Citation Nr: 1043716 Decision Date: 11/22/10 Archive Date: 12/01/10 DOCKET NO. 05-04 989 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boise, Idaho THE ISSUES 1. Entitlement to service connection for ulcerative colitis. 2. Entitlement to service connection for anemia. 3. Entitlement to service connection for depression, dry eyes, chronic fatigue, multiple joint pains, proctocolectomy with ileoanal anastomosis and J-pouch reconstruction, irritable bowel syndrome, and surgical scars, claimed as secondary to ulcerative colitis. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD C. Lawson, Counsel INTRODUCTION The Veteran served on active duty from May 1982 to September 1984. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a March 2004 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA). A notice of disagreement was received in April 2004, a statement of the case was issued in January 2005, and a substantive appeal was received in February 2005. The Veteran presented testimony at an RO hearing in April 2005, and a transcript of the hearing is associated with the claims folder. A July 2010 private medical opinion was submitted on appeal. RO consideration of it was waived in September 2010. FINDINGS OF FACT 1. Ulcerative colitis and its subsequent manifestations of proctocolectomy with anastomosis, reconstruction, and scars were not manifest in service and are unrelated to service. 2. The Veteran does not have anemia. 3. Service connection is not in effect for ulcerative colitis. CONCLUSIONS OF LAW 1. Ulcerative colitis was not incurred in or aggravated by service. 38 U.S.C.A. § 1131 (West 2002); 38 C.F.R. § 3.303 (2010). 2. Anemia was not incurred in or aggravated by service. 38 U.S.C.A. § 1131 (West 2002); 38 C.F.R. § 3.303 (2010). 3. Depression, dry eyes, chronic fatigue, multiple joint pains, proctocolectomy with ileoanal anastomosis and J pouch reconstruction, and irritable bowel syndrome are not proximately due to or the result of a service-connected disability. 38 U.S.C.A. § 1131 (West 2002); 38 C.F.R. § 3.310 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran claims direct service connection for ulcerative colitis, and claims service connection for each of the other disabilities, as secondary to it. I. Duties to Notify and Assist Upon receipt of a complete or substantially complete application, VA must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 U.S.C.A. § 5103(a). The notice requirements apply to all five elements of a service connection claim: 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). The notice must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App. 112 (2004). The notice requirements may be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). The RO provided the Veteran pre-adjudication notice by a letter dated in September 2003. The notification substantially complied with the requirements of Quartuccio v. Principi, 16 Vet. App. 183 (2002), identifying the evidence necessary to substantiate a claim and the relative duties of VA and the claimant to obtain evidence; and Pelegrini v. Principi, 18 Vet. App. 112 (2004). While the notification did not advise the Veteran of the laws regarding degrees of disability or effective dates for any grant of service connection, as is required by Dingess, the Board notes that the RO sent the Veteran a March 2006 correspondence that fully complied with Dingess. The Veteran has claimed service connection for anemia, depression, chronic fatigue, dry eyes, multiple joint pains, proctocolectomy with ileoanal anastomosis and J pouch reconstruction, and irritable bowel syndrome, as secondary to her ulcerative colitis. Secondary service connection notice has not been provided. However, as the underlying claim for direct service connection for ulcerative colitis fails, there is essentially no evidence that could be submitted or identified that would substantiate those claims. Therefore there is no prejudice. VA also has a duty to assist a claimant under the VCAA. VA has obtained service treatment records; assisted the Veteran in obtaining evidence; afforded the Veteran an examination in December 2003, obtaining a medical opinion as to the etiology of ulcerative colitis; and afforded the Veteran the opportunity to give testimony before the Board. A VA examination is not necessary for the secondary service connection claims, as there is ulcerative colitis is not service connected. All known and available records relevant to the issues on appeal have been obtained and associated with the Veteran's claims file; and the Veteran has not contended otherwise. VA has substantially complied with the notice and assistance requirements and the Veteran is not prejudiced by a decision on the claim at this time. II. Analysis Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303(a). In order to prevail on the issue of service connection, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. Hickson v. West, 12 Vet. App. 247, 253 (1999). Service connection may be granted, on a secondary basis, for a disability which is proximately due to, or the result of an established service-connected disorder. 38 C.F.R. § 3.310. Similarly, any increase in severity of a non-service connected disease or injury that is proximately due to or the result of a service connected disease or injury, and not due to the natural progress of the nonservice connected disease, will be service connected. Allen v. Brown, 7 Vet. App. 439 (1995). In the latter instance, the non-service connected disease or injury is said to have been aggravated by the service-connected disease or injury. 38 C.F.R. § 3.310. Service treatment records show difficulties associated with an intrauterine pregnancy between March 1984 and May 1984. Complaints included nausea, vomiting, and morning sickness, and assessments included nausea secondary to pregnancy, and morning sickness. In November 2003, a private psychologist indicated that from his understanding and by history, the Veteran had intestinal problems that began while she was in service. The documentation of that would have to be gathered from other sources, however. A summary of service and post-service treatment and history is contained in a December 2003 VA examination report. That report indicates that the Veteran became pregnant in January 1984 and had an unusual amount of morning sickness, with multiple dehydration admissions. The Veteran did not recall having rectal bleeding prior to or during her pregnancy. The baby was born in October 1984, after service separation in September. Immediately after the baby was born, the Veteran had a significant amount of rectal bleeding which persisted. She also had severe constipation. This was attributed to hemorrhoids initially, but she was eventually diagnosed with ulcerative colitis. While on active duty, she had been seen in November 1982 for stomach upset and vomiting, with a benign abdominal examination, diagnosed as viral syndrome. There was no diarrhea. In October 1983, she presented with vomiting, fever, and diarrhea, with left lower quadrant tenderness on examination, and was diagnosed with a viral syndrome. In March 1984, she was seen for vomiting and fatigue, with a benign abdominal examination. Hematocrit was normal at 44 %. Pregnancy test was positive. She subsequently had significant nausea with hyperemesis leading to her service separation. After service, in January 1985, she reported rectal bleeding which was attributed to hemorrhoids. In March 1985, she was seen for rectal bleeding with each bowel movement. She was reported to have hemorrhoids during pregnancy. She had constipation and diarrhea. She was followed with similar symptoms until October 1985 when she underwent sigmoidoscopy which showed proctocolitis. She was treated with sulfasalazine and prednisone for many years. The Veteran noted that while she was pregnant, she was under a huge amount of stress. She attributed the onset of her colitis to that extreme stress. The examiner diagnosed the Veteran with ulcerative colitis and stated that there was no evidence by history or record review that the Veteran had any symptoms consistent with ulcerative colitis prior to the birth of her first child in late October 1984. The examiner stated that there were some population prevalence studies that suggested that ulcerative colitis may be present without symptoms during the early stages of the disease, but that this was not a widely accepted view. The examiner stated that it was less likely than not that the Veteran's colitis began during active duty or was due to a condition that began during active duty. There are many factors that are thought to contribute to the development of colitis, but there was no established proximal cause of colitis. Two April 2004 letters from service physicians indicate that the Veteran's records were reviewed and that the Veteran had ulcerative colitis within one year of service separation, based upon her history and examinations. The first thing that both letters noted was that she had had rectal bleeding in October 1984. One letter stated that her original presentation of rectal bleeding was misdiagnosed and more likely than not due to ulcerative colitis. During the Veteran's April 2005 hearing, it was asserted that a March 1985 service treatment record showed her to have hemorrhoids during pregnancy. She had been seen in January 1985 for rectal bleeding which was attributed to hemorrhoids. The Veteran stated that she had symptoms while she was on active duty. After active duty, the symptoms stepped up a notch, becoming very active, although she was not diagnosed with ulcerative colitis until the Fall of 1985. There is a July 2010 private medical opinion of record. The doctor reviewed the Veteran's medical history from her service and post-service treatment records. After doing so, she stated that the initial symptoms of stomach upset, vomiting, diarrhea, weight loss, abdominal cramps, and tenderness in the abdomen can occur with ulcerative colitis. Symptoms vary in severity and may start slowly or suddenly. Within a few months of service discharge, the Veteran's symptoms had escalated to rectal bleeding and subsequently rectal bleeding with diarrhea. Several months later, proctoscopy was performed revealing colitis. The evolution of the Veteran's symptoms was consistent with the pathophysiology of ulcerative colitis. It was certainly conceivable that the physical stress of pregnancy triggered or at least contributed to the escalation of her symptoms. Therefore, the doctor stated that she must conclude that it is at least as likely as not that the gastrointestinal symptoms that manifested during service and continued after discharge are related to her subsequent diagnosis of ulcerative colitis. Based on the evidence, the Board finds that service connection is not warranted for ulcerative colitis. In sum, there is no dispute that the condition was not diagnosed in service. Moreover, the preponderance of the evidence indicates that it is unrelated to service. Two service physicians and a VA examiner have indicated that it had its onset after service. They were each informed as to the Veteran's treatment history. The VA examiner indicated that the birth of the Veteran's first child was the instigating factor. While the Veteran was certainly pregnant during service, she gave birth after separation, and the examiner found that it was less likely than not that the Veteran's colitis was due to pregnancy itself. The Board acknowledges that a private physician in 2010 also reviewed the Veteran's records in conjunction with her opinion, but the reasoning for her opinion is not persuasive. Her reasoning appears to be that, because it is "conceivable" that stress from pregnancy triggered or escalated symptoms, therefore, it is at least as likely as not that ulcerative colitis was related to service. This is quite a logical leap. The Board is certainly not competent to substitute its own medical judgment for that of a medical professional. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). However, the Board has the authority to discount the weight and probity of evidence in the light of its own inherent characteristics and its relationship to other items of evidence." Madden v. Brown, 125 F.3d 1477, 1481 (Fed. Cir. 1997). Here, the private physician's reasoning has left the Board to conclude that she equates mere possibility with likelihood. She found that the early symptoms of stomach upset, vomiting, diarrhea, weight loss, abdominal cramps and tenderness, as well as hyperactive bowel sounds, are all symptoms that "can" occur with ulcerative colitis. However, these symptoms were attributed to other diagnoses in service, and she did not explain why those diagnoses were less likely than ulcerative colitis. On the other hand, the VA examiner, while acknowledging the possibility that the onset of ulcerative colitis could have predated symptoms, went on to consider when the Veteran's rectal bleeding began, as well as accepted medical principles on the subject. The VA examiner stated that it is not a widely accepted view that ulcerative colitis would be present without symptoms. The records satisfactorily attribute the Veteran's in-service problems to viral syndromes and morning sickness and nausea from pregnancy. Persuasive evidence to the contrary has not been submitted. The Veteran was clearly diagnosed with viral syndrome in service by health care providers who examined and treated the Veteran at the time, as opposed to subsequent record review. The Veteran first reported bleeding occasionally with bowel movements after service. The examiner in December 2003 stated that there was no evidence by history or record review that the Veteran had any symptoms consistent with ulcerative colitis prior to the birth of her first child in late October 1984. The service physicians in April 2004 indicated that she originally presented with symptoms of rectal bleeding in October 1984 and that the symptoms began shortly after delivery of her child in October 1984. The November 2003 opinion of the private psychologist is found to have no significant probative value. The psychologist does not appear to have an accurate historical understanding, as he stated that documentation about onset would have to be gathered from other sources. The notation in the March 1985 service treatment record that the Veteran had hemorrhoids during pregnancy is not particularly probative, as it reports hemorrhoids, not colitis or bleeding, and the Veteran was pregnant after service as well as in service. Moreover, service records do not document hemorrhoids or bleeding. The Veteran submitted an Internet article dealing with ulcerative colitis, and suggesting that stress can trigger symptoms of an underlying disease process already in place. The Court has held that a medical article or treatise "can provide important support when combined with an opinion of a medical professional" if the medical article or treatise evidence discussed generic relationships with a degree of certainty such that, under the facts of a specific case, there is at least "plausible causality" based upon objective facts rather than on an unsubstantiated lay medical opinion. Sacks v. West, 11 Vet. App. 314 (1998); see also Wallin v. West, 11 Vet. App. 509 (1998). In this case, however, the medical text evidence submitted by the appellant is not accompanied by the medical opinion of a medical professional. Additionally, it fails to demonstrate with any degree of certainty a relationship between this Veteran's ulcerative colitis and service. For these reasons, the Board must find that the medical text evidence does not contain the specificity to constitute a conclusive opinion. See Sacks, 11 Vet. App. at 317; see Libertine, 9 Vet. App. at 523. The Veteran clearly believes that her ulcerative colitis is related to service. The Veteran can attest to factual matters of which she has first-hand knowledge, such as experiencing pain in service, reporting to sick call, being placed on limited duty, and undergoing physical therapy. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a lay person is competent to identify the medical condition (noting that sometimes the lay person will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer), (2) the lay person is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. See Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). In such cases, the Board is within its province to weigh that testimony and to make a credibility determination as to whether the evidence supports a finding of service incurrence and continuity of symptomatology sufficient to establish service connection. See Barr v. Nicholson, 21. Vet. App. 303 (2007). Here, the Veteran bases her opinion regarding nexus on the proximity of diagnosis to service. However, this proximity has been accounted for by the December 2003 VA examiner, who's opinion the Board finds to be most probative. Establishing the etiology of ulcerative colitis is not a simple matter that is subject to lay observation, but requires medical knowledge. Therefore her opinion is not assigned substantial probative weight in comparison to the opinion of the December 2003 examiner. In sum, the Veteran's ulcerative colitis had onset after service and is not related to service. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the- doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2010); Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Moreover, the Veteran does not have a current anemia disability. Her service physician indicated this in October 2003, and the Veteran has admitted the same in her April 2005 hearing. A current disability is required to establish service connection. In the absence of a current disability, service connection can not be granted. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); Rabideau v. Derwinski, 2 Vet. App. 141, 143-144 (1992). Finally, since the Veteran has claimed the other disabilities as secondary to ulcerative colitis, and has not asserted that they were manifest in service or are directly related to service, entitlement to service connection must be denied for lack of legal merit. Sabonis v. Brown, 6 Vet. App. 426 (1994). ORDER Service connection for ulcerative colitis is denied. Service connection for anemia is denied. Service connection for depression, chronic fatigue, dry eyes, multiple joint pains, proctocolectomy with ileoanal anastomosis and J-pouch reconstruction, irritable bowel syndrome, and surgical scars, claimed as secondary to ulcerative colitis is denied. ____________________________________________ Lloyd Cramp Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs