Citation Nr: 1204330 Decision Date: 02/06/12 Archive Date: 02/16/12 DOCKET NO. 10-07 597 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to service connection for ulcerative colitis. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD D.J. Drucker, Counsel INTRODUCTION The Veteran served in the Army Reserve National Guard, with unverified active duty in 1998, and verified active service from March 14, 2003 to February 11, 2004. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a November 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. FINDING OF FACT Resolving all doubt in the Veteran's favor, ulcerative colitis had its onset during active service. CONCLUSION OF LAW Resolving all doubt in the Veteran's favor, ulcerative colitis was incurred during active service. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.1(m), 3.102, 3.159, 3.303 (2011). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duty to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2011). In this case, the Board is granting in full the benefit sought on appeal as to the claim on appeal. Accordingly, assuming, without deciding, that any error was committed with respect to either the duty to notify or the duty to assist, such error was harmless and need not be further considered. Information concerning effective dates and ratings for ulcerative colitis will be provided by the RO. If appellant then disagrees with any of those actions, he may appeal those decisions. II. Factual Background and Legal Analysis The Veteran seeks service connection for ulcerative colitis that he says was incurred during active service when he initially manifested symtoms of repeated diarrhea and bowel movements in December 2003 when stationed at Fort Bragg. In his October 2006 initial claim for VA benefits, he indicated that he tried to get treatment and was told that his unit was demobilizing and to obtain treatment from Tricare at a later date. He indicated that he sought treatment in 2004 and was ultimately diagnosed with ulcerative colitis. In August 2008, the Veteran told a Medical Examination Board (MEB) examiner that he sought private treatment in 2004 but his symtoms persisted and, one year later, he saw a private gastroenterologist who diagnosed chronic ulcerative colitis. Thus, the Veteran claims service connection is warranted for his ulcerative colitis. Under 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303, a veteran is entitled to disability compensation for disability resulting from personal injury or disease incurred in or aggravated in the line of duty during active military service. In line of duty is defined by regulation as an injury or disease incurred or aggravated during a period of active military service unless such injury or disease was the result of the Veteran's own willful misconduct. A service department finding that an injury occurred in the line of duty will be binding on the VA unless it is patently inconsistent with the requirements of laws administrated by VA. 38 C.F.R. § 3.1(m). Further, service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303(d). For the showing of chronic disease in service, there are required a combination of manifestations sufficient to identify a disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word chronic. Continuity of symptomatology is required only where the condition noted during service is not, in fact, shown to be chronic or when the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b). Service treatment records indicate that, when examined for entry into service in January 2003, the Veteran denied having frequent indigestion, heartburn, or stomach or intestinal trouble, and his abdomen and viscera were normal. Service treatment records are not referable to complaints or diagnosis of, or treatment for, a gastrointestinal disorder. The Veteran was discharged from active service on February 11, 2004. Post service, a February 13, 2004 private ultrasound report indicates that the Veteran complained of right upper quadrant pain. Results of the ultrasound included an impression of normal size gallbladder with slightly thickened wall suggestive of possible cholecystitis and no evidence of gallbladder stones. A March 6, 2004 Reserve Annual Medical Certificate indicates that the Veteran reported having stomach pain for which he saw "several physicians" but the pain went away. According to a May 14, 2004 examiner's comment, the Veteran had a history of acid reflux for two months. Private medical records show that, in February 2005, the Veteran saw R.C.D., Jr., M.D., a private gastroenterologist, for complaints of transfer dysphagia (with a previous normal upper gastrointestinal series (UGI) approximately two years earlier), chronic watery non-blood diarrhea with six to seven bowel movements per day (for over one year), a 50 pound weight loss, and intermittent hematochezia. It was noted that his recent lab work and stool tests were reportedly normal. March 2005 private records indicate that the Veteran underwent a colonoscopy, notable for diffuse colitis, and an esophagogastroduodenoscopy (EGD). In an April 2005 signed note, Dr. R.C.D. diagnosed the Veteran with chronic ulcerative colitis. According to a January 2007 VA gastroenterology clinic outpatient record, the Veteran had ulcerative colitis that was diagnosed in 2004. He reported that his symtoms started around Christmas 2003 with diarrhea that was bloody. He saw private physicians and was treated with Asacol that did not help. Results of a colonoscopy performed in March 2007 showed pan colitis. A May 2008 gastroenterology record from Eisenhower Army Medical Center indicates that the Veteran gave a history of ulcerative colitis diagnosed in 2004 when activated for deployment. He said his unit never deployed overseas but he had severe diarrhea during the demobilization and was referred to a private physician who diagnosed ulcerative colitis. His symtoms continued and ultimately he sought VA care. According to the August 2008 MEB report, the Veteran's symtoms of intermittent diarrhea with occasional blood started in December 2003 while he was at Fort Bragg. He did not know at that time if it was something he ate. He was discouraged from seeking medical care at the troop clinic secondary to all the deployments going on at the time. He demobilized in early March 2004 and sought private medical care near his home that started evaluation for his diarrhea. It took one year for him to be referred to a civilian gastroenterologist. During that one year time, his diarrhea progressed to 16 to 18 bowel movements a day and he lost approximately 40 pounds. He finally had a colonoscopy and endoscopy and was diagnosed with ulcerative colitis. The MEB diagnosis was ulcerative colitis with residual anemia, weight loss, and osteopenia that occurred within the line of duty. An August 2008 Physical Evaluation Board (PEB) Report indicates that the Veteran's ulcerative colitis symtoms began in December 2003, during his March 2003 to March 2004 mobilization, and while in the line of duty in the time of national emergency, and was the proximate result of performing duty. In November 2008, the Veteran was released from duty due to physical disability and placed on the Temporary Disability Retired List. Although his service treatment records do not reflect complaints of a gastrointestinal problem, the Veteran indicated that his symptoms started in late 2003 and that he was advised to seek treatment after his unit was demobilized. He reported that he was evaluated at a private clinic and the February 13, 2004 sonogram record, dated just two days after his discharge, shows he was evaluated for right upper quadrant pain. He further told examiners that his symtoms persisted and he was ultimately referred to a private gastroenterologist one year later and results of the colonoscopy and EGD revealed that he had ulcerative colitis. The February 2005 private medical record from Dr. R.C.D. corroborates the Veteran's account of his symtoms and eventual diagnosis of ulcerative colitis. In August 2008, the MEB examiner recounted the Veteran's history of ulcerative colitis that started in December 2003 and found that it was incurred in the line of duty. She diagnosed him with ulcerative colitis with residual anemia, weight loss, and osteopenia. In addition, the PEB also found that the Veteran's current ulcerative colitis disability had its symptom onset in December 2003 (during his 2003-2004 mobilization) and was incurred in line of duty. As the PEB finding is not patently contrary to the applicable provisions of VA law, it is considered binding on VA under 38 C.F.R. § 3.1(m). The Board concurs with the determination that the Veteran's current ulcerative colitis disability had its onset during active service, and finds that service connection is warranted. ORDER Service connection for ulcerative colitis is granted. ____________________________________________ THOMAS J. DANNAHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs