Citation Nr: 1329144 Decision Date: 09/11/13 Archive Date: 09/17/13 DOCKET NO. 10-18 492 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical and Regional Office Center in Fargo, North Dakota THE ISSUES 1. Entitlement to service connection for Crohn's Disease, claimed as a gastrointestinal disability. 2. Entitlement to service connection for sarcoidosis. REPRESENTATION Veteran represented by: Minnesota Department of Veterans Affairs ATTORNEY FOR THE BOARD Megan C. Kral, Associate Counsel INTRODUCTION The Veteran had active duty service from November 1993 to November 1997. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2009 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). This case was previously before the Board in October 2012 when the issues on appeal were remanded for additional development. In February 2013, the RO issued a rating decision granting service connection tinnitus; as the RO granted the full benefit sought, the appeal of that issue is resolved and is not before the Board. FINDINGS OF FACT 1. The Veteran's Crohn's disease was not manifested during the Veteran's active duty service; nor is it otherwise related to service. 2. The Veteran's sarcoidosis was not manifested during the Veteran's active duty service; nor within a year thereafter; nor is sarcoidosis otherwise related to service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for Crohn's disease have not been met. 38 U.S.C.A. §§ 1110, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.303 (2012). 2. The criteria for entitlement to service connection for sarcoidosis have not been met. 38 U.S.C.A. §§ 1101, 1112, 1131, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 Under the Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107 and 5126; see also 38 C.F.R. §§ 3.102, 3.156(a), and 3.326(a), VA has a duty to notify the Veteran of any information and evidence needed to substantiate and complete a claim, and of what part of that evidence is to be provided by the Veteran and what part VA will attempt to obtain for the Veteran. 38 U.S.C.A. § 5103(a); 38 C.F.R § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). Duty to Notify The record shows that in a November 2008 VCAA letter, the Veteran was informed of the information and evidence necessary to warrant entitlement to the benefits sought on appeal. The Veteran was also advised of the types of evidence VA would assist her in obtaining as well as her own responsibilities with regard to identifying relevant evidence. See Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); Charles v. Principi, 16 Vet. App. 370 (2002). The United States Court of Appeals for Veterans Claims' (Court) decision in Pelegrini v. Principi, 18 Vet. App. 112 (2004) held, in part, that a VCAA notice as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim for VA benefits. The 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. Dingess v. Nicholson, 19 Vet. App. 473 (2006). In this case, the RO provided VCAA notice to the Veteran in November 2008, which was prior to the March 2009 rating decision. Accordingly, the requirements the Court set out in Pelegrini have been satisfied. Additionally, by the letter sent in November 2008, the Veteran was provided with notice of what type of information and evidence was needed to substantiate a claim for service connection, as well as, types of evidence necessary to establish a disability rating and effective date for the disability on appeal. In sum, the Veteran has received all essential notice, has had a meaningful opportunity to participate in the development of her claim, and is not prejudiced by any technical notice deficiency along the way. See Conway v. Principia, 353 F.3d 1369 (Fed. Cir. 2004). In any event, the Veteran has not demonstrated any prejudice with regard to the content of the notice. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009)(reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination.) See also Mayfield v. Nicholson, 444 F.3d 1328, 1333-34 (Fed. Cir. 2006). Duty to Assist Furthermore, the Board finds that there has been compliance with the assistance provisions set forth in the law and regulations. The record in this case includes service treatment records, post-service treatment records, and VA examination reports. The Veteran was afforded a VA examination in January 2013 in compliance with the October 2012 Board remand. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4). The Board finds that the January 2013 VA examination report contains sufficiently specific clinical findings and informed discussion of the facts of record to provide probative medical evidence adequately addressing the issues decided below. The examination report obtained contains sufficient information to decide the issues on appeal. See Massey v. Brown, 7 Vet. App. 204 (1994). Thus, the Board finds that a further examination is not necessary. The Board notes that in January 2013, the Veteran provided an executed release and authorization for VA to obtain treatment records from Sanford Health. A response dated March 2013 indicated that while Sanford Health received the authorization, the records would not be released because the signature on the authorization did not match the name on the records. By April 2013 letter, the Veteran was notified and asked to provide another executed authorization. The Veteran did not respond. The Board notes that, while VA has a statutory duty to assist the Veteran in developing evidence pertinent to a claim, the Veteran also has a duty to assist and cooperate with VA in developing evidence; the duty to assist is not a one-way street. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991); see Hayes v. Brown, 5 Vet. App. 60, 68 (1993) (VA's duty to assist is not a one-way street; if a veteran wishes help, she cannot passively wait for it in those circumstances where her own actions are essential in obtaining the putative evidence). The Board is satisfied that VA has made reasonable efforts to obtain the relevant treatment records, and finds that the record as it stands includes adequate competent evidence to allow the Board to decide the case and no further action is necessary. See generally 38 C.F.R. § 3.159(c)(4). No additional pertinent evidence has been identified by the Veteran. For all the foregoing reasons, the Board concludes that VA's duties to the Veteran have been fulfilled with respect to the issues on appeal. Legal Criteria, Factual Background, and Analysis The issues before the Board involve a claim of entitlement to service connection. Applicable law provides that service connection will be granted if it is shown that the Veteran suffers from disability resulting from an injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131, 38 C.F.R. § 3.303. That an injury occurred in service alone is not enough; there must be chronic disability resulting from that injury. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Additionally, for Veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, such as sarcoidosis, are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). To establish a right to compensation for a present disability, a Veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service." Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The Board is charged with the duty to assess the credibility and weight given to evidence. Wensch v. Principi, 15 Vet. App. 362, 367 (2001); Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). In weighing credibility, VA may consider interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of the witness. Caluza v. Brown, 7 Vet. App. 498 (1995). The Board may weigh the absence of contemporaneous medical evidence against the lay evidence in determining credibility, but the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). 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'). A Veteran is competent to report symptoms that he experiences at any time because this requires only personal knowledge as it comes to him through his senses. Layno, 6 Vet. App. at 470; Barr v. Nicholson, 21 Vet. App. 303, 309 (2007) (when 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). Initially, the Board notes that it has reviewed all of the evidence in the Veteran's claims file, including Virtual VA (VA's electronic database), with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (VA must review the entire record, but does not have to discuss each piece of evidence). Hence, the Board will summarize the relevant evidence as appropriate, and the Board's analysis will focus specifically on what the evidence shows, or fails to show, as to the claim. The Veteran's service treatment records show that in August 1994, the Veteran presented for treatment with complaints of a sick stomach and vomiting following lunch. The examiner noted the Veteran felt better after vomiting. On examination, her abdomen was soft and without organomegaly, guarding, or rebound. She was assessed as having indigestion from lunch which was relieved by vomiting. In February 1995, the Veteran again presented with complaints of stomach ache, vomiting, dizziness, cramps, and earache. The Veteran related "feeling better;"and that her last vomitus was over 24 hours prior to examination and she had no complaints of diarrhea. On examination, her abdomen was flat, non-tender to palpation, with bowel sounds in all quadrants but without rebound, guarding or masses. Probable viral syndrome was diagnosed. An August 1995 treatment record shows the Veteran was seen for "really bad" stomach cramps. A normal examination was noted and it was concluded the Veteran suffered from menstrual cramps. In May 1997, service treatment records show the Veteran was treated on multiple occasions for stomach pain. On May 1, the Veteran presented with left upper quadrant pain for three days. She compared the pain she experienced to gas pains, described as sharp and stabbing localized under the left ribs. The examiner noted there was no pain on the right side, and the Veteran had a normal appetite. On examination the Veteran's abdomen was soft, with normal bowel sounds; it was tender to deep palpitation at the left upper quadrant and left lower quadrant, without masses, but complaints of fluctuant. Probable constipation and excess gas were diagnosed; medication was prescribed. The Veteran returned to sick bay six days later to follow up with stomach pain on her left side. She reported that the medication prescribed had worked. On examination her abdomen was soft, non-distended, tender to palpitation at the suprapubic region, without hepatosplenomegaly. Probable constipation was diagnosed and the Veteran was instructed to follow up with a gynecological consultation. A high fiber diet and Metamucil were recommended. Two weeks later the Veteran was seen at the emergency room for abdominal pain. The Veteran complained of fever, migraine, burning with urination and diarrhea. On examination, there was left upper quadrant pain in the abdominal, with normal bowel sounds and without masses. A possible ulcer and probable gastroenteritis were diagnosed. She was instructed to follow up with her primary care physician to rule out an ulcer. A June 1997 treatment record shows the Veteran presented to sick call to rule out an ulcer. Her symptoms included sharp stomach pains, cramping, pain in the upper abdomen under rib cage with nausea and epigastric pain with eating. On examination, her abdomen was soft, without masses, and tender along rib edges. The Veteran was prescribed Tagament. The assessment was to rule out gall bladder versus gastritis versus gastric ulcer. In July 1997, the Veteran again reported to sick call with relief of abdomen discomfort, but complained of pain in the lower abdomen and pain with eating. Gastritis was diagnosed, medication was prescribed and diet discussed. The Veteran underwent a separation examination in September 1997. She did not identify any abdominal abnormalities. On a September 1997 Report of Medical History, the Veteran stated, "I am in good health," however, she did indicate that she had frequent indigestion. Post-service, the Veteran was seen for obstructive symptoms, and because of the concern that she may have underlying Crohn's disease, she was sent to the GI clinic for evaluation in January 2004. During the consultation, she complained of post-pranial pain, usually occurring within 28-30 minutes of eating, colicky in nature, affecting primarily the periumbilical area. The report indicated the Veteran did not have a history of diarrhea or mouth ulcers. It was noted that she did not have a history of dysphasia or gastroespohageal reflux disease. A history of duodenal ulcers and gallstones was reported. There was no evidence of a pancreatic mass. She reported 2-3 loose bowel movements a day. On examination, her abdomen was soft, bowel sounds were decreased but present. Following examination, the Veteran was scheduled for an exploratory laparotomy. In February 2004, sarcoid was diagnosed by exploratory laparotomy and biopsy. The Veteran was treated with medications including prednisone. In April 2004, the Veteran was seen at the Infectious Disease clinic to determine the etiology of the noncaseating granulomas found in the lymph node biopsy done in February 2004. The following post-service medical history was reported - in 1998 she noticed an enlarged inguinal lymph node that was tender, she became pregnant and the lymph node returned to normal size. She developed reflux during pregnancy. During her next pregnancy, she experienced abdominal pains that were determined to be secondary to cholelithiasis, and resolved. During her third pregnancy, she again experienced pain and cramps. Persistent abdominal pains led to a repeat right upper quadrant ultrasound, which confirmed the presence of gallstones, new since 1997. Since 2003, she had return of her abdominal pains, severe in nature and associated with inexplicable vomiting, diarrhea as the abdominal pain subsides, and pain so bad she was unable to perform her normal functions at home. She was seen in the emergency room five times in 2003. She was treated for duodenal ulcers. During each clinic or emergency room visit, her labs were all normal. Radiologic studies included many acute abdominal series that revealed old granulomatous disease manifested by hilar calcifications, and usually nonspecific bowel gas patterns. An ultrasound in August 2003 revealed borderline hepatosplenomegaly, and a CT scan in October 2003 showed borderline spenomegaly. An upper gastrointestinal (GI) x- ray series was done in January 2003 and February 2003 and showed a persistent focal narrowing in the distal jejunum with normal peristalsis. On examination, the Veteran symptoms included occasional severe abdominal pain with episodes of milder pain on a frequent basis, which last anywhere from 8-12 hours to several days, and were associated with abdominal bloating. The examiner noted that the pain seemed to be associated with eating. It was reported that she sometimes developed severe, uncontrollable vomiting and required high doses of antiemetics. Her abdominal pain woke her from sleep. Episodes resolved spontaneously. There was no blood in her stools. Her abdomen was soft, non-tender without palpable hepatosplenomegaly. Striations from pregnancy and scars from surgeries were noted. Although the examiner provided a detailed history and a complete summation of the Veteran's complaints, symptoms and prior surgeries; a clear etiology was not provided. Treatment records from 2005 show the Veteran continued to receive substantial treatment for her gastrointestinal complaints to include sarcoidosis. Treatment records from 2006 and 2007 show the Veteran was treated for both Crohn's disease and sarcoidosis; at times interchangeably. In January 2013, the Veteran was afforded a VA examination to determine the nature and etiology of her sarcoidosis and Crohn's disease. The examination report noted that the Veteran's claims file, service treatment records, and civilian records were reviewed. The examiner noted that sarcoidosis was diagnosed in 2004. On examination the examiner noted that the Veteran's symptoms of sarcoidosis were related to her GI system and there was no lung involvement. A normal lung examination was noted. The examiner also noted that Crohn's disease was diagnosed in 2004. During an interview with the Veteran she reported that during service she had numerous stomach problems. The examiner noted the service treatment records showed treatment for abdominal pain with some vomiting, constipation, and two times with diarrhea, but without mention of bloody diarrhea. The examiner also noted that no diagnostic tests were in the service treatment records. The Veteran then reported that after service, her symptoms improved during her three pregnancies, but then returned. She noted that she was diagnosed with gallbladder stones and had to have her gallbladder removed, which helped the abdominal pain for a short period of time. She reported that in 2004, she was diagnosed with sarcoidosis in her GI tract and that she was put on high doses of prednisone. She reported a small bowel perforation secondary to the steroid use for the sarcoidosis. The Veteran explained to the examiner that at the same time she was diagnosed with sarcoidosis, she was diagnosed with Crohn's disease by colonoscopy. The Veteran stated she had bloody diarrhea weekly and vomited bile about once a month from obstruction, along with abdominal pain. She stated that since 2005, she was no longer prescribed the steroids, and has not had any involvement with her lungs with the sarcoidosis. She stated that she had a brain scan done, and had an enlarged optic nerve as a result of treatment with the steroids. The Veteran also stated she has problems with anemia and absorption through the bowel for which she receives an IV iron supplement. The examiner noted the Veteran is on continuous medication and has had surgical treatment for her gastrointestinal disability. Her current symptoms include; diarrhea, described as bloody and loose occurring weekly; alternating diarrhea and constipation, occurring once to twice a month; abdominal distension; bloating with abdominal pain 2-3 times a week; anemia; nausea, worse with abdominal distention and with obstruction 1-3 times a month; and vomiting. The examiner noted the Veteran had frequent episodes or exacerbations of bowel disturbance with abdominal distress. These exacerbations occurred 7 or more times over the past 12 months. Weight loss was reported, and problems with absorption of iron and calcium were identified. The Veteran's exploratory laparoscopy was noted. The examiner concluded that the Veteran's Crohn's disease was less likely than not incurred in or caused by her military service. The examiner opined that with a thorough review of the claims file, there were no service treatment records to indicate that the Veteran was treated for a gastrointestinal disability to include Crohn's disease during service. The examiner further stated that none of the service treatment records have symptoms of bloody diarrhea or prolonged periods of diarrhea. A medical surveillance certification examination done in August 1995 had no indication of abdominal abnormalities and separation examination from September 1997 did not have any indication of abdominal abnormalities marked. The examiner noted that the first mention of any type of abdominal problems was in 2004, seven years after service. Therefore, the examiner opined that the Veteran's Crohn's disease was less likely than not incurred or caused by the her service. With regard to sarcoidosis, the examiner opined that it was less likely than not incurred or caused by the Veteran's service. The examiner concluded that there were no service treatment records to indicate the Veteran was treated for a gastrointestinal disability to include sarcoidosis during service, and there were no diagnostic tests completed showing evidence of sarcoidosis. The examiner noted that a medical surveillance certification examination done in August 1995 had no indication of abdominal abnormalities and separation examination from September 1997 did not have any indication of abdominal abnormalities marked. The examiner found that the first mention of any type of abdominal problems was in 2004, seven years after service. Therefore, the examiner opined that the claimed condition was less likely than not incurred or caused by the Veteran's service. In order to establish service connection, the Veteran must show a current disability. 38 C.F.R. § 3.303. Based on the examination of the Veteran and her treatment records, the Board does not dispute the fact that the Veteran has a current disability to include Crohn's disease and sarcoidosis. However, in addition to a current disability, there must be a nexus between the present disability and the Veteran's service. Id. In this case, service connection is not warranted for either Crohn's disease or sarcoidosis because the preponderance of the evidence shows that neither disability were present in service, nor were otherwise related to service. The Board acknowledges that the Veteran reported abdominal pain, cramps, vomiting, and diarrhea in service. While these symptoms are possible symptoms of Crohn's disease, they were determined to be caused by indigestion, constipation and gastritis at various times during her service. At no time was Crohn's disease or sarcoidosis diagnosed in service. Additionally, the Veteran denied all relevant symptoms on separation from service. The January 2013 VA examiner based the negative opinion, in part, on review of the claims file. The examiner thus had knowledge of the inservice symptoms. Nevertheless, the examiner found it less likely than not that either of the claimed disabilities were related to service. The Board assigns this medical opinion considerable weight under these circumstances. It is significant that there are no medical opinions of record in support of the Veteran's contentions. The first reported post-service abdominal problem was in 2004, seven years after service. As a result, the Veteran is not entitled to the benefit of the presumptive provision for sarcoidosis, because it is not shown that the disability was manifested within one year after discharge from active service. 38 U.S.C.A. § 1113; 38 C.F.R. § § 3.307, 3.309. Additionally, the Board finds that this lengthy period without treatment weighs heavily against the claim. See Maxson v. West, 12 Vet. App. 453 (1999), aff'd, 230 F.3d 1330 (Fed. Cir. 2000) (service incurrence may be rebutted by the absence of medical treatment of the claimed condition for many years after service). As Crohn's disease and sarcoidosis were not shown during service or for years thereafter, service connection can only granted if there is some competent evidence linking the current disability to service. Here, there is no such competent evidence that establishes a relationship to service. The only medical opinion of record is against establishing a nexus, and there is no evidence to the contrary. The Board acknowledges the Veteran's contention that her Crohn's disease and sarcoidosis are related to her active duty service. However, as discussed, there is no credible evidence of record to support this contention. While the Veteran was competent to provide testimony or statements relating to symptoms or facts of events that she has observed and are within the realm of her personal knowledge, she is not competent to establish that which would require specialized knowledge or training, such as medical expertise. Layno v. Brown, 6 Vet. App. 465, 469-70 (1994). She may sincerely believe that her Crohn's disease and sarcoidosis are related to the symptoms documented during service, however, as a lay person, she is not competent to render a medical diagnosis or an opinion concerning medical causation. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 at n.4 (Fed. Cir. 2007) (finding that "[s]ometimes 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."); see also Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (noting that certain disabilities are not conditions capable of lay diagnosis). Although the Veteran reports having Crohn's disease and sarcoidosis relating to her military service, there is simply no medical evidence on file supporting her lay assertions. Thus, the preponderance of the evidence is against the claims, and the appeal must therefore be denied. 38 U.S.C.A. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). ORDER The appeal is denied as to both issues. ____________________________________________ ALAN S. PEEVY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs