Citation Nr: 1300533 Decision Date: 01/07/13 Archive Date: 01/11/13 DOCKET NO. 08-02 569 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New York, New York THE ISSUE Entitlement to service connection for a cholecystectomy, to include residuals thereof. REPRESENTATION Appellant represented by: New York State Division of Veterans' Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Tahirih S. Samadani, Counsel INTRODUCTION The Veteran served on active duty from February 1978 to February 1998. This case comes before the Board of Veterans' Appeals (Board) on appeal from an August 2007 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Newark, New Jersey, which denied service connection for residuals of cholecystectomy. The RO in New York, New York, currently has jurisdiction over the Veteran's VA claims folder. In August 2011, the Veteran testified at a hearing held at the RO before the undersigned Veterans Law Judge. A transcript of these proceedings has been associated with the Veteran's claims file. Additionally, the Veteran submitted evidence directly to the Board at this hearing, accompanied by a waiver of having the evidence initially reviewed by the agency of original jurisdiction (AOJ). When this case was before the Board in November 2011, it was remanded for further development. It is now before the Board for further appellate action. In her December 2007 Form 9, the Veteran filed a substantive appeal for service connection for residuals of cholecystectomy and a low back disorder. Following the Board's November 2011 Remand, the Appeals Management Center (AMC) granted service connection for degenerative disc disease of the lumbo-sacral spine with herniated nucleus pulposus. As this issue has been granted and there is no evidence of disagreement with this decision, the issue of service connection for a low back disorder is no longer before the Board. FINDING OF FACT The competent and credible evidence of record is in equipoise as to whether the cholecystectomy, including residuals thereof, is related to the Veteran's military service. CONCLUSION OF LAW Resolving the benefit of the doubt in the Veteran's favor, a cholecystectomy, and residuals thereof, were incurred in active duty military service. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Assist and Notify The Veterans Claims Assistance Act of 2000 as amended (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Since the Board is granting service connection for residuals of cholecystectomy, her claim is substantiated, and there are no further VCAA duties. Wensch v. Principi, 15 Vet App 362 (2001); see 38 U.S.C.A. § 5103A(a)(2) (Secretary not required to provide assistance "if no reasonable possibility exists that such assistance would aid in substantiating the claim"); see also VAOPGCPREC 5-2004; 69 Fed. Reg. 59989 (2004) (holding that the notice and duty to assist provisions of the VCAA do not apply to claims that could not be substantiated through such notice and assistance). Applicable laws and regulations The Veteran contends that service connection is warranted for removal of the gallbladder. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). In order to establish service connection or service-connected aggravation for a present disability, the veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service." Shedden v. Principi, 381 F.3d at 1163, 1166-67 (Fed. Cir. 2004). 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. If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. 38 C.F.R. § 3.303(b). Service connection may also be granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Also, certain chronic diseases, including arthritis, may be presumed to have been incurred during service if manifested to a compensable degree within one year of separation from active military service. 38 U.S.C.A. §§ 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. Analysis The appellant claims that she had symptoms of a gallbladder problem during service which ultimately resulted in the need for a cholecystectomy. See, e.g., the Veteran's November 2006 claim. As noted above, in order to establish service connection, the veteran must show (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service." Shedden v. Principi, 381 F.3d at 1163, 1166-67 (Fed. Cir. 2004). With respect to Shedden element one, the Board notes that the Veteran had her entire gallbladder removed in June 2005. See statement by M.B. dated in August 2011. As a result of her gallbladder removal, the Veteran claims that if she eats dairy or oily foods, she has to go to the bathroom right away. The Board acknowledges the December 2011 examiner's opinion that the Veteran has no current residuals of her cholecystectomy. Despite this, removal of the gallbladder, itself, is a disability regardless of whether the Veteran is experiencing symptoms from the removal. 38 C.F.R. § 4.114, Diagnostic Code 7318 notes a noncompensable evaluation is warranted for removal of the gallbladder when the disability is nonsymptomatic. A higher 10 percent rating is warranted when there are mild symptoms, and an even higher 30 percent rating, which as mentioned is the highest possible rating under this code, is warranted for severe symptoms. 38 C.F.R. § 4.114, Diagnostic Code 7318. Therefore, the Board finds that a current gallbladder disability, a cholecystectomy, with reports of residual symptoms, is shown by the record. Shedden element (1) is therefore satisfied. With respect to Shedden element (2), in-service incurrence or aggravation of a disease or injury, the Board notes that the Veteran's service treatment records include no documented treatment for, or diagnosis of a gallbladder disability. Despite this, the Veteran and her treating nurse practitioner (M.B.) both argue that she experienced symptoms of a gallbladder disability during service but was misdiagnosed with indigestion and other diagnoses. The Veteran is competent to report symptoms she experienced during service. Furthermore, the service treatment records show that the Veteran was treated for acute gastroenteritis in April 1983. She was treated, in part, for complaints of nausea and vomiting in October 1984, assessed as viral syndrome and gastroenteritis. She was treated for constipation in January and May 1987. Thereafter, in July and October 1987, she was treated for complaints of diarrhea, which were attributed to acute gastroenteritis, viral, in July of that year. She was again treated for acute gastroenteritis in March 1988. She was treated for right inguinal pain in February 1992, assessed as musculoskeletal pain. She was treated for diarrhea in March and July 1993. In addition, the Veteran was treated for complaints of nausea and vomiting associated with headaches on various occasions. A nurse practitioner also has opined that the symptoms presented in the military were due to gallstones. This opinion is entitled to probative weight. As such, the Board finds that the Veteran's complaints in service in fact demonstrate an in-service disease, and that Shedden element (2) is accordingly satisfied. With respect to crucial Shedden element (3), a causal relationship between the present disability and the disease or injury incurred or aggravated during service, resolving all doubt in the Veteran's favor, the evidence of record shows that the Veteran's current residuals of cholecystectomy was incurred during the Veteran's military service. There are two opinions included in the Veteran's claims file which discuss whether a causal relationship exists between the Veteran's military service and her current residuals. First, the Veteran submitted a letter by her treating nurse practitioner in August 2011. The nurse practitioner, M.B., explained that the Veteran had been under her care following her retirement from the U.S. Air Force in March 1998. M.B. stated that after reviewing the Veteran's military records, she found that the correct diagnosis of cholelithiasis (gallstones) was missed when she presented multiple times with right quadrant pain. Consequently, ten gallbladder stones grew to an aggregate size of 9 x 2.5 x 2 centimeters and the entire gallbladder was eventually removed in June 2005. M.B. opined that it was as likely as not that the symptoms presented while the Veteran was in the military were due to gallstones and cholecystitis, and that the prolonged untreated condition necessitated the removal of the gallbladder. In contrast, the December 2011 VA examiner found that no diagnosis of gallstones was established until the May 2005 ultrasound. The examiner considered the Veteran's reports of symptoms starting in 1981 with right upper quadrant (RUQ) pain, nausea and regurgitation with bilious fluid. She reported several episodes of severe RUQ pain associated with chills and nausea. The Veteran stated that she was told that she had acid reflux and was given medications. After reviewing the Veteran's claims file and examining the Veteran, the examiner concluded that it could not be determined whether the symptoms that she presented while in service were due to gallstones as some of the symptoms were not typical of gallstones symptomatology. The examiner noted that no diagnosis of gallstones was made during the Veteran's military service and a diagnosis was not established until a May 2005 ultrasound was conducted. The examiner opined that she currently had no residuals from her cholecystectomy. In cases where there are competent but conflicting medical opinions, as here, several matters must be addressed in determining the relative probative value and weight of the opinions. First, the Board may only consider independent medical evidence to support its findings and may not provide its own medical judgment in the guise of a Board opinion. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1990). The Board may, however, favor the opinion of one competent medical professional over that of another so long as an adequate statement of reasons and bases is provided. See Owens v. Brown, 7 Vet. App. 429, 433 (1995). Also, the probative value of a medical opinion largely depends upon the extent to which such an opinion was based on a thorough review of a veteran's medical history, as contained in his claims file. In cases where an examiner who has rendered a medical opinion has not had an opportunity to review the veteran's medical records, the medical opinion's probative value is substantially limited. See Miller v. West, 11 Vet. App. 345, 348 (1998) (bare conclusions without a factual predicate in the record are not considered probative); Gabrielson v. Brown, 7 Vet. App. 36, 40 (1994). Additionally, the fact that an opinion is relatively speculative in nature also limits its probative value. For example, an examiner's opinion that a current disorder "could be" related to, or that there "may be" some relationship with, symptomatology in service makes the opinion of the examiner too speculative in nature. See Bostain v. West, 11 Vet. App. 124, 127-28, quoting Obert v. Brown, 5 Vet. App. 30, 33 (1993) (a medical opinion expressed in terms of "may" also implies "may or may not" and is too speculative to establish a causal relationship). See also Warren v. Brown, 6 Vet. App. 4, 6 (1993) (a doctor's statement framed in terms such as "could have been" is not probative). Moreover, the fact that a veteran has received regular treatment from a physician or other doctor is certainly a consideration in determining the credibility of that doctor's opinions and conclusions. That notwithstanding, the United States Court of Appeals for Veterans Claims (Court) has declined to adapt a "treating physician rule" under which a treating physician's opinion would presumptively be given greater weight than that of a VA examiner or another doctor. See Winsett v. West, 11 Vet. App. 420, 424-25 (1998); Guerrieri v. Brown, 4 Vet. App. 467-471-3 (1993). Finally, evidence of a prolonged period without medical complaint after service can be considered along with other factors in the analysis of a service connection claim. See generally Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). The Board finds that the evidence is at least in equipoise. The VA examiner provided a negative opinion following a review of the claims folder but also indicated it could not be determined whether the symptoms in service were due to gallstones as some of the symptoms were not typical of gallstone symptomatology. The nurse practitioner also provided an opinion, which was based on review of the military records, with a rationale as to why the Veteran's current disability was related to her military service. The Board cannot find a reason to assign greater weight to one opinion. In addition, the Board finds the Veteran's assertions to be credible. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991) (BVA has a duty to assess the credibility and weight of the evidence); Caluza v. Brown, 7 Vet. App. 498, 511 (1995) (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). When the evidence for and against the claim is in relative equipoise, by law, the Board must resolve all reasonable doubt in favor of the appellant. See 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102 (2012). Accordingly, the benefit-of-the-doubt rule is applicable in this case, and a relationship between the Veteran's cholecystectomy and residuals thereof and her active military service is established. Shedden element (3) is therefore met, and the benefit sought on appeal is allowed. ORDER Entitlement to service connection for a cholecystectomy, to include residuals thereof, is granted. ____________________________________________ S.S. TOTH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs