Citation NR: 9728035 Decision Date: 08/12/97 Archive Date: 08/19/97 DOCKET NO. 94-35 644 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in White River Junction, Vermont THE ISSUE Entitlement to service connection for diverticulosis secondary to anti-inflammatory medication taken for service- connected knee disability. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J. R. Bryant, Associate Counsel INTRODUCTION The veteran served on active duty from November 1958 to March 1979. This matter is before the Board of Veterans’ Appeals (Board) of the Department of Veterans Affairs (VA) on appeal from an April 1994 rating determination by the White River Junction, Vermont Regional Office (RO). This case was previously before the Board in September 1996. A May 1997 RO decision denied entitlement to a total rating due to individual unemployability. In a written statement dated in February 1995, the veteran raises the issue of entitlement to service connection for a back disability secondary to surgery. This matter is referred to the RO for action deemed appropriate. CONTENTION OF APPELLANT ON APPEAL The veteran contends that he developed diverticulosis taking anti-inflammatory medication for his service-connected knee disability. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991 & Supp. 1997), has reviewed and considered all of the evidence and material of record in the veteran's claims files. Based on its review of the relevant evidence in this matter, and for the following reasons and bases, it is the decision of the Board that the veteran has not met his initial burden of presenting evidence sufficient to justify a belief by a fair and impartial individual that the claim for service connection for diverticulosis secondary to anti- inflammatory medication taken for a service-connected knee disability is well grounded. FINDING OF FACT The veteran has not presented competent evidence to show that his diverticulosis was caused by anti-inflammatory medication taken for his service-connected knee disability or is related to it in any manner. CONCLUSION OF LAW The claim for service connection for diverticulosis secondary to anti-inflammatory medication taken for a service-connected knee disability is not well grounded. 38 U.S.C.A. § 5107(a) (West 1991 & Supp. 1997). REASONS AND BASES FOR FINDING AND CONCLUSION Factual Background. In a November 1985 rating decision, service connection was established, in pertinent part, for the residuals of a penetrating shrapnel wound of the right leg, without artery or nerve involvement, with fracture of the right lateral tibial plateau, evaluated as 10 percent disabling. Service connection was also established for disability involving the left thigh, left calf and left ankle. In a September 1992 rating, service connection on a secondary basis was established for left knee joint arthritis, status post medial meniscectomy and debridement, evaluated as 10 percent disabling. The right leg shrapnel injury residuals were also recognized as including right knee joint arthritis with tibial osteotomy. The evidence of record shows that the veteran was prescribed a non-steroidal anti-inflammatory drug (NSAID), in September 1988 for his knee disability and back pain by W.F. Kean, M.D. In February 1990 the veteran was examined by P. Tam, M.D. for management of a recently drained periappendicular abscess. An appendectomy was subsequently performed in May 1990 by Dr. Tam, who stated that although there was evidence of only diverticulosis, it was actually diverticulitis that caused the veteran’s previous problems. At a follow-up examination by Dr. Tam in August 1990, the veteran was found to still have an inflammatory mass from diverticulum disease in the sigmoid colon. A VA examination dated in December 1991 shows the veteran gave a past medical history that included diverticulitis. Examination of the abdomen revealed a well-healed surgical scar to the right of the midline, in the right lower quadrant due to surgery for diverticulitis. There was scar below this which was for drainage. The diagnoses included diverticulitis. A newspaper article was submitted by the veteran in October 1993 concerning the relationship between internal bleeding and medications used to relieved the pain of arthritis. The article indicated that some pain medications may cause erosion of the esophagus, stomach and small intestine and bleeding from a diverticulum (pocket of the colon). At a VA examination conducted in November 1993 the veteran primarily complained of stomach bleeding. During the examination the physician noted the veteran’s abdominal scar secondary to diverticular abscess, but there was no diagnosis of diverticulosis. Additional private medical records received in November 1993 and April 1994 include a May 1989 report from Dr. Kean indicating that the veteran continued with his anti-inflammatory medications for the present time. A March 1990 sigmoidoscopy report indicates that the mucosa of the bowel, up to 30 centimeters, was completely normal with no sign of polyps or diverticular disease. A lower gastrointestinal study in March 1990 showed multiple diverticula throughout the colon. A subsequent lower gastrointestinal series performed in July 1992 showed moderate diverticulosis in the sigmoid colon, with a lesser degree of involvement of the descending colon. The clinical opinion was diverticulosis, with no other abnormalities demonstrated. The veteran underwent a VA examination in March 1994 and gave a history of a ruptured abscess two weeks after being treated with the muscle relaxant, Methocarbamol. He stated that he was advised against using painkillers and complained that whenever he would take them he experienced rectal bleeding. The examiner stated that Methocarbamol was not associated with diverticular disease and was probably not related to the ruptured abscess from diverticulitis. Multiple diverticuli throughout the colon were also demonstrated. The examiner did not investigate the possible relationship between anti- inflammatory medications the veteran was using at the time and diverticulosis. In October 1995 the veteran submitted an additional article regarding the effects of arthritis medication on gastrointestinal problems. The article indicates that at high doses, they can cause ulcers and internal bleeding. A November 1996 report from J. J. Carroll, M.D. indicates he saw the veteran in surgical consultation in January 1990 and performed the incision and drainage of the appendiceal abscess. Dr. Carroll indicated that there was no proof that the veteran’s abscess was caused by anti-inflammatory drugs. Pursuant to a September 1996 Remand, medical records from the Social Security Administration and the Canada Pension Plan dated from 1985 to 1996 were received by the RO. As well as private and VA treatment reports dated from 1988 to the present. These records primarily show treatment for an unrelated back disability and are negative for current treatment of diverticulitis. An April 1997 examination was performed to evaluate the possibility that the veteran’s diverticular disease and his diverticular abscess were causally related to his use of anti-inflammatory medications taken for his service-connected knee disability. At the time of the examination the veteran’s only complaint was of frequent but intermittent bright red blood per rectum. There were no recent black stools and no significant abdominal pain. The veteran stated he had 2 to 3 soft, well-formed bowel movements per day while on a fiber supplement and that without the supplement he had a tendency to become constipated. His weight was stable and his appetite considered good. There was no nausea or vomiting. The veteran stated that he was intolerant of most pain medications including all NSAIDs as well as Tylenol. He would rapidly develop an upset stomach after several days of taking these medications. He described it as a burning sensation which is relieved by stopping the medication. He stated that he has not tried misoprostol (cytotec) as a gastric protective agent. The veteran feels that his bright red blood per rectum is exacerbated by using NSAIDs. However the examiner noted that the veteran was currently having intermittent blood per rectum but was not taking NSAIDs or Tylenol. Physical examination showed no stigmata of liver disease and the veteran was not icteric. His heart and lungs were normal. The abdomen was soft without hepatosplenomegaly and there was no tenderness in the abdomen and no masses were palpated. There were several small scars in the right lower quadrant but no tenderness or masses felt in that area. A rectal examination noted one small external hemorrhoid and guaiac positive brown stool. The examiner concluded that there was no connection between the veteran’s use of NSAIDs and the development of either diverticulitis or diverticulosis. Medical literature reviewed by the examiner from 1983 to January 1996 included three articles, one of which suggested a risk between diverticular bleeding and the use of anti-inflammatory drugs. However, the examiner noted the veteran did not have diverticular bleeding but rather had diverticulitis/diverticular abscess. The other two articles, neither published in English, also suggest a relationship between diverticulitis and the use of NSAIDs, however the studies conducted in connection therewith were small and could not be reviewed because they were not in English. The examiner did not believe that there was sufficient evidence that conclusively showed a significant relationship between diverticulosis or diverticulitis and the use of NSAIDs. The examiner also concluded that the veteran has well documented diverticulosis by barium enema and that diverticuli are unlikely to resolve over time. He currently has no significant symptoms from his diverticular disease and no residual from his previous diverticular abscess. His current bright red blood per rectum and guaiac positive stools were almost certainly related to his known internal hemorrhoids. Although aspirin may increase bleeding from internal hemorrhoids by its nonspecific effect on platelet function, the veteran was currently having bleeding and was not taking any anti-inflammatory medication. The examiner found no evidence that the veteran’s gastrointestinal disorder is causally related to any anti-inflammatory medications he has taken for his service-connected knee disability. Analysis. The preliminary requirement for establishing entitlement to any VA benefit is that the applicant submit a claim which is sufficient to justify a belief by a fair and impartial individual that the claim is well-grounded. 38 U.S.C.A. § 5107(a) (West 1991 & Supp. 1997). The United States Court of Veteran Appeals (Court) has defined a well- grounded claim as “a plausible claim, one which is meritorious on its own or capable of substantiation.” Such a claim need not be conclusive but only possible to satisfy the initial burden of 38 U.S.C.A. § 5107. Murphy v. Derwinski, 1 Vet.App. 78, 81 (1990). If the claim is not well-grounded, the veteran cannot invoke the VA’s duty to assist in the development of the claim. 38 U.S.C.A. § 5107(a) (West 1991 & Supp. 1997). Service connection may be granted for disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a) (1996). In Allen v. Brown, 7 Vet.App. 439 (1995), the United States Court of Veterans Appeals held that ‘disability’ as set forth in 38 U.S.C.A. § 1110 “refers to impairment of earning capacity, and that such definition mandates that any additional impairment of earning capacity resulting from an already service-connected condition, regardless of whether or not the additional impairment is itself a separate disease or injury caused by the service-connected condition, shall be compensated.” Allen v. Brown, 7 Vet.App. at 448 (emphasis in original). In order for a claim of service connection to be well grounded, there must be competent evidence of a current disability (a medical diagnosis), of incurrence or aggravation of a disease or injury in service (lay or medical evidence) and of a nexus between the in-service disease or injury and the current disability (medical evidence). Caluza v. Brown, 7 Vet.App. 498 (1995). In the veteran’s case he has made contentions to the effect that he believes that his diverticulosis is due to medication taken for his service-connected knee disability. However the medical evidence of record, including the April 1997 VA examination report, does not contain any supportive medical opinion. A well-grounded claim for service connection on a secondary basis requires medical evidence of a nexus between the service-connected disease and the current disability. 38 C.F.R. § 3.310 (1996). Therefore, the third prong of Caluza is not satisfied as there is no medical evidence of record establishing a nexus between the diverticulosis and the veteran’s service-connected knee disability. In this case, only the first prong of Caluza is satisfied; namely, there is competent medical evidence that the veteran currently has diverticulosis. Similarly, there is no competent medical evidence indicating that medication taken for service-connected knee disability caused an increase in severity of diverticulosis. The April 1997 examiner indicated that there was not sufficient evidence that showed a significant relationship between diverticulosis or diverticulitis and the use of NSAIDs. He did not find that the veteran’s gastrointestinal disorder was causally related to NSAIDs taken for service-connected disability. Thus, with the third prong of Caluza not satisfied, the Court’s decision in Allen v. Brown does not provide a basis for favorable action in this claim. While the veteran’s allegations of entitlement have been considered, his lay assertions, as they pertain to a question of medical diagnosis, or causation, are not supported by competent evidence and, as such, cannot constitute evidence to render the claim well grounded under 38 U.S.C.A. § 5107(a); if no cognizable evidence is submitted to support a claim, the claim cannot be well grounded. Tirpak v. Derwinski, 2 Vet.App 609 (1992); Grottveit v. Brown, 5 Vet.App. 91 (1993). The Board notes that the evidence of record includes medical articles that suggest a risk between diverticulitis and the use of NSAIDs, but none of the submitted articles includes a medical opinion specifically addressing whether the veteran developed diverticulitis/diverticulosis due to anti- inflammatory medication use. The Board further notes that the record contains no other medical opinion supportive of the veteran's claim and that a VA physician who examined the veteran in April 1997 provided an opinion against the veteran's claim. Therefore, the Board finds that a well-grounded claim of service connection for diverticulosis secondary to medication taken for service-connected knee disability has not been presented. It follows that the VA has no duty to assist the veteran in the development of his claim. In the absence of a well-grounded claim, the Board does not have jurisdiction to decide the merits of the matter, and the appeal must be denied. Boeck v. Brown, 7 Vet.App. 14 (1994). ORDER Service connection for diverticulosis secondary to anti- inflammatory medication taken for service-connected knee disability is denied as not well grounded. ______________________________ BARBARA B. COPELAND Member, Board of Veterans' Appeals 38 U.S.C.A. § 7102 (West Supp. 1996) permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991 & Supp. 1996), a decision of the Board of Veterans' Appeals granting less than the complete benefit, or benefits, sought on appeal is appealable to the United States Court of Veterans Appeals within 120 days from the date of mailing of notice of the decision, provided that a Notice of Disagreement concerning an issue which was before the Board was filed with the agency of original jurisdiction on or after November 18, 1988. Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). The date which appears on the face of this decision constitutes the date of mailing and the copy of this decision which you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals. - 2 -