Citation Nr: 1308099 Decision Date: 03/11/13 Archive Date: 03/20/13 DOCKET NO. 06-24 437 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUES 1. Entitlement to service connection for ulcerative colitis. 2. Entitlement to compensation benefits under the provisions of 38 U.S.C.A. § 1151 for ileostomy surgery. REPRESENTATION Appellant represented by: Vietnam Veterans of America WITNESSES AT HEARING ON APPEAL Appellant and his spouse ATTORNEY FOR THE BOARD J. Davitian, Counsel INTRODUCTION The Veteran served on active duty from January 1952 to January 1954. This matter comes before the Board of Veterans' Appeals (Board) on appeal from February 2006 and a March 2008 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Phoenix, Arizona, and Cleveland, Ohio, respectively. In September 2008, the Veteran was afforded a personal hearing before the undersigned. The Veteran's representative failed to appear at this hearing and the Veteran chose to proceed with the hearing without representation. A transcript of the hearing has been reviewed and is of record. When this case was previously before the Board in March 2009, April 2010 and January 2012, it was remanded for additional development. The issue of service connection for ulcerative colitis is now before the Board for final appellate consideration. The issue of entitlement to compensation benefits under the provisions of 38 U.S.C.A. § 1151 for ileostomy surgery is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDING OF FACT The competent medical, and competent and credible lay, evidence of record does not show that the Veteran's ulcerative colitis is related to active duty. CONCLUSION OF LAW Ulcerative colitis was not incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110 , 5103, 5103A, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.303, 3.304 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Notice and Assistance VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). See also Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Dingess v. Nicholson, 19 Vet. App. 473 (2006). Notice was provided in a June 2005 letter. Dingess notice was provided by an October 2006 letter. Accordingly, the duty to notify has been fulfilled. The claim was subsequently readjudicated, most recently in an October 2012 supplemental statement of the case. Mayfield, 444 F.3d at 1333. With regard to the duty to assist, the claim's file contains the Veteran's service treatment records, VA medical records, and the transcript of the September 2008 hearing. The Board has carefully reviewed the record and concludes that there has been no identification of further available evidence not already of record. In this regard, the Board finds that VA has substantially complied with the Board's prior remands. See D'Aries v. Peake, 22 Vet. App. 97, 104 (2008); Dyment v. West, 13 Vet. App. 141 (1999). In May 2009, VA requested records from St. Luke's Medical Center, and was informed that the records had been purged. A July 2009 VA memorandum provided that the RO had determined that the Veteran's medical records [apparently including those of the March 1993 surgery] from the Tucson VA Medical Center (VAMC) were unavailable. The memorandum RO stated that all procedures had been correctly followed, all efforts to obtain the needed information had been exhausted, and further attempts were futile. The Board's January 2012 remand found that certain additional private treatment records had not been obtained. As a result, in February 2012 VA requested that the Veteran complete an authorization allowing VA to obtain medical records from Scottsdale North Hospital. Later that month, the Veteran returned the authorization without any requested information, stating that he had done so months before. Thus, VA has been unable to obtain potentially favorable evidence. "The duty to assist is not always a one-way street. If a veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence." Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). The Board's January 2012 remand also found that an August 2010 VA medical opinion concerning the Veteran's service connection claim was inadequate because it failed to address the Veteran's credible testimony as to symptoms experienced during service and shortly after separation. The January 2012 remand also found that an August 2010 VA medical opinion concerning the Veteran's 1151 claim was inadequate because it was not offered by a qualified surgeon after review of the evidence. Thus, in a July 2012 report the August 2010 VA examiner and a VA surgical consultant (an apparent gastroenterologist) reviewed the file and offered additional opinions. In this regard, when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds that the July 2012 VA report is adequate with respect to the Veteran's service connection claim. In this report, the August 2010 VA examiner reviewed the Veteran's claims file, considered all of the pertinent evidence of record (including lay statements by the Veteran and his wife pertaining to post-service symptoms), and provided a rationale for the opinion offered. The Board recognizes that the VA surgical consultant did not offer an opinion with respect to the Veteran's service connection claim. Nevertheless, the January 2012 remand makes it clear that it was only the Veteran's 1151 claim that required review by a qualified surgeon. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the service connection issue on appeal has been met. 38 C.F.R. § 3.159(c) (4); Nieves-Rodriguez v. Peake, 22 Vet App 295 (2008). The Board finds that all relevant facts have been properly and sufficiently developed in this appeal and no further development is required to comply with the duty to assist the Veteran in developing the facts pertinent to his claim. Legal Analysis With respect to the Veteran's claim, the Board has reviewed all of the evidence in the claims file, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Indeed, the Court of Appeals for the Federal Circuit (Federal Circuit) has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim. In general, a veteran is entitled to service connection for a disability resulting from a disease or injury incurred or aggravated during active service. See 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection also is permissible for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303(d). In each case where a veteran is seeking service connection for any disability, due consideration shall be given to the places, types, and circumstances of such veteran's service as shown by such veteran's service record, the official history of each organization in which such veteran served, such veteran's medical records, and all pertinent medical and lay evidence. 38 U.S.C.A. § 1154(a). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. 38 U.S.C.A. § 5107(b). The Veteran contends that he incurred ulcerative colitis as a result of a nervous condition due to driving 5-ton ammo trucks in icy conditions. He asserts that the VA surgeon who conducted the March 1993 ileostomy surgery told him that his ulcerative colitis was service connected. The Veteran's wife asserts that she met him shortly after his active duty. She states that at that time he had problems with rectal bleeding and bloody stools that continued for years, and that he sought private treatment. The Veteran's daughter, a nurse with the degrees of RN, BSM, and MS, also contends that the Veteran developed ulcerative colitis due to driving a five-ton ammunition truck during the war. She also asserts that the March 1993 VA surgeon told the Veteran, his wife and her that the Veteran's ulcerative colitis was service connected. As noted above, VA treatment records of the March 1993 surgery are unavailable. The Veteran's service treatment records are silent for any complaints, treatment, or diagnoses of gastrointestinal problems. The report of the Veteran's January 1954 separation medical examination provides that his anus and rectum were normal on clinical evaluation. The report of an April 1954 VA examination for flat feet shows that the Veteran's digestive system was normal on physical examination. The Veteran contends that he was hospitalized in 1980 for ulcerative colitis at Scottsdale North Hospital. As noted above, records of such treatment are not in the claims file. An August 1991 VA treatment report provides that the Veteran reported having had ulcerative colitis for 20 years. During the September 2008 hearing, the Veteran stated that he received VA treatment for his ulcerative colitis in the early 1960s and began again receiving treatment from VA in the 1980s. The Veteran's private physician, Dr. R.T.M., responded in December 2005 to a VA request for records by stating that he had no medical records in his possession. He stated that the Veteran was admitted to Scottsdale Memorial Hospital-Osborn on at least one occasion in the 1980s for his ulcerative colitis and that his records might be available at St. Lukes Centre Medical Clinic in Phoenix where he practiced from 1987 to 1994. As noted above, this facility informed VA that the records had been purged. In a July 2012 medical opinion, the August 2010 VA examiner provided that he again reviewed the Veteran's claims file. He offered the opinion that the Veteran's ulcerative colitis was less likely than not (less than 50 percent probability) incurred in or caused by the claimed inservice injury, event or illness. As a rationale, the examiner stated that despite the absence of service treatment records documenting any rectal bleeding, it was reasonable to presume that the Veteran's description of the bleeding episodes was credible. The examiner noted that the Veteran's wife stated that the Veteran continued to have rectal bleeding episodes for "years" after service. The examiner pointed out that in a letter of February 2001 or 2007 (while the examiner noted that it was unclear which year, the Board notes that the letter was received in 2007), the Veteran stated that he had missed a field trip [during active duty] because of bleeding hemorrhoids, and was given a cream for the pain. The examiner stated that this indicated that there was a local source of bleeding, such as hemorrhoid or fissure. Neither the Veteran nor his wife described diarrhea, which was usually the primary symptom of inflammatory bowel disease, and it would have been unusual to have only rectal bleeding and certainly not with anal pain. The examiner stated that the next question would be that of a timely link from service to the actual known onset of more typical symptoms of ulcerative colitis. He said that the records after service pointed to a likely diagnosis of ulcerative colitis in the 1980s by Dr. M. Later, the approximate diagnosis of the ulcerative colitis was referred to by the Veteran as being the early 1970s, for example in the August 15, 1991, report. The examiner noted that even this earlier date would have been at least 16 years after service, an unlikely long interval for delay in diagnosis of inflammatory bowel disease severe enough that it had presented already 16 or more years before with gross bleeding. The examiner stated that all of these facts pointed in his opinion to anorectal bleeding, such as hemorrhoids or anal fissure [during active duty]. The onset of the ulcerative colitis appeared to have been 16 or more years later [after active duty]. The Board finds that this medical opinion constitutes probative evidence against the Veteran's claim. It is based on a detailed review of the medical record. The examiner explained his opinion with references to the Veteran's active duty and post-service medical history. This fact is particularly important, in the Board's judgment, as the references make for a more convincing rationale. See Bloom v. West, 12 Vet. App. 185, 187 (1999) (the probative value of a physician's statement is dependent, in part, upon the extent to which it reflects "clinical data or other rationale to support his opinion"). See Prejean v. West, 13 Vet. App. 444, 448-9 (2000) (factors for assessing the probative value of a medical opinion include the thoroughness and detail of the opinion.); Elkins v. Brown, 5 Vet. App. 474, 478 (1993) (medical opinions as to a nexus may decline in probative value where the physician fails to discuss relevant medical history). The Board is aware of the assertions by the Veteran's daughter. Although she is a nurse, the Board finds that her assertions provide no support for the Veteran's claim. She does not discuss the Veteran's active duty or post-service medical history in any detail. She does not refer to any clinical data. In fact, she provides no rationale. See Bloom, supra; see Prejean, supra; see Elkins, supra. The Board notes that the Veteran and his wife are competent to testify as to the Veteran's observable symptoms during and after active duty. The Board finds that their assertions are credible. However, the contentions by the Veteran and his wife that he incurred ulcerative colitis during active duty do not constitute medical evidence in support of his claim. Although lay persons are competent to provide opinions on some medical issues, the specific issue in this case of whether the Veteran had ulcerative colitis during active duty or shortly thereafter falls outside the realm of common knowledge of a lay person. See Kahana v. Shinseki, 24 Vet.App. 428, 435 (2011); Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer). As a result, the assertions by the Veteran and his witnesses cannot constitute competent medical evidence in support of his claim. The Board is aware that lay testimony is competent to establish the presence of observable symptomatology and "may provide sufficient support for a claim of service connection." Layno v. Brown, 6 Vet. App. 465, 469 (1994). Additionally, when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. Further, lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a 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. Jandreau, supra. The Veteran and his wife are competent to state that they observed the claimed symptoms during or after service. The Board finds them to be credible in this regard. However, they are not competent to attribute the coincidence of symptoms occurring during or after service as establishing the diagnosis and etiology of his current disability. As such, the Board finds that the assertions by the Veteran and his wife are outweighed by the July 2012 VA medical opinion. The Board has reviewed an Internet article submitted by the Veteran regarding ulcerative colitis. However, this document is too general in nature to provide, alone, the necessary evidence to show that the Veteran incurred or aggravated ulcerative colitis during active duty. See Sacks v. West, 11 Vet. App. 314, 316-17 (1998). The medical treatise, [textbook, or article] must provide more than speculative, generic statements not relevant to the veteran's claim but must discuss generic relationships with a degree of certainty for the facts of a specific case. Wallin v. West, 11 Vet. App. 509, 514 (1998). The document in the current case does not provide statements for the facts of the Veteran's specific case. Therefore, the Board concludes that it does not show to any degree of specificity that the Veteran's ulcerative colitis is related to active duty. In sum, the evidence demonstrates that the Veteran is not entitled to service connection for ulcerative colitis. As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. See generally Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001). ORDER Service connection for ulcerative colitis is denied. REMAND A preliminary review of the record indicates that the Veteran's 1151 claim requires additional development. The Board's January 2012 remand requested that a VA gastroenterologist review the Veteran's claims file and address, inter alia, the effects of the Veteran's March 1993 ileostomy. In doing so, the remand pointed out that the August 2010 VA examination report acknowledged that the Veteran did have an additional disability as a result of the surgery, specifically chronic pain around the anal area. In a July 2012 report, a VA surgical consultant provided the medical opinion that in his judgment there was no carelessness, negligence or lack of proper skill regarding the Veteran's surgical therapy for ulcerative colitis. In so stating, he addressed the question in terms of the surgery's goals, which he noted were to cure the Veteran's ulcerative colitis with resection and eliminate increased colorectal cancer risk. The VA surgical consultant also provided the general proposition that post-operative wound pain was a known occurrence of surgical procedures. However, the VA surgical consultant did not address whether in this case the Veteran's chronic post-operative anal pain constituted an additional disability that was a result of the March 1993 surgery, as already acknowledged by the August 2010 VA examination report. Thus, the development requested by the Board's January 2012 remand was not fully completed. A remand by the Board confers on the Veteran, as a matter of law, the right to compliance with the remand orders. Stegall v. West, 11 Vet. App. 268, 271 (1998). It imposes upon VA a concomitant duty to ensure compliance with the terms of the remand. Accordingly, the case is REMANDED for the following action: 1. Forward the Veteran's claims folder to the VA surgical consultant who offered the July 2012 medical opinion (or a suitable substitute if this individual is unavailable) for an addendum. The surgical consultant is requested to review the claims folder. The surgical consultant is asked to opine whether it is at least as likely as not (50 percent or more likelihood) that the March 1993 ileostomy resulted in additional disability (consisting of chronic pain around the anal area) beyond the natural progress of disease for which the surgery was furnished. If, and only if, the answer to this question is yes, the surgical consultant is asked to opine whether it is at least as likely as not (50 percent or more likelihood) that such the additional disability (consisting of chronic pain around the anal area) was the result of carelessness, negligence, lack of proper skill, error in judgment, similar instance of fault on VA's part in furnishing medical care, or an event not reasonably foreseeable? The surgical consultant is requested to specifically address the fact that the August 2010 VA examination report acknowledges that the Veteran did have additional disability as a result of the surgery, specifically, chronic pain around the anal area. The examiner is requested to provide a rationale for any opinion expressed. 2. Then, readjudicate the Veteran's claim. If the benefit sought on appeal remains denied, the appellant and his representative should be provided a supplemental statement of the case and afforded an opportunity to respond. The case should be returned to the Board for appellate review. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ____________________________________________ M. E. LARKIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs