Citation Nr: 1303430 Decision Date: 01/31/13 Archive Date: 02/05/13 DOCKET NO. 08-31 618 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUE Entitlement to service connection for a gastrointestinal disorder characterized as "leaky gut syndrome," to include as being secondary to the appellant's service-connected allergic rhinitis and sinusitis and the medications taken in treatment for allergic rhinitis and sinusitis. REPRESENTATION Appellant represented by: California Department of Veterans Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Patrick J. Costello, Counsel INTRODUCTION The appellant served on active duty from September 1957 to September 1960. This case comes before the Board of Veterans' Appeals, hereinafter the Board, on appeal from a November 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California. The Board would note that when the appeal was originally before the Board, the issues that were on appeal were as follows: 1. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for sinusitis. 2. Entitlement to service connection for allergic rhinitis. 3. Entitlement to service connection for leaky gut syndrome, claimed as secondary to medications taken for allergic rhinitis and sinusitis. Prior to a review by the Board, the appellant, in May 2011, testified at a hearing before the undersigned Veterans Law Judge at the RO. A transcript of that hearing was produced and has been included in the claims folder for review. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. 3.103(c)(2) requires that the VLJ who chairs a hearing fulfill two duties to comply with the above the regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, during the hearing, the VLJ noted that basis of the prior determination and noted the elements of the claim that were lacking to substantiate the claim for benefits. In addition, the VLJ sought to identify any pertinent evidence not currently associated with the claims folder that might have been overlooked or was outstanding that might substantiate the claim. Moreover, the appellant has not asserted that VA failed to comply with 38 C.F.R. 3.103(c)(2) or identified any prejudice in the conduct of the Board hearing. By contrast, the hearing focused on the elements necessary to substantiate the claim and the appellant, through his testimony, demonstrated that he had actual knowledge of the elements necessary to substantiate his claim for benefits. As such, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. 3.103(c)(2) and that the Board can adjudicate the claim based on the current record. Following that hearing, all three issues then on appeal were remanded to the RO via the Appeals Management Center (AMC), in Washington, DC. This occurred in December 2011. The purpose of the remand was to obtain additional medical evidence. The record reflects that as a result of the medical evidence that was obtained, service connection was granted by the AMC for allergic rhinitis and sinusitis. This occurred in December 2012. Because the granting of service connection for allergic rhinitis and sinusitis is a complete grant of benefits, these two issues are no longer before the Board. The remaining issue has since been returned to the Board for review. Upon reviewing the development that has occurred since December 2011, the Board finds there has been substantial compliance with its remand instructions. The Board notes that the Court has concluded that "only substantial compliance with the terms of the Board's engagement letter would be required, not strict compliance." D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); see also Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (holding that there was no Stegall violation when the examiner made the ultimate determination required by the Board's remand, because such determination "more than substantially complied with the Board's remand order"). The record indicates that the AMC sent a duty to assist letter to the appellant and informed him that it would be scheduling the appellant for a VA examination with respect to his purported gastrointestinal disorder. The record reflects that the appellant underwent a VA examination in Janaury2 012 and those results are of record. The AMC reviewed the information obtained and then issued a Supplemental Statement of the Case (SSOC) that confirmed the VA's previous denial. Based on the foregoing, the Board finds that the AMC substantially complied with the mandates of its December 2011 Remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (finding that a remand by the Board confers on the appellant the right to compliance with the remand orders). Therefore, in light of the foregoing, the Board will proceed to review and decide the claim based on the evidence that is of record consistent with 38 C.F.R. § 3.655 (2012). FINDINGS OF FACT A gastrointestinal characterized as "leaky gut syndrome" did not have its clinical onset in service and is not otherwise related to active duty to include as being secondary to the appellant's service-connected disorders or any medications taken for the treatment of said disorders. CONCLUSION OF LAW A gastrointestinal disorder characterized as "leaky gut syndrome" was not incurred in or aggravated by the appellant's active military service to include as being secondary to the appellant's service-connected allergic rhinitis and sinusitis and the medications taken in treatment for allergic rhinitis and sinusitis. 38 U.S.C.A. §§ 1101, 1112, 1113, 1131, 1137, 5103, 5103A, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Board has thoroughly reviewed all the evidence in the appellant's claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the evidence submitted by the appellant or on his behalf. See Gonzales v. West, 218 F. 3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The appellant must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (the law requires only that the Board address its reasons for rejecting evidence favorable to the appellant). The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the appellant. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). I. Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2011)) includes enhanced duties to notify and assist claimants for VA benefits. VA regulations implementing the VCAA have been codified, as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2011); 38 C.F.R. § 3.159(b) (2012); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide in accordance with 38 C.F.R. § 3.159(b)(1). This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). Notice which informs the appellant of how VA determines disability ratings and effective dates should also be provided. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA-compliant notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO). Id.; Pelegrini, 18 Vet. App. at 112. See also Disabled American Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003). However, the VCAA notice requirements may, nonetheless, be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Id. In addition, the notice requirements of the VCAA apply to all five elements of a service-connection claim, including: (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. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. Following the appellant's claim for benefits, the RO sent to the appellant a VCAA letter in June 2007. A Dingess-compliant notification letter was sent in June 2010. Finally, a VCAA letter was sent by the AMC in December 2011. These notice letters advised the appellant of the criteria used in evaluating service connection claims and were provided with adequate notice of the evidence which was not of record, additional evidence that was necessary to substantiate the claim, and he was informed of the cumulative information and evidence previously provided to VA, or obtained by VA on his behalf. For the reasons above the Board finds that VA substantially complied with the specific requirements of Quartuccio v. Principi, 16 Vet. App. 183 (2002) (identifying evidence to substantiate the claim and the relative duties of VA and the claimant to obtain evidence); Charles v. Principi, 16 Vet. App. 370 (2002) (identifying the document that satisfies the VCAA notice); and 38 C.F.R. § 3.159(b) (2012) (the content of the notice requirement, pertaining to the evidence in the claimant's possession or a similar request to that effect). In this context, it is well to observe that VCAA requires only that the duty to notify be satisfied, and that claimants be given the opportunity to submit information and evidence in support of their claims. Once this has been accomplished, all due process concerns have been satisfied. See Bernard v. Brown, 4 Vet. App. 384 (1993). Sutton v. Brown, 9 Vet. App. 553 (1996). The record also reflects that VA has made reasonable efforts to obtain or to assist in obtaining all relevant records pertinent to the matter herein decided. Pertinent medical evidence associated with the claims files consists of private medical treatment records, VA treatment records, and various reports of examinations that have occurred over the course of this appeal. Also of record and considered in connection with the current appeal are various written statements provided by the appellant and his representative along with the appellant's oral testimony during his hearing before the undersigned. A review of the appellant's Virtual VA electronic records reveals no additional pertinent evidence. Additionally, VA has a duty to obtain a medical examination or opinion when such examination or opinion is necessary to make a decision on the claim. In this respect, the record reflects that over the course of this appeal, and in conjunction with the Board's remand action of December 2011, the appellant underwent an examination in order to obtain additional information concerning the claimed gastrointestinal disorder. The record reveals that the examiner reviewed the appellant's medical records and then provided a detailed examination report, including a discussion of the etiology of any found disorder. The results of that examination have been included in the claims folder for review. The Board finds that this report is adequate for rating purposes. See Barr v. Nicholson, 21 Vet. App. 303, 311 (affirming that a medical opinion is adequate if it provides sufficient detail so that the Board can perform a fully informed evaluation of the claim). Given the foregoing, the Board finds that the VA has substantially complied with the duty to obtain the requisite medical information necessary to make a decision on the appellant's claim. The Board notes that it has inspected the Virtual VA system, previously referenced above, which is a highly secured electronic repository that is used to store and review documents involved in the claims process, to discover whether such a system contained any documents that might be pertinent to this claim. Such a review has revealed no evidence relevant to the appellant's claim. In this case, the VA has fulfilled its duty to assist the appellant in obtaining identified and available evidence needed to substantiate his claims. There is no evidence that additional records have yet to be requested, or that additional examinations are in order. During the course of this appeal, the appellant has proffered documents and statements in support of his claims. He has provided testimony before the Board concerning, what he believes, is the etiology of his claimed gastrointestinal disorder or "leaky gut syndrome". Because VCAA compliant notice has been provided, the Board finds no prejudice to the appellant in proceeding with the issuance of a final decision. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993) (where the Board addresses a question that has not been addressed by the agency of original jurisdiction, the Board must consider whether the appellant has been prejudiced thereby). The Board is satisfied that the duties to notify and assist have been met. II. Laws and Regulations Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a pre-existing injury suffered or disease contracted in the line of duty. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2012). If a condition noted during service is not shown to be chronic, then generally a showing of continuity of symptomatology after service is required for service connection. 38 C.F.R. § 3.303(b) (2012). 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) (2012). For certain chronic diseases, a presumption of service connection arises if the disease is manifested to a degree of 10 percent within a year following discharge from active service. 38 U.S.C.A. § 1101, 1112, 1113 (West 2002); 38 C.F.R. § 3.307, 3.309 (2012). Further, service connection may be granted for disability proximately due to or the result of a service-connected disability and where aggravation of a nonservice-connected disorder is proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.310(a) (2012); Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). The provisions of 38 C.F.R. § 3.310 were amended, effective from October 10, 2006; the new provisions require that service connection not be awarded on an aggravation basis without establishing a pre-aggravation baseline level of disability and comparing it to current level of disability. 71 Fed. Reg. 52744-47 (Sept. 7, 2006). Although the stated intent of the change was merely to implement the requirements of Allen v. Brown, 7 Vet. App. 439 (1995), the new provisions amount to substantive changes to the manner in which 38 C.F.R. § 3.310 has been applied by VA in Allen-type cases since 1995. Moreover, service connection connotes many factors, but basically, it means that the facts, as shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service. A determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or disease in service. See Pond v. West, 12 Vet. App. 341 (1999); Watson v. Brown, 4 Vet. App. 309, 314 (1993). The existence of a current disability is the cornerstone of a claim for VA disability compensation. See Degmetich v. Brown, 104 F. 3d 1328 (1997); see also Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); Rabideau v. Derwinski, 2 Vet. App. 141, 144 (1992). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107 (West 2002 & Supp. 2010); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Board is charged with the duty to assess the credibility and weight given to evidence. Wensch v. Principi, 15 Vet. App. 362, 367 (2001); Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Indeed, the Court has declared that in adjudicating a claim, the Board has the responsibility to do so. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). III. Factual Background and Legal Analysis The appellant has asserted that he now suffers from a gastrointestinal disorder that he calls "leaky gut syndrome." He has averred that as a result of his allergic rhinitis and sinusitis, and the medications he uses for the treatment of those disabilities, he has developed his gastrointestinal disorder. As such, he has asked that service connection be granted for this purported disorder. A review of the appellant's service medical treatment records fails to reveal any findings for, complaints of, or diagnoses suggestive of any gastrointestinal disorder or disability to include "leaky gut syndrome." The appellant's post-service medical records show gastrointestinal complaints and symptoms. The first documentation of such appears to be in February 2002, when the Veteran complained of abdominal pain and vomiting over the past week. Other records indicate a history of lactose intolerance and nausea. There was at one point a question of celiac disease. In any event, such medical records do not suggest that any gastrointestinal symptoms or manifestations are the result of his service-connected sinusitis and allergic rhinitis, or the medications used in the treatment of the disorders, or that a gastrointestinal disorder is related to service. Contained in the claims folder is a medical examination report that was accomplished, on behalf of the Board, in January 2012. The medical doctor noted that the Veteran has had problems with his intestines for years and has had recurrent discomfort. He does not like milk and does not drink it. All food makes him sick. He had colonoscopy over 10 years ago at Mt. Zion. He did not think he had any polyps. He was referred for colonoscopy at the San Francisco VA[MC] on 10/9/01 but never followed through. There were no complaints of heartburn. There were no ulcers or hepatitis. He reported no diarrhea or constipation and there was no history of hemorrhoids. After examining the appellant, the doctor reported that the appellant has abdominal distress (per the appellant) but that he was not experiencing weight loss or malnutrition. Laboratory tests were accomplished and the findings were included with the examination report. In the remarks section of the examination report, the doctor wrote the following: . . . The only gastrointestinal condition described in his [appellant's] VA CPRS medical record is lactose intolerance, which is genetic.... Leaky gut syndrome is not a clearly recognized medical entity. This could refer to protein losing enteropathy, but [the appellant's] persistently normal serum albumin test makes it less likely than not that he has that condition. Mometasone inhalers can cause nausea but the presence of nausea predates his current use of mometasone. His nausea is less likely than not to be due to this medication. Chronic excess mucus production and postnasal drip of nasopharyngeal secretions due to allergic rhinitis can produce nausea directly and in this case more likely than not contribute to [the appellant's] nausea. His abdominal distress is more likely than not related to lactose intolerance and thus is less likely than not to be due to medication or excess mucus production from chronic allergic rhinitis. As mentioned above, the appellant has submitted written statements and testified as to his reported long standing gastrointestinal difficulties. However, he has not proffered any medical opinions or treatises that would corroborate his assertions. In other words, while the claims folder shows that the appellant has suffered intermittently from nausea and related complaints, the file is negative for any medical opinions that suggest that the appellant now suffers from a gastrointestinal disorder, to include "leaky gut syndrome," or that the symptoms he complains thereof began in service, or they are secondary to his service-connected allergic rhinitis and sinusitis or the medications he takes for the treatment of either disability. The only evidence favorable to the appellant's contentions are the lay statements provided by him. The Board assumes, for purposes of this decision, that the appellant is competent to state that he now suffers from abdominal pain and discomfort. As stated, the appellant contends that it is his belief that his disability was caused by or is secondary to his service-connected allergic rhinitis and/or sinusitis or the medications he uses in the treatment of the disorders. He has not claimed that the gastrointestinal disability began in service or is the result of his service. Yet, he has not provided any supporting medical evidence that would corroborate his assertions. Moreover, he has not proffered any type of discussion as to why the VA physician's opinion provided above was faulty or based on inaccurate evidence or reasoning. Despite the appellant's assertions, in January 2012, a VA physician, without hesitation and reservation, concluded that the appellant's gastrointestinal complaints, symptoms, and manifestations were not related to or caused by his service-connected allergic rhinitis and sinusitis. The appellant is competent to state what he experienced, such as experiencing abdominal pain or nausea or stomach discomfort. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). However, the Board is not required to accept as competent the appellant's assertions as to the etiology of the noted nausea. In this case, the Board finds that the appellant's assertions are undoubtly sincere but the matter at hand involves complex medical assessments that require medical expertise. See Jandreau. The appellant is not competent to provide more than simple medical observations. However, he is not competent to provide complex medical opinions regarding the etiology of the nausea. See Barr. Thus, the lay assertions are not competent or sufficient. In this instance, there is only the VA examiner's opinion of January 2012 concerning the etiology of the current lower gastrointestinal disorder (nausea). The medical doctor's opinion was not equivocal. That examiner was very specific and direct in the opinion that was provided. See generally Bloom v. West, 12 Vet. App. 185 (1999) (a medical opinion based on speculation, without supporting clinical data or other rationale, does not provide the required degree of medical certainty). See also 38 C.F.R. § 3.102 (2012) (when considering application of the benefit-of-the-doubt doctrine, reasonable doubt is one within the range of probability, as distinguished from pure speculation or remote possibility). The Board would further point to the opinion provided by the VA physician was not vague or ambiguous with the assertions made, and the examiner discussed why the appellant's gastrointestinal disorder was not related to or secondary to the service-connected disabilities of allergic rhinitis and sinusitis, or the medications taken for the treatment of either condition. The Board believes that the VA examiner provided sound reasoning in the analysis of the situation. The VA medical specialist reviewed in detail the pertinent medical records, discussed the salient facts, and provided a complete rationale for all conclusions presented, as noted in the discussion above. Here, a medical expert has fairly considered all the evidence and the opinion may be accepted as an adequate statement of the reasons and bases for a decision when the Board adopts such an opinion. Wray v. Brown, 7 Vet. App. at 493. The Board attaches significant probative value to the opinion as it is well reasoned, detailed, consistent with other evidence of record, and included an access to the accurate background of the service member. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000). Thus, the Board finds that the preponderance of the credible, competent evidence is against the appellant's claim for service connection for a gastrointestinal disorder described as nausea or "leaky gut syndrome." The provisions of 38 U.S.C.A. § 5107(b) (West 2002 & Supp. 2012) regarding reasonable doubt are not applicable. The claim must be denied. Moreover, even if the Board found that the appellant was competent to provide etiological opinions, and that his statements are credible, he has not provided any rationale for his conclusions. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). He has not discussed the fact that the condition has more recently manifested itself when he has been suffering from sinusitis and allergic rhinitis for decades. He has not provided an analysis as to why the VA examiner's opinion is faulty and without merit. Accordingly, his statements are not entitled to any probative value. Moreover, the Board finds the lapse in time between when the now service-connected allergic rhinitis and sinusitis began, when he began taking medications for both disorders, and the many years until the gastrointestinal disorder manifested itself to be highly probative evidence against the appellant's claim. See Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000) (a significant lapse in time between service and post-service medical treatment may be considered as part of the analysis of a service connection claim). Therefore, it is the conclusion of the Board that the preponderance of the evidence is against the appellant's claim for entitlement to service connection. Based on the foregoing discussion, the Board finds that the appellant's claim must be denied. While the appellant has been diagnosed as suffering from a gastrointestinal disorder (nausea), the weight of the medical evidence is against a finding that this condition is related or secondary to his service-connected disabilities and the medications he uses for the control of said disorders. On these facts, the preponderance of the objective medical evidence of record is against the claim. Therefore, the benefit of the doubt doctrine is not for application herein, and the claim must be denied. 38 U.S.C.A. § 5107(b) (West 2002 & Supp. 2010); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to service connection for a gastrointestinal disorder characterized as "leaky gut syndrome," to include as being secondary to the appellant's service-connected allergic rhinitis and sinusitis and the medications taken in treatment for allergic rhinitis and sinusitis, is denied. ____________________________________________ ERIC S. LEBOFF Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs