Citation Nr: 1311922 Decision Date: 04/10/13 Archive Date: 04/19/13 DOCKET NO. 08-37 739 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Entitlement to service connection for irritable bowel syndrome (IBS), to include as secondary to the Veteran's service connected psychiatric disability. ATTORNEY FOR THE BOARD J. L. Prichard, Counsel INTRODUCTION The Veteran had active service from December 1986 to October 1988. This matter comes before the Board of Veterans' Appeals (Board) on appeal of an April 2008 rating decision of the Muskogee, Oklahoma, regional office (RO) of the Department of Veterans Affairs (VA). In December 2008, prior to receipt of the appeal at the Board, the State of Oklahoma Department of Veterans Affairs withdrew as the Veteran's representative. The Veteran has not appointed new representation. This matter was previously before the Board in August 2010 and February 2011 but was remanded for additional development. The requested development has been completed, and the matter has been returned to the Board for further review. The issue of entitlement to service connection for a psychiatric disability was also on appeal to the Board in August 2010 and February 2011. After the development requested in February 2011 was completed, entitlement to service connection for major depression with anxiety was granted in an August 2012 rating decision. This is considered a complete grant of the benefit sought on appeal, and the claim for service connection for a psychiatric disability is no longer before the Board. The Board has reviewed the Veteran's electronic record (Virtual VA) prior to rendering a decision in this case. It does not contain any evidence not already in the claims folder or considered by the RO. FINDING OF FACT The Veteran has current IBS that was aggravated by his service connected major depression with anxiety; there is evidence created prior to the aggravation showing a baseline of the IBS. CONCLUSION OF LAW The Veteran's irritable bowel syndrome was aggravated by his service connected major depression with anxiety and the criteria for service connection have been satisfied. 38 U.S.C.A. §§ 1131, 5107(b) (West 2002); 38 C.F.R. §§ 3.303(a), 3.304(b), 3.310 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION VCAA The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); Pub.L. 112-154, §§ 504(a)(1)-(2), 505(a)-(b) (Aug. 6, 2012) (to be codified at 38 U.S.C.A. §§ 5103(a)-(b), 5103A(b)-(c)); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). The VCAA is not applicable where further assistance would not aid the appellant in substantiating his claim. Wensch v. Principi, 15 Vet App 362 (2001); see 38 U.S.C.A. § 5103A(a)(2) (Secretary not required to provide assistance "if no reasonable possibility exists that such assistance would aid in substantiating the claim"); see also VAOPGCPREC 5-2004; 69 Fed. Reg. 59989 (2004) (holding that the notice and duty to assist provisions of the VCAA do not apply to claims that could not be substantiated through such notice and assistance). In view of the Board's favorable decision in this appeal, further assistance is unnecessary to aid the veteran in substantiating his claim. Service Connection The Veteran contends that he has developed IBS due to active service. He argues that this disability was either aggravated by active service, or that it has been aggravated by his service connected major depression with anxiety. Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires evidence of (1) a current disability; (2) 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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table); Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303. Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden/Caluza element is through a demonstration of continuity of symptomatology. However, this method may be used only for the chronic disabilities noted in 38 C.F.R. § 3.309. Walker v. Shinseki 701 F.3d 1331 (Fed. Cir. 2013). These disabilities do not include IBS. In addition to service connection on a direct basis, a disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. 38 C.F.R. § 3.310(a). Secondary service connection may also be established for a nonservice-connected disability which is aggravated by a service connected disability. In this instance, the veteran may be compensated for the degree of disability over and above the degree of disability existing prior to the aggravation. Allen v. Brown, 7 Vet. App. 439 (1995). However, secondary service connection on the basis of aggravation may not be awarded unless the baseline severity of the nonservice-connected disability is established by medical evidence. 38 C.F.R. § 3.310(b). In a claim for secondary service connection for a diagnosis clearly separate from the service-connected disorder, the veteran must present evidence of a medical nature to support the alleged causal relationship between the service-connected disorder and the disorder for which secondary service connection is sought. See Jones v. Brown, 7 Vet. App. 134 (1994). With regard to the medical evidence, a diagnosis or opinion by a health care professional is not conclusive, and is not entitled to absolute deference. Indeed, the Court has provided guidance for weighing medical evidence. The Court has held, for example, that in meeting our responsibility to weigh the credibility and probative value of the evidence, we may accept one medical opinion and reject others. Schoolman v. West, 12 Vet. App. 307, 310-11 (1999); Evans v. West, 12 Vet. App. 22, 30 (1998), citing Owens v. Brown, 7 Vet. App. 429, 433 (1995). But, the Board is mindful that it cannot make its own independent medical determinations, and that it must have plausible reasons, based upon medical evidence in the record, for favoring one medical opinion over another. Evans v. West, supra; see also Rucker v. Brown, 10 Vet. App. 67, 74 (1997), citing Colvin v. Derwinski, 1 Vet. App. 171 (1991). Thus, the weight to be accorded the various items of evidence in this case must be determined by the quality of the evidence, and not necessarily by its quantity or source. In assessing medical opinions, the failure of the physician to provide a basis for his 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, 382 (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 Prejean v. West, 13 Vet. App. 444, 448-49 (2000). 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." Bloom v. West, 12 Vet. App. 185, 187 (1999), and a medical opinion is inadequate when it is unsupported by clinical evidence. Black v. Brown, 5 Vet. App. 177, 180 (1995). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107(b). The service treatment records show that on the September 1986 Report of Medical History completed by the Veteran prior to entry into service, he noted he had been told by a doctor he might have "colitis". The symptoms had stopped after he followed the doctor's advice to eat a high fiber diet. The Veteran noted that the doctor had not performed any diagnostic tests. He added that the doctor thought it might be a "nervous colon" but the Veteran reported that he was not that nervous. The examiner indicated that this was not considered disqualifying, and the Report of Medical Examination showed that the abdomen and viscera were normal. There was no mention of a gastrointestinal disability. Therefore, by law the Veteran is presumed to have been normal upon entry into active service, and only clear and unmistakable evidence can rebut this presumption. 38 C.F.R. § 3.304(b). The remaining service treatment records reveal that the Veteran was seen on two occasions for gastrointestinal complaints. He reported nausea and diarrhea in August 1987, which resulted in an assessment of a viral cause. In August 1988 he reported diarrhea and frequent bowel movements that had been present for six days. The assessment was a hemorrhoid. The October 1988 separation examination found that the abdomen and viscera were normal, and there was no mention of a gastrointestinal disability. A Report of Medical History was apparently not completed. The Veteran reports that after service he continued to experience gastrointestinal symptoms on a regular basis, and was eventually told this was irritable bowel syndrome. A February 2008 statement from his mother recounts an incident in which the Veteran had a gastrointestinal episode in either late 1988 or 1989. The earliest post service medical records showing gastrointestinal symptoms is a private treatment record dated in February 1998. This shows that the Veteran reported abdominal pain. A May 1998 private record contains a diagnosis of colitis, and a June 1998 private record contains a provisional diagnosis of IBS. VA treatment records from December 2000 state that the Veteran had a history of a gastric ulcer, and February 2001 records show an assessment of diarrhea with abdominal cramp. Additional VA records note nausea with a history of an ulcer in December 2007, and gastroesophageal reflux disease was found on a February 2008 upper GI series. The Veteran reported that his Zoloft was causing him to have diarrhea in February 2009. The Veteran was afforded a VA examination in October 2012, which noted a 2008 diagnosis of IBS. The examiner opined that the Veteran's IBS was not related to service or to his service connected psychiatric disability, and was not aggravated by his, now service connected, psychiatric disability. However, part of the rationale provided by the examiner was that IBS was not confirmed in the record until 2008; as noted above the medical records contain a diagnosis as early as 1998. The examiner also did not address either the Veteran's reports of ongoing gastrointestinal symptoms since discharge from service, his reports that he was told by doctors prior to 1998 that he had IBS but was unable to obtain these records or the February 2008 statement from his mother that described gastrointestinal symptoms within the first year of discharge from service. As a result of these deficiencies, the Board sought and obtained an expert medical opinion from the Veterans Health Administration. This opinion was completed in March 2013. After a review of the claims folder, the expert noted that a medical diagnosis could not be made on the basis of records alone, but stated that the Veteran's symptoms were consistent with IBS. He opined that there was no clear and unmistakable evidence that the Veteran's IBS existed prior to service. He further opined that there was no enough medical evidence available to relate the Veteran's IBS to active service, although he added that based on the symptoms reported by the Veteran's mother, the IBS related symptoms may have been present as early as 1988. However, the expert noted that there was evidence in the medical literature to suggest that the diagnosis of IBS was seen most frequently in patients with established anxiety disorders. Therefore, based on the reports of the stresses that were incurred during military service, the expert opined that the diagnosis of IBS was more likely than not exacerbated by the Veteran's concurrent anxiety. He added that it was not entirely possible to determine the baseline symptoms of IBS, but described the Veteran's symptoms as mild. The Board finds that entitlement to service connection for IBS based on aggravation by the service connected major depression with anxiety is warranted. Initially, the evidence establishes that the Veteran has a current diagnosis of IBS. The first element of service connection has therefore been met. However, there must still be medical evidence that either relates this IBS to active service or to the Veteran's service connected major depression with anxiety before service connection may be established. The record does not demonstrate that the Veteran's IBS initially manifested during active service. Both the October 2012 VA examiner and the March 2013 VA expert were unable to opine that the IBS was incurred due to service. Furthermore, the October 2012 examiner opined that the IBS was not aggravated by the Veteran's service connected major depression with anxiety. However, the March 2013 VA expert opined that the Veteran's IBS was more likely than not exacerbated by his concurrent anxiety. The Board has already outlined the inaccurate description of the record provided by the October 2012 examiner. In contrast, the March 2013 expert provided an accurate description of the Veteran's medical history. These opinions are at least in equipoise. The Board therefore concludes that the Veteran's IBS was aggravated by his service connected major depression with anxiety. By regulation, service connection may not be established for a nonservice connected disability on the basis of aggravation by a service connected disability unless a baseline level of severity can be established by medical evidence created prior to the aggravation or by the earliest medical evidence at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of disability. The March 2013 examiner stated that this was not "entirely" possible. However, the March 2013 examiner also described the Veteran's current symptomatology as mild. The service treatment records do document periods when the disability was asymptomatic and thereby establish a baseline for the disability. Therefore, the Board finds that the baseline level for the Veteran's IBS was asymptomatic. 38 C.F.R. § 3.310(b). As a baseline level of severity has been established, and as medical opinion holds that IBS was aggravated by the service connected major depression, entitlement to service connection for IBS is warranted. 38 U.S.C.A. § 5107(b). ORDER Entitlement to service connection for irritable bowel syndrome is granted. ____________________________________________ Mark D. Hindin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs