Citation Nr: 1300092 Decision Date: 01/02/13 Archive Date: 01/11/13 DOCKET NO. 06-01 586 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas THE ISSUE Entitlement to service connection for a gastrointestinal disorder. REPRESENTATION Appellant represented by: Vietnam Veterans of America ATTORNEY FOR THE BOARD Harold A. Beach, Counsel INTRODUCTION The Veteran served on active duty from January 1985 to December 1987. Thereafter, he had extensive service in the Army Reserve and National Guard. During his National Guard service, the Veteran was recalled to active duty for the period from February to September 2003. In January 2004, he was discharged due to physical disability. This case was previously before the Board of Veterans' Appeals (Board) in November 2009 and September 2011. Each time, it was remanded for further development. Following the requested development, the VA Appeals Management Center (AMC) in Washington, D.C. confirmed and continued the denial of entitlement to service connection for a gastrointestinal disorder. Thereafter, the case was returned to the Board for further appellate action. Recently, the United States Court of Veterans Appeals held that although a claimant may identify a disorder on the claims form accompanying his application for VA benefits, the scope of the claim cannot be limited only to the condition stated. Rather, it must be considered a claim for any disorder that may reasonably be encompassed by several factors including: the claimant's description of the claim; the symptoms the claimant describes; and the information the claimant submits or that VA obtains in support of the claim. Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). In this case, the Veteran seeks entitlement to service connection for a gastrointestinal disorder, claimed as stomach problems and gastritis. However, a review of the Veteran's service treatment records and the reports of VA examinations, performed in June 2004 and March 2010, shows that he also has gastrointestinal disorders variously diagnosed as gastroenteritis, gastroesophageal reflux disease, and irritable bowel syndrome. In its prior remands, the Board characterized the issue as entitlement to service connection for gastritis to include as secondary to his service-connected bilateral knee disabilities. 38 C.F.R. § 3.310 (2012). However, after a further review of the record, the Board acknowledges that the Veteran's claim does not contain any theory of the case with respect to service connection on a secondary basis. In light of the foregoing discussion, the Board will characterize the issue as entitlement to service connection for a chronic gastrointestinal disorder. FINDING OF FACT A chronic gastrointestinal disorder, recently diagnosed as gastroesophageal reflux disease and irritable bowel syndrome, was first manifested many years after the Veteran's separation from service, and the preponderance of the evidence is against a finding that it is in any way related thereto. CONCLUSION OF LAW The Veteran's gastrointestinal disorder is not the result of disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A (West 2002 and Supp. 2012); 38 C.F.R. §§ 3.159, 3.303 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION VA's Duty to Notify and Assist Prior to consideration of the merits of the Veteran's appeal, the Board must determine whether VA has met its statutory duty to assist him in the development of the issue of entitlement to service connection for a gastrointestinal disorder. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159. After reviewing the record, the Board finds that VA has met that duty. In January 2004, VA received the Veteran's claim, and there is no issue as to providing an appropriate application form or completeness of the application. Following the receipt of that application, VA notified the Veteran of the information and evidence necessary to substantiate and complete his claim, including the evidence to be provided by him and notice of the evidence VA would attempt to obtain. VA informed him of the criteria for service connection, as well as that for rating a service-connected disability and assigning an effective date, should service connection be granted. Following the notice to the Veteran, VA fulfilled its duty to assist him in obtaining identified and available evidence necessary to substantiate his claim. VA obtained or ensured the presence of the Veteran's service treatment and personnel records, as well as records reflecting his VA treatment from October 1995 through September 2000. In June 2004 and March 2010, VA examined the Veteran to determine the nature and etiology of any gastrointestinal disorder found to be present. The VA examination reports show that the examiners reviewed the Veteran's medical history, interviewed and examined the Veteran, documented his medical conditions, and rendered diagnoses and opinions consistent with the remainder of the evidence of record. Therefore, the Board concludes that the VA examinations are adequate for evaluation purposes. See 38 C.F.R. § 4.2 (2012); see also Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). Finally, VA offered the Veteran an opportunity to present additional evidence and argument at a hearing on appeal. To date, however, he has declined to accept that offer. In sum, the Veteran has been afforded a meaningful opportunity to participate in the development of his appeal. He has not identified any outstanding evidence which could support his claim; and there is no evidence of any VA error in notifying or assisting the Veteran that could result in prejudice to him or that could otherwise affect the essential fairness of the adjudication. Accordingly, the Board will proceed to discussion of the merits of the appeal. The Applicable Law and Regulations Service connection connotes many factors but basically it means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. 38 U.S.C.A. §§ 1110, 1131. Generally, the evidence must show (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. See Holton v. Shinseki, 557 Fed. 3d. 1362 (2009). Active military 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 the 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 the line of duty or from an acute myocardial infarction, a cardiac arrest, or a cerebrovascular accident which occurred during such training. 38 C.F.R. § 3.6(a). Every veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except for defects, infirmities, or disorders noted at the time of the examination, acceptance, and enrollment, or when clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment. 38 U.S.C.A. § 1111 (West 2002); 38 C.F.R. § 3.304(b) (2012). VA bears the burden of proof to rebut the presumption. Kinnaman v. Principi, 4 Vet. App. 20, 27 (1993). 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. When the disease identity is established, there is no requirement of evidentiary showing of continuity. 38 C.F.R. § 3.303(b). Continuity of symptomatology is required only where the condition noted during service (or in the presumptive period) 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. Id. The foregoing law and regulations notwithstanding, service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Factual Background During his May 1984 service entrance examination, the Veteran responded "no", when asked if he then had, or had ever had, frequent indigestion or stomach, liver, or intestinal trouble. On examination, his abdomen and viscera were found to be normal. He was 5 feet 81/4 inches tall, and he weighed 153 pounds. In March 1985, the Veteran was evaluated, in part, for complaints of headaches, nausea, and a decreased appetite. On examination, he had increased bowel sounds and slight epigastric pain. The diagnosis was viral syndrome. In December 1985, he was found to have slight nausea in association with a viral upper respiratory infection versus a strep infection. In January 1986, the Veteran was treated for a two day history of right upper quadrant pain and severe stomach cramps and nausea, as well as vomiting after exercise. The diagnosis was gastritis. During follow-up treatment in January and March 1986, the Veteran also reported constipation. Additional diagnoses included viral gastroenteritis. In October 1986, the Veteran was treated for viral pharyngitis, rule out mononucleosis. During that time, the Veteran experienced abdominal tenderness in the area of the liver. In September 1987, the Veteran was treated for a possible urinary tract infection. In part, he complained of right sided stomach pain in the middle and lower quadrants which radiated down his right flank. On examination, his abdomen was tender, particularly in the right lower quadrant. He reported a decreased appetite. Later in September 1987, he was hospitalized for observation after complaining of right upper quadrant pain and right lower chest pain with radiation to the back. He had mild epigastric tenderness, and his bowel sounds were decreased. Following a workup, the diagnosis was left pleural effusion, etiology unknown. In December 1987, the Veteran was examined prior to his separation from service. He responded "no", when asked if he then had, or had ever had, frequent indigestion or stomach, liver, or intestinal trouble. On examination, his abdomen and viscera were normal. He was 5 feet 9 inches tall, and he weighed 148 pounds. In December 1987, the Veteran filed a claim of entitlement to service connection for a left knee disorder and a respiratory disorder. He did not refer to a gastrointestinal disorder. In March and May 1992, during a periodic examination for the Army National Guard, the Veteran responded "no", when asked if he then had, or had ever had, frequent indigestion or stomach, liver, or intestinal trouble. On examination, in March and May 1992, the Veteran's abdomen and viscera were normal. He was 5 feet 8 inches or 5 foot 9 inches tall, and he weighed 160 and 154 pounds, respectively. During a periodic examination in April 2001, the Veteran responded "yes", when asked if he then had, or had ever had, frequent indigestion. He responded "no", when asked if he then had, or had ever had, stomach, liver, or intestinal trouble. It was noted that he had gastroesophageal reflex disease. On examination, the Veteran was 5 feet 9 inches tall and he weighed 172 pounds. In August 2001, the Veteran was treated, in part, for nausea and vomiting. The assessment was rule out heat exhaustion. On two occasions in May 2003, the Veteran was treated for nausea, vomiting, and emesis in association with heat exhaustion. In July 2003, the Veteran underwent a medical board examination. He responded "yes", when asked if he then had, or had ever had, frequent indigestion. He responded "no", when asked if he then had, or had ever had, stomach, liver, or intestinal trouble. On examination, his abdomen and viscera were normal. He was 5 feet 9 inches tall and weighed 171 pounds. In September 2003, a Physical Evaluation Board found him unfit for further service, due to recurrent heat exhaustion without current findings. In June 2004, the Veteran was examined by VA to determine the nature and etiology of any gastrointestinal disorder found to be present. The examiner noted the Veteran's history of gastrointestinal problems in January 1986. The examiner further noted that the Veteran's most recent gastrointestinal problems had started in November 2002. They were manifested by abdominal cramping, flatulence, and diarrhea. The Veteran stated that the diarrhea had continued with three episodes of incontinence during the previous year. He denied any weight loss or gastrointestinal bleeding and stated that he had not had an endoscopic examination or gastrointestinal X-rays. He was 5 feet 9 inches tall, and it was reported that he used to weigh 150 pounds. In the two years leading up to the examination, his weight had increased from 165 to 175 pounds. On examination, the Veteran had a normal abdomen with normal heart, lung, and bowel sounds. The examiner recorded the following impressions: status post short-term abdominal pain on active duty in January 1986, diagnosed on sick call as gastritis with no special studies, no recorded recurrence, no gastrointestinal X-rays, and no recorded endoscopic studies; irritable bowel syndrome diagnosed by his private physician in November 2002 with some intermittent persistence of diarrhea and occasional leakage and stool incontinence, including 3 times in the past 12 months. The examiner stated that the Veteran's gastrointestinal problems did not appear to be related to the episode of gastrointestinal problems in service in January 1986. In addition, the examiner stated that it did not appear to be caused by the Veteran's knee problems. In March 2010, the Veteran was reexamined by VA to determine the nature and etiology of any gastrointestinal disorder found to be present. He stated that in service in 1985 and 1986, he developed abdominal distention, prominent bowel sounds, and episodes of sharp, steady, non-radiating pain in the mid-abdomen. He stated that the problems had continued since that time with excess gaseous eructions and prominent bowel sounds, as well as feelings of bloating, both on an empty stomach and after a large meal. Those episodes reportedly occurred two or three times a week, three or four times a day He indicated that on occasion, he soiled his underpants and that once or twice a week, he experienced constipation and hard bowel movements. He reportedly took large amounts of dietary fiber supplements. In addition to the foregoing, the Veteran stated that he saw a gastroenterologist and had been diagnosed with irritable bowel syndrome. He noted that two years earlier, he had been hospitalized for tests and that his gallbladder had been removed several years ago. He also reported that an upper endoscopy in 2008 had shown Barrett's esophagus and gastroesophageal reflux, though he denied heartburn. A colonoscopy and CT scan in 2008 had also reportedly been negative. The Veteran stated that his appetite had been good and that his weight had been stable. He noted that he took medication for gastroesophageal reflux disease. On further questioning, the Veteran denied rectal bleeding, melena, nausea or vomiting, or alcohol abuse. On examination, the Veteran's abdomen was soft and flat with no enlargement of the kidneys, liver, or spleen. No masses were found, and the bowel sounds were normal in all quadrants. There was mild tenderness to pressure in the left lower quadrant and just below the umbilicus. The examiner reviewed the claims file and noted two instances of treatment for abdominal pain in 1986 and 1987. He noted that each time, the diagnosis had been gastritis. Following the VA examination, the diagnosis was irritable bowel syndrome, constipation type. The examiner stated that it was unlikely that the Veteran's irritable bowel syndrome had had its origins during Veteran's service from 1985 to 1987. In so stating, the examiner noted that the record from that time indicated treatment for only two isolated instances of gastritis or gastroenteritis. Analysis The Veteran contends that he has a gastrointestinal disorder which was first manifested during service in the mid-1980's. He states that it was manifested by abdominal pain, nausea and vomiting, and diarrhea. He reports that those problems have continued since that time and that service connection is, therefore, warranted for a gastrointestinal disorder. However, after carefully considering the claim in light of the record and the applicable law, the Board is of the opinion that the preponderance of the evidence is against that claim. Accordingly, the appeal will be denied. The Board acknowledges that the Veteran is competent to give testimony about what he experienced in and after service. For example, he is competent to report that he had stomach problems in service and that he has had them since that time. See, e.g., Layno v. Brown, 6 Vet. App. 465 (1994). As a lay person, however, he is, generally, not qualified to render opinions which require medical expertise, such as the diagnosis of those symptoms or the cause of a particular disability. 38 C.F.R. § 3.159(a); Espiritu v. Derwinski, 2 Vet. App. 492, 494-95 (1992). Nevertheless, in certain instances, lay evidence can be competent and sufficient to establish a diagnosis of a condition. Indeed, competent lay evidence may be used to establish a medical condition, including causation. King v. Shinseki, No. 2011-7159 (Fed. Cir. Dec. 5, 2012) (the Court of Appeals for the Federal Circuit discussing 38 U.S.C.A. § 5107(b), 38 C.F.R. § 3.307(b), and its prior holdings in Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); and Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009)). Such cases may occur under the following circumstances: (1) when a layperson is competent to identify the medical condition, (2) when a layperson is reporting a contemporaneous medical diagnosis, or (3) when a lay person describes symptoms which are subsequently diagnosed by a medical professional. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Therefore, the Veteran's opinion, without more, is not dispositive, unless the particular disorders at issue are ones which are amenable to lay observation. 38 C.F.R. § 3.159(a). Competency must be distinguished from weight and credibility, which are factual determinations going to the probative value of the evidence. See Rucker v. Brown, 10 Vet. App. 67, 74 (1997). In weighing credibility, VA may consider interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of the witness. Caluza v. Brown, 7 Vet. App. 498 (1995). The Board may weigh the absence of contemporaneous medical evidence against the lay evidence in determining credibility, but the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). In deciding this appeal, the Board must weigh the evidence and decide where to give credit and where to withhold the same and, in so doing, accept certain medical opinions over others. Schoolman v. West, 12 Vet. App. 307, 310-11. The Board is mindful that it cannot make its own independent medical determination, and that there must be plausible reasons for favoring one medical opinion over another. Evans v. West, 12 Vet. App. 22, 31 (1998). The probative value of a medical opinion is generally based on the scope of the examination or review, as well as the relative merits of the expert's qualifications and analytical findings. The probative weight of a medical opinion may be reduced if the examiner fails to explain the basis for an opinion. Sklar v. Brown, 5 Vet. App. 140 (1993). In this regard, contemporaneous evidence has greater probative weight than a history reported by the Veteran. Curry v. Brown, 7 Vet. App. 59, 68 (1994). However, medical evidence that is speculative, general or inconclusive in nature cannot support a claim. See Obert v. Brown, 5 Vet. App. 30, 33 (1993). In this case, the Veteran's service treatment records and examinations are negative for any complaints or clinical findings or other evidence of a gastrointestinal disorder at any time prior to his entry in service. Therefore, his gastrointestinal system was presumed to be in sound condition at the time he entered service. On several occasions on active duty from 1985 to 1987, the Veteran complained of stomach pain or tenderness, nausea and vomiting, or abdominal cramps. In January and March 1986, the diagnoses were gastritis and viral gastroenteritis. Although the Veteran states that he has continued to have similar manifestations since that time, the clinical evidence shows that such disorders were isolated instances rather than evidence of chronic, identifiable gastrointestinal pathology. Indeed, the report of his December 1987 service separation examination and the evidence dated for years since that time are negative for any further findings of gastritis or gastroenteritis. Such evidence supports a finding that those disorders were acute and transitory and resolved without residual disability. Had such disorders been chronic in nature, it is reasonable to expect that the Veteran would have filed a claim for VA compensation at the time of his discharge from service in 1987. After all, he certainly knew how to do so, having successfully filed a December 1987 claim for service connection for a left knee disorder and pleural effusion. That he did not do so with respect to a gastrointestinal disorder tends to go against his claim. A gastrointestinal disorder was not reported, again, until April 2001, when it was noted that the Veteran had gastroesophageal reflux disease. That diagnosis was not established, however, as the examination was normal. Moreover, the 2004 VA examination was negative for the presence of that disorder. Indeed, the presence of gastroesophageal reflux disease was not established until 2008, when it was reportedly shown on endoscopy. The evidence does show that the Veteran currently has irritable bowel syndrome. The presence of that disorder was established during his VA examinations in 2004 and 2010. However, the VA examiners agreed that it was unrelated to any incident in service, with the 2010 VA examiner noting specifically that it was unrelated to the reports of gastrointestinal problems in 1986 and 1987. In so noting, he opined that the incidents in service were isolated, that is, not chronic in nature. The Board finds these opinions are more probative than the Veteran's own assertion. The preponderance of the evidence is against a finding of a relationship between the Veteran's irritable bowel syndrome and service. Taken together, the evidence on file shows that chronic, identifiable gastrointestinal pathology was not manifested until after the Veteran's separation from service. The only evidence to the contrary comes from the Veteran. However, he has not submitted competent evidence of nexus to service to substantiate his opinion. In this regard, it must be emphasized that as a layman, he not qualified to render opinions which require medical expertise, such as the diagnosis of his symptoms or the cause of a particular disability. Inasmuch as the preponderance of the evidence is against a finding of a nexus between the Veteran's gastrointestinal disorder and service, it does not meet the criteria for service connection. Therefore, service connection is not warranted, and the appeal is denied. In arriving at this decision, the Board has considered the doctrine of reasonable doubt. However, that doctrine is only invoked where there is an approximate balance of evidence which neither proves nor disproves the claim. In this case, the preponderance of the evidence is against the Veteran's claim. Therefore, the doctrine of reasonable doubt is not applicable. 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2012). ORDER Entitlement to service connection for a chronic gastrointestinal disorder is denied. ____________________________________________ ROBERT E. O'BRIEN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs