Citation Nr: 1326906	
Decision Date: 08/22/13    Archive Date: 08/29/13

DOCKET NO.  92-22 880A	)	DATE
	)
	)

Received from the
Department of Veterans Affairs Regional Office in Anchorage, Alaska


THE ISSUE

Entitlement to service connection for a gastrointestinal disorder.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

Veteran


ATTORNEY FOR THE BOARD

J. Connolly, Counsel



INTRODUCTION

The Veteran served on active duty from March 1974 to September 1975, as well as some additional periods of reserve service.  The Veteran also had active service from May 1978 to April 1980 which was considered a bar to VA benefits under 38 U.S.C.A. § 3103(a) in a March 1985 Administrative Decision.

This appeal comes before the Board of Veterans' Appeals (Board) from an April 1992 RO decision denying service connection for an intestinal condition issued by the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California.  The Veteran subsequently moved and the claim was forwarded to the RO in Anchorage, Alaska.

This appeal was remanded by the Board in February 2005 and July 2006 for additional development.  In September 2008, the Board denied the Veteran's claim.  The Veteran subsequently appealed to the United States Court of Appeals for Veterans Claims (Court).  The representative for the appellant and the Secretary of Veterans Affairs filed a Joint Motion for Remand in December 2008.  By Order of the Court the claim was returned to the Board.  

In July 2010, the Board remanded the appeal for additional development.  The Board again denied the Veteran's claim in January 2011.  The Veteran appealed the denial and in a May 2012 Memorandum Decision, the Court set aside the Board's decision with regard to the claim for service connection for a gastrointestinal disorder.  As such, the issue is now back before the Board. 

After the Veterans Law Judge who held a hearing in May 2004 subsequently retired from the Board, the appellant was offered an opportunity for another Board hearing before a different Veterans Law Judge.  The Veteran declined this opportunity in September 2012.  See 38 C.F.R. § 20.704 (2012).



FINDING OF FACT

Clear and unmistakable evidence demonstrates that a gastrointestinal disorder predated service and that there was no increase in disability beyond the normal progress of the disease during service; current gastrointestinal disorder is not otherwise related or attributable to his service as it is the same gastrointestinal disorder which preexisted service entry.


CONCLUSION OF LAW

A gastrointestinal disorder was not incurred in or aggravated by service.  38 U.S.C.A. §§ 1110, 1111, 1131, 1153 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.304, 3.306 (2012).


REASONS AND BASES FOR FINDING AND CONCLUSION

Veterans Claims Assistance Act of 2000 (VCAA)

VA has met all statutory and regulatory notice and duty to assist provisions.  See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326. 

Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the Veteran and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim, including apprising him or her of the information and evidence he or she is responsible for providing versus the information and evidence VA will obtain for him or her.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002).

These notice requirements apply to all five elements of a service-connection claim:  (1) Veteran status; (2) existence of a disability; (3) a connection between the Veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability.  See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (2007).  So this notice must include information that a "downstream" disability rating and an effective date for the award of benefits will be assigned if service connection is granted.  Id., at 486.

Ideally, this notice should be provided prior to an initial unfavorable decision on a claim by the RO.  Pelegrini v. Principi, 18 Vet. App. 112 (2004) (Pelegrini II).  If, however, for whatever reason it was not, or the notice provided was inadequate, this timing error can be effectively "cured" by providing any necessary notice and then readjudicating the claim - including in a statement of the case (SOC) or supplemental SOC (SSOC), such that the intended purpose of the notice is not frustrated and the Veteran is given an opportunity to participate effectively in the adjudication of the claim.  See Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007) (Mayfield IV); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006).

The U.S. Supreme Court has made clear that VCAA notice errors are not presumptively prejudicial, rather, must be determined on a case-by-case basis, and that, as the pleading party attacking the agency's decision, the Veteran, not VA, bears this burden of proof of establishing there is a VCAA notice error and, moreover, above and beyond this, that the error is unduly prejudicial, meaning outcome determinative of the claim.  See Shinseki v. Sanders, 129 S. Ct. 1696 (2009).

The Veteran has received all essential notice, has had a meaningful opportunity to participate in the development of the claim, and is not prejudiced by any technical notice deficiency along the way.  See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004).  VCAA letters were sent in January 2002, and July 2010.  The letters, especially in combination, indicated the type of evidence and information needed to substantiate the claim and apprised the Veteran of the Veteran's and VA's respective responsibilities in obtaining this supporting evidence.  The letters also notified the Veteran that a "downstream" disability rating and an effective date for the award of benefits would be assigned if service connection was granted, in compliance with Dingess.

The Veteran has been afforded a hearing before a Veterans Law Judge (VLJ) in which he presented oral argument in support of his claim.  In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. § 3.103(c)(2) requires that the VLJ who chairs a hearing fulfill two duties to comply with the above the regulation.  These duties consist of (1) the duty to fully explain the issue and (2) the duty to suggest the submission of evidence that may have been overlooked.  

Here, during the hearing, the VLJ did not specifically note the bases of the prior determination or the elements that were lacking to substantiate the claim.  The VLJ asked specific questions, however, directed at identifying whether there was evidence of record or outstanding evidence that potentially addressed the elements for establishing service connection, and the Veteran also volunteered information relating to such elements of the claim.  Accordingly, the Veteran is not shown to be prejudiced on this basis.  Finally, neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), nor has he identified any prejudice in the conduct of the Board hearing.  By contrast, the hearing focused on the elements necessary to substantiate the claim, and the Veteran, through his testimony, demonstrated that he had actual knowledge of the elements necessary to substantiate his claim.  As such, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2).

Regarding the duty to assist, VA also satisfied this obligation in terms of obtaining all potentially relevant evidence concerning the claim.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.  The Veteran's service treatment records (STRs), VA medical treatment records, identified private medical records, and Social Security Administration record, were obtained, to the extent available.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.  There is no indication that any additional evidence, relevant to these claims, is available and not part of the claims file.  The Veteran also was provided VA compensation examinations and medical expert opinion was also obtained.  See McLendon v. Nicholson, 20 Vet. App. 79 (2006).  The medical opinion, particularly the medical expert opinion, obtained is responsive to the determinative issue of causation, so additional examinations and opinions are not needed.  38 C.F.R. § 4.2.  See also Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (holding that once VA undertakes the effort to provide an examination for a service-connection claim, even if not statutorily obligated to do so, it must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided).  And see Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007) (VA's duty to assist includes providing an adequate examination when such an examination is indicated).  The examination of record is adequate to address all pertinent concerns, as the claims file was reviewed for the relevant medical and other history, the Veteran examined, the findings reported in sufficient detail, and there was discussion of the underlying medical rationale, which is where most of the probative value of an opinion is derived.  See Neives-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008).  The VA examination report is thorough and supported by the record.  The records taken as a whole satisfy 38 C.F.R. § 3.326.

Furthermore, in obtaining this additional medical evidence from a medical expert, the Board is satisfied there was compliance with prior Board remand directives.  See Stegall v. West, 11 Vet. App. 268 (1998) (indicating the Veteran is entitled, as a matter of law, to compliance with a remand directive and that the Board, itself, commits error in failing to ensure this compliance).  See also Dyment v. West, 13 Vet. App. 141, 146-47 (1999); and D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (discussing situations when it is acceptable to have "substantial", though not "exact", compliance with a remand directive).

In summary, the Board finds that "it is difficult to discern what additional guidance VA could have provided to the Veteran regarding what further evidence he should submit to substantiate his claim."  See Livesay v. Principi, 15 Vet. App. 165, 178 (2001) (en banc) (observing that "the VCAA is a reason to remand many, many claims, but it is not an excuse to remand all claims."); Reyes v. Brown, 7 Vet. App. 113, 116 (1994); Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (both observing circumstances as to when a remand would not result in any significant benefit to the Veteran).


Service Connection

Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service.  38 U.S.C.A. §§ 1110, 1131, 1153; 38 C.F.R. §§ 3.303, 3.304, 30306.  

Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an 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.

A veteran is considered to have been in sound condition when examined, accepted and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, except where clear and unmistakable evidence demonstrates that an injury or disease existed before acceptance and enrollment and was not aggravated by such service.  38 U.S.C.A. §§ 1111.

A preexisting injury or disease will be considered to have been aggravated by service where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease.  38 U.S.C.A. § 1153; 38 C.F.R. § 3.306.  

When no preexisting condition is noted upon entry into service, the Veteran is presumed to have been sound upon entry.  The burden then falls on the government to rebut the presumption of soundness by clear and unmistakable evidence that the Veteran's disability was both pre-existing and not aggravated by service.  See VAOPGCPREC 3-2003 (July 16, 2003); Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004).  The government may show a lack of aggravation by establishing that there was no increase in disability during service or that any increase in disability was due to the natural progress of the preexisting condition.  38 U.S.C. § 1153.  If this burden is met, then the Veteran is not entitled to service-connected benefits.  If, on the other hand, a condition is noted when entering service, during the enlistment examination, then the Veteran, not VA, has this burden of proof of showing the preexisting condition was aggravated during or by his service beyond its natural progression.  

In July 2003, the VA General Counsel issued a precedent opinion, which held that, to rebut the presumption of sound condition under Section 1111 of the statute, VA must show by clear and unmistakable evidence both that the disease or injury existed prior to service and that the disease or injury was not aggravated by service.  VAOPGCPREC 3-03 (July 16, 2003).  The claimant is not required to show that the disease or injury increased in severity during service before VA's duty under the second prong of this rebuttal standard attaches.  Id.

Although VA's General Counsel has determined that the definition of "aggravation" used in 38 U.S.C.A. § 1153 and 38 C.F.R. § 3.306 does not apply in determining whether the presumption of soundness has been rebutted, the statute and regulation do not otherwise provide any definition of "aggravation" to be applied in making that determination.  The word "aggravate" is defined as "to make worse."  Webster's II New College Dictionary (1999).  

Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during, and subsequent to service.  38 U.S.C.A. § 1153; 38 C.F.R. § 3.306(b); Falzone v. Brown, 8 Vet. App. 398, 402 (1995).  Mere temporary or intermittent flare-ups of a pre-existing injury or disease during service are insufficient to be considered "aggravation in service", unless the underlying condition, itself, as contrasted with mere symptoms, has worsened.  See Davis v. Principi, 276 F.3d 1341, 1345 (Fed. Cir. 2002); Jensen v. Brown, 4 Vet. App. 304, 306-307 (1993); Green v. Derwinski, 1 Vet. App. 320, 323 (1991); and Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991).  A pre-existing disease or injury will be presumed to have been aggravated by service only if the evidence shows that the underlying disability underwent an increase in severity.  Townsend v. Derwinski, 1 Vet. App. 408 (1991); 38 C.F.R. § 3.306(a).  Evidence of the Veteran being asymptomatic on entry into service, with an exacerbation of symptoms during service, does not constitute evidence of aggravation.  Green v. Derwinski, 1 Vet. App. 320, 323 (1991).  If the disorder becomes worse during service and then improves due to treatment in service to the point that it was no more disabling than it was at entrance into service, the disorder is not presumed to have been aggravated by service.  Verdon v. Brown, 8 Vet. App. 529 (1996).  That is, the Verdon Court held that the presumption of aggravation does not attach even where the preexisting disability has been medically or surgically treated during service and the usual effects of treatment have ameliorated disability so that it is no more disabling than it was at entry into service.

Competent evidence generally is needed to support a finding that a preexisting disorder increased in severity during service beyond its natural progression. See Paulson v. Brown, 7 Vet. App. 466, 470-471 (1995); Crowe v. Brown, 7 Vet. App. 238, 246 (1994).

A layperson is generally incapable of opining on matters requiring medical knowledge.  Routen v. Brown, 10 Vet. App. 183, 186 (1997), aff'd sub nom. Routen v. West, 142 F.3d 1434 (Fed. Cir. 1998), cert. denied, 119 S. Ct. 404 (1998).  However, 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, (e.g., a broken leg, separated shoulder, pes planus (flat feet), varicose veins, tinnitus (ringing in the ears), etc.), (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.  See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007).

In essence, lay testimony is competent when it regards the readily observable features or symptoms of injury or illness and "may provide sufficient support for a claim of service connection."  Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also 38 C.F.R. § 3.159(a)(2).  When, for example, a condition 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 make a credibility determination as to whether that evidence supports a finding of service incurrence and continuity of symptomatology sufficient to establish service connection.  See Barr v. Nicholson, 21 Vet. App. 303, 310 (2007).

Thus, medical evidence is not always or categorically required when the determinative issue involves either medical diagnosis or etiology, but rather such issue may, depending on the facts of the particular case, be established by competent and credible lay evidence under 38 U.S.C.A. § 1154(a).  See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009).  As held in Davidson, section 1154(a) requires that VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability or death benefits.  See also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) ("[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence" such as actual treatment records).  The Veteran is competent to report the Veteran can observe and feel through the senses.  See Layno.  When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent.  Kahana v. Shinseki, 24 Vet. App. 428 (2011).

Once evidence is determined to be competent, the Board must determine whether the evidence also is credible, as only then does it ultimately have probative value.  See Layno (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("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) (Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, whereas credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted).  

In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence that it finds to be persuasive or unpersuasive, and provide the reasons or bases 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).  To this end, the Board is charged with the duty to assess the credibility and weight given to evidence.  Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001).  Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the U. S. Court of Appeals for the Federal Circuit (Federal Circuit Court), citing its decision in Madden, recognized that the Board had inherent fact-finding ability.  Id. at 1076; see also 38 U.S.C.A. § 7104(a) (West 2002).  Moreover, the Court similarly has declared that, in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence.  Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992).  

As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing when he/she has testified.  See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza, aff'd per curiam, 78 F.3d 604(Fed. Cir. 1996).  See, too, Macarubbo v. Gober, 10 Vet. App. 388 (1997) (similarly holding that the credibility of lay evidence can be affected and even impeached by inconsistent statements, internal inconsistency of statements, inconsistency with other evidence of record, facial implausibility, bad character, interest, bias, self-interest, malingering, desire for monetary gain, and witness demeanor).

The determination as to whether these requirements for service connection are met is based on an analysis of all the relevant evidence of record, medical and lay, and the evaluation of its competency and credibility to determine its ultimate probative value in relation to other evidence.  See Baldwin v. West, 13 Vet. App. 1, 8 (1999).

Reasonable doubt concerning any matter material to the determination is resolved in the Veteran's favor.  38 U.S.C.A. § 5107 (b); 38 C.F.R. § 3.102.

A review of the STRs revealed that on the Veteran's January 1974 induction examination, it was noted that the Veteran had abdominal scars and that the Veteran had an operation for intestinal obstruction in 1964.  The examination further noted that there were no complications or sequelae with regard to the operation for intestinal obstruction.  The accompanying report of medical history had a doctor's handwritten note which is somewhat illegible, but appears to at least note "intestinal obstruction."  A subsequent medical examination report dated in October 1974 noted abdominal scars that were well healed and not symptomatic as well as surgical removal of a swallowed key in childhood, with no complications, no sequelae.  

With regard to inservice treatment for abdominal pain/gastrointestinal issues, an October 1974 service treatment record noted that the Veteran had a complicated history of abdominal surgeries after swallowing a key in 1964 which perforated the small intestines and led to peritonitis.  The resulting surgery consisted of a small bowel resection.  Subsequently, in December 1974, the Veteran was admitted to the hospital for six days for acute viral gastroenteritis.  In February 1975 the Veteran again sought treatment for epigastric pain and an upper gastrointestinal scan taken to rule out peptic ulcer disease revealed abnormal dilation of the small bowel and noted that while the significance of the findings was uncertain, the small bowel dilation may have been related to mesenteric adhesions secondary to the childhood abdominal surgeries.  In July 1975 the Veteran again presented with abdominal pain and cramping and a service treatment note reported preservice abdominal issues and presented status post perforated intestinal wall after 3 exploratory surgeries to recover a swallowed key.  The report also noted multiple well healed abdominal scars.  The examiner assessed possible partial obstruction and sought a surgical consultation.  The August 1975 surgical consultation report noted that the Veteran had multiple abdominal surgeries that started at birth.  The report further noted that the Veteran had operative dictations with him from the previous two surgeries for adhesions which described severe generalized adhesions.  The Veteran was examined and it was determined that he had intermittent partial small bowel obstructions, but his weight was stable to increasing.  As such, the examiner determined that surgery was not necessary noting that the only indication for surgery would have been complete obstruction or progressive weight loss at which time the examiner would have considered using a Baker tube.  The examiner stated that it was a very serious problem and there was considerable disability from it, however, surgery was not the answer unless frequent small feedings and symptomatic treatment resulted in marked weight loss or complete obstruction.

Post-service, the Veteran was afforded a VA examination in October 2005 which noted that the Veteran had reported that his gastrointestinal problems began shortly after birth and that the Veteran's abdominal problems inservice appeared to be totally connected to his pre-military service conditions.  

The Veteran was subsequently examined by VA in May 2007.  At that time, the examiner, after reviewing the record and current medical literature as well as examining the Veteran, concluded that it was less likely as not that the Veteran's preexisting gastrointestinal condition was aggravated by military service.  The examiner reasoned that the Veteran had extensive and multiple surgeries prior to service resulting in clustering of his small intestine in the upper quadrant with the resultant of high risk of developing intestinal pseudo obstruction as well as chronic abdominal pain.  The examiner noted that the Veteran developed several episodes of pseudo obstruction during service that was managed conservatively even after a failed exploratory laparotomy in 1979 and there was no evidence of adhesions requiring multiple surgeries.  The examiner concluded that there was no evidence that the Veteran's abdominal condition was aggravated beyond the natural progression during service.  The Board notes however, that the May 2012 Court Memorandum Decision found that this May 2007 VA medical opinion was entitled to no probative weight as to the element of the presumption of aggravation because the examiner's rationale lacked any support in the evidence.  See May 2012 Court Memorandum Decision, p. 7; see also, 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306(b).

Based on the foregoing, and the Court's Memorandum Decision, the Board referred this case for an expert opinion from a surgeon which was completed in January 2013.  The surgeon very thoroughly reviewed the records.  The surgeon also reviewed the pertinent medical findings in detail.  The following questions were posed by the Board to the surgeon:

(a) Is there clear and unmistakable (obvious or manifest) evidence that the Veteran had a gastrointestinal defect, infirmity, or disorder that preexisted his military service; please identify with specificity any evidence that supports this finding.  The examiner is advised that the determination regarding inception should not be based solely on the Veteran's reported history, but should also include consideration of the clinical records and the known characteristics of any diagnosed gastrointestinal disorder;

(b) If there is clear and unmistakable evidence that the Veteran had a preexisting gastrointestinal defect, infirmity, or disorder at the time of his service entrance, is there evidence that the Veteran's preexisting gastrointestinal disorder increased in severity (worsened) in service;

(c) If the preexisting gastrointestinal defect, infirmity, or disorder increased in severity in service, is there clear and unmistakable (obvious or manifest) evidence that the increase in service was due to the natural progress of the gastrointestinal disorder; please identify with specificity any evidence that supports this finding;

(d) If the examiner determines that the Veteran did not have a gastrointestinal defect, infirmity, or disorder that preexisted service, is it at least as likely as not that the Veteran currently has a gastrointestinal disorder that had its onset in, or is otherwise etiologically related, to his military service.

The surgeon initially noted problems with the May 2007 VA unfavorable examination opinion.  However, as noted, the Court already indicated the diminished probative value of this opinion so the inadequacies are merely noted by the Board at this time.  In addition, the Board accepts this surgeon's clinical judgment.  The surgeon referred in his report to certain legal questions, but he is only required to provide a medical/clinical evaluation.  Thus, the focus of his opinion pertains to those clinical assessments.

With regard to question (a), the surgeon stated that there were no records available for reviewing regarding a pre-enlistment history and physical.  Based on history and abdominal inspection, the Veteran appeared to have a preexisting condition based on clinical judgment.  The surgeon noted that the physician who performed the enlistment history and physical in 1974 was not provided by the Veteran with full disclosure of the extent of the Veteran's medical and surgical problems, which are revealed in the later documents.  Based on the incomplete information provided, the surgeon noted that the physician had no reason to perform further testing or assume a chronic problems existed.  The physician could only base his evaluation on the completeness of the history which was incompletely provided by the Veteran.  With regard to question (b), the surgeon stated that the Veteran clinically had a preexisting condition and also indicated that there were symptoms during service (the complete history was cited in his report).  As to question (c), the surgeon again noted the incomplete history provided on the induction examination.  He stated that clinically, symptomatology was based on progression of a preexisting problem (noted at attempted laparotomy in 1980) of adhesions causing partial mechanical small bowel instructions.  He stated that this was compatible with the natural history of severe adhesive small bowel disease, which could only have developed from previous operations since the Veteran was not exposed to other etiologies of this problem during active duty (radiation therapy, carcinomatosis, etc.).  With regard to question (d), the surgeon stated that medically, the Veteran had a preexisting condition, adhesive small bowel disease, which caused intermittent and recurrent partial mechanical small bowel obstructions due to multiple previous operations.  The surgeon again emphasized that the medical problems were indeed preexisting.

Although the Veteran is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, the Veteran is not competent to provide evidence as to more complex medical questions.  See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007).  This case involves a complex medical history and course of symptoms and treatment.  An assessment regarding the medical complications in this case are beyond the Veteran's lay expertise.  Thus, while the Veteran is competent to report his symptoms as well as his history, generally, the inquires posed to the VA medical expert, a surgeon, are simply beyond the Veteran's scope of ability to answer.  Rather, such complex questions must be resolved by a medical professional; hence, the reason for obtaining a medical expert opinion in this case by a surgeon with specific expertise in the area covered.  

With regard to the surgeon's opinion, in determining the probative value to be assigned to a medical opinion, the Board must consider three factors.  See Nieves-Rodriguez.  The initial inquiry in determining probative value is to assess whether a medical expert was fully informed of the pertinent factual premises (i.e., medical history) of the case.  A review of the claims file is not required, since a medical professional can also become aware of the relevant medical history by having treated a Veteran for a long period of time or through a factually accurate medical history reported by a Veteran.  See id. at 303-04.  The second inquiry involves consideration of whether the medical expert provided a fully articulated opinion.  See id.  A medical opinion that is equivocal in nature or expressed in speculative language does not provide the degree of certainty required for medical nexus evidence.  See McLendon v. Nicholson, 20 Vet. App. 79 (2006).  The third and final factor in determining the probative value of an opinion involves consideration of whether the opinion is supported by a reasoned analysis.  The most probative value of a medical opinion comes from its reasoning.  Therefore, a medical opinion containing only data and conclusions is not entitled to any weight.  In fact, a review of the claims file does not substitute for a lack of a reasoned analysis.  See Nieves-Rodriguez; see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ( "[A] medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions."). 

In this case, the surgeon was aware of the Veteran's medical history, provided a fully articulated opinion, and also furnished a reasoned analysis.  The Board therefore attaches the most significant probative value to this opinion, and the most probative value in this case, as it is well reasoned, detailed, consistent with other evidence of record, and included an access to the accurate background of the Veteran.  See Prejean v. West, 13 Vet. App. 444, 448-9 (2000) (Factors for assessing the probative value of a medical opinion include the thoroughness and detail of the opinion).  In pertinent part, due to the expertise required in this case and also due to the extremely thorough nature of the opinion provided by the VA surgeon in January 2013, his opinion's probative value outweighs the probative value of the Veteran's opinion.  

As noted, veterans are presumed to have entered service in sound condition as to their health.  This presumption attaches only where there has been an induction examination in which the later complained-of disability was not detected.  See Bagby v. Derwinski, 1 Vet. App. 225, 227 (1991).  The regulation provides expressly that the term "noted" denotes "[o]nly such conditions as are recorded in examination reports," 38 C.F.R. § 3.304(b), and that "[h]istory of preservice existence of conditions recorded at the time of examination does not constitute a notation of such conditions,"  Id. at (b)(1).  Thus, at the time of entry, there is a presumption that the Veteran entered in sound health.  Here, although the induction examination noted the presence of abdominal scars and prior surgery, it specifically indicated that there were no complications or sequelae with regard to the operation for intestinal obstruction.  Therefore, at the time of entry, there is no evidence that there was any defect, infirmity, or disorder with regard to a gastrointestinal system on objective examination.  Thus, the Veteran is entitled to a presumption of soundness.

Because the Veteran is entitled to a presumption of soundness, the Board must determine whether, under 38 U.S.C.A. § 1111, the presumption of soundness is rebutted by clear and unmistakable evidence.  The burden of proof is on VA to rebut the presumption by producing clear and unmistakable evidence that a disability existed prior to service and that it was not aggravated during service.  See Wagner.  In Wagner the Court established that the burden falls on the government to rebut the presumption of soundness by clear and unmistakable evidence that the disability was both preexisting and not aggravated by service.  The government may show a lack of aggravation by establishing that there was no increase in disability during service or that any increase in disability was due to the natural progress of the preexisting condition.  38 U.S.C.A. § 1153.   Wagner v. Principi, 370 F.3d 1089 (2004).

In Miller v. West, 11 Vet. App. 345, 348 (1998), the Court indicated that "a bare conclusion, even one written by a medical professional, without a factual predicate in the record does not constitute clear and unmistakable evidence sufficient to rebut the statutory presumption of soundness."  The Court held that the presumption of soundness upon entry into service may not be rebutted without "contemporaneous clinical evidence or recorded history" in the record.  In this case there was, however, a "factual predicate in the record" in that the subsequent STRs repeatedly referred to, and show clinical evidence of, a preexisting gastrointestinal disorder, and, significantly, the most probative evidence of record consisting of the VA surgeon's opinion establishes that the Veteran had a gastrointestinal disorder which preexisted service.  

In the Miller decision, the Court noted that  "[n]othing in the court's opinion suggests that without such evidence the presumption can never be rebutted," emphasizing that any such determination must consider "how strong the other rebutting evidence might be."  Harris v. West, 203 F. 3d. 1347, 1351 (Fed. Cir. 2000).  The  Federal Circuit held that contemporaneous evidence of treatment is not required to rebut the presumption of soundness.  In Harris the Federal Circuit found that all medically accepted evidence can be considered, including a recorded medical history.  In this case, both the inservice and the recent medical expert opinions documented the presence of a preexisting gastrointestinal disorder and these clinical findings are probative of the etiology of the gastrointestinal disability.  The Board finds that this probative evidence constitutes clear and unmistakable evidence that a gastrointestinal disorder existed prior to service entrance.  However, VAOPGCPREC 3-03 (July 16, 2003), has established that there are two steps to rebut the presumption of soundness at entry.  First, there must be clear and unmistakable evidence of the preexisting disorder and, also, second, there must be clear and unmistakable evidence that this disorder was not aggravated during service.  The Federal Circuit in Wagner held that the government may show a lack of aggravation by establishing that there was no increase in disability during service or that any increase in disability was due to the natural progress of the preexisting condition.  If both prongs are not met, the presumption of soundness at entry is not rebutted.

The Board finds that there is clear and unmistakable evidence demonstrating that the preexisting gastrointestinal disorder was not aggravated by service.  The record shows that the Veteran was treated for gastrointestinal symptoms during service, as shown in the STRs and as reflected by the VA surgeon's expert opinion.  The Board accepts that there was a worsening of the preexisting disorder.  However, the VA surgeon addressed the matter of whether any worsening of the disorder during service was due to the natural progress of the preexisting condition.  The expert concluded that the Veteran experienced a progression of his preexisting disorder, of adhesions causing partial mechanical small bowel instructions.  He stated that this was compatible with the natural history of severe adhesive small bowel disease, which could only have developed from previous operations since the Veteran was not exposed to other etiologies of this problem during active duty.  

The Board therefore finds that there was no aggravation of the preexisting gastrointestinal disorder based on the most probative evidence of record since the preexisting disorder did not worsen beyond its natural progression.  Accordingly, because there is clear and unmistakable evidence that the preexisting gastrointestinal disorder preexisted service and clear and unmistakable evidence that it was not aggravated during service, the presumption of soundness is rebutted.  See Wagner.  Further, since there is clear and unmistakable evidence that the preexisting gastrointestinal disorder at issue was not aggravated during service for the purpose of rebutting the presumption of soundness (38 U.S.C.A. § 1111), it necessarily follows that such disorder was not, in fact, aggravated during service (38 U.S.C.A. § 1110).  The Board has found by clear and unmistakable evidence that the Veteran's gastrointestinal disorder was not aggravated by service in order to rebut the presumption of soundness.  VA's General Counsel found that such a finding would necessarily be sufficient to rebut the presumption of aggravation under 38 U.S.C.A. § 1153 and 38 C.F.R. § 3.306(b).  

Further, the Board finds that the Veteran's current gastrointestinal disability is not otherwise attributable to service as it is the same preexisting disorder that he had when he entered service, i.e., the preexisting gastrointestinal disorder.  

Accordingly, service connection is not warranted.  The evidence in this case is not so evenly balanced so as to allow application of the benefit-of-the-doubt rule as required by law and VA regulations.  38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102.  The preponderance of the evidence is against the Veteran's claim, and it must be denied.


ORDER

Service connection for a gastrointestinal disorder is denied.



____________________________________________
S. L. Kennedy
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs