Citation Nr: 1316468 Decision Date: 05/20/13 Archive Date: 05/29/13 DOCKET NO. 08-28 009 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUES 1. Entitlement to service connection for diverticulitis. 2. Entitlement to service connection for a chronic bowel disorder manifested by recurring constipation, diarrhea, and a ruptured bowel. REPRESENTATION Appellant represented by: Virginia A. Girard-Brady, Attorney WITNESSES AT HEARING ON APPEAL The Veteran, his spouse, and mother ATTORNEY FOR THE BOARD L. B. Cryan, Counsel INTRODUCTION The Veteran had active service from February 2004 to May 2007, including service in Iraq from January 2006 to November 2006. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2007 rating determination of a Regional Office (RO) of the Department of Veterans Affairs (VA) in Muskogee, Oklahoma. In that decision, in pertinent part, the RO denied claims of service connection for diverticulitis; constipation, bowel condition with diarrhea; and hypertension. The Veteran testified before the undersigned at a November 2010 travel Board hearing at the Muskogee, Oklahoma, RO. A transcript of the hearing is of record. In an April 2011 decision, the Board denied the claims of service connection for diverticulitis and a chronic bowel disorder, manifested by recurring constipation, diarrhea and a ruptured bowel. The issue of entitlement to service connection for hypertension was remanded back to the RO for additional development of the record. Meanwhile, the Veteran appealed that portion of the Board's April 2011 decision denying the claims of service connection for diverticulitis and a chronic bowel disorder manifested by recurring constipation, diarrhea and a ruptured bowel to the United States Court of Appeals for Veterans Claims (CAVC or Court). While his claims were pending at the Court, the RO issued an August 2012 rating decision granting the Veteran's claim of service connection for hypertension. As the grant of service connection for hypertension by the RO represents a full grant of benefits sought on appeal with respect to that issue, the claim of service connection for hypertension is no longer in appellate status or before the Board. In an August 2012 Memorandum Decision, the Court vacated and remanded that portion of the April 2011 Board decision denying service connection for diverticulitis and a chronic bowel disorder manifested by recurring constipation, diarrhea and a ruptured bowel. The case has been returned to the Board. The appeal is REMANDED to the Department of Veterans Affairs Regional Office. VA will notify the appellant if further action is required. REMAND The Veteran contends that he has a current disability manifested by a bowel/gastrointestinal disorder that began in service, or at the very least, as a result of severe living conditions during service in Iraq. The Veteran reports suffering from dehydration and intermittent diarrhea and constipation while serving in Iraq. Specifically the Veteran stated at his November 2010 hearing that he would become so hot during missions that upon return to base he would have to get IV fluids to fight dehydration. Additionally his bowel habits were affected by food that was lacking in fiber and only sporadically available. The Veteran further maintains that the disability, which began in service, became so severe shortly after discharge from service that it resulted in a perforated bowel caused by a phlegmonous mass. The Veteran reports that although the surgical repair adequately resolved the perforation, he continues to have bouts of alternating constipation and diarrhea with associated occasional pain. As such the Veteran contends that service connection is warranted for a disability, including, but not limited to, diverticulitis and a chronic bowel disorder manifested by recurring constipation, diarrhea, and a ruptured bowel. As the reported symptomatology is essentially the same for both claims, they will be addressed together. The Veteran's service treatment records (STRs) are negative for complaints, findings or a diagnosis of a bowel disorder, including diverticulitis. An October 22, 2003 medical prescreening report as well as the October 25, 2003 entrance examination and report of medical history note that the Veteran had no intestinal problems upon entry into service and by the Veteran's own report, he was in good health. Specifically, the Veteran filled in the circle corresponding to "no" when asked if he had ever had frequent indigestion or heartburn; stomach, liver, intestinal trouble, or ulcer; rectal disease, hemorrhoids or blood from the rectum. The Veteran was not asked specifically if he had episodes of diarrhea or constipation. There is no complaint with regard to any intestinal issue in the Veteran's service treatment records. There is also no mention of the IV fluids that the Veteran has stated he regularly received to avoid dehydration. Finally the March 2007 exit examination and report of medical history shows no indication that the Veteran had any intestinal issues at that time. Thus, the Veteran's reports of in-service constipation, diarrhea and stomach pain are not documented in the STR's. However, the Veteran served in Iraq during a period of War, and his DD Form 214 reflects that he received the Combat Infantry Badge, an indication that he engaged in combat with the enemy. The provisions of 38 U.S.C.A. § 1154(b) state that in the case of any veteran who engaged in combat with the enemy in active military service during a period of war, the Secretary shall accept as sufficient proof of service connection of any disease or injury alleged to have been incurred or aggravated by such service, satisfactory lay or other evidence of service incurrence or aggravation if consistent with the circumstances, conditions, or hardships of such service, notwithstanding the fact that there is no official record of such incurrence or aggravation. Importantly, however, 38 U.S.C.A. § 1154 merely relaxes the evidentiary burden for a combat veteran with respect to evidence of an in-service occurrence of an injury, it does not create a statutory presumption that a combat veteran's disease or injury is automatically service-connected. In other words, it does not address the questions of the existence of a present disability or of a causal relationship between such disability and service. A claimant must still provide evidence of a relationship between an injury in service and a current disability. Dalton v. Nicholson, 21 Vet. App. 23 (2007). In this case, there is no reason to doubt the Veteran's credibility as to his reports of constipation and diarrhea, and the need for IV fluids in service to combat dehydration. Furthermore, at his personal hearing before the undersigned in November 2010, the Veteran reported that he self-treated the constipation during service in Iraq, and did not see anyone for the problem after he returned to the United States because he was unaware that anything serious was going on and did not think that his symptoms at that time were serious enough to seek medical treatment. The Veteran also testified that he continued to have alternating bouts of constipation and diarrhea between the time he returned from Iraq in November 2006 and the time of discharge in May 2007. Perhaps the Veteran also felt that his symptoms were acute and transitory incidents that would not continue to be problematic after his return from Iraq. Or, perhaps he was unaware that his alternating bouts of diarrhea and constipation which began during service in Iraq may have been related to some other underlying condition until his bowel perforated shortly after discharge from service. Whatever the reason, the lack of documented complaints in service does not automatically mean that no such symptoms were present at that time. The Veteran testified that he did, in fact, complain to the medics about the problems he was having but it never went any further than that. Given the relaxed evidentiary burden for combat veterans with respect to evidence of an in-service occurrence of an injury pursuant to 38 U.S.C.A. § 1154, as well as the competency and credibility of the Veteran's statements, it is conceded that the Veteran suffered from symptoms of constipation, diarrhea, and dehydration during combat service in Iraq. The record further shows that within a month of service discharge the Veteran was admitted into Penrose-St. Francis hospital following a week of increasing abdominal discomfort, but no real pain. The Veteran reported that in the 8 to 12 hours before checking into hospital he had increasing nausea, and lower abdominal pain. The June 2007 history and physical report noted that the Veteran claimed no previous history of gastrointestinal problems, abdominal surgery, pancreatitis, or hepatitis. Examination revealed diminished bowel sounds with definite right lower and midline tenderness with positive, very mild rebound, and no guarding or masses. A CT scan revealed pockets of intraperitoneal air extraluminally and thickened sigmoid colon with a normal appendix. There appeared to be air bubbles along the mesentery of the small bowel. After exploratory surgery including a laparotomy with sigmoid colon resection and placement of a sigmoid colostomy and Hartmann pouch, it was determined that the Veteran had pneumoperitoneum with peritonitis with perforated sigmoid colon with phlegmonous mass in the sigmoid colon. The colostomy was later reversed in August 2007. An August 2007 private examination report pertaining to the reversal of the colostomy noted that the Veteran denied any previous symptoms and was otherwise healthy. The Veteran was afforded a VA examination in September 2007 during which he reported his June 2007 perforated bowel due to rupture of the diverticulum, and subsequent segmental resection of sigmoid colon done with colostomy which was reversed in August 2007. He further noted that he had no current problems with it and no history of any nausea or vomiting, abdominal pain, constipation or diarrhea, and no history of any hematemesis or melena. Upon examination there was no tenderness upon palpation of the abdomen, no masses, no organomegaly. The diagnosis was status post colon resection due to perforated diverticulum. The Veteran's private physician opined in a January 2008 statement that the Veteran's problems with regard to intestinal issues were related to the adverse environment while on tour in Iraq, including dehydration, poor diet, and an inability to access restrooms regularly, in combination with the dehydration which resulted in colon problems and pressure which created the diverticulitis. The physician noted that the Veteran complained of often being constipated with alternating occasional diarrhea which was further complicated by his inability to reach restroom facilities in a timely manner. The physician opined that just shortly after discharge, the Veteran developed complications as a result of these conditions, of developing abdominal pain over a period of time, reaching a severity that eventually resulted in a rupture of the sigmoid colon. The physician added that the overall impressions were that more than likely the Veteran suffered a rupture of a diverticuli; and, he opined that that incident resulted from an adverse environment suffered during the Veteran's tour in Iraq with the problems of dehydration, poor diet, inability to access restrooms in combination with the dehydration resulting in colon problems and pressure creating the diverticuli. The physician reasoned that the development of diverticuli in the sigmoid colon would not be a common finding in a 25-26 year-old without additional adverse conditions contributing which were experienced in Iraq. The Veteran was again afforded a VA examination in June 2008. The Veteran stated that prior to his colon resection, believing he was constipated, he took a laxative which only made the pain worse. He noted that post resection he still had abdominal pain, intermittent constipation and stayed on a high fiber diet. Upon examination the diagnosis was remote history of diverticulitis with perforation of sigmoid colon requiring surgical intervention (partial colon resection) without residual and with zero to minimal functional effect. The examiner opined that the Veteran's ruptured diverticulus with consequent pneumoperitoneum requiring surgical intervention was less likely as not caused by or a result of inadequate hydration or lack of fibrous foods while deployed to Iraq during military service. The rationale provided was that there was no documentation of problems of constipation, abdominal pain, or incidents of need for IV hydration while in Iraq. The examiner observed that on separation physical the Veteran indicated that he was in good health. Additionally the examiner noted the Veteran's statements that when he became ill at the outset of the abdominal problems requiring surgery, he said that he took a lot of laxatives thinking that he was constipated. The examiner stated that a standard of emergent care with acute abdominal pain was to not give a laxative, as that might further stress the gut. As such the examiner stated that the Veteran's self care may have been the reason for the perforated diverticulus. Significantly, the Veteran's decision to take laxatives due to excessive constipation is irrelevant because the issue here is whether the Veteran's post-service bowel perforation, which was caused by a phlegmonous mass, had its onset in service; or is otherwise related to service, to include the reported onset of constipation, diarrhea and dehydration in service; and not whether the Veteran used poor judgment in deciding how to treat his constipation. In other words, the critical question is whether the Veteran's in-service symptoms during service in Iraq, as likely as not, led to the development of the post-service bowel perforation. Additionally, it is also unclear as to whether the Veteran's reports of in-service constipation and diarrhea were the onset of some other chronic bowel disorder, such as irritable bowel syndrome, notwithstanding the perforated bowel. Unfortunately, neither the private examination from January 2008 nor the VA examination from June 2008 adequately addresses these questions. The private examiner in January 2008 opined that the Veteran's sigmoid colon rupture was a direct consequence of the adverse conditions in Iraq, but his only rationale for the opinion is that it was unusual for the Veteran to incur that type of rupture/perforation at such a young age. The January 2008 private examiner provided no medical explanation for why he opined that the Veteran's reported constipation and dehydration in service would result in a rupture of the diverticuli. There is no indication as to which, if any, medical records the Veteran's private doctor reviewed in conjunction with the opinion, and there is no indication as to whether the Veteran was examined in conjunction with the January 2008 opinion. As such, the January 2008 opinion is inadequate for the purpose of determining whether the Veteran's post-service ruptured colon/perforated bowel is as likely as not related to in-service symptoms of constipation, diarrhea, dehydration, and the lack of a healthy and appropriate diet. With regard to the June 2008 VA opinion, that examiner merely relied on the lack of evidence to support the opinion that there was no relationship between the claimed events in Iraq, and the subsequent ruptured diverticulus with consequent pneumoperitoneum requiring surgical intervention. The rationale provided was that there was no documentation of problems of constipation, abdominal pain, or incidents of need for IV hydration while in Iraq. As noted above, the Veteran's accounts of constipation, dehydration, intestinal discomfort in Iraq is conceded. As such, the June 2008 opinion is also inadequate for the purpose of determining whether the Veteran's post-service ruptured colon/perforated bowel is as likely as not related to in-service symptoms of constipation, diarrhea, dehydration, and the lack of a healthy and appropriate diet. Finally, in a June 2011 written statement, the Veteran asserts that his diverticulum did perforate, but it was due to a phlegmonous mass that was non-cancerous, and not due to diverticulitis. In other words, the Veteran emphasized that the mass caused the problem, and not diverticulitis. As such, the Veteran felt that the examiner's opinions were inadequate, as he believes they are based on inaccurate medical information. The Veteran requests a review of the Penrose Hospital records as well as the surgical notes. The Veteran reported that he had no previous bowel problems, and had taken 4 total laxatives over a 24 hour period of time. The Veteran asserts that he had never before taken medication in this quantity previously; and, moreover, noted that his bowel did not perforate until two days later. The Veteran also mentions that "diverticulitis" was only mentioned in the surgical pathology report from Penrose; and, he was told that anytime a bowel perforates, it is considered diverticulitis; however, in his case, the surgical and post surgical notes indicate that the phlemongous mass caused the perforation. The Veteran also notes that the medical records reveal that the mass which caused the perforation had been there long enough to partially adhere to the dome of his bladder. In addition, the Veteran noted that diverticulitis was never mentioned again until Dr, C.J. received the surgical pathology report prior to him performing the reversal of the colostomy. The Veteran reiterated that diverticulitis was not the problem. In light of the foregoing, another VA examination is necessary to decide this case. The examiner must address the Veteran's assertions as noted above, with regard to the actual cause of the bowel perforation and what role, if any, diverticulitis and/or the phlemongous mass played in the ruptured colon/bowel perforation; and, whether that would change the outcome of this case. In providing an opinion, the examiner must consider the Veteran's competent and credible statements regarding the conditions under which he served in Iraq and his reports of constipation, diarrhea, dehydration, IV therapy, and inadequate diet, as well as his reports of continuity of symptoms leading up to the bowel perforation/ruptured colon. Since the claims file is being returned it should be updated to include any recent VA treatment records that are not of record. See 38 C.F.R. § 3.159(c)(2); see also Bell v. Derwinski, 2 Vet. App. 611 (1992). Accordingly, the case is REMANDED for the following action: 1. Ask the Veteran to provide authorization forms for all medical care providers who have treated him for a colon disorder/IBS/gastrointestinal disorder, including but not limited to recurring constipation and diarrhea. After securing the necessary release, request any relevant records identified that are not duplicates of those already contained in the claims file and associate them with the claims file or the VVA file. If any requested records cannot be obtained, the Veteran should be notified of such. The Veteran should also be notified that he may submit these records. 2. Obtain and associate with the claims file or the VVA file all outstanding VA treatment records pertinent to the claim(s) on appeal. 3. After the above has been completed to the extent possible, schedule the Veteran for a VA gastrointestinal examination to evaluate the current nature, and likely etiology of any diagnosed chronic bowel disorder manifested by recurring constipation, diarrhea, and/or ruptured bowel (including any disability that existed at any time during the period covered by this claim, regardless of whether it has resolved during the pendency of the appeal). The claims folder, including a copy of this remand, must be reviewed by the examiner in conjunction with the examination. The examiner must specify in the report that the claims file and Virtual VA records have been reviewed. The examiner must specify the dates encompassed by the Virtual VA records. After reviewing the record, examining the Veteran, and conducted all necessary tests, the examiner should provide an opinion with respect to the following questions: The examiner should indicate what disorders of the colon/gastrointestinal tract the Veteran currently has (or had at any time during the period covered by this claim), to include discussion of the following conditions: perforated sigmoid colon, perforated bowel, diverticulosis, diverticulitis, ruptured diverticulum, IBS, stomach pain brought on or aggravated by anxiety, phlemongous mass. For every diagnosis found on examination, the examiner should state whether it is at least as likely as not (i.e., a 50 percent or greater probability) etiologically related to the Veteran's active service, to include due to the Veteran's constipation, diarrhea, dehydration, lack of availability of restrooms when needed, and inadequate diet in Iraq. These conditions have been conceded, and the Veteran's statements as to the continuity of alternating constipation and diarrhea after his return from Iraq in November 2006 until his discharge from service in May 2007 are deemed credible. The examiner is also asked to address the Veteran's contentions regarding the actual cause of the ruptured colon/perforated bowel, and what role, if any, diverticulitis and/or the phlemongous mass played in the ruptured colon/bowel perforation; and, whether that would change the outcome of this case. Please provide a clear rationale for all opinions based on sound medical principles. Consider the lay statements of the Veteran regarding the onset and symptomatology of his colon disorder(s). 4. Ensure that the information and opinion provided by the examiner satisfies the criteria above and, if not, return the report(s) as insufficient. Then readjudicate the Veteran's claim after ensuring that any other development deemed warranted is complete. If the benefit sought remains denied, the Veteran and his representative should be furnished a supplemental statement of the case and afforded the opportunity to respond. The case should then be returned to the Board for appellate review, if indicated. The appellant has the right to submit additional evidence and argument on the matter(s) 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). _________________________________________________ J. K. BARONE Acting Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2012).