's complaints. Currently, his abdomen was soft, not distended, mildly tender without guarding or rebound. Liver function tests had been normal. The impression was likely irritable bowel syndrome versus functional abdominal pain syndrome. The examiner commented that ulcer dyspepsia could not be ruled out; the plan was to try medication and follow up with esophagogastroduodenoscopy (EGD) if symptoms did not resolve. On VA compensation examination in September 2005, the veteran reported the history of onset of left lower quadrant pain in 2001. The veteran recalled steady, sharp pain at onset and some bulky, hard stool at onset, but no constipation now. The examiner noted the visits for localized left lower quadrant pain shown in the veteran's VA claims file to be unassociated with any other evidence of systemic or intraabdominal disease. The examiner noted the extensive work-up including colonoscopy and CT scan, and the recent trial of treatment for ulcer in hopes the veteran had an atypical presentation of acid peptic disease, but he lacked a history of vomiting, bloody stools, unexplained weight loss, malnutrition, or surgery in the past two years; his weight was noted to be stable. Examination showed the veteran's abdomen to be soft, with localized tenderness to the left lower quadrant, without palpation of abdominal wall hernia. Examination was unremarkable for intraabdominal mass, and, the examiner commented, colon polyps would not be expected to cause the veteran's current pain. The examiner diagnosed left lower quadrant [pain]: etiology undetermined. He opined that the veteran's condition is clearly a continuation of the symptoms that began during military service; the exact etiology remained to be determined. VA is authorized to pay compensation for disability resulting from disease or injury incurred or aggravated in active service, if other conditions are met. 38 U.S.C.A. §§ 1110, 1131 (West 2002). The evidence is persuasive that the veteran's left lower quadrant pain is genuine. No examiner has cast aspersions on the authenticity of his complaints. The objective evidence, however, does not include a diagnosis of disease or injury. Diagnostic testing, including sigmoidoscopy, colonoscopy, and computed tomography have all been negative. The impressions that they veteran "may likely" have irritable bowel syndrome and "likely irritable bowel syndrome versus functional abdominal pain syndrome" do not amount to diagnoses. Service connection may not be based on a resort to pure speculation or even remote possibility. See 38 C.F.R. § 3.102 (2006). The VA examiner in September 2005 concluded that the etiology of the veteran's complaints remained to be determined. The veteran never served in the Southwest Asia Theater of Operations. Veteran's of Southwest Asia service after August 2, 1990, can by law be presumed to have incurred a qualifying chronic disability, including a medically unexplained chronic multisymptom illness, of which irritable bowel syndrome is one. See 38 U.S.C.A. §§ 1117, 1118 (West 2002) & Supp. 2006); 38 C.F.R. § 3.317 (2006). The veteran does not qualify for the use of this presumption in deciding his claim. Considering other grounds for service connection, the veteran does not have a chronic disease diagnosed as such in service or during a presumptive period after service that permits any later manifestation, however remote, to be deemed service connected. 38 C.F.R. § 3.303(b) (2006). The veteran does have a condition noted in service, and a VA compensation examiner's opinion of continuity of symptomatology. Id. The legal impediment to an award of service connection is that VA is only authorized to pay compensation for disability resulting from disease or injury incurred or aggravated in service. 38 U.S.C.A. §§ 1110, 1131 (West 2006). The veteran does not benefit from any statutory presumption afforded specified chronic diseases first diagnosed and found 10 percent disabling within a specified time after service, 38 U.S.C.A. §§ 1112; 1133, 1137 (West 2002 & Supp. 2006); 38 C.F.R. §§ 3.307, 3.309 (2006), because he does not have any of the listed diseases. The veteran's claim does not benefit from the regulation that provides for service connection for any disease diagnosed after discharge if all of the evidence, including that pertinent to service, establishes that the disease was incurred in service, 38 C.F.R. § 3.303(d) (2006), because the veteran does not have a diagnosed disease. Close inspection of contemporaneous medical records shows the veteran has a history of pain remarkable for a lack of documented objective signs to support a diagnosis. "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." Sanchez-Benitez v. West, 13 Vet. App. 282, 285 (1999) dismissed in pertinent part and vacated on other grounds sub nom. Sanchez-Benitez v. Principi, 259 F.3d 1356 (Fed. Cir. Aug. 2001). VA may pay money from the Federal Treasury only in the manner expressly authorized by statute. See Office of Personnel Mgmt. v. Richmond, 496 U.S. 414, 424 (1990). The preponderance of the evidence is against finding the veteran's left lower quadrant abdominal pain results from a disease or injury incurred or aggravated by service. 38 U.S.C.A. § 1110, 1131. VA must deny the claim. ORDER Service connection for an abdominal disorder is denied. ____________________________________________ P.M. DILORENZO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs