Citation Nr: 1331242 Decision Date: 09/27/13 Archive Date: 10/01/13 DOCKET NO. 07-05 958 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for partial removal of the small intestine. 2. Entitlement to service connection for partial removal of the stomach. 3. Entitlement to service connection for partial removal of the liver. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The Veteran and his wife ATTORNEY FOR THE BOARD Tiffany Berry, Counsel INTRODUCTION The Veteran served on active duty in the United States Navy from April 1982 to March 1985. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office in Muscogee, Oklahoma. Custody of the file was subsequently transferred to the RO in Waco, Texas, which is currently VA's Agency of Original Jurisdiction (AOJ). In May 2006 the Veteran and his wife testified in a hearing before the Muscogee RO's Decision Review Officer (DRO), and in July 2009 the Veteran testified before the undersigned Acting Veterans Law Judge in a hearing held at the Waco RO. Transcripts of both hearings have been associated with the claim folder. In January 2010, the Board denied the Veteran's claims of entitlement to service connection for hypertension and hepatitis C, and remanded the remaining issues of service connection for depression and for partial removal of the small intestine, stomach and liver. In a September 2011 rating decision issued during the pendency of this appeal, the RO granted the Veteran's claim for depression and assigned an initial disability rating of 30 percent, effective from January 4, 2005. FINDINGS OF FACT 1. The competent medical evidence shows the Veteran does not have a stomach condition that is related to service. 2. The competent medical evidence shows the Veteran does not have a small intestine condition that is related to service 3. The competent medical evidence shows the Veteran does not have a liver condition that is related to service CONCLUSIONS OF LAW 1. The Veteran does not have a present stomach condition, claimed as partial removal of the stomach that is due to or aggravated by active service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1116, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2013). 2. The Veteran does not have a present small intestine condition, claimed as partial removal of the small intestine that is due to or aggravated by active service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1116, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2013). 3. The Veteran does not have a present liver condition, claimed as partial removal of the liver that is due to or aggravated by active service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1116, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Veterans Claims Assistance Act The Veterans Claims Assistance Act (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2012)) redefined VA's duty to assist the appellant in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2013). The notice requirements of the VCAA require VA to notify the Veteran of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, the VA will attempt to obtain. 38 C.F.R. § 3.159(b) (2013). The requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between the Veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO). Id; see also Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, insufficiency in the timing or content of VCAA notice is harmless if the errors are not prejudicial to the claimant. Conway v. Principi, 353 F.3d 1369, 1374 (Fed. Cir. 2004) (VCAA notice errors are reviewed under a prejudicial error rule). In this decision, letters dated in February 2005 and March 2006 provided notice to the Veteran regarding what information and evidence was needed to substantiate his claims for service connection, including informing him of what information and evidence must be submitted by the Veteran and what information and evidence will be obtained by VA. The March 2006 letter also advised the Veteran of the evidence needed to establish a disability rating and effective date for the claim on appeal. These claims were last readjudicated in November 2011, so any arguable delay in issuing the proper notice to the Veteran has been rectified and was not prejudicial. The record also reflects that VA has made reasonable efforts to obtain relevant records adequately identified by the Veteran. Specifically, the information and evidence that have been associated with the claims file include the Veteran's service treatment records relevant to these claims, service personnel records, VA treatment records and examination reports, and Social Security Administration (SSA) records. Additionally, the prior January 2010 remand instructions were substantially complied with concerning these claims for service connection. Instructions pertinent to the claims being decided included obtaining additional VA treatment records and scheduling the Veteran for an appropriate VA examination concerning his claims. In response, the RO obtained current VA treatment records through November 2010, which have been associated with the Veteran's claims file. The Veteran was also provided a VA examination in September 2010 with an addendum opinion dated in October 2011. See D'Aries v. Peake, 22 Vet. App. 97 (2008); Stegall v. West, 11 Vet. App. 268 (1998)). The Veteran was afforded a hearing before a Decision Review Officers (DRO) in May 2006 and before the undersigned Acting Veterans Law Judge (AVLJ) in July 2009. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. § 3.103(c)(2) requires the DRO who chairs a hearing explain the issues and suggest the submission of evidence that may have been overlooked. During the hearings, the DRO and AVLJ specifically clarified the issues on appeal. Additionally, throughout the hearings, the DRO and AVLJ sought to identify any pertinent evidence not currently associated with the claims folder that might have been overlooked or was outstanding. The hearing focused on the elements necessary to substantiate the claims and testimony relevant to those elements was provided. Neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), nor have they identified any prejudice in the conduct of either hearing. As such, the Board finds that no further action pursuant to Bryant is necessary, and the Veteran is not prejudiced by a decision at this time. As discussed above, the VCAA provisions have been considered and complied with. Any error in the sequence of events or content of the notice is not shown to have affected the essential fairness of the adjudication or to cause injury to the claimant. Therefore, any such error is harmless and does not prohibit consideration of this matter on the merits. See Conway; Dingess; see also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). II. Service Connection The Veteran claims he is entitled to service connection for partial removal of his small intestine, partial removal of his stomach, and partial removal of his liver as a result of a surgical procedure conducted during his military service in 1984. Service connection is granted if the evidence shows a current disability resulted from an injury or a disease that was incurred or aggravated in the line of duty during active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Stated somewhat differently, direct service connection generally requires: (1) competent and credible evidence confirming the Veteran has the claimed disability - or, at the very least, showing he has at some point since the filing of his claim; (2) competent and credible evidence of in-service incurrence or aggravation of a relevant disease or injury; and (3) competent and credible evidence of a nexus or link between the in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004), citing Hansen v. Principi, 16 Vet. App. 110, 111 (2002). In each case where a Veteran is seeking service connection for any disability, due consideration shall be given to the places, types, and circumstances of such Veteran's service as shown by such Veteran's service record, the official history of each organization in which such Veteran served, the Veteran's treatment records, and all pertinent medical and lay evidence. 38 U.S.C.A. § 1154(a) (West 2002 and Supp. 2012). A layperson is competent to report on the onset and continuity of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). 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 United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C.A. § 7104(a). Moreover, the Court 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). In a claim for service connection, the ultimate credibility or weight to be accorded evidence must be determined as a question of fact. The Board determines whether the weight of the evidence supports the claim, or the weight of the positive evidence in favor of the claim is in relative balance with the weight of the negative evidence against the claim, and the appellant prevails in either event. However, if the weight of the evidence is against the appellant's claim, the claim must be denied. 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2013); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other issue, that reasonable doubt will be resolved in favor of the claimant. By reasonable doubt is meant one which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. 38 C.F.R. § 3.102 (2013). As an initial matter, the Board notes the September 2010 VA examiner provided diagnoses of a benign hepatic lymph node, tubular adenoma and chronic cholecystitits of the gallbladder, and benign small bowel with focal acute inflammation, serosal fibrosis or dysplasia. See September 2010 VA compensation examination. Accordingly, the first element of service connection is satisfied. However, a Veteran seeking disability benefits must establish not only the existence of a disability, but also an etiological connection between his military service and the disability. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); D'Amico v. West, 209 F.3d 1322, 1326 (Fed. Cir. 2000); Hibbard v. West, 13 Vet. App. 546, 548 (2000); Collaro v. West, 136 F.3d 1304, 1308 (Fed. Cir. 1998). A review of the Veteran's service treatment records shows that he sustained injuries to the abdominal cavity from a gunshot wound in February 1984, and he was treated for these injuries at Hollywood Presbyterian Hospital. At that time, he underwent surgical procedures including a partial hepatectomy and a cholecystojejunostomy. There is no indication of any complications associated with this surgery. Post-service VA treatment records dated in June 2004, show the Veteran has undergone multiple surgeries since the 1984 surgery, including removal of the gall bladder within the past three months. A June 2008 CT scan showed of the abdomen was normal. No opinions as to the etiology of the Veteran's claimed conditions were provided. The September 2010 VA examiner conducted a review of the claims file and a physical examination of the Veteran. The physical examination showed the abdomen was soft and nontender with minimal right upper quadrant tenderness and no guarding or rebound. Review of an ultrasound conducted in July 2010 showed the liver demonstrated increased echogenicity, most likely consistent with fatty changes or diffuse hepatocellaur disease. The examiner found the present diagnoses of gallbladder mass and abdominal pain were not related to the in-service surgery. No further rationales or opinions were provided. Additional VA treatment records dated after the September 2010 VA examination showed that in October 2010, the Veteran underwent a lapartomy takedown of cholecystojejunostomy, cholecystectomy, segmental of small bowel resection, Roux-y and hypaticojejunostomy. The physician indicated that the gallbladder polyp was adenoma formed by glandular epithelium with low grade dysplasia similar to tubular adenomas usually seen in the colon. There was no evidence of high grade dysplasia or invasive carcinoma. The physician also indicated the Veteran was doing well. However, the Veteran did report to the VA medical center in December 2010 with right lower quadrant pain after sneezing. In October 2011, addendum opinions to the September 2010 VA examination were provided. The examiner again indicated a review of the claims file had been conduction. A review was made of the Veteran's prior surgical history, noting that the August 2010 EGD showed no evidence of previous gastric surgery and the duodenum was normal. The examiner also noted the October 2010 lapartomy, LOA, takedown of cholecystojejunostomy, cholecystectomy, segmental of small bowel resection, Roux-y and hypaticojejunostomy, and the diagnoses of hepatic lymph node (benign), cholecystitis and benign small bowel with focal acute inflammation, serosal fibrosis or dysplasia. It was noted that the gallbladder polyp is adenoma formed by glandular epithelium with low grade dysplasia similar to tubular adenomas usually seen in the colon. However, there was no evidence of high grade dysplasia or invasive carcinoma. The examiner noted that the gall bladder mass which was removed was not related to his military service. The examiner noted the Veteran was diagnosed with right upper quadrant abdominal pain with an unclear etiology, but it is reproducible with movement and is likely musculoskeletal in nature. The VA examiner ultimately concluded that the Veteran's claimed small intestines condition, stomach condition and liver condition were less likely than not related to the Veteran's military service. By way of rationale, the examiner stated that the Veteran's pain was musculoskeletal and not related to the in-service injury. In determining the probative value to be assigned to a medical opinion, the Board must consider three factors. The first inquiry is to assess whether a medical expert was fully informed of the pertinent factual premises (i.e., medical history) of the case. The second inquiry involves consideration of whether the medical expert provided a fully articulated opinion. 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. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 303-304 (2008). Review of the September 2010 VA examination and October 2011 addendum opinion demonstrates that the opinions cited therein are probative under the criteria of Nieves-Rodriguez. Further, the findings of a physician are medical conclusions that the Board cannot ignore or disregard; see Willis v. Derwinski, 1 Vet. App. 66 (1991). The opinions cited above are not contradicted by any other medical opinion of record. VA must consider all favorable lay evidence of record. 38 USCA § 5107(b); Caluza v. Brown, 7 Vet. App. 498 (1995). Accordingly, in addition to the medical evidence cited above the Board has considered the lay evidence provided by the Veteran in the form of his testimony before the Board, his correspondence to VA and his statements to various medical providers and examiners. The Board must consider the purpose for which lay evidence is offered. Washington v. Nicholson, 19 Vet. App. 362 (2005). In this case, the Veteran's lay evidence is offered to show symptoms during and after service and to articulate his belief that his claimed disorder is related to service. 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). The Board acknowledges that the Veteran is competent to give evidence about what he has experienced, i.e., in this case, that he has experienced pain and discomfort since his in-service surgery. However, as a lay person without proper medical training and expertise, he is not competent to provide probative medical evidence on a matter such as the diagnosis or etiology of specific disorders. For example, he is not competent to state that his currently diagnosed benign hepatic lymph node, tubular adenoma and chronic cholecystitits of the gallbladder, and benign small bowel with focal acute inflammation, serosal fibrosis or dysplasia are the result of his military service because establishing the etiology of these conditions involves a complex medical issue and clinical findings. Although it is error to categorically reject a non-expert nexus opinion, not all questions of nexus are subject to non-expert opinion. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). Whether a layperson is competent to provide a nexus opinion depends on the facts of the particular case. In Jandreau v. Nicholson, the Federal Circuit stated as follows: "[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (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." Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The Federal Circuit provided an example, stating that a layperson would be competent to identify a simple condition such as a broken leg, but not competent to provide evidence as to a more complex medical question such as a form of cancer. Id. at n.4. Based on the competent medical opinion provided in the September 2010 VA examination and October 2011 addendum opinion, the Board finds that the preponderance of the evidence is against the finding of a medical nexus (i.e., link) between the Veteran's claimed conditions and his military service. The Board also sees the Veteran is in receipt of Social Security Administration (SSA) disability compensation, in part for his claims currently on appeal. Regardless, the Board is not bound by the findings of disability and/or unemployability made by other agencies, including SSA. See Collier v. Derwinski, 1 Vet. App. 413, 417 (1991) (indicating the SSA's favorable determination, while probative evidence to be considered in a claim with VA, is not dispositive or altogether binding on VA since the agencies have different disability determination requirements). See also Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2010). The Board has considered the application of 38 U.S.C.A. § 5107(b), but because the preponderance of the evidence weighs against the claims, the benefit of the doubt rule is not for application in the instant case. Gilbert, 1 Vet. App. 49, 54. ORDER Service connection for partial removal of the stomach is denied. Service connection for partial removal of the small intestine is denied. Service connection for partial removal of the liver is denied. ____________________________________________ JOHN H. NILON Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs