Citation Nr: 1313725 Decision Date: 04/24/13 Archive Date: 05/03/13 DOCKET NO. 10-01 315 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for a chronic gastrointestinal disorder to include ulcerative colitis claimed as the result of herbicide exposure. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARINGS ON APPEAL Appellant ATTORNEY FOR THE BOARD D.J. Drucker, Counsel INTRODUCTION The Veteran had active military service from September 1971 to September 1975. This matter initially came to the Board of Veterans' Appeals (Board) on appeal from a September 2008 rating decision of the Department of Veteran's Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In October 2009, the Veteran testified during a personal hearing at the RO. A transcript of the hearing is of record. In July 2010, the Board remanded the Veteran's case to the RO to comply with his request to testify during a Board hearing. In December 2010, the Veteran testified during a hearing at the RO before the Board. A transcript of the hearing is of record. In May 2011 and October 2012, the Board remanded the Veteran's case to the RO for further evidentiary development. In January 2013, the Veteran submitted private medical evidence without a waiver of RO review. The records describe the Veteran's December 2012 treatment for small bowel surgery, but do not address whether the surgery for the gastrointestinal disorder was due to military service or service-connected disability. Nevertheless, given the Board's determination, herein, that grants the claim on appeal, there is no need to remand the Veteran's claim for initial RO consideration of this new evidence. The Board may proceed to adjudicate the Veteran's claim without prejudice to him. See 38 C.F.R. § 20.1304 (b),(c) (2012). FINDING OF FACT Resolving all doubt in the Veteran's favor, ulcerative colitis and complications are due to the Veteran's service-connected posttraumatic stress disorder (PTSD). CONCLUSION OF LAW Ulcerative colitis and complications are proximately due to service-connected PTSD. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION As the Board's decision to grant service connection for ulcerative colitis and complications herein constitutes a complete grant of the benefits sought on appeal, no further action is required to comply with the Veterans Claims Assistance Act of 2000 and the implementing regulations. The Veteran asserts that he has a gastrointestinal disorder to include ulcerative colitis claimed as the result of herbicide exposure. Records in the file also suggest that his gastrointestinal disorder is aggravated by his service-connected PTSD. Thus, he contends that service connection is warranted for a chronic gastrointestinal disorder to include ulcerative colitis. Upon review of the evidence of record, the Board finds that the evidence of record is in relative equipoise. As such, affording the Veteran the full benefit of the doubt, the Board finds that service connection is warranted for ulcerative colitis and complications. When a veteran seeks benefits and the evidence is in relative equipoise, the Veteran prevails. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). A veteran is entitled to disability compensation for disability resulting from personal injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. § 3.303(b); but see Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (to the effect that the theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic under 38 C.F.R. § 3.309(a)). Nevertheless, the regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Moreover, case law has established that 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 v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the appellant's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011). To establish a right to compensation for a present disability, a veteran must show: "(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"-the so-called "nexus" requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). This is a direct service connection theory of entitlement. Certain chronic diseases, such peptic ulcer disease, may be presumed to have been incurred in or aggravated by service if manifest to a compensable degree within one year of discharge from active service. See 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.307, 3.309 (2012). This is also a direct service connection theory of entitlement. In addition, secondary service connection may be granted for a disability that is proximately due to, or the result of, a service-connected disease or injury. 38 C.F.R. § 3.310(a). With regard to the matter of establishing service connection for a disability on a secondary basis, the United States Court of Appeals for Veterans Claims (court) has held that there must be evidence sufficent to show that a current disability exists and that the current disability was either caused or aggravated by a service-connected disability. See Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). Additionally, when aggravation of a non-service-connected disability is proximately due to or the result of a service-connected condition, such disability shall be compensated for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation. Id.; see also 38 C.F.R. § 3.310(b). With regard to a claim for secondary service connection, the record must contain competent evidence that the secondary disability was caused by the service-connected disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998); Reiber v. Brown, 7 Vet. App. 513, 516-17 (1995). Although the Veteran is competent in certain situations to provide a diagnosis of a simple condition such as a headache, varicose veins, or tinnitus, the Veteran is not competent to provide evidence as to more complex medical questions, such as the etiology of gastrointestinal pathology, as is the case here. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). In this case, the Veteran contends, in pertinent part, that he was exposed to Agent Orange in service that caused or contributed to his post service diagnosis of, and treatment for, a gastrointestinal disorder including ulcerative colitis. Veterans who, during active service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, shall be presumed to have been exposed to an herbicide agent, unless there is affirmative evidence of non-exposure. 38 U.S.C.A. §§ 1116 (West 2002 & Supp. 2012); 38 C.F.R. § 3.307 (2012). If a veteran was exposed to a herbicide agent (to include Agent Orange) during active military, naval or air service and has contracted an enumerated disease to a degree of 10 percent or more at any time after service (except for chloracne and acute and sub acute peripheral neuropathy which must be manifested within a year of the last exposure to an herbicide agent during service), the veteran is entitled to a presumption of service connection even though there is no record of such disease during service. 38 U.S.C.A. § 1112 (West 2002); 38 C.F.R. § 3.307, 3.309(e) (2012). The enumerated diseases do not include ulcerative colitis. 38 U.S.C.A. § 1116 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.307(a)(6)(iii), 3.309(e), 3.313 (2012). Specifically, the Secretary of VA has determined that a presumption of service connection based on exposure to herbicides used in the Republic of Vietnam during the Vietnam era is not warranted for enumerated other disorders, and any other condition for which the Secretary has not specifically determined a presumption of service connection is warranted. See, e.g., Veterans and Agent Orange Update: Update 2010 (Update 2010), 77 Fed. Reg. 47924-8 (Aug. 10, 2012). Notwithstanding the foregoing presumption provisions, the United States Court of Appeals for the Federal Circuit has determined that a claimant is not precluded from establishing service connection with proof of direct causation. Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). Thus, presumption is not the sole method for showing causation. In light of the foregoing, service connection may be presumed for residuals of Agent Orange exposure by showing two elements. First, the Veteran must show that he served in the Republic of Vietnam during the Vietnam era. 38 U.S.C.A. § 1116; 38 C.F.R. § 3.307(a)(6). Second, the Veteran must be diagnosed with one of the specific diseases listed in 38 C.F.R. § 3.309(e), or otherwise establish a nexus to service. See Brock v. Brown, 10 Vet. App. 155, 162 (1997). Here, the objective medical evidence fails to demonstrate that the Veteran has a disease associated with exposure to Agent Orange or is otherwise related thereto. The evidence of record, however, establishes a nexus between the Veteran's gastrointestinal disorder and his service-connected PTSD. See Bingham v. Principi, 18 Vet. App. 470, 474 (2004), aff'd 421 F.3d 1346, 1349 (Fed. Cir. 2005) (to the effect that a service connection claim includes all theories under which service connection may be granted); see also Ashford v. Brown, 10 Vet. App. 120, 123 (1997) (a new etiological theory does not constitute a new claim); Roebuck v. Nicholson, 20 Vet. App. 307 (2006) (an appellant's alternative theories of service connection are encompassed within a single claim). Service treatment records indicate that the Veteran had diarrhea and complained of indigestion. When examined for separation in August 1975, he reported having frequent indigestion in 1974 due to financial worries that he treated with antacids. A gastrointestinal abnormality was not noted on examination at that time. Following service, VA and non-VA medical records and examination reports, dated from 1982 to 2012, indicate that the Veteran had Crohn's disease/gastrointestinal problems since the early 1990s. Private hospital records, dated from October 1993 to October 1994, show treatment for ulcerative colitis. In April 1994, the Veteran underwent surgery for a perforated colon due to Crohn's disease. In a January 1995 letter to Ira Shafran, M.D., C. Richard Flemming, M.D., a gastroenterologist at the Mayo Clinic in Jacksonville, Florida, opined that the Veteran had Crohn's disease and needed a proctocolectomy with ileostomy. In a later-dated January 1995 signed statement, Dr. Shafran, the Veteran's treating gastroenterologist, reported that the Veteran had non-specific colitis and was unable to engage in stress situations. Other medical records include a diagnosis of inflammatory bowel disease with small bowel obstruction. VA medical records, dated from 1998 to 2011, reflect a diagnosis of ulcerative colitis status post proctocolectomy and ileostomy. As mentioned above, in December 2012, the Veteran was privately hospitalized and underwent a laparoscopic small bowel resection. The September 2008 rating decision on appeal also granted service connection for PTSD that was assigned an initial 50 percent disability rating. The RO based its determination, in large part, on a July 2008 VA psychiatric examination report that includes a diagnosis of PTSD. During his October 2009 personal hearing at the RO, the Veteran testified that he believed his condition was related to his exposure to Agent Orange. He stated that he did not specifically seek treatment for his disorder while in military service. At the hearing, he submitted medical literature regarding the polluting effects of herbicides used during the Vietnam era. During his December 2010 Board hearing, the Veteran testified to experiencing nervousness and gastrointestinal problems while serving in Vietnam. He also had difficulty sleeping. He did not seek medical treatment for his disorders in service. The Veteran had anxiety and gastrointestinal problems after discharge and treated his indigestion with over-the-counter medications. In the 1990s, he had a perforated colon and was diagnosed as haivng irritable bowel syndrome then Crohn's disease. In support of his claim, during his hearing, the Veteran submitted medical literature that suggests a link between Crohn's disease and PTSD. In a January 2011 signed statement, Dr. Shafran, the gastroenterologist, noted that the Veteran had chronic recurrent severe abdominal pains that were longstanding with life threatening complications confirmed since 1993. Diagnoses were severe irritable bowel syndrome and severe Crohn's disease. Dr. Shafran opined that there was a probability that the Veteran's bowel condition was directly related to his military service. In October 2011, the Veteran underwent VA examination. The Veteran gave a history of onset of gastrointestinal disorder in 1994. He had surgery to remove most of his small intestine in 1978 and had an ileostomy. Upon clinical evaluation, the examiner opined that the Veteran's ulcerative colitis was not due to military service. The examiner explained that service medical records were silent for the claimed condition and there was a significant silent interval between his separation and his actively seeking medical care for his condition. The VA examiner talked with Dr. Shafran to clarify his assertion that the Veteran's bowel condition was secondary to PTSD. It was noted that Dr. Shafran agreed that the claimed condition was unlikely to be directly related to any illness or physical condition present in service, but opined that the Veteran's emotional state could adversely affect his immune system functioning. The VA examiner said that "it is beyond the scope of this examination to determine whether or not the [V]eteran's emotional state could adversely affect the function of his immune system, but a review of the recent medical [literature] is silent for any direct mechanism as to establishing this as causation for the current medical diagnoses." In August 2012, the Veteran underwent another VA examination. The physician-examiner diagnosed the Veteran with ulcerative colitis. The examiner negated a relationship between PTSD and stress and the development of inflammatory bowel disease/ulcerative colitis, but said they could play a role in exacerbations of the disease state in an individual who already developed the disease. In a November 2012 medical opinion, the recent VA physician-examiner reviewed the Veteran's medical records. The physician opined that ulcerative colitis and complications were "less likely than not" (less than 50/50 probability) caused by or a result of PTSD. She explained that, currently, literature did not support PTSD being a risk factor for inflammatory bowel disease (IBD) ulcerative colitis as per the following Up-to-date article excerpt: Psychosocial factors-Analyses conclude that there is no consistent type of psychopathology among patients with either Crohn's disease or ulcerative colitis [65, 66]. Stress does not appear to be related to the inset of IBD, but even if not causally related it may have a role in the exacerbation of symptoms [67-70], possibly via activation of the enteric nervous system and the elaboration of proinflammatory cytokines. Then, however, the VA examiner stated that "PTSD and stress are not currently considered risk factors for the development of inflammatory bowel disease/ulcerative colitis, but may play a role in exacerbations of the disease state in an individual who ALREADY HAS DEVELOPED the disease." The VA physician opined that ulcerative colitis and complications were at least as likely as not (50/50 probability) permanently aggravated by PTSD. Her rationale for this opinion was the Up-to-date article discussed above. Here, the available evidence does not support the Veteran's assertion that he has a chronic gastrointestinal disorder due to his exposure to Agent Orange and there is simply no evidence to show that his claimed disorder had its onset in military service. In fact, the Veteran testified that he did not seek medical attention for a gastrointestinal disorder while on active duty. Thus, his claim for service connection for a chronic gastrointestinal disorder including ulcerative colitis as due to exposure to Agent Orange on a direct basis fails. 38 U.S.C.A. §§ 1110, 1116, 1131; 38 C.F.R. §§ 3.303, 3.307, 3.309. Nevertheless, service connection may be granted for a disability that is proximately due to, or the result of, a service-connected disease or injury. 38 C.F.R. § 3.310(a). In November 2012, the VA examiner reported that PTSD and stress were not currently considered risk factors for the development of inflammatory bowel disease/ulcerative colitis, but may play a role in exacerbations of the disease state in an individual who already developed the disease. The evidence of record clearly shows that the Veteran was treated for chronic gastrointestinal problems, including ulcerative colitis and Crohn's disease, since the mid 1990s, long before he was diagnosed with PTSD in 2008. The VA examiner opined that the Veteran's ulcerative colitis and complications were at least as likely as not (50/50 probability) permanently aggravated by PTSD. This opinion is entirely consistent with that offered by Dr. Shafran, the Veteran's treating gastroenterologist, in October 2011 to the effect that the Veteran's emotional state could adversely affect his immune system functioning. As such, affording the Veteran all benefit of the doubt, service connection for ulcerative colitis and its complications is warranted and the Veteran's claim will be granted. 38 U.S.C.A. §§ 1110, 1131, 5107; 38 C.F.R. § 3.310. ORDER Service connection for ulcerative colitis and its complications is granted. ___________________________________________ JAMES L. MARCH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs