Citation Nr: 0706216 Decision Date: 03/05/07 Archive Date: 03/13/07 DOCKET NO. 03-00 823 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston- Salem, North Carolina THE ISSUE Whether new and material evidence has been submitted to reopen a previously denied claim of entitlement to service connection for a chronic gastrointestinal condition to include gastroenteritis and irritable bowel syndrome (claimed as secondary to the veteran's service connected thyroid condition), and, if so, whether the reopened claim should be granted. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Heather M. Gogola, Associate Counsel INTRODUCTION The veteran served on active duty from February 1976 through February 1980. This matter is before the Board of Veteran's Appeals (Board) on appeal from an October 2001 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. The Board notes that the veteran submitted additional evidence to the Board in the form of a statement and attached medical records. While regional office consideration was not waived, the evidence submitted is not pertinent to her claim for service connection for a gastro-intestinal condition. FINDINGS OF FACT 1. An unappealed rating decision in May 2001 denied service connection for a chronic gastrointestinal disability. 2. Evidence received since the May 2001 rating decision is not cumulative of the evidence previously in the record and is sufficient, when considered with the evidence previously of record, to raise a reasonable possibility of substantiating the claim. 3. The veteran is service connected for left hemithyroidectomy. 4. The veteran's gastrointestinal condition is related to her service-connected residuals of a left hemithyroidectomy. CONCLUSION OF LAW 1. New and material evidence has been received and the claim for service connection for a chronic gastrointestinal condition is reopened. 38 U.S.C.A. §§ 5108, 7105 (West 2002); 38 C.F.R. § 3.156 (2006). 2. A chronic gastrointestinal condition is secondary to the veteran's service-connected left hemithyroidectomy. 38 U.S.C.A. § 1131 (West 2002); 38 C.F.R. § 3.310 (2006). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Board has considered the veteran's claim with respect to the Veterans Claims Assistance Act of 2000 (VCAA), 38 U.S.C.A. §§ 5100 et. seq. (West 2003). Given the favorable outcome below no conceivable prejudice to the veteran could result from this adjudication. In this regard, the agency of original jurisdiction will be responsible for addressing any VCAA notice defect with respect to the rating and effective date elements when effectuating the award. . See Dingess v. Nicholson, No. 01-1917 (U.S. Vet. App. March 3, 2006) (Hartman, No. 02-1506) Legal Criteria Generally, a claim which has been denied in an unappealed RO decision or an unappealed Board decision may not thereafter be reopened and allowed. 38 U.S.C.A. §§ 7104(b), 7105(c) (West 2002). The exception to this rule is 38 U.S.C.A. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. New and material evidence means evidence not previously submitted to agency decision makers which bears directly and substantially upon the specific matter under consideration, which is neither cumulative nor redundant, and which by itself or in connection with evidence previously assembled is so significant that it must be considered in order to fairly decide the merits of the claim. 38 C.F.R. § 3.156 (2001); Hodge v. West, 155 F.3d 1356 (Fed Cir 1998). The old 38 C.F.R. § 3.156 regulations applies as the veteran file her claim prior to August 29, 2001. For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence, although not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The evidence which must be considered in determining whether there is a basis for reopening the claim is that evidence added to the record since the last disposition in which the claim was finally disallowed on any basis. See Spalding v. Brown, 10 Vet. App. 6 (1996). Service connection may be granted for disability resulting from disease or injury that was incurred in or aggravated by active service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303. Service connection may be granted for a disability that is proximately due to, or the result of, a service-connected disability. 38 C.F.R. § 3.310 (2006). To establish entitlement to service connection on a secondary basis, there must be competent medical evidence of record establishing that a current disability is proximately due to, or the result of, a service-connected disability. See Lantham v. Brown, 7 Vet. App. 359, 365 (1995). With chronic disease shown as such in service so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. This rule does not mean that any manifestations of joint pain, any abnormality of heart action, or heart sounds, any urinary findings of cases, or any cough, in service will permit service connection of arthritis, disease of the heart, nephritis, or pulmonary disease, first shown as a clear-cut clinical entity, at some later date. For showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." When the disease identity is established, there is no requirement of evidentiary showing of continuity. Continuity of symptomatology is required only where the condition noted during service is not, in fact, shown to be chronic or where 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). History and Analysis The Claim to Reopen: By a rating decision of January 1983, the RO denied the veteran's claim for entitlement to service connection for a chronic gastrointestinal disability. The veteran did not appeal this decision. In January 2001, and again in May 2001, the veteran reopened her claim for service connection for a chronic gastrointestinal disability. The RO denied service connection and the veteran did not appeal. Therefore, the May 2001 decision is the last final decision. 38 U.S.C.A. § 7105. The evidence of record at the time of the May 2001 final decision included the veteran's service medical records, and three general VA examinations, VA treatment records dated June 1980 through May 1989, private medical records, an operative report dated October 2000 showing a diagnosis of left colonic diverticulosis, and unidentified private medical records dated April 1980 through August 1982, showing probable irritable bowel syndrome (IBS). On August 13, 2001, the veteran submitted a request to reopen her claim for entitlement to a chronic gastrointestinal disability. The evidence submitted since the May 2001 final decision includes medical records from Fayetteville Gastroenterology Associates Carolina Rehabilitation Medicine and Associates, Regional Diabetes & Endocrine Center, and Cape Fear Valley Health System, VA outpatient treatment reports, medical opinions by Dr. J.R.J., attributing IBS to the thyroid condition, an April 2002 VA examination, and various articles regarding the veteran's condition. This evidence included a confirmed diagnosis of irritable bowel syndrome, and an opinion attributing the veteran's gastrointestinal problems to her thyroid problems. These records were not available to the RO prior to their May 2001 decision and the evidence is so significant that it must be considered in order to fairly decide the merits of the claim. Accordingly, the Board finds that new and material evidence has been received to reopen the claim of entitlement to service connection for a chronic gastrointestinal condition to include gastroenteritis and irritable bowel syndrome. 38 C.F.R. § 3.156(a). De Novo Review: The veteran's service medical records show complaints of stomach and abdomen pain during service. A report of medical history upon entrance into service, dated October 1975 did not note a history of intestinal problems. A physical examination of the same date did not note any abnormalities of the abdomen. The veteran reported stomach aches in November and December of 1977, and complained of occasionally abdominal pain during a gynecological appointment in April 1978. A hospital discharge report, dated October 1979, indicated that the veteran was admitted for a left hemithyroidectomy. A general VA examination in June 1980 noted complaints of severe abdominal cramps from with some vomiting of liquid and passing of blood (with cramps) from the rectum for a period of 20 hours. The examiner noted that the veteran reported the cramps to have been exceedingly severe. She also reported intermittent abdominal swelling for some months with fluctuations of weight up to as much as 15 pounds in three or four weeks. Rectal examination was normal, a sigmoidoscope was passed about 8 cm, and no disease was found, there was soft brown stool at the 8cm level. The examiner noted a diagnosis of recent gastroenteritis with passage of blood. VA medical records dated June 1980 through December 1980 contained complaints of diarrhea and cramps across the lower abdomen not associated with her menses. A June 1982 general VA examination noted occasional stomach and intestinal cramps. The examiner opined that while the veteran reported a multiplicity of pre- and post-left-hemi- thyroidectomy problems, none of the stated problems bore any relationship to the thyroidectomy. A June 1986 VA examination noted occasional intestinal cramps and diarrhea. An unidentified medical record dated August 1982 noted complaints of occasional cramps and indicated a barium enema study was unremarkable. The examiner opined that the cramps were most likely due to irritable bowel syndrome. VA outpatient reports dated December 1999 through July 2001 recorded treatment for various medical conditions including, hypothyroidism, migraine headaches, diverticulosis and urinary frequency. A Report dated January 2001 noted abdominal pain with exacerbation of diverticula, as well as noted that the veteran had a colonoscopy with the removal of two adenomas. An October 2000 colonoscopy provided a diagnosis of left colonic diverticulosis, and noted that a rectosigmoid colon polyp was removed. A July 2001 statement from Dr. J.R.J. indicated that the veteran had difficulty controlling her thyroid status which caused a change in her bowel pattern. The physician also indicated that the veteran had left colonic diverticulosis that also aggravated her bowel pattern and caused left lower quadrant abdominal pain. A consultation report dated October 2000 noted a soft, nondistended abdomen with normoactive bowel sounds and no guarding. A diagnosis of left lower quadrant abdominal pain with altered bowel pattern with occasional and intermittent rectal bleeding, and uterine fibroid with frequent urination was provided. A July 2001 consultation report noted a soft, nondistended abdomen with good bowel sounds and no visceromegaly. The physician provided a diagnosis of probable IBS complicated by diverticulosis causing crampy spastic abdominal pain intermittently, and hypothyroidism. The veteran was afforded a VA examination for a gastrointestinal condition in April 2002. The examiner noted a history of irritable bowel syndrome for the past few years with alternating crampy abdominal pain, passage of flatus, and alternation of diarrhea with constipation. The veteran reported that these symptoms appeared after her 1979 thyroid surgery. The veteran reported three episodes of diarrhea per week, generally preceded by cramps. Cramps could sometimes be severe enough to prevent a bowel movement. Increased eructation and increase flatus was denied. An October 2000 colonoscopy found diverticulosis. Examination of the abdomen revealed it to be soft and slightly obese, and there was no organomegaly, mass, or tenderness. The examiner provided a diagnosis of irritable bowel syndrome. The examiner also stated that he could find no connection between the hemithyroidectomy in 1979 and the development of irritable bowel syndrome. In clarification letter dated August 2002, the examiner also stated that the veteran's thyroidectomy did not aggravate her irritable bowel syndrome. A June 2002 ultrasound noted that the left ovary could not be visualized secondary to the bowel. A January 2003 consultation report from Carolina Rehabilitation Medicine Associates, noted that the veteran denied any bowel of bladder dysfunction, but did note that the veteran complained of constipation. Upon examination the abdomen was soft and nontender. Letters from Dr. J.R.J., dated December 2002, and January 2003, both indicate that the veteran was having difficulty controlling her thyroid status, which has affected her bowel, causing some change in her bowel pattern. The doctor also stated that thyroid hormone or lack thereof has been associated with altered bowel movements to include diarrhea in excess of the hormone and constipation when the hormone is insufficient. The doctor also noted that the veteran had colonic diverticulosis which also aggravated her bowel pattern, and caused her left lower quadrant abdominal pain. VA medical records dated April 2003 through October 2004 include diagnoses of irritable bowel syndrome, myofascial pain syndrome, diabetes insipidus, migraines, diverticulosis and hypothyroidism. An April 2003 noted indicated complaints of lower abdomen cramps with constipation and provided a diagnosis of IBS. Additionally, a rectal examination in April 2003 noted normal sphincter tone, no masses, no rectocolele, and stool was negative for occult blood. A note dated April 2004 noted that upon examination, the abdomen was soft, non-distended, with no organomegaly or abnormal masses, and bowel sounds were present. An assessment of stable IBS was provided. A November 2004 progress note from the Regional Diabetes and Endocrine Center noted the veteran's left thyroid lobecotmy in service, as well as her symptoms of constipation and muscle ache. The report stated that the symptoms were the presenting symptoms of hypothyroidism for which she was referred to endocrinology. The physician provided a diagnosis of post surgical hypothyroidism; status post left loecotmy for thyroid adenoma, not maximally suppressed. The physician increased the veteran's medication to achieve maximum suppression and noted that it would improve her symptoms of constipation and muscle pain. VA treatment reports dated October 2004 through May 2005 noted treatment for various, above-mentioned conditions. An April 2005 note indicated no melena or hematochezia, no reflux symptoms or abdominal pain, and constipation improved with increase synthroid. A July 2005 VA examination conducted in conjunction with a claim for an increased rating for her thyroid condition, noted that the veteran did have gastrointestinal symptoms since her thyroidectomy. The examiner noted the symptoms were mainly irritable bowel symptoms of cramping and constipation that had improved with an adjustment to her thyroid medication - instead of daily severe constipation, it only occurred once a week. The examiner provided a diagnosis of hypothyroidism related to partial thyroidectomy for benign adenoma, remote, and controlled with Synthroid. The Board finds that the evidence in the record supports a conclusion that it is at least as likely as not that the veteran's chronic gastrointestinal condition is secondary to her service-connected thyroid condition. The service medical records note that the veteran has consistently complained of gastrointestinal symptoms since her thyroidectomy in 1979. These complaints are documented, beginning in the June 1980 VA examination and are documented throughout the claims file. Additionally, the veteran's treating physician, Dr. J.R.J., attributed her gastrointestinal symptoms to her service- connected thyroid condition. This is further supported by VA outpatient reports dated April 2003 through April 2005, a November 2004 progress note from the Regional Diabetes and Endocrine Center, and a July 2005 VA examination. The November 2004 treatment report stated that the veteran's reported symptoms were the presenting symptoms of hypothyroidism and noted that an increase in her thyroid medication should improve her gastrointestinal symptoms. Likewise both the VA treatment reports and the VA examination, noted above, indicated a decrease in the veteran's gastrointestinal symptoms with the increase in her thyroid medication. Moreover, a VA examiner in July 2005 stated that the veteran's gastrointestinal symptoms can be related to be thyroid problems. While the VA examiner at the April 2002 VA examination opined that there was no connection between the veteran's hemi- thyroidectomy in 1979 and the development of irritable bowel syndrome, the examiner did not provide a reason and basis for this opinion. Further, in a clarification letter dated August 2002, the examiner simply stated that because there was no connection between the thyroidectomy in 1979 and the veteran's current IBS, there was no aggravation of IBS due to the thyroidectomy. Again the examiner did not provide a basis for his opinion. The failure of the physician to provide a basis for his opinion goes to the weight or credibility of the evidence in the adjudication of the claim on the merits. See Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998). Additionally, the Board notes that while the veteran's service-connected thyroid condition includes symptoms of constipation, the Board finds that by granting service connection for a chronic gastrointestinal problem, which includes diagnoses of IBS and colonic diverticulosis, would not result in pyramiding, especially in light of Dr. J.R.J.'s opinions that her thyroid condition makes it more difficult for the veteran to control her IBS. Therefore a separate rating for a chronic gastrointestinal condition is appropriate. See Estaban v. Brown, 6 Vet. App. 259 (1994). As there is an approximate balance of positive and negative evidence regarding the merits of the veteran's claim that would give rise to a reasonable doubt in favor of the veteran, the benefit of the doubt rule is applicable. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). Accordingly, service connection for a chronic gastrointestinal condition to include gastroenteritis and irritable bowel syndrome as secondary to the veteran's service-connected thyroid condition is warranted. ORDER New and material evidence having been received, the appeal to reopen the claim for service connection for a chronic gastrointestinal condition to include gastroenteritis and irritable bowel syndrome (claimed as secondary to the veteran's service connected thyroid condition), is granted. Entitlement to service connection for a chronic gastrointestinal condition to include gastroenteritis and irritable bowel syndrome, as secondary to the veteran's service connected thyroid condition, is granted. ____________________________________________ K. Osborne Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs