Citation Nr: 0811312 Decision Date: 04/04/08 Archive Date: 04/14/08 DOCKET NO. 95-00 078A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Diego, California THE ISSUE Entitlement to service connection for Crohn's disease. REPRESENTATION Appellant represented by: Mark R. Lippman, Attorney WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD John Z. Jones, Counsel INTRODUCTION The appellant served in the U.S. Marine Corps Reserves with verified active duty training from October 11, 1988 to March 22, 1989, and from July 7, 1989 to July 21, 1989. This matter came to the Board of Veterans' Appeals (Board) on appeal from a July 1994 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California that denied service connection for Crohn's disease. In February 1998 and June 2003, the Board remanded the case for further development. In a July 2005 decision, the Board denied the appellant's claim, and he appealed the decision to the U.S. Court of Appeals For Veterans Claims (Court). In May 2007, the appellant, through his attorney, and the Secretary of Veterans Affairs submitted a Joint Motion to Vacate in Part and Remand. In a May 2007 Order, the Court granted the motion, vacated the July 2005 Board decision, and remanded the case to the Board. In July 2007, the Board again remanded the case for further development. The requested development has been completed and the case has been returned to the Board for appellate review. FINDING OF FACT The appellant's Crohn's disease was not manifested during a period of active duty for training and is not shown to be otherwise related to the appellant's military service. CONCLUSION OF LAW The criteria for establishing service connection for Crohn's disease are not met. 38 U.S.C.A. §§ 101(24), 1131, 5107 (West 2002); 38 C.F.R. §§ 3.1, 3.6(a), 3.303 (2007). REASONS AND BASES FOR FINDING AND CONCLUSION The Veterans Claims Assistance Act (VCAA) The VCAA, codified at 38 U.S.C.A. §§ 5100, 5102, 5103A, 5106, 5107, 5126, was signed into law on November 9, 2000. Implementing regulations were created, codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326 (2007). VCAA notice consistent with 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) must: (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; (3) inform the claimant about the information and evidence the claimant is expected to provide; and (4) request or tell the claimant to provide any evidence in the claimant's possession that pertains to the claim. Pelegrini v. Principi, 18 Vet. App. 112, 120-121 (2004) (Pelegrini II). This "fourth element" of the notice requirement comes from the language of 38 C.F.R. § 3.159(b)(1). Charles v. Principi, 16 Vet. App. 370, 373-74 (2002); Quartuccio v. Principi, 16 Vet. App. 183, 186-87 (2002). The United States Court of Appeals for Veterans Claims (Court) held in Pelegrini II that VCAA notice, as required by 38 U.S.C.A. § 5103(a) (West 2002), to the extent possible, must be provided to a claimant before the initial unfavorable RO decision on a claim for VA benefits. Pelegrini II, 18 Vet. App. 112, 119-20 (2004). See, too, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). A review of the record reveals the appellant was not provided notice of the VCAA prior to the initial adjudication of this claim by rating decision in July 1994. But this was both a practical and legal impossibility because the VCAA was not enacted until later - in November 2000. And in Pelegrini II, the Court clarified that in this type situation VA does not have to vitiate the initial decision and start the whole adjudicatory process anew, as if the initial decision was not made. Rather, VA need only ensure the appellant receives or since has received content-complying notice such that he is not prejudiced. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). Here, the RO readjudicated the claim and sent the appellant supplemental statements of the case (SSOCs) in February 2005 and November 2007, following the VCAA notice compliance actions in October 2003 and September 2007. The appellant was provided every opportunity to submit evidence and argument in support of his claim, and to respond to the notices. In December 2007, the appellant's attorney requested a copy of a September 2007 VA medical opinion and advised the RO that he would respond to the November 2007 SSOC after reviewing this material. The record shows that the attorney was provided a copy of the medical opinion in December 2007, however, no response has been received. The VCAA letters summarized the evidence needed to substantiate the claim and VA's duty to assist. They also specified the evidence the appellant was expected to provide, including the information needed to obtain both his private and VA medical treatment records. In this way, the VCAA letters clearly satisfy the first three "elements" of the notice requirement. In addition, the September 2007 letter stated: "If you have any evidence in your possession that pertains to your claim, please send it to us." This satisfies the fourth "element". During the pendency of this appeal, on March 3, 2006, the Court issued a decision in the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), which held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 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. The Court held that upon receipt of an application for a service-connection claim, 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating or is necessary to substantiate the elements of the claim as reasonably contemplated by the application. Id. at 486. Additionally, this notice must include mention that a disability rating and an effective date for the award of benefits will be assigned if service connection is granted. Id. In this case, the appellant received Dingess notice in September 2007, including as it relates to the downstream disability rating and effective date elements of his claims. The Board finds that all relevant evidence necessary for an equitable resolution of the issue on appeal has been identified and obtained, to the extent possible. The Board's development action and subsequent remand of this case, described in the Introduction above, were calculated to furnish additional evidence pertinent to the claim. The evidence of record includes service medical and personnel records and VA and private treatment records, as well as VA compensation examination reports, a VA examination addendum, and records from the Social Security Administration. The appellant and his representative have not identified any existing and unobtained evidence. Factual Background The appellant contends that he developed Crohn's disease as a result of unsanitary field conditions he experienced during a training exercise in July 1990. The appellant has verified active duty for training from October 11, 1988 to March 22, 1989, and active duty for training was also verified from copies of pay records from July 8, 1989 to July 21, 1989. Although pay records also verify the appellant received drill pay for the period from July 7, 1990 to July 21, 1991, an accompanying February 2003 letter from the defense finance and accounting service, notes that the drill pay was given in advance and was offset against drill pay earned in August 1990. Service treatment records show that the appellant complained of constipation of 4 days' duration in October 1988 and reportedly had similar problems in the past. He was assessed with progressive constipation. A July 1989 treatment record shows he complained of nausea, vomiting and malaise. The assessment was gastroenteritis, ingestion of an unpalatable substance, possible ulcer. The appellant submitted photocopies of notes dating from July 23, 1990 to August 24, 1990, indicating that he was in any accident on July 24, 1990 and would not be working that date. Notes dated on August 2nd and 15th show that he called in sick those dates and an August 21st note indicates that he was being admitted to a private hospital. The appellant also submitted a copy of a July 1990 joint letter to Commander of the hospital at Nellis Air Force Base from the officer in charge of the appellant's U.S. Marine Corp unit, indicating that the appellant was involved in a field training exercise when he first manifested symptoms of what was later diagnosed as an acute lumbar sacral strain. The officer in charge indicated that the condition was incurred in the line of duty and requested the appellant be treated for such. Private hospital records, dating from August to October 1990, show the appellant was hospitalized in mid-August 1990 because of an inability to keep down his medications. Prior to his admission, he had sought treatment for dull epigastric pain, nausea associated with eating, and watery diarrhea. He stated that he had had these symptoms for 3 weeks prior to his seeking treatment. He was initially assessed with inflammatory bowel disease. A gastrointestinal second medical opinion notes that the appellant's symptoms started a day after his return from Camp Pendleton. The examiner noted that a colonoscopy revealed some deep ulceration and cobble stoning of the colon that grossly resembled Crohn's disease. The examiner opined that the appellant had some form of infectious colitis, suggestive of Crohn's disease. That same month the appellant underwent a fiber optic colonoscopy to the cecum with biopsies. The operative report shows a diagnosis of inflammatory bowel disease, questionably Crohn's disease. In September 1990, the appellant was again admitted for treatment of ulcerative colitis and a staph infection. His service medical records also show that the appellant indicated that he was currently recovering from ulcerative colitis, possibly Crohn's disease, in a January 1991 report of medical history. He also indicated that he had stomach or intestinal trouble with recent gain or loss of weight. The accompanying physical examination report shows that clinical evaluation of the appellant's abdomen and viscera was normal. The examination report further notes a July 1990 onset of ulcerative colitis for which he was hospitalized. Private hospital records indicate that the appellant again underwent a colonoscopy with biopsy in March 1991. The postoperative diagnosis was probable Crohn's disease. An October 1991 letter to the appellant's commanding officer in the Marine Reserves unit from his treating gastroenterologist indicates that the appellant was being treated for intractable inflammatory bowel disease with intensive medical management and that his workload needed to be reduced. A January 1992 private operative report shows the appellant again underwent colonoscopy with biopsy. The postoperative diagnosis was Crohn's colitis. In November 1993, the appellant underwent VA gastrointestinal examination. At that time he gave a history of having developed abdominal pain, diarrhea and a fever in July 1990. He was hospitalized for 1-1/2 months for diagnosed Crohn's disease. He lost approximately 50 pounds during this period and was treated with IV steroids. He reported he regained weight and strength after his discharge and was treated with Prednisone intermittently to control his diarrhea and fevers. At the time of the examination he had 1 to 2 bowel movements a day that were well-formed. Examination revealed that the appellant appeared obese and that his abdominal and rectal examinations were unremarkable. The diagnoses included history of Crohn's disease, controlled with chronic steroid treatment. VA treatment records, dating from November 1994 to August 1995, show the appellant underwent an esophgogastroduodenoscopy in January 1995 after complaining of dyspepsia and dysphagia. The endoscopy report shows impressions of moderately severe esophagitis, Schatzki's ring and hiatal hernia. The treatment records during this period note the appellant's history of Crohn's disease. In May and June 1995, the appellant was treated for diagnosed flare-up of Crohn's disease. During his August 1995 personal hearing, the appellant testified that prior to the summer of 1990, he had no history of Crohn's disease or any symptoms associated with the disease. He testified that he began to feel ill at the end of his active duty training that summer and that he had been overexposed to the sun and large numbers of flies during his drill. He believed that he developed Crohn's disease as a result of the exposures during active duty training. He testified that his physicians did not really know what caused Crohn's disease. During his training at Camp Pendleton, he reported that his side hurt and that he did not report any intestinal problems. VA treatment records, dating from December 1995 to February 2002 show ongoing treatment, primarily for disabilities unrelated to the appellant's diagnosed Crohn's disease. Most treatment records indicate that the appellant's Crohn's disease was asymptomatic and had been in remission since 1996. December 2001 and January 2002 treatment records note the appellant's complaints of constipation. The treatment records also repeatedly note that he refused diagnostic studies to evaluate the disability. A March 2002 Social Security Administration disability determination shows the appellant was awarded benefits due to a psychiatric disability exclusively. An April 2003 VA gastrointestinal examination report notes that the appellant was evaluated to ascertain whether he had a diagnosis of Crohn's disease or another disease. He stated that he had previously been diagnosed with Crohn's disease, but that the diagnosis was later changed to ulcerative colitis. He had also been previously advised to discontinue milk consumption, with subsequent resolution of symptoms. At the time of the examination, his only complaints were constipation (which he believed was secondary to his prescribed medication) and occasional blood in his stool. The examiner reviewed the appellant's claims file. The diagnosis was inflammatory bowel disease. The examiner opined that it was unclear whether the appellant had ulcerative colitis or Crohn's disease and that he would benefit from endoscopic evaluation (which he declined at that time). He was asymptomatic at the time of the examination, but it was noted that his diagnosed psychiatric disorder might be a hindrance in diagnosing his gastrointestinal disorder. A March 2004 VA examination report notes that the appellant's claims files had been reviewed. At the time of the examination he complained of episodes of diarrhea and significant episodes of constipation. He attributed his episodes of constipation to medications he had been prescribed. The examiner noted that the appellant had an underlying diagnosis of Crohn's disease based on a colonoscopy conducted 14 years before, with no evidence of active dysfunction. There was also no evidence of active irritable bowel syndrome or irritable bowel disease secondary to Crohn's disease. There was occasional reactive irritable bowel to milk, more likely than not secondary to lactose intolerance and constipation secondary to complication from the appellant's prescribed medications. The examiner opined that there was no evidence of a currently active Crohn's disease or of any currently active gastrointestinal dysfunction that was directly related to or directly resultant from the active duty training in 1988 and 1989. The examiner further opined that the current bowel dysfunctions appeared much more likely than not to be dietary related, medication related, and related to the gastroesophageal reflux dysfunction that developed subsequently. In January 2005, the physician who conducted the appellant's March 2004 VA examination, again reviewed his claims files and noted that Crohn's disease can be quiescent for years. Because the appellant had a confirmed diagnosis of Crohn's disease in 1990, the examiner opined that it was as likely as not that he currently had Crohn's disease and that there was some underlying, asymptomatic, nonfunctionally impairing inflammatory bowel disease. However, there were no ongoing symptoms of Crohn's disease. After reviewing the medical evidence of record, the examiner further opined that it was more likely than not that the appellant had experienced precursors of the disease over several years prior to the major acute episode in August 1990, and that the extent of the pathology evidenced in August 1990 was such that it would not have had a very rapid development or onset. The amount of inflammation could not have developed in a very brief time period, such as two weeks. In a September 2007 addendum, the January 2005 VA examiner indicated that the only current known documented gastrointestinal disorder the appellant had was inflammatory esophagitis that appeared to be related to his hiatal hernia and gastroesophageal reflux. The examiner noted that the most recent study was in 1995 and documented a disease process in the esophagus that was very typical of reflux esophagitis. It was noted that the appellant had repeatedly declined requests to have a colonoscopy or further studies done. The examiner commented that without studies there was no way to determine if there was an active disease anywhere inside the colon. The examiner found notable, however, that the appellant did not appear to have any significant symptoms at the present time and that any symptoms discussed in the record appeared to have been answered by a lactose hypersensitivity. The examiner opined that, despite the fact that the appellant was treated for constipation and diarrhea during his active training periods, there was no evidence of a chronic inflammatory bowel disease having an onset or any significant indentifiably associated manifestation during the training periods from October 11, 1988 to March 22, 1989, and from July 7, 1989 to July 21, 1989. The examiner noted that the appellant's episodes of constipation did not appear related to the upper gastrointestinal dysfunction and would not be expected to related to Crohn's disease or an ulcerative colitis disease. Finally, the examiner opined that there was no evidence the appellant had a current gastrointestinal disorder that was related to any incident or event during his active periods. The only current known active disease was his gastrointestinal reflux which did not become active until more than 10 years after his active training periods. Pertinent Law and Regulations Service connection may be granted if the evidence demonstrates that a veteran has a current disability resulting from an injury or disease incurred or aggravated during active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303(a) (2007). Veteran status is the first element required for a claim for disability benefits. D'Amico v. West, 209 F.3d 1322, 1326 (Fed. Cir. 2000). A "veteran" is a person who served in the active military, naval, or air service, and who was discharged or released therefrom under conditions other than dishonorable. 38 U.S.C.A. § 101(24); 38 C.F.R. § 3.1(d). Active military, naval, or air service includes any period of active duty for training (ACDUTRA) during which the individual concerned was disabled or died from a disease or injury incurred in line of duty. 38 U.S.C.A. § 101(24); 38 C.F.R. § 3.6(a). ACDUTRA is, inter alia, full-time duty in the Armed Forces performed by Reserves for training purposes or by members of the National Guard of any state. 38 U.S.C.A. § 101(22); 38 C.F.R. § 3.6(c)(1). Active military, naval, or air service also includes any period of inactive duty training (INACDUTRA) during which the individual concerned was disabled or died from an injury incurred or aggravated in line of duty. 38 U.S.C.A. § 101(24); 38 C.F.R. § 3.6(a). INACDUTRA means, inter alia, duty other than full-time duty prescribed for Reserves or the National Guard of any state. 38 U.S.C.A. § 101(23); 38 C.F.R. § 3.6(d). Therefore, for disorders claimed to have been incurred or aggravated during ACDUTRA or INACDUTRA, the appellant must establish a service-connected disability in order to achieve status as a veteran. Paulson v. Brown, 7 Vet. App. 466, 470 (1995). Service connection generally requires evidence of a current disability with a relationship or connection to an injury or disease or some other manifestation of the disability during service. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000). Where the determinative issue involves medical causation or a medical diagnosis, there must be competent medical evidence to the effect that the claim is plausible; lay assertions of medical status do not constitute competent medical evidence. Grottveit v. Brown, 5 Vet. App. 91, 93 (1993); Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). A disorder may be service connected if the evidence of record reveals that the appellant currently has a disorder that was chronic in service or, if not chronic, that was seen in service with continuity of symptomatology demonstrated thereafter. 38 C.F.R. § 3.303(b); Savage v. Gober, 10 Vet. App. 488, 494-97 (1997). Evidence that relates the current disorder to service must be medical unless it relates to a disorder that may be competently demonstrated by lay observation. Savage, 10 Vet. App. at 495-97. For the 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." 38 C.F.R. § 3.303(b). Disorders diagnosed after discharge may still be service connected if all the evidence, including pertinent service records, establishes that the disorder was incurred in service. 38 C.F.R. § 3.303(d). In order to establish service connection for the claimed disorder, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of the in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. Hickson v. West, 12 Vet. App. 247, 253 (1999). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. 38 U.S.C.A. § 5107(b). Analysis Initial matter The procedural history of this case has been set out in the Introduction above. This case is currently at the Board pursuant to the Court's May 2007 Order which vacated the Board's July 2005 decision that denied service connection for Crohn's disease and remanded the case to the Board for appropriate action consistent with the matters raised in the Joint Motion for Remand. The Board initially wishes to make it clear that it is aware of the Court's instructions in Fletcher v. Derwinski, 1 Vet. App. 394, 397 (1991), to the effect that a remand by the Court is not "merely for the purposes of rewriting the opinion so that it will superficially comply with the "reasons or bases" requirement of 38 U.S.C. § 7104(d)(1). A remand is meant to entail a critical examination of the justification for the decision." The Board's analysis has been undertaken with that obligation in mind. However, the Board notes that neither the May 2007 Joint Motion for Remand nor the Court's subsequent Order identified any flaw in the July 2005 decision other than the Board's failure to ensure compliance with its June 2003 remand order. Specifically, the parties noted that the January 2005 VA examiner did not answer the questions listed in the Board's June 2003 remand instructions. In a September 2007 addendum, the January 2005 VA examiner addressed the questions as posed in the June 2003 remand. The Board is aware of the Court's often stated interest in conservation of judicial resources and in avoiding piecemeal litigation. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) ["Court will [not] review BVA decisions in a piecemeal fashion"]; Fugere v. Derwinski, 1 Vet. App. 103, 105 (1990) ["[a]dvancing different arguments at successive stages of the appellate process does not serve the interests of the parties or the Court"]; Cerullo v. Derwinski, 1 Vet. App. 295, 200 (1991) [one reason advanced by Court for statutory interpretation was that it would "help[ ] prevent the wasting of judicial time and resources"]. The Board is confident that if there were other substantive errors in the Board's prior decision this would have been brought to the Board's attention by the Court for the sake of judicial economy. Discussion Regarding the first Hickson element, current disability, the Board acknowledges that the most recent VA examination conducted in January 2005 indicated that the appellant exhibited no ongoing symptoms of Crohn's disease. However, the VA examiner noted that given the confirmed diagnosis of Crohn's disease in 1990-91 it was as likely as not that there was some underlying "asymptomatic, nonfunctionally impairing inflammatory bowel disease" or some residual of Crohn's disease at the present. Accordingly, the Board finds that Hickson element (1) has been satisfied. With respect to Hickson element (2), in-service disease or injury, the service treatment records fail to reveal the incurrence of any disease or injury associated with Crohn's disease during ACDUTRA. Although the appellant complained of constipation and of diarrhea on two separate occasions, these symptoms were not linked to his development of Crohn's disease more than a year later. Accordingly, Hickson element (2) has not been met. With respect to element (3), medical nexus, there is no competent medical evidence of record which establishes or even suggests that the appellant has any gastrointestinal disorder, including Crohn's disease that is related to his military service. As noted above, the January 2005 VA examiner, in a September 2007 addendum, opined that the appellant's only current gastrointestinal disability, inflammatory esophagitis, appeared related to his hiatal hernia and gastroesophageal reflux, not his military service. The examiner pointed out that any symptoms noted in the VA records were attributable to a lactose hypersensitivity. The examiner further opined that there was no evidence of a chronic inflammatory bowel disease having an onset or any significant indentifiably associated manifestation during the training periods from October 11, 1988 to March 22, 1989, and from July 7, 1989 to July 21, 1989. The examiner explained that the appellant's episodes of constipation in service would not be expected to related to Crohn's disease or an ulcerative colitis disease. Finally, the examiner opined that there was no evidence the appellant had a current gastrointestinal disorder that was related to any incident or event during his active periods. He noted that the appellant's gastrointestinal reflux did not become active until more than 10 years after his active training periods. There has been no medical opinion offered in response to contradict this medical conclusion against service connection. Therefore, the only evidence in support of the appellant's claim is his statements. However, it is now well established that his lay statement on medical matters, such as etiology, is entitled to no weight of probative value. See Espiritu v. Derwinski, 2 Vet. App. 492 (1992) (lay persons without medical training are not competent to offer opinions on medical matters such as diagnosis or etiology); see also 38 C.F.R. § 3.159 (a)(1) (competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions). The determinative question presented in this case, i.e. the relationship, if any, between any gastrointestinal disorder the appellant has, including Crohn's disease, and his periods of active duty for training is entirely medical in nature. Just as the appellant himself is not competent to offer medical opinions concerning such relationship, the Board is prohibited from exercising its own independent judgment to resolve medical questions. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). The only competent medical evidence of record, the September 2007 VA examination addendum, is clearly against the veteran's claim. The appellant has submitted no competent medical evidence in support of his claim, despite being specifically requested to do so. See the October 2003 and February 2005 VCAA letters. In summary, the preponderance of the evidence is against the appellant's claim for service connection for Crohn's disease. And since the preponderance of the evidence is against his claim, there is no reasonable doubt concerning this to resolve in his favor. See, e.g., Alemany v. Brown, 9 Vet. App. 518, 519 (1996). ORDER Entitlement to service connection for Crohn's disease is denied. ____________________________________________ DEBORAH W. SINGLETON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs