Citation Nr: 9835981 Decision Date: 12/08/98 Archive Date: 12/15/98 DOCKET NO. 97-06 782A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUE Entitlement to service connection for a gastrointestinal disorder as secondary to medications prescribed in conjunction with treatment for service-connected disorders. (The issues of entitlement to service connection for sinus bradycardia and whether there was clear and unmistakable error in an October 1954 rating decision which denied service connection for sinus bradycardia, which are also before the Board, will be addressed in a separate decision of the Board.) REPRESENTATION Appellant represented by: Military Order of the Purple Heart ATTORNEY FOR THE BOARD S. J. Janec, Associate Counsel INTRODUCTION The veteran had active military service from June 1949 to October 1952. This matter comes before the Board of Veterans' Appeals (Board) from a February 1997 rating decision of the Pittsburgh, Pennsylvania Regional Office (RO) of the Department of Veterans Affairs (VA) which denied benefits under 38 U.S.C.A. § 1151 for a gastrointestinal disorder due to medication prescribed by a VA facility. Additional evidence was obtained and the RO denied service connection for a gastrointestinal disorder as secondary to medications prescribed in conjunction with treatment for service- connected disabilities. The veteran was informed of this determination in a February 1998 supplemental statement of the case. The Board notes that 38 U.S.C.A. § 1151 provides that, where any veteran shall have suffered an injury, or an aggravation of an injury, as a result of hospitalization, medical or surgical treatment, not the result of such veteran's own willful misconduct, and such injury or aggravation results in additional disability, compensation shall be awarded in the same manner as if such disability were service-connected. This language presumes that the veteran is claiming additional disability as a result of treatment or hospitalization for a non service-connected disability. Thus, its application is limited to such factual circumstances. Veterans who have claims of additional disability as a result of treatment for a service-connected disability may pursue claims for secondary service connection under 38 C.F.R. § 3.310(a) as this provision provides them the greater benefit. Since the medication prescribed by the VA which the veteran asserts caused the gastrointestinal disorder was for treatment of service-connected disabilities, namely sinusitis and bronchiectasis, 38 C.F.R. § 3.310(a) is the relevant regulation to be applied. Therefore, the Board has characterized the issue accordingly on the initial page of this decision. The Board further notes that in an October 1995 rating decision, the RO denied the veteran's claims of service connection for a nervous stomach as secondary to sinus bradycardia, service connection for Barrett’s esophagitis as secondary to the service-connected sinusitis, and service connection for chronic indigestion as secondary to the service-connected sinusitis; and found that new and material evidence had not been submitted to reopen a claim of service connection for conjunctivitis. The veteran filed a notice of disagreement with these determinations, but did not timely perfect his appeal. Therefore, these issues are not currently before the Board and will not be addressed herein. The issues of whether there was clear and unmistakable error in an October 1954 rating decision which denied service connection for sinus bradycardia, and entitlement to service connection for sinus bradycardia are being addressed in a separate decision issued by the Board. CONTENTIONS OF APPELLANT ON APPEAL The veteran asserts that his gastrointestinal disorder was caused by medications prescribed for his service-connected conditions. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991 & Supp. 1998), has reviewed and considered all of the evidence and material of record in the veteran's claims files. Based on a review of the relevant evidence, and for the following reasons and bases, it is the decision of the Board that the preponderance of the evidence is against the claim of service connection for a gastrointestinal disorder as secondary to medications prescribed in conjunction with treatment for service- connected disorders. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the veteran's appeal has been obtained. 2. Medical evidence does not show that the veteran's gastrointestinal disorder is due to or aggravated by medication prescribed for treatment of the service-connected sinusitis and bronchiectasis. 3. A good cause showing, such as a complex medical issue involved in the appeal, has not be made to warrant procurement of an independent medical expert opinion. CONCLUSIONS OF LAW 1. Service connection for a gastrointestinal disorder as secondary to medications prescribed in conjunction with treatment for service-connected disorders is not warranted. 38 U.S.C.A. §§ 1110, 5107 (West 1991); 38 C.F.R. § 3.310(a) (1998). 2. The request for an independent medical expert opinion is denied. 38 C.F.R. § 20.902 (1998). REASONS AND BASES FOR FINDINGS AND CONCLUSION Initially, we note that we have found that the veteran’s claim is well grounded within the meaning of 38 U.S.C.A. § 5107(a). That is, we find that he has presented a claim which is plausible. See Murphy v. Derwinski, 1 Vet.App. 78, 81 (1990); see also Wallin v. West, No. 97-1023 (U.S. Vet. App. Oct. 16, 1998) (holding that medical treatise evidence may be sufficient to well ground a claim if the evidence discusses the plausibility of a link and does not simply provide speculative generic statements). The Board is also satisfied that all relevant facts for the veteran’s claim have been properly developed and that no further assistance is required in order to comply with the duty to assist mandated in 38 U.S.C.A. § 5107. Littke v. Derwinski, 1 Vet.App. 90 (1990). In this regard, the Board notes that, in his May 1998 statement in support of the veteran's appeal, the veteran's service representative related that an independent medical opinion from the Johns Hopkins Medical Center had been requested and such request was denied by the RO in March 1997. He further asserted that the failure to obtain such opinion “seems to deny the veteran due process of law, ignores the issues of duty to assist, and relegates veteran’s claim to mere speculation.” He reiterated his request for an independent medical opinion from the Johns Hopkins Medical Center and a re-review of the veteran's file based on these findings. However, pursuant to 38 C.F.R. § 20.901(d) (1998), the decision to seek an opinion of an independent medical examiner is solely within the judgment of the Board, which selects the institution from those recognized for this purpose by the Secretary. This case is not deemed to present a question involving medical complexity or controversy. The representative is free to secure an opinion from any institution he chooses on his own, but cannot demand the same from VA. As such, the VA has not denied the veteran due process of law and had not ignored its duty to assist. I. Factual Background The veteran is service-connected for sinusitis and bronchiectasis. Over the years, these conditions have been treated with various medications, including Ampicillin, Amoxicillin, Erythromycin, Tetracycline and Prilosec. A May 1995 VA outpatient treatment record notes that the veteran was seen for follow-up of a recent endoscopy. The results showed short segment Barrett’s metaplasia and mild dysphagia. Examination by his physician was consistent with a two centimeter hiatal hernia and finger-like projections and islands of salmon-colored mucosa proximal to the squamocolumnar junction 41 centimeters from the incisors. He was scheduled to be seen in VA’s Barrett’s syndrome clinic. On VA examination in January 1997, the veteran reported that he developed sinusitis in the 1950’s. He claimed that the condition was repeatedly misdiagnosed and progressed to a chronic sinusitis and bronchiectasis. He was started on frequent and long-term antibiotic therapy. Presently, he had developed gastroesophageal reflux disease and Barrett’s syndrome. He believed these conditions were due to chronic antibiotic use. The examiner commented that he did not believe there was a connection between the veteran's use of antibiotics and the gastroesophageal reflux disease. The veteran was seen in VA’s Barrett’s Esophageal Clinic in April 1997 and was noted to be without symptoms, specifically no heartburn or regurgitation. Also, there were no complaints of dysphagia or odynophagia. He did continue to complain of extensive sinusitis and post-nasal drip. In an August 1997 opinion, a VA physician reported that he had reviewed the veteran's claims file and medical records upon the request of the RO. He noted that the veteran had been followed longitudinally in the VA system for multiple medical problems, including sinusitis, gastroesophageal reflux disease and Barrett’s syndrome. He referenced the diagnostic studies performed and the findings of each of the clinicians who treated the veteran for various conditions and concluded that the gastroesophageal reflux disease and Barrett’s syndrome were most likely related to chronic acid back-wash and there was no definitive etiologic evidence to support a finding of a relationship between these conditions and the medications used to treat his service-connected disabilities. He acknowledged that certain medications, including a variety of antibiotics such as Amoxicillin and Tetracycline, which the veteran had taken, have been shown to cause gastric upset and dyspepsia. However, he noted that if there were chronic inflammatory changes at the time of the endoscopic examination in 1995, there would have been more of a presence of mucosal erosion or ulceration in the remainder of the esophagus or stomach, but there was none. There was also no indication of weight loss or chronic abdominal pain. Furthermore, with respect to long-term use of Prilosec, there was good data in the medical literature, including the Annals of Internal Medicine, to warrant its long-term use even in patients with refractory symptomatology consistent with gastroesophageal reflux disease. Excerpts from Edition 40, 1986 Physicians’ Desk Reference pertaining to Amcill, Amoxicillin, and Tetracycline note that adverse reactions to these medications include Barrett’s syndrome and digestive problems. The veteran also submitted excerpts from medical treatises pertaining to pills reported to cause esophageal mucosal injury, including antibiotics such as Tetracycline, as well as a discussion of the digestive system and inflammatory disorders such as gastroesophageal reflux and esophagitis. II. Analysis Disability which is proximately due to or the result of a service connected disease or injury shall be service connected. 38 C.F.R. § 3.310 (a); see also Allen v. Brown, 7 Vet. App. 439 (1995) (recognizing that service connection may be established for a nonservice-connected disability aggravated by a service connected disability). In order to show that a disability is proximately due to or the result of a service connected disease or injury, the veteran must submit competent medical evidence showing that the disabilities are causally-related. See Jones v. Brown, 7 Vet. App. 134, 137 (1994). It is neither alleged nor shown that a gastrointestinal disorder was incurred in or aggravated by service. The veteran contends, essentially, that the gastrointestinal disorder was caused by long-term use of antibiotics which were prescribed for treatment of his service-connected sinusitis and bronchiectasis. However, he has not presented any direct medical evidence to show that his gastrointestinal disorder is proximately due to or aggravated by the use of antibiotics for his service-connected sinusitis and bronchiectasis. He has only submitted excerpts from the Physicians’ Desk Reference and other medical treatises which document adverse reactions, including gastroesophageal reflux and Barrrett’s syndrome, to various antibiotic medications. Furthermore, on VA examination in January 1997, the examiner commented that he did not believe there was a connection between the veteran's use of antibiotics and the gastroesophageal reflux disease; and a VA opinion provided in August 1997 concluded that the medical evidence did not show that the veteran's gastroesophageal reflux disease and Barrett’s syndrome were related to his use of antibiotics. This opinion was rendered upon a thorough review of the veteran's claims file and medical records. To the extent that the veteran asserts that there is a causal relationship, the Board notes that as a lay person he is not competent to render a medical diagnosis or to relate a medical disorder to a specific cause. Espiritu v. Derwinski, 2 Vet.App. 492, 494 (1992). Therefore, the Board concludes that the preponderance of the evidence is against the claim of service connection for a gastrointestinal disorder as secondary to medications prescribed in conjunction with treatment for service-connected disorders and must be denied. ORDER Service connection for a gastrointestinal disorder as secondary to medications prescribed in conjunction with treatment for service-connected disorders is denied. N. R. ROBIN Member, Board of Veterans' Appeals NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991 & Supp. 1998), 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 -