Citation Nr: 1303895 Decision Date: 02/04/13 Archive Date: 02/08/13 DOCKET NO. 02-03 170 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Buffalo, New York THE ISSUE Entitlement to service connection for claimed Crohn's disease, ulcers and colitis as secondary to service-connected disability. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD G. E. Wilkerson, Associate Counsel INTRODUCTION The Veteran served on active duty from February 1975 to May 1982. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2001 RO rating decision. In November 2003, November 2007, May 2010 and March 2012, the Board remanded the issue on appeal for additional development of the record. After completing the requested development, the RO has returned the case to the Board for the purpose of appellate disposition. A review of the Veteran's Virtual VA electronic claims file reveals additional VA outpatient treatment records dated through April 2012. As these records have been considered by the RO, as reflected in the October 2012 Supplemental Statement of the Case, remand for initial RO consideration of these records is not required. FINDINGS OF FACT 1. The Veteran is not shown to have manifested complaints or findings referable to Crohn's disease, ulcers or colitis in service or for several years thereafter. 2. The currently demonstrated Crohn's disease, ulcers and colitis are not shown to be due to a documented injury or other event or incident of the Veteran's period of active service or to have been caused or aggravated by a service-connected disability. 3. The Veteran is not found to have presented credible lay assertions sufficient to establish a continuity of symptomatology referable to Crohn's disease, ulcers or colitis since service; nor is he found to be competent to render an opinion linking the development of the Crohn's disease, ulcers or colitis to his service-connected disabilities, to include the use of medication to treat such disabilities, on the basis of direct causation or aggravation. CONCLUSION OF LAW The Veteran's disability manifested by Crohn's disease, ulcers and colitis is not due to disease or injury that was incurred in or aggravated by active service, nor may a peptic ulcers be presumed to have been incurred therein; nor was any caused or aggravated by a service connected disability. 38 U.S.C.A. §§ 1101, 1112, 1113, 1131, 1137 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act (VCAA) The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 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); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). The RO provided VCAA notice letters to the Veteran in September 2006, December 2007, September 2008, May 2009, and July 2010. The letters notified the Veteran of what information and evidence must be submitted to substantiate a claim for service connection and secondary service connection, as well as what information and evidence must be provided by the Veteran and what information and evidence would be obtained by VA. The Veteran was also told to inform VA of any additional information or evidence that VA should have, and was told to submit evidence in support of his claim to the RO. The content of the letters complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b). The requirements of VCAA also include notice of a disability rating and an effective date for award of benefits if service connection is granted. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Veteran was provided with notice of the type of evidence necessary to establish a disability rating and effective dates in September 2006, December 2007, September 2008, May 2009, and July 2010 letters. The claim was readjudicated in the October 2012 Supplemental Statements of the Case, thus curing any lack of timeliness of notice. Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). The Board finds that all relevant evidence has been obtained with regard to the Veteran's claim, and the duty to assist requirements has been satisfied. All available service treatment records were obtained. The VA treatment records dated from 1995 to 2012 are associated with the claims folder. In April 2012, the Veteran indicated that he had no additional information or evidence to submit in support of his claim. The Veteran underwent VA examinations in 2006, 2009, 2010 and 2012 to obtain medical evidence as to the nature and likely etiology of the claimed Crohn's disease, ulcers and colitis. Under the circumstances, the Board finds that there is no reasonable possibility that further assistance would aid the Veteran in substantiating the claim. Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist him in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v. Principi, 15 Vet. App. 143 (2001). Service Connection Laws and Regulations Service connection will be granted for disability resulting from a disease or injury incurred in or aggravated by military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. 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 entity is established, there is no requirement of evidentiary showing of continuity. A continuity of symptomatology is required only where the condition noted during service 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. 38 C.F.R. § 3.303(b). Service connection may also be granted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection requires competent evidence showing, (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 1163, 1167 (Fed. Cir. 2004), citing Hansen v. Principi, 16 Vet. App. 110, 111 (2002); see also Caluza v. Brown, 7 Vet. App. 498 (1995). Secondary service connection shall be awarded when a disability is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Additional disability resulting from the aggravation of a nonservice-connected condition by a service-connected condition is also compensable under 38 C.F.R. § 3.310(a). Libertine v. Brown, 9 Vet. App. 521, 522 (1996); see also Reiber v. Brown, 7 Vet. App. 513, 515-16 (1995); Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). In addition, if a veteran served continuously for ninety (90) or more days during a period of war or after December 31, 1946, and if a peptic ulcer became manifest to a degree of 10 percent or more within one year from the date of the veteran's termination of such service, that condition would be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. Such a presumption would be rebuttable, however, by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. With disability compensation claims, VA adjudicators are directed to assess both medical and lay evidence. As a general matter, a layperson is not capable of opining on matters requiring medical knowledge. See 38 C.F.R. § 3.159(a)(2); see also Routen v. Brown, 10 Vet. App. 183, 186 (1997) ("a layperson is generally not capable of opining on matters requiring medical knowledge"). In certain circumstances, however, lay evidence may be sufficient to establish a medical diagnosis or nexus. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). In addressing lay evidence and determining its probative value, if any, attention is directed to both competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted"). See Layno v. Brown, 6 Vet. App. 465, 469 (1994). In terms of competency, lay evidence has been found to be competent with regard to a disease with "unique and readily identifiable features" that is "capable of lay observation." See Barr v. Nicholson, 21 Vet. App. 303, 308-09 (2007) (concerning varicose veins); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (a dislocated shoulder); Charles v. Principi, 16 Vet. App. 370, 374 (2002) (tinnitus); Falzone v. Brown, 8 Vet. App. 398, 405 (1995) (flatfoot). That notwithstanding, a Veteran is not competent to provide evidence as to more complex medical questions and, specifically, is not competent to provide an opinion as to etiology in such cases. See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (concerning rheumatic fever); see also Routen v. Brown, supra. 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. See generally 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. See Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006); but see Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000) (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). Once the evidence has been assembled, it is the Board's responsibility to evaluate the evidence. 38 U.S.C.A. § 7104(a). The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 7105; 38 C.F.R. §§ 3.102, 4.3. Analysis The Veteran contends that his Crohn's disease, ulcers and colitis are the result of his service-connected disabilities. In particular, the Veteran asserts that the non-steroidal anti-inflammatory drugs (NSAIDs) used to treat his service-connected disabilities-including bilateral hip and knee degenerative joint disease-have aggravated his Crohn's disease, ulcers, and colitis. At the outset, the Board notes that the Veteran's service treatment record do not reflect-nor does the Veteran contend- the onset of Crohn's disease, ulcers, or colitis in service. There are no complaints, findings, or diagnoses related to any of these claimed conditions in service. There were no abnormalities with respect to the claimed disabilities found on the Veteran's March 1982 discharge examination. Following the Veteran's discharge from service, the records from the Lourdes Hospital dated in November 1993 showed that the Veteran reported with complaints of abdominal pain and vomiting. A history of peptic ulcer disease and ulcerative colitis was recorded. An initial impression of abdominal pain and vomiting probably secondary to intestinal obstruction, rule out exacerbation of peptic ulcer disease, rule out colitis, was indicated. The Veteran was admitted for treatment and further testing. Upon his discharge approximately ten days later, diagnoses included those of small bowel intestinal obstruction, Crohn's colitis, and peptic ulcer disease. The Veteran subsequently underwent small bowel resection. On VA examination in January 1995, the examiner noted a diagnosis of Crohn's disease since 1993. A past history of a bleeding duodenal ulcer in 1988 was also recorded. This had been treated with an upper gastrointestinal endoscopy and cauterization. After the examination, an impression of significant Crohn's disease starting in 1993 was indicated. A March 2000 VA outpatient treatment report showed a past medical history significant for peptic ulcer disease and Crohn's disease. It was noted that the Veteran was diagnosed with peptic ulcer disease in 1988 when he presented with a bleeding ulcer and underwent cauterization. His past history was also significant for intestinal resection of approximately four and one-half feet. He had not had any flare-ups since the surgery. He complained of having dyspeptic symptoms and heartburn upon eating certain foods and admitted to taking baby aspirin on occasion for abdominal pain. An impression of peptic ulcer disease and intermittent epigastric abdominal pain was recorded. On VA treatment in January 2002, the Veteran reported having chronic back pain. The treating nurse practitioner noted that the Veteran could take Tylenol since he had a history of peptic ulcers and deferred from giving him a NSAID. A July 2003 VA outpatient treatment report reflected that the Veteran was seen for evaluation and follow-up of his Crohn's disease. A history of peptic ulcer disease and gastrointestinal reflux disease was also noted. He drank eight cups of coffee and smoked one and one-half packs of cigarettes daily, but did not drink alcohol. Current symptoms included intermittent reflux and dyspepsia. It was indicated that the Veteran was currently at his baseline bowel habit and had no treatment except for Loperamide. In May 2003, the Veteran again complained of low back as well as hip pain. It was also again noted that the Veteran was not able to tolerate NSAIDs, but could take Tylenol as needed for pain. In September 2003, the Veteran reported having complaints of low back pain. A history of bowel disorders, now limited to Crohn's disease and perforated ulcer, was also recorded. It was noted that, as a result of these conditions, he was not a candidate for typical NSAIDs. A September 2003 upper gastrointestinal series and small bowel examination revealed slight Crohn's disease of the terminal ileum. There was deformity in the region of the cecum, which was thought to be potentially secondary to a primary anastomosis from the resection. The Veteran was seen again for treatment of Crohn's disease in August 2004. At that time, the treating physician found that the Veteran had limited disease. A December 2005 VA outpatient treatment report reflected that the Veteran presented with a history of Crohn's ileitis in the past, status post small bowel resection. He had been on Mesalamine and took occasional ibuprofen for headaches. The Veteran underwent colonoscopy and esophagogastroduodenoscopy. An impression of an anastomotic ulcer at the ileocolonic anastomosis was indicated. In addition, there were erosions in the stomach and in the duodenum. A July 2006 gastrointestinal series and small bowel examination report noted an impression of multiple regions of narrowing in the small intestine, consistent with Crohn's disease, and gastroesophageal reflux. On VA examination in November 2006, the examiner noted that he reviewed the Veteran's claims file and found no records that described complaints or treatment of an intestinal condition while he was in the military. The first documented treatment describing gastrointestinal complaints was in 1988. He was not diagnosed with Crohn's disease until 1993, after undergoing a partial small bowel resection. He did not have a flare-up again until 2000. After an interview of the Veteran, the examiner diagnosed Crohn's disease. He determined that that currently diagnosed Crohn's disease was not the result of service, as there were no records discussing complaints or treatment for a gastrointestinal condition during the time he was in service. A March 2007 CT scan of the upper gastrointestinal tract and small bowel revealed a small hiatal hernia with Schatzki's ring, and Crohn's disease affecting the terminal ileum with narrowing, scar formation, and bowel wall thickening. An October 2009 VA examination report noted that the Veteran's ulcers were first manifested in 1988. He was further evaluated at that time and found to have colitis. In November 1993, the Veteran learned that he had Crohn's disease and underwent a bowel resection. Since then, the Veteran had been treated with Loperamide, folic acid, calcium, B-12, cholesterol-lowering medication, and Meslamine for his Crohn's disease. He had occasional flare-ups, which he treated with a liquid diet. He continued to experience fatigue associated with his Crohn's disease. After his review of the Veteran's medical records and the physical examination, the examiner diagnosed Crohn's disease, status post partial resection of the intestine, requiring chronic medication to control symptoms. The examiner indicated that the Veteran himself indicated that he did not feel that his Crohn's disease was related to his orthopedic conditions that were degenerative and non-inflammatory in nature. The examiner noted that, although NSAIDs used to treat orthopedic conditions could aggravate inflammatory bowel diseases such as Crohn's, the Veteran did not provide a history of using these medications and was avoiding them at that time. An April 2010 CT scan of the small bowel revealed irregularity and segmental narrowing involving the neoterminal ileum consistent with a history of Crohn's disease. In August 2010, the Veteran underwent a colonoscopy and reported a history of recurrent of Crohn's disease. When the Veteran reported for a VA examination a few days later, he had increased abdominal pain following the colonoscopy. After a review of the claims file and physical examination, the examiner diagnosed active Crohn's disease with recent balloon dilation during colonoscopy, causing continued abdominal pain. He opined that it was less likely than not that the Veteran's Crohn's disease was related to the service-connected disabilities. The examiner noted that there were notations in the Veteran's treatment records in June 1998 and September 2003 of him taking NSAIDs for pain treatment. He noted that a review of the medical literature suggested that NSAIDSs could cause a relapse if one already had Crohn's disease, but it was not a cause of Crohn's. The Veteran reported that he avoided taking any over-the-counter medications so as to not aggravate his Crohn's disease. The examiner commented that it was not proved that using NSAIDs would commonly cause a relapse to occur with everyone or it only happened in a small number of individuals. As to another service-connected disability causing Crohn's, the examiner noted that there were no associated systemic or regional illnesses to support any relationship with any of his service-connected disabilities. In addition, the claimed disability is a disease of the gastrointestinal system, unrelated to the musculoskeletal system and treatment for musculoskeletal conditions. In April 2012, the Veteran claims file was returned to the August 2010 VA examiner for addendum opinion on a possible relationship between the Veteran's use of NSAIDs to treat his service-connected disabilities and the claimed Crohn's disease, ulcers and colitis. After review of the claims file, the VA examiner again opined that it was less likely as not that the claimed Crohn's disease was aggravated by the use of NSAIDs or other medication taken to treat the service-connected disabilities. In so finding, she noted that Crohn's Disease was diagnosed in 1993 when he underwent a small bowel or segmental colon resection. The small bowel was the area of the bowel affected by Crohn's disease. The Veteran had an upper gastrointestinal gastritis, which she indicated would not be uncommon with past heavy alcohol use, as the Veteran has indicated was his case. The examiner also noted that genetic factors were known to be strongly associated with Crohn's disease and that the Veteran had a strong family history of colitis, including a sister and a cousin, as well as a family history of ulcers. In addition, the examiner noted that an August 2004 VA outpatient treatment report detailed the small bowel and the beginning of the large bowel as the area's affected by Crohn's. She noted that NSAIDs, conversely, were known to affect the upper gastrointestinal tract. In addition, a March 2012 report limited the extent of bowel involvement by stating that he had ileocolonic Crohn's disease (small intestine). The examiner indicated that, while it was possible that the distal gastrointestinal tract was affected by NSAIDS, the medical literature reflected that the proportion of patient who developed clinically important NSAID-induced enteropathy remained relatively small. In sum, the examiner noted that the Veteran's symptoms were of the lower bowel, the area where he had surgery, and not the upper gastrointestinal tract where NSAIDs would most likely cause damage. Moreover, the examiner also noted that chronic smoking could affect the bowels, with smokers being twice as likely to develop disease as non-smokers. The examiner also pointed out that there was little documentation in the record of use of NSAIDs. For example, in November 2005, the Veteran specifically denied the use of NSAIDs, but he did endorse cigarette smoking. In one report, the Veteran reported taking aspirin-but not for his orthopedic problems but rather for stomach pain. She further noted that a biopsy completed in 2005 did not show evidence of damage that was pathognomic of NSAID injury. She indicated that further evidence that NSAIDs had not affected the Veteran's Crohn's disease was the fact that he continued to have symptoms despite discontinuing the use of these types of medications. Moreover, there was no evidence to prove the claim that NSAIDs or other medications either caused or aggravated the Veteran's Crohn's disease. The Board has the duty to assess the credibility and weight to be given to the evidence. See Madden v. Gober, 125 F.3d 1477 (Fed. Cir. 1997), and cases cited therein. In assessing such evidence, whether a physician provides a basis for his or her medical opinion goes to the weight or credibility of the evidence in the adjudication of the merits. See Hernandez-Toyens v. West, 11 Vet. App. 379, 392 (1998). Other factors for assessing the probative value of a medical opinion are the physician's access to the claims file and the thoroughness and detail of the opinion. See Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998); see also Prejean v. West, 13 Vet. App. 444, 448-9 (2000). In Nieves Rodriguez v. Peake, 22 Vet. App. 295 (2008), the Court found that the guiding factors in evaluating the probity of a medical opinion are whether the opinion was based on sufficient factors or data, whether the opinion was the product of reliable principles and methods, and whether the medical profession applied the principles and methods reliably to the facts of the case. Id. The Court indicated that the claims file "[was] not a magical or talismanic set of documents, but rather a tool to assist VA examiners to become familiar with the facts necessary to form an expert opinion to assist the adjudicator in making a decision on a claim. Id. The Board finds the April 2012 VA medical opinion to have significant probative weight in this case as it reflects the most comprehensive and reasoned review of the entire evidentiary records. The examiner provided a rationale for the conclusions reached, and specifically considered the Veteran's medical history in formulating her opinions. While previous VA medical examinations suggested a potential relationship between use of NSAIDs and Crohn's disease, none provided a definitive, reasoned opinion specific to the Veteran's medical history and treatment records. Therefore, the Board affords these previous opinions little probative weight. The Veteran himself relates the current Crohn's disease, ulcers and colitis to his service-connected disabilities. Although the Veteran, as a layperson, is competent to testify as to observable symptoms, where the determinative issue involves a question of medical diagnosis or causation, only individuals possessing specialized medical training and knowledge are competent to render such an opinion. See Routen, 10 Vet. App. at 186, aff'd sub nom. Routen v. West, 142 F.3d 1434 (Fed. Cir. 1998); see also 38 C.F.R. § 3.159(a)(1) and (2) defining, respectively, competent medical and lay evidence. Here, there is no evidence which establishes that the Veteran has medical expertise. The Veteran also has not provided any medical evidence or opinion to support his lay assertions that the current Crohn's disease, ulcers and colitis are due to an injury in service or the result of a service-connected disability. The Veteran is also not found to have presented credible lay assertions sufficient to establish a continuity of symptomatology referable to a chronic gastrointestinal disability since service. In summary, the Board finds that the preponderance of the evidence establishes that any current Crohn's disease, ulcers and colitis is not due to any documented event or incident of his period of service, or otherwise caused or aggravated by a service-connected disability, to include use of NSAIDs to treat his service-connected disabilities. Accordingly, on this record, the claim of service connection for Crohn's disease, ulcers and colitis must be denied. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine cannot be applied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for Crohn's disease, ulcers and colitis is denied. ____________________________________________ STEPHEN L. WILKINS Veterans Law Judge Board of Veterans' Appeals Department of Veterans Affairs