Citation Nr: 1330270	
Decision Date: 09/20/13    Archive Date: 09/25/13

DOCKET NO.  04-04 007	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in New Orleans, Louisiana


THE ISSUES

1.  Entitlement to service connection for diverticulitis and colitis, to include as secondary to service-connected disability and/or herbicide exposure.

2.  Entitlement to service connection for irritable bowel syndrome (IBS), to include as secondary to service-connected disability and/or herbicide exposure.

3.  Entitlement to service connection for renal/ureter calculi (previously characterized as (residuals of kidney stones and urethritis).

4.  Entitlement to service connection for recurrent urinary tract infections/urethritis, to include as due to service-connected disability.

5.  Entitlement to service connection for a left foot and ankle disorder.


REPRESENTATION

Veteran represented by:	Veterans of Foreign Wars of the United States
WITNESS AT HEARING ON APPEAL

Veteran


ATTORNEY FOR THE BOARD

Kristy L. Zadora, Counsel


INTRODUCTION

The Veteran had active duty service from July 1962 to July 1984, to include service in the Navy in the waters of Vietnam.

These matters come before the Board of Veterans' Appeals (Board) on appeal from a September 2002 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in New Orleans, Louisiana, which, in pertinent part, denied the Veteran's claims for service connection for kidney stones/urethritis, left foot pain and diverticulitis.

A review of the Virtual VA claims processing system reveals VA treatment records dated through September 2012.  The Veteran waived RO consideration of such evidence in October 2012.  See 38 C.F.R. § 20.1304 (2013).

The Board remanded the instant matters in January 2005 and September 2011.  As will be discussed herein, the Board finds that the agency of original jurisdiction (AOJ) substantially complied with the remand orders with regard to the claims for service connection for diverticulitis and residuals of kidney stones/urethritis and no further action is necessary in this regard.  See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998), where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002). 

The Veteran testified at a June 2004 video-conference hearing before a Veterans Law Judge (VLJ) who has since retired.  In June 2011, the Veteran was notified that the VLJ who had conducted the June 2004 hearing was no longer employed at the Board and that he had a right to another hearing.  The Veteran indicated that he did not desire an additional hearing in March 2011.

In January 2013, the Board requested an expert medical opinion from the Veterans Health Administration (VHA) and such an opinion was associated with the claims file in April 2013.  The Veteran and his representative were provided with a copy of this opinion in May 2013 and were given 60-days to submit additional evidence and argument.

In May 2013, the Veteran indicated that he had no further argument or evidence to submit and requested that the Board immediately proceed with the adjudication of his appeals.

The Board notes that the Veteran is service-connected for duodenitis, duodenal diverticular and history of peptic ulcer disease.  He has a history of multiple diagnosed gastrointestinal disorders, such as diverticulitis, colitis, IBS, gastroesophageal reflux disease (GERD) and rectal fistula.  VA recognizes that coexisting gastrointestinal disorders, particularly within the abdomen, produce a common disability picture with varying degrees of abdominal distress or pain, anemia and nutritional disturbance.  See generally 38 C.F.R. § 4.113.  On review of the VHA opinion in light of the Veteran's allegations and evidentiary record, the Board has rephrased the issues listed on the title page.  Clemons v. Shinseki, 23 Vet. App. 1 (2009).

Similarly, the Veteran initially sought service connection for disability self-characterized as kidney stones which rendered him susceptible to recurrent urinary tract infections/urethritis.  As a result of findings from a March 2012 VA examination, the Board has also re-characterized this issue as two separate issues on the title page to better reflect the claims on appeal.

The Board notes that it granted the Veteran's claims for service connection for hypertension and hypertensive heart disease in its September 2011 decision.  In a November 2012 Informal Hearing Presentation (IHP), the Veteran's representative indicated that this grant of benefits had not been implemented, and an initial rating had not been assigned, by the AOJ.  A review of the claims file and Virtual VA records suggests that the Board's September 2011 decision may not have been implemented.  The Board does not have jurisdiction over these matters and refers them to the AOJ for appropriate action.  

The issues of entitlement to service connection for recurrent urinary tract infections/urethritis and urethritis, and service connection for a left foot and ankle disorder, are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, D.C.


FINDINGS OF FACT

1.  Diverticulitis and colitis first manifested after service, and are not shown to be causally or etiologically related to any disease, injury, or incident during service, to include herbicide exposure, and/or any service-connected disability, to include PTSD or duodenitis.

2.  The Veteran's IBS is proximately due to service-connected PTSD.

3.  The Veteran currently manifests renal calculi which, as deemed a chronic disease under 38 C.F.R. § 3.309(a), warrants service connection on a presumptive basis as calculi first manifested during active service.


CONCLUSIONS OF LAW

1.  Diverticulitis and colitis were not incurred in or aggravated by the Veteran's active duty service, may not be presumed to have been incurred in or aggravated by such service, and is not secondary to any service-connected disability, to include PTSD and/or duodenitis.  38 U.S.C.A. §§ 1101, 1110, 1112, 1116, 1131, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.310 (2013).  

2.  The criteria for entitlement to service connection for IBS have been met.  38 U.S.C.A. §§ 1110, 1112, 1116, 1131, 5103, 5103A, 5107 (West 2002); 38 C.F.R. § 3.310 (2013).  

3.  The criteria for entitlement to service connection for renal/ureter calculi have been met.  38 U.S.C.A. §§ 1110, 1112, 1116, 1131, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.307, 3.309(a) (2013).  


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  Duties to Notify and assist

The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance.  38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013).  Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1).

In Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), the United States Court of Appeals for Veterans Claims (Court) held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim.  Those five elements include: 1) veteran status; 2) existence of a disability; 3) a connection between a veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability.

In Pelegrini v. Principi, 18 Vet. App. 112 (2004), the Court held that a VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable AOJ decision on the claim for VA benefits.

Relevant to the claims adjudicated herein, the Board finds that VA has satisfied its duty to notify under the VCAA.  Specifically, a January 2002 letter, sent prior to the initial September 2002 rating decision, and letters dated in February 2005 and February 2012, advised the Veteran of the evidence and information necessary to substantiate his service connection claims, as well as his and VA's respective responsibilities in obtaining such evidence and information.

As the issues of assigning a disability rating and effective date of award are not implicated in these claims, any content deficiency with respect to these downstream issues is not prejudicial to the Veteran.  See Dingess/Hartman, 19 Vet. App. 473 (2006).  In addition, the Veteran has neither alleged nor demonstrated any prejudice with regard to the content or timing of the notice provided and the record does not otherwise show such prejudice.  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, falls upon the party attacking the agency's determination). 

Relevant to the duty to assist, the Veteran's service treatment records (STRs), VA and private treatment records, the VA examination reports and the VHA opinion have been obtained and considered.  Neither the Veteran nor his representative has identified any outstanding treatment records that have not been obtained. 

Additionally, the Veteran was afforded multiple VA examinations in order to adjudicate his service connection claims.  In this regard, the Board notes that an October 2012 VA examiner offered an etiological opinion.  An additional VHA opinion was obtained in April 2013 to address deficiencies perceived by the Board, which ultimately offered etiological opinions as to several gastrointestinal disorders deemed relevant to the appeal based upon consideration of the Veteran's contentions in light of the entire evidentiary record.  The VHA examiner offered clear conclusions with supporting data as well as reasoned medical explanations connecting the two.  See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); 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.") 

The Veteran's representative has argued that the VA gastrointestinal examinations were inadequate as the examiners relied upon the absence of findings in the service treatment records.  The absence of any treatment for a claimed disorder is a factor which may be considered by an examiner, but cannot be the sole basis.  The April 2013 VHA examiner based his opinion on actual clinical findings in service, the Veteran's reported location of gastrointestinal pain in service, the Veteran's post-service medical record, the Veteran's report of continuity of symptomatology, and medical literature involving potential etiologies of herbicide exposure and/or the effects of service-connected disabilities.  As such, the Board finds that, in totality, the medical examination findings and opinions of record are sufficient to assist VA in deciding the service connection claims being decided on appeal.

Moreover, with respect to the claims being decided, the Board determines that the AOJ has substantially complied with the January 2005 and September 2011 remand directives in providing all identified notice, obtaining all identified records and affording the Veteran VA examinations, as applicable to the instant claims, and as such that no further action is necessary in this regard.  See D'Aries, supra.

The Board next notes that the Veteran was afforded a hearing before the Board in June 2004 before a VLJ who has since retired.  Many years later, the Court interpreted 38 C.F.R. § 3.103(c)(2) as requiring an RO Decision Review Officer or VLJ who chairs a hearing to fulfill two duties: (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked.  Bryant v. Shinseki, 23 Vet. App. 488 (2010). 

A review of the June 2004 hearing transcript reflects that the VLJ correctly identified the issues on appeal and solicited testimony regarding the service connection theories advanced.  A history of medical treatment and symptoms was obtained, and ultimately led to additional Board development.  The Board finds that the VLJ who conducted the hearing in June 2004 complied with the spirit of 38 C.F.R. § 3.103(c)(2).  To the extent there are any perceived deficiencies, they were cured with extensive Board development.  Additionally, the Veteran declined another opportunity to appear before the Board.  Thus, the Board finds that no prejudicial harm has resulted to the Veteran for any potential non-compliance with 38 C.F.R. § 3.103(c)(2) and that the Board may proceed to adjudicate the claims based on the current record.

Thus, the Board finds that VA has fully satisfied the duty to assist.  In the circumstances of this case, additional efforts to assist or notify the Veteran in accordance with the VCAA would serve no useful purpose.  See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to requirements of the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the Veteran); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the Veteran are to be avoided).  VA has satisfied its duty to inform and assist the Veteran at every stage in this case, at least insofar as any errors committed were not harmful to the essential fairness of the proceeding.  Therefore, the Veteran will not be prejudiced as a result of the Board proceeding to the merits of his claims. 

II.  Applicable law

Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a).  Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d).

In general, service connection requires competent evidence showing: (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). 

Alternatively, service connection may be established under 38 C.F.R. § 3.303(b) by (a) evidence of (i) the existence of a chronic disease in service or during an applicable presumption period under 38 C.F.R. § 3.307 and (ii) present manifestations of the same chronic disease, or (b) when a chronic disease is not present during service, evidence of continuity of symptomatology.

The provisions of 38 C.F.R. § 3.303(b) pertaining to the award of service connection on the basis of continuity of symptomatology only apply to the chronic diseases listed in 38 C.F.R. § 3.309(a).  See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).  Calculi of the kidney, bladder or gallbladder is listed as a chronic disease under 38 C.F.R. § 3.309(a).  Diverticulitis, colitis and IBS are not listed among the chronic diseases under 38 C.F.R. § 3.309(a).

Absent affirmative evidence to the contrary, there is a presumption of exposure to herbicides (to include Agent Orange) for all veterans who served in Vietnam during the Vietnam Era (the period beginning on January 9, 1962, and ending on May 7, 1975).  38 U.S.C.A. § 1116(f) and 38 C.F.R. § 3.307(a)(6)(iii).  Service in the Republic of Vietnam includes service in the waters offshore and service in other locations if the conditions of service involved duty or visitation in the Republic of Vietnam.  38 U.S.C.A. § 1116(a)(3); 38 C.F.R. § 3.307(a)(6)(iii).  

The Veteran has contended that his claimed disabilities may be due to exposure to herbicides.  He served in the Navy and was assigned to the USS Providence (CLG-6) from March 1963 to January 1966.  The Board notes that, in September 2010, the Veterans Benefit Administration (VBA) issued a Training Letter detailing the procedures for adjudicating claims based on herbicide exposure from Navy veterans.  The training letter explained that such vessels as gun line ships, aircraft carriers and supply and support ships were referred to as "Blue Water" navy as they operated in the blue-colored waters of the open ocean.  Smaller vessels based along the close coastal waters or within the inland waterways of Vietnam were referred to as the "Brown Water" navy as they operated on the muddy, brown-colored inland waterways of Vietnam.  The RO was directed to reference a document listing the Navy ships associated with service in Vietnam and hence exposure to herbicide agents.  See VBA Training Letter 10-06 (September 2010).

A review of the document listing the Navy ships associated with service in Vietnam reveals that the USS Providence operated on the Saigon River for three days in January 1964.  The Veteran was assigned to the USS Providence during this time and his exposure to herbicides is, therefore, conceded.  

If a veteran was exposed to an herbicide agent (to include Agent Orange) during active military, naval, or air service, certain diseases shall be service-connected if the requirements of 38 C.F.R. § 3.307(a)(6) are met, even if there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 C.F.R. § 3.307(d) are also satisfied.   38 U.S.C.A. § 1116; 38 C.F.R. §§ 3.307, 3.309(e).  Thus, a presumption of service connection arises for a veteran who is presumed exposed to Agent Orange and develops one of the identified conditions listed in 38 C.F.R. § 3.309(e).

VA has determined that there is no positive association between exposure to herbicides and any other condition for which it has not specifically been determined that a presumption of service connection is warranted.  See Notice, 59 Fed. Reg. 341-346 (1994); see also 61 Fed. Reg. 57586 (1996).  The Veteran's claimed diverticulitis, colitis, IBS and renal/ureter calculi are not among the diseases recognized by the VA Secretary as etiologically-related to herbicide (Agent Orange) exposure.

A claim of entitlement to service connection based on exposure to herbicides may also be established based on medical evidence that a current disease is etiologically related to in-service events.  38 U.S.C.A. § 1113(b); 38 C.F.R. § 3.303(d); Combee v. Brown, 34 Vet. 3rd 1039, 1043-5-(Fed. Cir. 1994). 

If the Veteran is unable to substantiate his service connection claim on a presumptive basis, the Board is obligated to consider the Veteran's claim on a direct basis, including allowing the Veteran to establish that herbicide exposure was the direct cause of the disorder at issue.  See Combee, 34 F.3d 1039 (Fed. Cir. 1994) (holding that the Veteran was not precluded under the Veterans' Dioxin and Radiation Exposure Compensation Standards Act from establishing service connection with proof of direct actual causation). 

In addition, a disability can be service-connected on a secondary basis if it is proximately due to or the result of a service-connected condition.  38 C.F.R. § 3.310(a).  Moreover, secondary service connection may be established, as well, by any increase in severity (i.e., aggravation) of a nonservice-connected condition that is proximately due to or the result of a service-connected condition.  38 C.F.R. § 3.310(b), effective October 10, 2006.  See 71 Fed. Reg. 52,744 -52,747 (September 7, 2006).  See also Allen v. Brown, 7 Vet. App. 439, 448 (1995); Tobin v. Derwinski, 2 Vet. App. 34, 39 (1991).

The claimant bears the burden of presenting and supporting his/her claim for benefits.  38 U.S.C.A. § 5107(a).  See Fagan v. Shinseki, 573 F.3d 1282 (Fed. Cir. 2009).  In its evaluation, the Board shall consider all information and lay and medical evidence of record.  38 U.S.C.A. § 5107(b).  When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Board shall give the benefit of the doubt to the claimant.  Id.  Another way stated, VA has an equipoise standard akin to the rule in baseball that "the tie goes to the runner."  Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  The benefit of the doubt doctrine is not applicable based on pure speculation or remote possibility.  See 38 C.F.R. § 3.102.

III.  Analysis

A.  Diverticulitis, colitis and IBS

The Veteran contends that he suffers from diverticulitis, colitis and IBS which began on active duty and has worsened since that time.  Alternatively, the Veteran has argued that his service-connected PTSD and/or herbicide exposure has caused or aggravated these disorders.

The Veteran's service treatment records (STRs) reflect that, in August 1983, he was diagnosed with iron deficiency anemia which briefly improved with treatment but did not resolve.  In May 1984, the Veteran was referred for a surgical consultation when an upper GI showed possible duodenal ulcer or duodenitis.  The findings from barium enema and endoscopy examinations were within normal limits (WNL).  The Veteran was prescribed Tagamet based upon an assessment of probable duodenitis or mild ulcer.

In pertinent part, in June 1998, the Veteran was hospitalized at Northshore Regional Medical Center with complaint of severe abdominal pain which was "somewhat similar" to symptoms he experienced in service.  He had recently lost weight, and reported that upper and lower gastrointestinal endoscopy sometime in 1990 had showed nothing to be wrong.  The Veteran was discharged with diagnoses of acute diverticulitis and multiple duodenal ulcers.  An October 1998 gastroenterologist report opined that the Veteran suffered from painful diverticular disease with ongoing inflammation.  In October 1998, the Veteran underwent sigmoid colon resection due to diverticulitis.

Thereafter, the record reflects a history of multiple diagnosed gastrointestinal disorders, such colitis, IBS, GERD and rectal fistula.  The Veteran was also diagnosed with anemia secondary to recurrent iron deficiency with a history of heme-positive stools.  It was thought that the anemia could be secondary to peptic ulcer disease, which included a history of multiple bleeding ulcers of the esophagus and stomach found by endoscopy in "1988."

More specifically, a December 2002 VA X-ray contained impressions of a hiatal hernia with associated gastroesophageal reflux and duodenal diverticular while a March 2005 VA barium enema contained an impression of colonic diverticula.  An April 2008 VA colonoscopy noted diverticuli while an April 2007 VA esophagogastroduodenoscopy (EGD) found the esophagus, stomach and duodenal bulb to be normal.

During a June 2004 hearing, the Veteran testified that he began having left lower bowel problems during service and that he continued to have mild to severe stomach and lower bowel pain after service.  Although he did see doctors due to gastrointestinal pain from 1984 to 1998, he did not recall any specific treatment such as a colonoscopy.  His surgeon had informed him that his diverticulitis would have been present for years due to the amount of infection present in 1998.  He referenced unspecified VA studies which purportedly found that gastrointestinal disorders were common in those individuals with psychological problems.

An October 2012 VA examiner opined that the Veteran's claimed diverticular disease (diverticulosis/diverticulitis) was less likely than not (less than a 50 percent probability) caused or aggravated by his service-connected PTSD.  The examiner noted that a review of the literature for PTSD and diverticulosis and/or diverticulitis did not reveal any evidence of association as well as no evidence of causation or aggravation.  Further, the examiner noted that diverticular disease was a common acquired condition that resulted from diet as detailed in a medical text.

In light of the multiple gastrointestinal disorders involved and the accepted history of herbicide exposure, the Board obtained an expert medical opinion from a VHA gastroenterologist.  For clarity purposes, the Board recites the VHA opinion in full as follows:

I have been asked to answer the following questions regarding this case: 

a) The examiner is requested to advise the Board as to whether duodenal diverticular and diverticulitis of the colon are distinct and separate disease processes, or part of a common etiology and/or same disease process;
b) Whether it is at least as likely as not that the Veteran's diverticulitis, colitis and/or IBS first manifested during active military service, including a discussion of the significance, if any, of the inservice treatment for iron deficiency anemia and the Veteran's June 1998 report that his severe abdominal pain was "somewhat similar" to symptoms he experienced in service;
c) Whether it is at least as likely as not that the Veteran's diverticulitis, colitis and/or IBS results from an event during active military service, to include herbicide exposure;
d) Whether it is at least as likely as not that the Veteran's diverticulitis, colitis and/or IBS was caused by service-connected disability, to include PTSD and/or duodenal disease; OR
e) Whether it is at least as likely as not that the Veteran's diverticulitis, colitis and/or IBS was aggravated beyond the normal progress of the disorder by service-connected disability, to include PTSD and/or duodenal disease?

I will attempt to answer each question separately:

a) The patient has service connected duodenitis, duodenal diverticular disease, and a history of peptic ulcer disease.  Review of the patient's military medical records shows that a Barium UGI was performed on May 18, 1984, which demonstrated "possible duodenal ulcer or duodenitis."  An esophagogastroduodenoscopy (EGD) performed on May 31, 1984 was completely normal with the recommendation that the patient be treated "symptomatically."  While there was no endoscopically visible evidence for duodenitis or peptic ulcer seen at the time of the procedure, it is entirely possible that the duodenal ulcer and duodenitis noted two weeks prior to the EGD may have healed by the time of the endoscopic exam.
Of note, a Barium enema performed on June 1, 1984 was reported to be normal.  Colonic diverticular disease is usually quite obvious on barium study with the liquid barium collecting within the diverticular outpouchings of the colon.  Thus it is unlikely that the patient possessed any significant colonic diverticula at this time.

Colonic diverticulosis is a common entity, and can be seen in 30% of individuals by age 60 and 65% by age 85 (UpToDate: Epidemiology and pathophysiology of colonic diverticular disease - updated Feb. 11, 2013 authored by Young-Fadok and Pemberton).  Duodenal diverticula, while less common than colonic diverticula, can still be seen in 2 to 5 percent of patients with ongoing barium studies of the upper GI tract and in 7 percent in a series of patients undergoing ERCP.  (UpToDate: Small bowel diverticula - updated Sep. 29, 2011 authored by Milovic).

While individuals with congenital connective tissue disorders such as Erlers-Danlos or Marfans syndrome can develop diffuse intestinal diverticular disease, there is nothing on chart review of this veteran that would suggest such a diagnosis.

I conclude that, based on the evidence that both colonic and small bowel diverticular disease are relatively common disorders (colonic >>small bowel) and that there was no evidence that colonic diverticula existed during active military service in 1984 as demonstrated on Barium enema exam, the duodenal diverticular and colonic diverticulosis/diverticulitis are distinct and separate processes.

b)  Review of the patient's available military health records demonstrate that he was evaluated by Lt. ML Watson, MD, USNR on April 18, 1984 for complaints of a two week history of right upper quadrant pains.  H/H at that time was noted to be 13.5 g/dL and 39.2%.  In comparison H/H in January 1984 was 16.0 g/dL and 49.0% respectively.  No mention in the notes were made of any clinical evidence of overt blood loss such as melena, hematochezia, maroon stool or hematemesis.  Lt. Watson opined in his progress note whether the patient might be experiencing "intermittently bleeding ulcer."  It is not unreasonable to suggest that a chronic inflammatory condition such as duodenitis or gastritis may have resulted in occult blood loss that could lead to a lowering of the H/H between January to April 1984.  This condition would be self-limited once the source of bleeding is adequately treated.

The location of the patient's pain (RUQ) typically suggests an upper GI source of problems.  And while it is not impossible would less likely represent diverticulitis, colitis and/or IBS.  In a progress note dated Oct. 20, 1998 Dr. Arvind Gopal (gastroenterologist) writes that the patient "continues to have left lower quadrant pain without fever/chills".  This was part of workup that eventually led to the patient's sigmoid colectomy on Nov. 11, 1998.  I am unable to find other medical documentation that the patient was experiencing anything other than "right upper quadrant pain" during active service outlined above.

Based on this information I feel that it is less likely than not that the patient's diverticulitis, colitis and/or IBS first manifested during active military service.

c) I performed a literature search and could not find any association (etiologic or otherwise) between diverticulitis, colitis and/or IBS and herbicide exposure.  I consulted with Dr. Lisa Strate a gastroenterologist at the University of Washington and noted expert on diverticular disease.  She too was not familiar with any literature to suggest an etiologic link with herbicides or other toxic agents and diverticulosis/itis.

Thus it is less likely than not that the Veteran's diverticulitis, colitis and/or IBS resulted from an event during active military service, to include herbicide exposure.

d) There is similarly little literature available to determine whether diverticulitis or colitis can be linked to PTSD and/or duodenal disease.  There is a recent paper (Cohen, et al, to appear in Clin Gastro Hep, in press) that suggests that an episode of acute diverticulitis may increase the risk for IBS in the future, but not the other way around.  IBS, on the other hand, has been associated with PTSD and while a "cause and effect" is difficult to determine, they are not infrequently present together suggesting they may share some of the same emotional and psychiatric triggers.

Thus, it is less likely than not that the Veteran's diverticulitis and colitis was caused by service-connected disability, to include PTSD and/or duodenal disease, but it is at least as likely as not that the veteran's IBS may have been caused by his PTSD.

e) As discussed above in the absence of any defined association, it is less likely than not that the veteran's diverticulitis and colitis was aggravated beyond the normal progress of the disorder by PTSD or duodenal disease.  Currently available literature suggests that PTSD and IBS often can be diagnosed in the same individual possibly due to similar traumatic triggers, but I am not aware of any literature that suggests that one or the other diagnosis would worsen the course of the other.  Similarly I am not aware of any literature looking at the association between duodenal disease and IBS.

Thus it is less likely than not that the patient's IBS was aggravated beyond the normal progress of the disorder by his PTSD and/or duodenal disease.

At the outset, the Board observes that the April 2013 VHA examiner provided opinion that the Veteran's IBS has been caused by service-connected PTSD.  This examiner has provided a well-reasoned opinion based on an accurate factual predicate.  Therefore, the Board finds that the Veteran's IBS is proximately due to service-connected PTSD.  To this extent only, the Board grants service connection for IBS.

With respect to the diagnoses of diverticulitis and colitis, the Board finds that the Veteran's diverticulitis and colitis first manifested after service, and are not shown to be causally or etiologically related to any disease, injury, or incident during service, to include herbicide exposure, and/or any service-connected disability, to include PTSD or service-connected gastrointestinal disorders.

The Veteran contends that his diverticulitis and colitis first manifested in service.  Clearly, the Veteran voiced gastrointestinal complaints during service which were investigated and resulted in an assessment of probable duodenitis or mild ulcer (both of which have been service-connected).  There was no in-service diagnosis of diverticulitis or colitis.

The post-service record next reflects a definitive diagnosis of diverticulitis 14 years after service discharge (1998), and a diagnosis of colitis thereafter.  The Veteran primarily contends that the symptomatology which led to the diagnoses of diverticulitis and colitis had first been present in service.  The Board finds that the Veteran's general recollections of recurrent gastrointestinal symptoms since service are credible and consistent with the evidentiary record.  For example, when being treated for diverticulitis and duodenal ulcer in 1998, the Veteran described his severe abdominal pain as "somewhat similar" to symptoms he experienced in service. 

As noted in the Introduction, the Veteran has multiple gastrointestinal disorders diagnosed as duodenitis, duodenal diverticular, peptic/duodenal ulcer disease, diverticulitis, colitis, IBS, GERD and rectal fistula.  The Veteran is service-connected for duodenitis, duodenal diverticular, peptic/duodenal ulcer disease and, as a result of the decision above, IBS.  The Veteran is not service-connected for the remaining gastrointestinal disorders.

VA recognizes that coexisting gastrointestinal disorders, particularly within the abdomen, produce a common disability picture with varying degrees of abdominal distress or pain, anemia and nutritional disturbance.  See generally 38 C.F.R. § 4.113.  Thus, while the Veteran's description of continuous gastrointestinal symptoms since service is deemed credible, the source of his continuous gastrointestinal symptoms since service is a highly technical issue of medical fact.  

The most probative evidence in this case consists of the opinion from the April 2013 VHA gastroenterologist.  This examiner, in a well-reasoned and explained opinion letter, described duodenal diverticular and colonic diverticulitis as distinct and separate processes, and found that both diverticulitis and colitis were less likely than not to have first manifested in-service, to have been caused by an event in-service such as herbicide exposure, or caused or aggravated beyond the normal progress of the disorder by service-connected disability. 

The VHA opinion was based, in part, upon a negative in-service barium enema coupled with the fact that diverticular disease was "usually quite obvious on barium study with the liquid barium collecting within the diverticular outpouchings of the colon."  The VHA examiner also reviewed the specific location of the Veteran's gastrointestinal pain in-service (right upper quadrant) as opposed to the specific location of the Veteran's gastrointestinal pain when first diagnosed with diverticulitis (left lower quadrant).  The examiner explained that the right upper quadrant pain suggested an upper GI source of problems while the left lower quadrant led to a diagnosis of diverticulitis.

Additionally, the VHA examiner then proceeded to rule out potential connective tissue disorders diagnoses which could develop into diffuse intestinal diverticular disease.  Upon literature search and consultation with expert in diverticular disease, the VHA examiner could find no link between herbicide exposure and diverticulitis or colitis.  Similarly, the VHA examiner found no literature which could support a relationship - either by direct causation or aggravation - between PTSD/duodenitis (or IBS contributing to diverticulitis).

In sum, the Board places substantial weight to the April 2013 VHA opinion as it is well-reasoned, well-researched and based on an accurate factual predicate as determined by the Board.

The VHA opinion is consistent with the Veteran's medical history which first showed definitive treatment for diverticulitis in 1998, approximately 14 years after the Veteran separated from service, and colitis thereafter.  The passage of many years between discharge from active service and the medical documentation of a claimed disability is a factor that tends to weigh against a claim for service connection.  See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000); Shaw v. Principi, 3 Vet. App. 365 (1992).  Additionally, in 1998, the Veteran reported that an upper and lower gastrointestinal endoscopy in 1990 found no abnormalities.  The Veteran is clearly competent to recall information provided by his treating physicians.  This also tends to weigh against an earlier onset for diverticulitis and/or colitis.

On the other hand, the evidence of record supporting service connection claims for diverticulitis and colitis essentially consists of the Veteran's own self-diagnosis and opinion as well as his recollections of a doctor statement that his diverticulitis diagnosed in 1998 had been present for many years.  

The Board finds that the Veteran's general report of chronic gastrointestinal symptoms in service are credible - as represented for the awards of service connection for duodenitis, duodenal diverticular and peptic/duodenal ulcer disease.  However, there is some conflict in the record concerning where the Veteran experienced his gastrointestinal pain in service.  The STRs record his complaint of right upper quadrant pain while, in 2004, the Veteran testified to left lower bowel problems.

Upon review of the record, the Board finds that the Veteran's in-service description of the location of his gastrointestinal complaints holds greater probative weight than his recollections provided 20 years after service discharge.  In this respect, the Board places great accuracy to the in-service description as it was recorded contemporaneous in time to the events in question and was made in the context of seeking appropriate medical treatment.  See Lilly's An Introduction to the Law of Evidence, 2nd Ed. (1987), pp. 245- 46 (many state jurisdictions, including the federal judiciary and Federal Rule 803(4), expand the hearsay exception for physical conditions to include statements of past physical condition on the rational that statements made to physicians for purposes of diagnosis and treatment are exceptionally trustworthy since the declarant has a strong motive to tell the truth in order to receive proper care).  See generally Rucker v. Brown, 10 Vet. App. 67, 73 (1997) (observing that although formal rules of evidence do not apply before the Board, recourse to the Federal Rules of Evidence may be appropriate if it assists in the articulation of the reasons for the Board's decision).

This finding is consistent with the Veteran's 1998 statement made in the context of his first formal treatment for diverticulitis, wherein he described his symptoms as "somewhat similar" to symptoms he experienced in service.  This implies that the symptoms were not exactly the same.  Additionally, the VHA examiner also had the opportunity to evaluate this evidence in the context of the barium study in service which, in his opinion, would have shown obvious evidence of diverticulitis and that the right upper quadrant complaints in service suggested an upper GI etiology.

Overall, the Board places greater probative weight to the opinion of the VHA examiner then the Veteran's self-diagnosis and opinion, as the VHA examiner has greater training and expertise to evaluate, distinguish and diagnose various gastrointestinal disorders, and to determine the potential etiologies.

Additionally, the Veteran is clearly competent to recall a treating physician statement that his diverticulitis found in 1998 had been present for years due to the extent of infection found.  The Board does not doubt that a disease process would be present prior to the date of actual diagnosis.  The statement offered by the Veteran holds some probative value concerning an onset of diverticulitis prior to 1998, but holds little if any probative value concerning whether diverticulitis had an onset at least 14 years prior to 1998.  Due to the absence of specifics (e.g., the extent of disease process demonstrated an onset at least 14 years earlier) and lack of reasoning provided (explanation of why the conclusion was reached), the Veteran's recollections of his doctor statement holds very little probative weight when viewed against the specific opinion by the VHA examiner based upon review of the entire evidentiary record. 

In addition to the direct (including herbicide exposure) and secondary service connection theories discussed above, the Board has also considered whether service connection could be warranted on a presumptive basis.  However, neither diverticulitis nor colitis is listed as among the diseases subject to presumptive service connection as a chronic disease under 38 C.F.R. § 3.309(a), or as a herbicide related disease under 38 C.F.R. § 3.309(e).

The Board also notes the August 2005 and March 2012 opinions from VA examiners.  However, the August 2005 opinion, which found that there was less than a 50 percent probability that the Veteran's diverticulitis was incurred in or aggravated by his service, contained no rationale.  A medical opinion which contains only data and conclusions is accorded little, if any, no probative weight.  See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007).

In addition, the March 2012 opinion found that the Veteran's diverticulitis was not caused by or a result of his service as the service treatment records showed no diagnosis of diverticulosis.  A medical opinion based solely on the absence of documentation in the record, without consideration of a Veteran's reports, is inadequate.  Dalton v. Peake, 21 Vet. App. 23 (2007).  Accordingly, these opinions are being afforded little, if any, probative weight.

For all the foregoing reasons, the claim for service connection for diverticulitis and colitis must be denied.  In reaching the conclusion to deny the claim, the Board has considered the applicability of the benefit-of-the-doubt doctrine.  However, as the preponderance of the evidence is against the claim, that doctrine is not applicable.  See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert, supra.   



B.  Kidney stone

The Veteran contends that he suffered from kidney stones during service and that this disability has rendered him to susceptible to episodic infections and inflammation.

Service treatment records document a diagnosis of urethritis, acute non-gonococcic, in April 1964.  A diagnosis of "probable stone - urethral or renal calculi" was made in February 1966.  

As noted above, calculi of the kidney, bladder or gallbladder is deemed a chronic disease under 38 C.F.R. § 3.309(a).  As the Veteran may be deemed to have manifested urethral or renal calculi in service, any manifestation of such disability to a compensable degree after service warrants a service connection award on a presumptive basis.  38 C.F.R. § 3.307(a)(3); 38 C.F.R. § 3.309(a); Groves v. Peake, 524 F.3d 1306, 1309-10 (2008).

A VA examination report in March 2012 reported that kidneys, bladder and ureter (KUB) x-ray was interpreted as showing an approximate "9-mm calcification overlying upper pole left kidney may be stone."  The right kidney could not be visualized due to overlying feces.  The VA examiner provided the following assessment:

The first episode [kidney stone] was in 1966, there is no other documentation about the stone, till 3/2012.  There is not at least as likely as not due to his military service or one time diagnosis of ureter calculi in service.

(emphasis added).

The Board interprets the March 2012 VA examiner's comments as conceding the current presence of a left kidney stone - renal calculi.  As this is deemed a chronic disease under 38 C.F.R. § 3.309(a), the negative etiology opinion is not controlling.  Here, the Veteran reported an active episode of blood in urine in August 2011 which, by cytoscopy, demonstrated a right kidney stone.  The Board accepts the Veteran's reported history and, at least facially, the compensable component requirement of 38 C.F.R. § 3.307(a) appears to have been met.  See generally 38 C.F.R. § 4.115b, Diagnostic Code 7509 (providing for a 10 percent rating for an occasional attack of colic).

In short, the Veteran currently manifests renal calculi which, as deemed a chronic disease under 38 C.F.R. § 3.309(a), warrants service connection on a presumptive basis as calculi first manifested during active service.  The claim, therefore, is granted on a presumptive basis under 38 C.F.R. § 3.309(a).  Groves, 524 F.3d at 1309-10.


ORDER

The claim of entitlement to service connection for diverticulitis and colitis, to include as secondary to service-connected PTSD and/or duodenitis, is denied.

The claim of entitlement to service connection for IBS is granted.

The claim of entitlement to service connection for renal/ureter calculi is granted.


REMAND

Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's remaining claims.




A.  Recurrent urethritis

The Board remanded an issue claimed as urethritis, in part, in September 2011 for an opinion which identified any current genitourinary disability and, for each diagnosis, to provide an etiology opinion.  

In March 2012, a VA physician's assistant provided an assessment that the Veteran's VA records showed no evidence of urinary tract infection (UTI) or urethritis.  However, a December 2002 VA genitourinary examination reflected an assessment of "[r]ecurrent urinary tract infections."  The March 2012 VA examination report, therefore, must be returned as being based on an inaccurate factual basis.

On remand, the Board notes that the Veteran was awarded service connection for prostate cancer in September 2010, and the Board's decision above awards service connection for renal/ureter calculi.  The VA examiner should consider whether the claimed recurrent urinary tract infections/urethritis have been caused or aggravated by these service-connected genitourinary disabilities.  See Bingham v. Principi, 421 F.3d 1346, 1349 (Fed. Cir. 2005) (holding that separate theories in support of a claim for a particular benefit are deemed part of the same claim); Douglas v. Derwinski, 2 Vet. App. 435 (1992) (evidence reasonably raising a service-connection theory not specifically raised by the claimant must be considered in adjudicating a claim).

B.  Left foot and ankle

The Board first remanded this issue in January 2005.  At that time, an opinion as to whether the Veteran's claimed left foot disability was incurred in or aggravated by his active service was obtained.  The Veteran's claims file contains a number of service treatment records demonstrating his in-service complaints and treatment for left foot symptoms and the Veteran has supplemented the record with his own lay statements.  In August 2005, a VA examiner found that there was no left foot disability was present and consequently offered no etiological opinion.

In September 2011, the Board again remanded this issue to obtain an etiological opinion.  A March 2012 VA examiner also found that the Veteran's left ankle was normal and did not offer an etiological opinion.  However, the Veteran has been diagnosed with a left ankle disorder during the course of the appeal, including a March 2006 VA examination which found his symptoms to be consistent with tenosynovitis and a December 2002 VA examination included a diagnosis of mild degenerative joint disease of the subtalar joint of the left foot.  See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007) (holding that the service connection requirement that a current disability be present is satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim even though the disability resolves prior to the Secretary's adjudication of the claim.)

Therefore, the March 2012 opinion is inadequate and fails to respond to the Board's inquiry as to the etiology of the Veteran's diagnosed left foot and ankle disorder.  The Board is cognizant that it is requesting that an examiner, who may find no current clinical evidence of a left ankle disability, still render a nexus opinion as to a prior diagnosis.  Id.

Thus, in accordance with Stegall, on remand corrective action should be undertaken in that an addendum to the March 2012 VA examination should be obtained, if possible, that fully addresses the Board's inquiry.

Accordingly, the case is REMANDED for the following action:

1.  Associate with the claims folder records of the Veteran's VA treatment since 

2.  After obtaining any outstanding treatment records, the Veteran should be afforded VA examination by a medical doctor to determine the current nature and severity of his claimed recurrent urinary tract infection/urethritis.  The claims folder and a copy of this Remand must be made available to the examiner.  The examiner should note in the examination report that the claims folder and the Remand have been reviewed.  Any appropriate evaluations, studies, and testing deemed necessary by the examiner should be conducted at this time, and the results included in the examination report. 

For purposes of this opinion, the examiner is requested to presume a current disability of recurrent urinary tract infections, and clarify whether the Veteran manifests urethritis.  See VA genitourinary examination report dated December 2002.

Thereafter, the examiner is requested to provide opinion on the following questions:

   a) whether it is at least as likely as not that recurrent urinary tract infections and/or urethritis (if present) had its onset in military service; OR
   
   b) whether it is at least as likely as not that recurrent urinary tract infections and/or urethritis (if present) is etiologically related to the Veteran's military service, to include his documented in-service treatment for urethritis and a kidney stone; OR

	c) whether it is at least as likely as not that recurrent urinary tract infections and/or urethritis (if present) has been caused or aggravated beyond the normal progress of the disorder by his presumed exposure to herbicides; OR

	d) whether it is at least as likely as not that recurrent urinary tract infections and/or urethritis (if present) has been caused or aggravated beyond the normal progress of the disorder by his service-connected disabilities of residuals of prostate cancer and renal/ureter calculi?

In providing opinion, the examiner must consider the following:
* the Veteran's in-service treatment for urethritis, acute non-gonococcic in April 1964, and "probable stone-urethral or renal calculi" in February 1966;
* a July 1999 private ultrasound interpreted as showing a mild prominence or dilation of the left pelvocalyceal system with normal resistive index and urethral jets that "suggested [that] there [was] not an obstructive process;"
* a December 2002 VA genitourinary examination which recorded the Veteran's history of onset of urinary symptoms and a diagnosis of recurrent urinary tract infections; and
* a June 2004 Board hearing transcript which recorded the Veteran's history of onset and treatment for urinary symptoms.

The rationale for any opinion offered should be provided.  If the examiner is unable to render the requested opinion(s) without resorting to speculation, he or she must so state.  However, a complete explanation for such a finding must be provided, such as whether there is inadequate factual information, whether the question falls within the limits of current medical knowledge or scientific development, whether the cause of the condition in question is truly unknowable, and/or whether the question is so outside the norm of practice that it is impossible for the examiner to use his or her medical expertise and training to render an opinion.

If there are any inconsistencies in the Veteran's report of history of symptoms and treatment, the examiner is free to provide opinion as to whether there is any medical reason to accept or reject any particular statement.

3.  Obtain an addendum to the March 2012 VA examination, if possible, or afford the Veteran a new examination to determine the nature and etiology of his claimed left foot/ankle disorder.  The examiner should review the claims folder and note such review in the examination report.  The examination should include a review of the Veteran's history and current complaints as well as a comprehensive evaluation and any tests deemed necessary.

For purposes of this opinion, the examiner is requested to presume a current disability of tenosynovitis and mild degenerative joint disease of the subtalar joint of the left foot.  See VA examination report dated December 2002.  The examiner should also identify any additional left foot or ankle disorders which may be currently present.

The examiner is asked to furnish an opinion with respect to the following questions:

   (a)  Is it at least as likely as not (50 percent or greater probability) that any diagnosed left foot/ankle disorder had its onset during the Veteran's period of active duty service, including from July 1962 to July 1984; or, was any such disorder caused by any incident or event that occurred during his period of service?  The examiner should comment on the Veteran's in-service treatment for tenosynovitis of the plantar longus.

In answering each of the questions posed above, the examiner is advised that the Veteran is competent to report injuries and symptoms, and that his reports must be considered in formulating the requested opinion.  

A complete rating should be given for each opinion expressed.  In this regard, a discussion of the facts and medical principles involved would be considerable assistance to the Board.

If the examiner is unable to render the requested opinion(s) without resorting to speculation, he or she must so state.  However, a complete explanation for such a finding must be provided, such as whether there is inadequate factual information, whether the question falls within the limits of current medical knowledge or scientific development, whether the cause of the condition in question is truly unknowable, and/or whether the question is so outside the norm of practice that it is impossible for the examiner to use his or her medical expertise and training to render an opinion.

If there are any inconsistencies in the Veteran's report of history of symptoms and treatment, the examiner is free to provide opinion as to whether there is any medical reason to accept or reject any particular statement.

4.  Subsequent to the VA examination, review the opinion to ensure that it is in complete compliance with the directives of this remand.  If it is deficient in any manner, corrective procedures must be implemented.

5.  After completing the above actions, to include any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran's claims should be readjudicated based on the entirety of the evidence.  If the claim remains denied, the Veteran and his representative should be issued a supplemental statement of the case.  An appropriate period of time should be allowed for response.

The Veteran has the right to submit additional evidence and argument on the 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).




______________________________________________
T. MAINELLI
Acting Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs