Citation Nr: 1127362 Decision Date: 07/22/11 Archive Date: 07/29/11 DOCKET NO. 08-03 544 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to service connection for a parasitic disease. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J. C. Schingle, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1971 to July 1975. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. FINDINGS OF FACT 1. All relevant evidence necessary for the equitable disposition of the issue adjudicated herein has been obtained. 2. A parasitic disease was not shown until many years after active duty and has not been found to be causally or etiologically related to such service. CONCLUSION OF LAW A parasitic disease was not incurred in, or aggravated by, active service. 38 U.S.C.A. §§ 1110, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act (VCAA) With regard to the Veteran's claim, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2010). A letter sent in July 2006 fully satisfied the duty to notify provisions pertaining to the Veteran's claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Specifically, that correspondence notified the Veteran of the information and evidence necessary to substantiate his service connection claim; which evidence, if any, he should obtain; which evidence, if any, will be retrieved by VA; and the general criteria for assigning disability ratings and effective dates. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd, Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). As to the duty to assist, the Veteran's service, and VA and private, treatment records have been obtained and associated with the claims file. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2010). There is no indication in the record that any additional evidence, relevant to the issue decided herein, is available and not part of the claims file. The Board acknowledges that the Veteran was not afforded a VA examination in connection his claim for service connection for a parasitic disease. See 38 C.F.R. § 3.159(c)(4). The duty to assist includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159. McLendon v. Nicholson, 20 Vet. App. 79 (2006), held that an examination is required when (1) there is evidence of a current disability, (2) evidence establishing an "in-service event, injury or disease," or a disease manifested in accordance with presumptive service connection regulations occurred which would support incurrence or aggravation, (3) an indication that the current disability may be related to the in-service event, and (4) insufficient evidence to decide the case. As will be discussed further below, the Board concludes that such an examination is not warranted because there is no probative evidence suggesting that the claimed condition is related to service. As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006); see also Dingess/Hartman, supra. Law and Analysis Applicable law provides that service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2010). Service connection may also be granted for certain chronic diseases when the disease is manifested to a compensable degree within one year of separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. In addition, service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that a disease was incurred in service. 38 C.F.R. § 3.303(d). The term 'active military, naval, or air service' includes active duty, any period of active duty for training during which the individual concerned was disabled or died from a disease or injury incurred or aggravated in line of duty, and any period of inactive duty training 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) (West 2001). Thus, in order to establish service connection, a claimant must generally submit (1) medical evidence of a current disability, (2) medical evidence, or in certain circumstances lay testimony, of service incurrence or aggravation of an injury or disease, and (3) medical evidence of a nexus or relationship between the current disability and the in-service disease or injury. Pond v. West, 12 Vet. App. 341, 346 (1999). Medical evidence is generally required to establish a medical diagnosis or to address questions of medical causation; lay assertions of medical status do not constitute competent medical evidence for these purposes. Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). However, lay assertions may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C.A. § 1153(a); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). See also Buchanan v. Nicholson, 451 F. 3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). In this case, the Veteran contends that his current residuals of a parasitic disease are related to service. Specifically, he avers that he contracted parasites while serving abroad. Service personnel records show the Veteran had service aboard the USS Ticonderoga and the USS Midway. A review of service treatment records shows no evidence of complaints of or treatment for a parasitic disease during service. A July 1971 service entrance report noted a history of treatment for gastrointestinal issues in 1968, prior to service. Notably, no disability was diagnosed on the entrance examination report. Thus, the Veteran is presumed to have entered service in sound condition. See 38 U.S.C.A. § 1111. Post-service treatment records show the Veteran was treated for a vasectomy in July 1979. At the time of examination, the examiner noted that the Veteran had no medical problems. In August 1980, the Veteran was treated for chronic diarrhea that reportedly began six month prior intermittently. The Veteran reported prior treatment for colitis in 1966. The examiner assessed acute diarrhea, noting that exacerbation may be secondary to viral gastroenteritis but noted that Crohn's disease and ulcerative colitis would also need to be considered. A salmonella shigella infection was ruled out. An August 1980 follow up report noted that the Veteran's symptoms had resolved. Culture reports from October 1980 showed no evidence of ova or parasite. Private treatment records dated from 1981 to 1984 continue to show intermittent treatment for diarrhea and cramping contemporaneous with a diagnosis of, and treatment for, colon polyps. A September 1982 report noted that the Veteran's diarrhea symptoms had improved. A March 1984 private record noted that the Veteran had been seen in the surgery clinic for his abdomen pain. The examiner noted polyps and opined that the Veteran's symptoms were due to functional bowel pattern. The examiner noted rendered a diagnosis of irritable bowel syndrome (IBS). A March 1986 treatment record noted probable early gastritis. A June 1987 record noted functional bowel syndrome with anal fissures. A November 1989 record noted possible repeat IBS. Treatment records from September 2005 show the Veteran was treated for a parasitic disease with symptoms including diarrhea and vomiting that reportedly had began six months prior. October 2005 follow up records noted that the Veteran's symptoms had been resolved after anti-parasitic medications. In May 2008, Dr. S. F. J. noted the Veteran's parasitic filling in the small intestine and treatment. He stated that there was no way to say where and/or when the parasite was ingested and that there was a possibility that the Veteran may have ingested it while in service, touring Asia. In February 2009, the Veteran provided medical literature from the Merck Manual of Medical Information indicating that the parasites in this case (ascariasis) are roundworms that live one to two years in the small intestine. The Board observes that, in this case, there is a significant evidentiary gap between active service and the earliest evidence of treatment for an intestinal disorder and a parasitic disease. In this regard, a September 2005 post-service private treatment record showed the first diagnosis of a parasitic disease, over 30 years post service. The Board acknowledges that 1980 private treatment records show the first evidence of complaints of and treatment for diarrhea and irritable bowel syndrome; however, October 1980 culture findings showed no evidence of a parasitic disease at the time. Additionally, in a 1979 examination report, the Veteran reported no medical problems. The Board notes that this absence of evidence constitutes negative evidence tending to disprove the claim that the Veteran had an injury or disease in service which resulted in chronic disability or persistent symptoms thereafter. See Forshey v. West, 12 Vet. App. 71, 74 (1998), aff'd sub nom; Forshey v. Principi, 284 F.3d 1335, 1358 (Fed. Cir. 2002) (noting that the definition of evidence encompasses "negative evidence" which tends to disprove the existence of an alleged fact); see also 38 C.F.R. § 3.102 (noting that reasonable doubt exists because of an approximate balance of positive and "negative" evidence). Thus, the lack of any objective evidence of continuing complaints, symptoms, or findings for many years after service tends to show that the Veteran's parasitic disease is not related to service. In reaching these conclusions, the Board has considered the Veteran's contention that his parasitic disease is related to service. The Board further acknowledges that the Veteran is competent to attest to such observable conditions and symptoms of his condition. It is well settled, however, that a layperson generally is not competent to offer opinions on medical diagnosis or causation, and the Board may not accept unsupported lay speculation with regard to medical issues. See Moray v. Brown, 5 Vet. App. 211 (1993); see also Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) (explaining in footnote 4 that a veteran is competent to provide a diagnosis of a simple condition such as a broken leg, but not competent to provide evidence as to more complex medical questions). Further, the Board finds that the Veteran's statements are not supported by the evidence of record which shows no findings of a parasitic disease until 2005, more than 30 years post service and no evidence of treatment for diarrhea and other intestinal problems until 1980, approximately five years post service. With regard to the May 2008 medical opinion provided by Dr. S. F. J., the Board deems the opinion speculative at best. Specifically, at that time, the examiner stated merely that it was possible the Veteran could have ingested a parasite during service. Obert v. Brown, 5 Vet. App. 30, 33 (1993) (finding that a medical opinion that stated may also implied may not and was therefore speculative). The examiner did not provide rationale for the statement, nor did he discuss or consider the October 1980 culture findings showing no evidence of a parasite. Further, his opinion is undermined by the medical literature supplied by the Veteran indicating that parasites, such as those in this case, live in the intestines for only one to two years. Thus, the Board finds that the medical opinion offered by Dr. S.F.J. does not provide probative evidence of a nexus between a current parasitic disease and the Veteran's active duty. See Barr v. Nicholson, 21 Vet. App. 303 (2007). In this case, the Board finds that the Veteran's contention that his current parasitic disease is related to his service is unsupported by the record. Of particular significance to the Board is the fact that the Veteran first filed a claim for service connection for parasitic disease in 2006, many years after active duty. See Shaw v. Principi, 3 Vet. App. 365 (1992) (a veteran's delay in asserting a claim can constitute negative evidence that weighs against the claim); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) [interest may affect the credibility of testimony]. The Board also finds significant the fact that the Veteran did not relate his disease to service until after he filed a claim for service connection in 2006. Further, the Board notes that there is no evidence of complaints of, or treatment for, parasitic disease in service. Moreover, there is no evidence of symptoms of an intestinal disorder until 1980, nearly five years post service, and no evidence of a diagnosed parasitic disease until 2005, nearly 30 years post service. Additionally, the Board notes that the Veteran has not reported continuity of symptomatology. Absence of a disorder in the service treatment records or of persistent symptoms of such a disorder at separation, along with the earliest evidence of symptoms of a joint problem being many years later, constitutes negative evidence tending to weigh against the assertion that the Veteran was disabled from any disease or injury during service. See, e.g., Maxson v. West, 12 Vet. App. 453 (1999), aff'd sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (evidence of a prolonged period without medical complaint can be considered as a factor, along with other factors concerning the veteran's health and medical treatment during and after military service). Of further significance to the Board in this matter is the fact that the claims folder contains no competent, probative evidence of an association between the currently-diagnosed parasitic disease and the Veteran's active duty. [The Veteran has not been shown to have the required medical expertise to support such a nexus with his own contentions.] For these reasons, the Board finds that the claim of service connection for a parasitic disease must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. As the evidence is against the claim for service connection for parasitic disease, the benefit-of-the-doubt doctrine is not for application, and entitlement to service connection for such must be denied. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; & Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). ORDER Service connection for a parasitic disease is denied. ____________________________________________ THERESA M. CATINO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs