Citation Nr: 1304537	
Decision Date: 02/07/13    Archive Date: 02/19/13

DOCKET NO.  07-06 656	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Montgomery, Alabama


THE ISSUE

Entitlement to service connection for diverticulitis. 


REPRESENTATION

Appellant represented by:	C. Kemmerly, Attorney


ATTORNEY FOR THE BOARD

T. Azizi-Barcelo, Counsel


INTRODUCTION

The Veteran served on active duty from June 1967 to June 1969. 

This appeal arises from a January 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama, that denied the benefits sought on appeal.  In January 2011, the Board reopened and remanded the claim for additional development, and the case has been returned for further appellate review. 


FINDINGS OF FACT

Diverticulitis was not present during service, was first diagnosed after service, and is not shown to be related to a disease, injury, or event of service origin.


CONCLUSION OF LAW

The criteria for entitlement to service connection for diverticulitis have not been met.  38 U.S.C.A. §§ 1110, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

I.  Duties to Notify and Assist

VA has a duty to provide the Veteran notification of the information and evidence necessary to substantiate the claims submitted, the division of responsibilities in obtaining evidence, and assistance in developing evidence, pursuant to the Veterans Claims Assistance Act of 2000 (VCAA).  See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b).  The notice requirements were accomplished in letters sent in October 2005, and March 2006.  Mayfield v. Nicholson, 444 F.3d 1328, 1333 (Fed. Cir. 2006).  The March 2006 letter also provided notice of the type of evidence necessary to establish a disability rating or effective date for the claimed disabilities under consideration, pursuant to the recent holding in Dingess v. Nicholson, 19 Vet App 473 (2006).  The claim was readjudicated in the October 2012 supplemental statements of the case.

The Board also finds that all relevant facts have been properly developed, and that all evidence necessary for equitable resolution of the issue has been obtained.  The Veteran's service treatment records, Social Security Administration records, and private and VA treatment records have been obtained.  In addition, he has been provided with an appropriate VA examination in connection with his present claim.  He has not indicated there are any additional records that VA should seek to obtain on his behalf.  Therefore, the Board concludes that all reasonable efforts were made by VA to obtain evidence necessary to substantiate the Veteran's claim, and no further assistance to develop evidence is required.

II.  Service connection

The Veteran contends that his currently diagnosed diverticulitis had onset in service.  Specifically, the Veteran asserts that he had abdominal pain in service caused by diverticulitis.

Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability.  See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table).  The second and third elements may be established by showing continuity of symptomatology.  Continuity of symptomatology may be shown by demonstrating "(1) that a condition was 'noted' during service or any applicable presumption period; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology."  Barr v. Nicholson, 21 Vet. App. 303, 307 (2007); see also Davidson, 581 F.3d at 1316; Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (holding that "[w]hether lay evidence is competent and sufficient in a particular case is a factual issue to be addressed by the Board").

In making all determinations, the Board must fully consider the lay assertions of record.  A layperson is competent to report on the onset and continuity of his current symptomatology.  See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge).  Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.  Davidson, 581 F.3d at 1316; Jandreau, 492 F.3d at 1376-77.  When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent.  Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau, 492 F.3d at 1376-77.

The Board is charged with the duty to assess the credibility and weight given to evidence.  Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001).  Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability.  Id. at 1076; see also 38 U.S.C.A. § 7104(a) (West 2002).  Moreover, the United States Court of Appeals for Veterans Claims (Court) has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence.  Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). 

As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing.  See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996).

The Veteran is competent to describe gastrointestinal (GI) symptoms, to include abdominal pain, which he can perceive, but the presence of diverticulitis is not a condition capable of lay observation because it relies upon GI testing.  Savage v. Gober, 10 Vet. App. 488 (1997); Barr v. Nicholson, 21 Vet. App. 303 (2007).  In this case, the evidence shows that the Veteran has been diagnosed with diverticulitis.  As such, the remaining question before the Board is whether there is nexus between the currently diagnosed diverticulitis and his service.  Brock v. Brown, 10 Vet. App. 155 (1997); Libertine v. Brown, 9 Vet. App. 521 (1996); Beausoleil v. Brown, 8 Vet. App. 459 (1996).

The Veteran's service treatment records contain no complaints, findings or diagnosis consistent with diverticulitis, and on separation examination in April 1969, the Veteran denied ever having had either frequent indigestion or stomach trouble.  While an abdominal and visceral abnormality was noted on clinical evaluation at that time, it was specifically identified as a right inguinal hernia.  On the basis of the service medical records, diverticulitis was not affirmatively shown to be present during service.  38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303(a) (2012).  

To the extent that the Veteran claims continuity of symptomatology of diverticulitis after discharge from service, the Board acknowledges that lay evidence concerning continuity of symptoms after service, if credible, can be competent, despite the lack of contemporaneous medical evidence.  Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006).  In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant.  Gabrielson v. Brown, 7 Vet. App. 36 (1994); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  The Board may consider internal consistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant.  Caluza v. Brown, 7 Vet. App. 498 (1995).  The Board is not required to accept an appellant's uncorroborated account of his active service experiences.  Wood v. Derwinski, 1 Vet. App. 190 (1991). 

After service, in February 1970 and August 1970, the Veteran complained of stomach pain, which was associated with an ulcer.  On VA examination in October 1971, the Veteran complained of occasional stomach pain.  The diagnosis was right inguinal hernia.  Private treatment records in 1981 noted complaints of epigastric pain.  A VA examination report in July 1986, noted that a GI series revealed no abnormalities.  In January 1988, the presence of diverticulitis of the colon was first medically recorded.  In February 1990 the Veteran was diagnosed with mild diverticulitis of the descending colon.  Subsequent private and VA treatment records, show continued complaints of abdominal pain and diarrhea, along with treatment for recurring diverticulitis, to include treatment with antibiotics.  A record dated in November 2009, reflected the presence of what was described as severe diverticulitis.  Accordingly, diverticulitis was initially diagnosed in 1988, 19 years after discharge from service.  The time lapse between service and any documented evidence of treatment can be considered, along with other factors, as evidence of whether an injury or disease was incurred in service which resulted in any chronic or persistent disability.  See Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000).  Moreover, while in connection with his application for VA benefits the Veteran reported onset of diverticulitis in service, that account is contradicted by the service medical records and the post-service treatment records.  There is no evidence contemporaneous with service or prior to 1988 that shows complaints or clinical findings attributed to diverticulitis.  

The Board has weighed statements made by the Veteran as to continuity of symptomatology and finds the current recollections and statements made in connection with a claim for benefits to be of lesser probative value.  As a finder of fact, the Board, when considering whether lay evidence is satisfactory, may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran.  Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Pond v. West, 12 Vet. App. 341 (1999).  In considering the statements of the Veteran as to continuity of symptomatology, in light of the evidence discussed, the Board finds that they did not present a credible history because they are inconsistent with other evidence of record, specifically, service and post-service discharge records from 1967 to 1988.  Therefore, the Board finds that continuity of symptomatology has not been established, either through the competent evidence or through the Veteran's statements.

As for service connection based on the initial diagnosis after service, where the determinative issue involves a question of a medical nexus or medical causation, a lay assertion of medical causation is not competent evidence.  Grottveit v. Brown, 5 Vet. App. 91 (1993).  Competent medical evidence is required to substantiate the claim.  Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer a medical opinion.  38 C.F.R. § 3.159 (2012).

In this case, the diagnosis of diverticulitis was based on results of clinical testing.  Therefore, diverticulitis is not a simple medical condition that a lay person is competent to identify as a lay person is not qualified through education, training, or experience to interpret GI testing. 

Thus, the determinative question in this case involves causation, and in this particular instance it is only established with supporting medical nexus evidence, not just lay opinion.  On the question of medical causation, medical evidence of an association or link between the current diverticulitis, first noted after service, and service, there is evidence both for and against the claim.  But, the Board finds that the most probative evidence is against the claim.  38 C.F.R. § 3.303(d) (2012).

With regard to medical opinions, the probative value or evidentiary weight to be attached to a medical opinion is within the Board's province as finder of fact.  In determining the probative value to be assigned to a medical opinion, the Board must consider three factors.  See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008).  The initial inquiry in determining probative value is to assess whether a medical expert was fully informed of the pertinent factual premises (i.e., medical history) of the case.  A review of the claims file is not required, since a medical professional can also become aware of the relevant medical history by having treated a Veteran for a long period of time or through a factually accurate medical history reported by a Veteran.  See id. at 303-04.  The second inquiry involves consideration of whether the medical expert provided a fully articulated opinion.  See Id.  A medical opinion that is equivocal in nature or expressed in speculative language does not provide the degree of certainty required for medical nexus evidence.  See McLendon v. Nicholson, 20 Vet. App. 79 (2006).

The third and final factor in determining the probative value of an opinion involves consideration of whether the opinion is supported by a reasoned analysis.  The most probative value of a medical opinion comes from its reasoning.  Therefore, a medical opinion containing only data and conclusions is not entitled to any weight.  In fact, a review of the claims file does not substitute for a lack of a reasoned analysis.  See Nieves-Rodriguez, 22 Vet. App. at 304; see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A] medical opinion... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions.").  

The medical evidence in favor of the claim consists of an August 2006 statement, from the Veteran's private physician, Dr. M. Hoffman, who provided an opinion linking abdominal pain in 1969 to the currently diagnosed diverticulitis.  Dr. Hoffman indicated that the Veteran suffered from recurrent abdominal pain, bowel irregularities, and various food intolerances related to recurrent diverticular inflammatory disease.  Dr. Hoffman opined that more than likely, the abdominal pain suffered by the Veteran in 1969 was due to diverticulitis.  Although the statement was made by a health-care professional, the statement is nevertheless a mere conclusion without medical analysis and is insufficient to allow the Board to make an informed decision as to what weight to assign against contrary evidence on the question of whether the Veteran's diverticulitis had onset in service.  Stefl v. Nicholson, 21 Vet. App. 120 (2007) (a mere conclusion by a medical doctor is insufficient to allow the Board to make an informed decision as to what weight to assign the opinion).  Moreover, it does not appear that Dr. Hoffman reviewed the service treatment records and his opinion is not supported by the medical evidence.  In this regard, as previously noted, at his service separation examination in April 1969, the Veteran denied ever having had either frequent indigestion or stomach trouble.  While an abdominal and visceral abnormality was noted on clinical evaluation, it was specifically identified as a right inguinal hernia.  In addition, there are no post-service medical records in the file dated in 1969.  Therefore, the basis for the assertion of the existence of abdominal pain in 1969, is unclear.  In fact, the evidence does not show any complaint, finding, treatment, or diagnosis of diverticulitis during or contemporaneous with service or for many years after service.  Moreover, the evidence of record, to include VA examination and opinion report, contradicts and therefore does not support Dr. Hoffman's statement.  Accordingly, the Board finds that the opinion statement by Dr. Hoffman, while a statement by a competent medical professional, and while having some probative value, is nonetheless less persuasive in support of the claim than the examination and opinion reports rendered by the VA examiner.  

The evidence against the claim is the VA examiner's medical opinion in May 2012.  On examination, the Veteran reported abdominal pain in service which was associated with a hernia.  After his hernia was fixed, the pain subsided until 1986, when he developed abdominal pain.  Following a colonoscopy, Dr. Hoffman diagnosed diverticulitis.  His current symptoms included mild bilateral lower quadrant abdominal pain alleviated by taking medication.  The Veteran described severe flare-ups of diverticulitis, with pain rated as 8/10 with diarrhea.  Flare-ups occurred approximately every 3 years, and required treatment with antibiotics.  The examiner also noted treatment for chronic recurrent duodenal ulcer and hiatus hernia from 1986 to 2006.  The examiner diagnosed diverticulitis, and opined that it was less likely than not that the Veteran's diverticulitis was incurred or caused by service.  The examiner explained that the service treatment records contained no findings indicative of diverticulitis.  In fact, diverticulitis was initially diagnosed 19 years after discharge from active duty in 1988, by barium enema.  

The Board attaches greater weight to the opinion of the VA examiner's opinion because the opinion is reasoned, detailed, consistent with other evidence of record, and included an access to the accurate background of the Veteran.  Prejean v. West, 13 Vet. App. 444 (2000).  The VA examiner's opinion was based on review of the Veteran's claims file, to include the service treatment records, and post-service medical evidence with examination reports conducted by private and VA clinicians, and it also explained why the Veteran's diverticulitis was not incurred in service.  Green v. Derwinski, 1 Vet. App. 121 (1991).  

Accordingly, the Board finds that the preponderance of the evidence is against the claim for service connection for diverticulitis and the claim must be denied.  38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).


ORDER

Service connection for diverticulitis is denied.  



____________________________________________
MICHAEL E. KILCOYNE
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs