Citation Nr: 1324105 Decision Date: 07/29/13 Archive Date: 08/07/13 DOCKET NO. 09-41 942A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for a gastrointestinal disorder, to include Crohn's Disease. 2. Entitlement to service connection for posttraumatic stress disorder (PTSD). 3. Entitlement to service connection for autoimmune hepatitis, to include as secondary to the service-connected Raynaud's Disease. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD K. L. Wallin, Counsel INTRODUCTION The Veteran served on active duty from August 1955 to October 1957. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from a July 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO), which denied a claim of service connection for Crohn's Disease. The issue has been recharacterized as it appears on the cover page of the instant decision. This matter also comes before the Board on appeal from a November 2010 rating decision, which in pertinent part, denied the claims of service connection for PTSD and autoimmune hepatitis. The Veteran presented testimony before the Board in February 2012; the transcript has been associated with the claims folder. In April 2012, the Board remanded the claim of service connection for a gastrointestinal disorder for further development and adjudication. The matter has been returned to the Board and is ready for appellate disposition. The claims for PTSD and autoimmune hepatitis are addressed in the REMAND portion of the decision below and are 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). FINDINGS OF FACT The competent and probative medical evidence of record preponderates against a finding that the Veteran's gastrointestinal disorder, to include Crohn's Disease, is due to events in active service. CONCLUSION OF LAW The criteria for service connection for gastrointestinal disorder, to include Crohn's Disease, have not been met. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.159, 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Notice and Assistance Upon receipt of a complete or substantially complete application for benefits and prior to an initial unfavorable decision on a claim by an agency of original jurisdiction, VA is required to notify the appellant of the information and evidence not of record that is necessary to substantiate the claim. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159; 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). The notice should also address the rating criteria or effective date provisions that are pertinent to the appellant's claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The RO provided the Veteran pre-adjudication notice by letter dated in January 2008. VA has obtained service treatment records, assisted the Veteran in obtaining evidence, provided the Veteran VA examination, and afforded the Veteran the opportunity to give testimony before the Board, the transcript of which has been associated with the claims folder. The matter was previously before the Board in April 2012 and was remanded to obtain in-patient hospitalization records dated between 1955 and 1957. The National Personnel Records Center (NPRC) indicated in March 2013 that there were no clinical records located for 1955 or 1957 at the Portsmouth, Virginia, United States Naval Hospital. A request was made for records in 1956; however, NPRC indicated that no search was possible as they needed the name and location of the hospital where the Veteran was treated. The RO sent a letter to the Veteran in March 2013 asking that she provide the name and location of the Naval Hospital that treated her for a gastrointestinal disorder in 1956. The Veteran did not respond, but the Board would note that in a letter dated in February 2013, the Veteran previously indicated that she never went on sick call for her gastrointestinal disorder in 1956. The duty to assist in the development and the adjudication of a claim is not a one-way street. Wamhoff v. Brown, 8 Vet. App. 517, 522 (1996); Zarycki v. Brown, 6 Vet. App. 91, 100 (1993); Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). All known and available records relevant to the issue on appeal have been obtained and associated with the Veteran's claims file; and the Veteran has not contended otherwise. VA has substantially complied with the notice and assistance requirements and the Veteran is not prejudiced by a decision on the claim at this time. II. Analysis The Board has reviewed all the evidence in the Veteran's paper claims file and Virtual VA record, which contains VA outpatient treatment records previously reviewed by the RO. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis will focus specifically on what evidence is needed to substantiate each claim and what the evidence in the claims file shows, or fails to show, with respect to each claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Establishing service connection generally requires medical evidence or, in certain circumstances, lay evidence of the following: (1) A current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) nexus between the claimed in-service disease and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed.Cir.2007); Hickson v. West, 12 Vet. App. 247 (1999); Caluza v. Brown, 7 Vet. App. 498 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table). In this decision, the Board has considered all lay and medical evidence as it pertains to the issues. 38 U.S.C.A. §§ 5107(b), 7104(a); 38 C.F.R. § 3.303(a). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). The Board must make an express credibility finding regarding lay evidence. Dalton v. Nicholson, 21 Vet. App. 23 (2007). In determining whether statements submitted by a veteran are credible, the Board may consider internal consistency, facial plausibility, consistency with other evidence, and statements made during treatment. Caluza v. Brown, 7 Vet. App. 498 (1995). The Veteran reports that she has a gastrointestinal disorder, to include Crohn's Disease, as a result of her active military service. Specifically, she claims that a gastrointestinal disorder was the result of stress from harassment and exposure to dichlorodiphenyltrichloroethane (DDT). She contends that she began experiencing diarrhea and abdominal cramps in service. She indicated that she complained of diarrhea to a nurse a couple times of week and was told that it was her diet. She was advised to take Kaopectate. She indicated that she never went on sick call or was referred to a doctor. See BVA Transcript 3-5; statement dated in February 2013. The service treatment records reflect no histories, findings, or treatment suggestive of a gastrointestinal disorder, to include the October 1957 separation examination. The Board acknowledges that the Veteran reported that she has had continued problems with diarrhea and abdominal pains since her discharge from service; however, a gastrointestinal disorder, to include Crohn's Disease is not a "chronic disease" under 38 C.F.R. § 3.309(a). Thus, consideration under 38 C.F.R. § 3.303(b) is not warranted. Post-service, the Veteran first complained of chronic diarrhea in October 1991, 34 years after separation from service. The long time lapse can be considered, along with other factors, as evidence of whether an injury or disease was incurred in service which resulted in any chronic or persistent disability. See Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). The Veteran has been variously diagnosed with diarrhea with lactose intolerance (1991), benign intestinal polyps (1991), and Crohn's disease in remission (2002). Service connection may be granted when the evidence establishes a nexus between active duty service and current complaints. The Board finds that the preponderance of the competent evidence is against a finding of a nexus between the Veteran's gastrointestinal disorder and her active service, despite her contentions to the contrary. In that regard, the Board finds substantially probative the February 2013 VA opinion that the Veteran's current gastrointestinal pathology, namely irritable bowel, polyps, and internal hemorrhoids were less likely than not causally or etiologically related to her period of military service. The examiner included a lengthy recitation of the Veteran's pertinent medical history and complaints and noted that the 1957 service separation examination was negative for findings or diagnoses referable to diarrhea. The examiner reasoned that the Veteran did not have any gastrointestinal pathology or condition in service. In the examiner's recitation of the evidence reviewed in the claims folder, the examiner specifically noted the Veteran's complaints of diarrhea in service and the absence of any related findings on service separation. The Veteran is competent to report that she experienced diarrhea in service; however, the Board must make an express credibility finding regarding lay evidence. Layno, 6 Vet. App. at 465; Dalton, 21 Vet. App. at 23. The Board finds the examination report at service separation more probative to the question of whether the Veteran had diarrhea in service than her current recollections. The examiner further found no documentation within one year of service separation in October 1957 to establish chronicity of the condition or support the claimed gastrointestinal pathology. As the Veteran raised the argument that her gastrointestinal disorder was an autoimmune disorder and part of the same process of the Raynaud's Disease, the examiner additionally opined that the medical literature did not support a finding that Irritable Bowel Syndrome, polyps, or internal hemorrhoids were attributable to an autoimmune process related to the service-connected Raynaud's disease or some other cause or causes or combination thereof. The Board notes the examiner actually questioned the diagnosis of Crohn's Disease as it was not support by colonoscopic evidence or signs, symptoms, tests, or investigations. The examiner additionally noted there was no documentation to support that she had been prescribed medications for Crohn's Disease. Dr. TK indicated in March 2013 that the Veteran was taking Cholestyramine and Lomotil for Crohn's Disease and bile salt malabsorption. In February 2011, VA outpatient treatment records show the Veteran's physician discontinued her Metformin (for diabetes mellitus) due to diarrhea. The provider indicated that because of this, he was uncertain if earlier in life diarrhea could be diagnosed as Crohn's disease. The Board is setting aside the argument of whether or not the Veteran actually has Crohn's Disease, as she clearly has a gastrointestinal disorder, delineated above, and the etiology of which, has been addressed by the VA examiner. The February 2013 opinion was rendered after review of the Veteran's claims file, including her service treatment records and private medical opinions of record, and physical examination of the Veteran; the opinions are clearly based on an accurate history. See Prejean v. West, 13 Vet. App. 444, 448-49 (2000) (finding that a physician's access to the claims file and the thoroughness and detail of the opinion are important factors in assessing the probative value of a medical opinion). The Board notes Dr. GJ indicated in December 2008 that the Veteran's earlier symptoms may have contributed to her current conditions; however, while noting that she had diarrhea, addressed the Veteran's Raynaud's phenomenon for which service connection was awarded. There was no specific opinion as to whether or not the Veteran's current gastrointestinal disorder was related to her military service. In October 2010, Dr. DS indicated there was evidence that Crohn's disease was a form of microvascular disease and the Veteran had a history of autoimmune hepatitis, which led him to wonder if there could be a common denominator between the immune mechanisms of Crohn's and autoimmune hepatitis. There was no indication that Crohn's Disease (or any other gastrointestinal disorder) was related to the Veteran's active military service. The question of whether a gastrointestinal disorder was an autoimmune disease was addressed by the VA examiner. Moreover, service-connection is not in effect for autoimmune hepatitis. The only evidence of record to support the Veteran's contentions are her statements and a friend of the Veteran's indicating she knew the Veteran since 1958 and that the Veteran had diarrhea since that time. The Veteran has claimed that a gastrointestinal disorder is the result of her military service. The Veteran is competent to report complaints of diarrhea and abdominal cramps. The Veteran and her friend are not, however, competent to report whether these complaints were manifestations of a gastrointestinal disorder. See Jandreau, supra. Their statements do not establish a nexus between any acquired pathology and her military service. Although lay evidence is acceptable to prove the occurrence of an injury during active duty or symptomatology over a period of time when such symptomatology is within the purview of or may be readily recognized by lay persons, lay testimony is not competent to prove a matter requiring medical expertise. With regard to gastrointestinal disease, it requires specialized training for a determination as to diagnosis and causation and is not susceptible of lay opinions on etiology. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (unlike varicose veins or a dislocated shoulder, rheumatic fever is not a condition capable of lay diagnosis); Jandreau, 492 F.3d at 1377, n. 4 ("sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer"). Therefore, the Board cannot give decisive probative weight to the opinions of the Veteran and her friend about the origins of her gastrointestinal disorder because they are not qualified to offer such opinions. Likewise, her representative is not competent to provide a probative opinion on the question of etiology, either. Therefore, the Board finds that the preponderance of the evidence is against the Veteran's claim of entitlement to service connection for a gastrointestinal disorder, to include Crohn's Disease, and thus, the benefit-of-the-doubt doctrine does not apply. As such, the evidence is insufficient to support a grant of service connection. Fagan v. Shinseki, 573 F.3d 1282, 1287 (Fed. Cir. 2009); Ortiz v. Principi, 274 F.3d 1361, 1365 (Fed. Cir. 2001). ORDER Entitlement to service connection for a gastrointestinal disorder, to include Crohn's Disease, is denied. REMAND A preliminary review of the record shows that the claims for PTSD and autoimmune hepatitis are not ready for appellate disposition because of an outstanding hearing request by the Veteran. In November 2010, the RO denied the claim for PTSD and confirmed and continued the denial for autoimmune hepatitis. The Veteran filed a notice of disagreement in December 2010. A statement of the case was issued in January 2012. The Veteran perfected her appeal in February 2012 and requested a hearing before the Board to be held at her local VA office. To date, the matter has not been scheduled for a hearing. Therefore, the appeal must be remanded so the Veteran can be scheduled for a hearing as requested. 38 C.F.R. § 20.704. Accordingly, the case is REMANDED to the RO for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) The RO should take appropriate steps to schedule the Veteran for a hearing before a Veterans Law Judge at the next available opportunity. Any indicated development should be undertaken in connection with this hearing request. Thereafter, if indicated, the case should be returned to the Board for the purpose of appellate disposition. The purpose of this REMAND is to satisfy a hearing request, and the Board does not intimate any opinion as to the merits of the case, either favorable or unfavorable, at this time. The Veteran is free to submit any additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims 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