Citation Nr: 1323536 Decision Date: 07/24/13 Archive Date: 08/01/13 DOCKET NO. 10-44 877 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Entitlement to service connection for diverticulitis. 2. Entitlement to service connection for status post bowel rupture/peritonitis. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD F. Yankey, Counsel INTRODUCTION The Veteran served on active duty from August 1966 to August 1968. This case comes before the Board of Veterans' Appeals (Board) on appeal of a November 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington. The Veteran testified before the undersigned at a May 2011 Travel Board hearing. The hearing transcript is of record. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND Under the VCAA, VA is obliged to provide an examination when the record contains competent evidence that the claimant has a current disability or signs and symptoms of a current disability, the record indicates that the disability or signs and symptoms of disability may be associated with active service; and the record does not contain sufficient information to make a decision on the claim. 38 U.S.C.A. § 5103A(d) (West 2002); McLendon v. Nicholson, 20 Vet. App. 79 (2006). The evidence of a link between current disability and service must be competent. Wells v. Principi, 326 F.3d 1381 (Fed. Cir. 2003). The types of evidence that "indicate" that a current disability "may be associated" with military service include, but are not limited to, medical evidence that suggests a nexus but is too equivocal or lacking in specificity to support a decision on the merits, or credible evidence of continuity of symptomatology such as pain or other symptoms capable of lay observation. McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). The threshold for finding a link between current disability and service is low. Locklear v. Nicholson, 20 Vet. App. 410 (2006); McLendon v. Nicholson, at 83. The Veteran has reported that during his tour of duty in Vietnam from 1967-1968, he suffered considerable abdominal discomfort and weight loss, and that his discharge was delayed so that he could undergo a medical examination and blood tests for malaria, which were negative. He reported further that several months after his discharge, he had another medical examination at the VA Medical Center in Dayton, Ohio, which was also negative. He claims that he experienced the same symptoms of abdominal discomfort and weight loss again in 1989, and at that time, during surgery in an emergency room, the condition was revealed to be diverticulitis. He claims further that the surgery also revealed that his bowel had perforated and that he had a massive infection in the abdominal cavity. As a result, he claims that he was hospitalized ten days later for colon removal, IV antibiotic therapy and a colostomy, and four months later, he had a second surgery with more colon removal and a colostomy reversal. See May 2011 Travel Board hearing transcript and June 2011 statement from the Veteran. The Veteran argues that his diverticulitis was misdiagnosed in the military because the doctors were looking for malaria and not diverticulitis, and that if he had been properly diagnosed, he could have followed up with appropriate treatment. He contends that he still has a current diagnosis of diverticulitis, and that he only has 18 inches of his lower colon left, as a result of the surgery performed to repair his bowel rupture. He also claims that he had many adhesions in the abdominal area, which complicated his prostate cancer surgery in 2004. Service treatment records show that in November 1967, the Veteran complained of vomiting six times, but denied abdominal pain and diarrhea. He was diagnosed at that time with gastritis. During his August 1968 discharge examination, it was suspected that he had an enlarged liver and spleen. It was noted that the Veteran's spleen was tender. He denied fever and chills, but reported a bout with diarrhea in May of that year. Physical examination at that time revealed that the liver and spleen were unremarkable and there was no enlargement found. Service treatment records are negative for any evidence of complaints, treatment, or diagnosis related to malaria or diverticulitis. There is also no evidence of any abdominal pain or weight loss. In fact, in his Report of Medical History completed in August 1968, at the time of his discharge, the Veteran responded "No" when asked if he had ever had stomach, liver or intestinal trouble, or a tumor, growth, cyst or cancer. The Veteran was afforded a VA examination in September 1968. The Veteran reported that during active duty in Vietnam, he was sick with fever and diarrhea, but he was not admitted to the hospital. He also reported that in August 1968, during a routine physical, he was found to have an enlarged liver and spleen. The examiner noted that at that time, the Veteran had no complaints, and his liver and spleen were not palpable. See September 1968 VA examination report. Private treatment records show that in 1989, the Veteran underwent a sigmoid resection due to acute diverticulitis complicated by diverticular perforation. A colostomy was placed at the time of the sigmoid resection, and the Veteran subsequently had a colostomy takedown that same year. These records also show that the Veteran underwent a radical retropubic prostatectomy and bilateral pelvic lymph node dissection in May 2004. At the time of the surgery, it was noted that the Veteran had a great deal of scar tissue from his previous surgeries, and that blood loss was high, given the size of the Veteran and the complexity of dealing with scar tissue related to his previous surgeries, but there were no complications. There is no evidence of record showing that the Veteran's diverticulitis or sigmoid resection in 1989 was related to his active military service. Furthermore, although the Veteran has reported that he has a current diagnosis of diverticulitis and only 18 inches of his lower colon left, as a result of the surgery performed to repair his bowel rupture, there is no medical evidence of record showing a current diagnosis of diverticulitis or any residuals from the 1989 surgery, performed to repair his bowel rupture. A layperson is generally not capable of opining on matters requiring medical knowledge. Espiritu v. Derwinski, 2 Vet. App. 492 (1992). But 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). Indeed, when a disorder 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. In such cases, the Board is within its province to weigh that testimony and to make a credibility determination as to whether that evidence supports a finding of service incurrence and continuity of symptomatology sufficient to establish service connection. Barr v. Nicholson, 21 Vet. App. 303 (2007). Here, the Veteran is clearly competent to attest to his digestive symptoms. Such symptoms are "observable" symptoms. See Layno, supra. Therefore, the Board finds that the Veteran's assertions regarding his in-service and post-service symptoms are of probative value. The Veteran has reported problems related to diverticulitis since service, including residuals of surgery performed to repair a bowel rupture. The Veteran's reports of in-service symptoms and a continuity of symptomatology provide evidence that a current digestive disability may be related to service. However, contemporaneous evidence of ongoing diverticulitis or any residuals of surgery performed to repair a bowel rupture in the years following service is not of record. Accordingly, the Board finds that an examination and opinion are needed to determine whether the Veteran has a current diagnosis of diverticulitis or any residuals of surgery performed to repair a bowel rupture, related to service. 38 U.S.C.A. § 5103A(d) (West 2002). The Veteran is hereby notified that it is the Veteran's responsibility to report for the examination and to cooperate in the development of the case, and that the consequences of failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158 and 3.655 (2012). Accordingly, the case is REMANDED for the following action: 1. Ask the Veteran to provide the names, addresses, and approximate dates of treatment of all health care providers, VA and private, who have treated him for his claimed diverticulitis and residuals of surgery performed to repair his claimed bowel rupture since his discharge from the military in 1968. After acquiring this information and obtaining any necessary authorization, the RO should obtain and associate these records with the claims file. If the RO or the AMC is unsuccessful in obtaining any such evidence, it should document the efforts to obtain the records, and should request the Veteran and his representative to provide a copy of the outstanding evidence to the extent they are able to. 2. Afford the Veteran an examination to determine the nature and etiology of any currently present diverticulitis and/or residuals of surgery performed to repair his claimed bowel rupture. The claims folders must be made available to and reviewed by the examiner. Any indicated studies should be performed. A diagnosis of diverticulitis should be confirmed or ruled out. If diverticulitis is diagnosed, the examiner should provide an opinion as to whether it is more likely than not (50 percent or better probability), that the disorder is etiologically related to the Veteran's military service. A complete rationale should be given for all opinions and conclusions expressed. If the examiner cannot provide an opinion without resort to speculation, the examiner should provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made. The examiner is advised that, generally, the Veteran may be considered competent to report injuries as well as symptoms he experienced, and that his reports must be considered in formulating the requested opinion. The examiner is also advised that the absence of evidence in the service treatment records is an insufficient basis, by itself, for a negative opinion. 3. If any benefit sought on appeal is not granted, the agency of original jurisdiction should issue a supplemental statement of the case. The case should be returned to the Board, if otherwise in order. The appellant has the right to submit additional evidence and argument on the matter or matters 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). _________________________________________________ F. JUDGE FLOWERS 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).