Citation Nr: 1338580 Decision Date: 11/22/13 Archive Date: 12/06/13 DOCKET NO. 07-22 440 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for a colon disorder. 2. Entitlement to service connection for diabetes. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD H. Bunker, Associate Counsel INTRODUCTION The Veteran served on active duty from March 1969 to May 1975. This case is before the Board of Veterans' Appeals (Board) on appeal from a January 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. The Veteran testified at a Board hearing at the RO in Waco, Texas in November 2009. This transcript has been associated with the file. The Veteran was informed in August 2013 that the Judge who held this hearing had retired. In September 2013 the Veteran responded that he did not want an additional hearing and that his claims should be decided based on the evidence of record. The case was remanded to the RO in June 2009, January 2010, and July 2011. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2013). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. A colon disorder is not shown to be due to a disease or injury in-service or to any incident of military service. 2. Diabetes is not shown to be due to a disease or injury in-service or to any incident of military service and did not manifest within one year of separation. CONCLUSIONS OF LAW 1. The criteria for the establishment of service connection for a colon disorder are not met. 38 U.S.C.A. §§ 1101, 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2013). 2. The criteria for the establishment of service connection for diabetes are not met. 38 U.S.C.A. §§ 1101, 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In this decision, the Board will discuss the relevant law which it is required to apply. This includes statutes enacted by Congress and published in Title 38, United States Code ("38 U.S.C.A."); regulations promulgated by VA under the law and published in the Title 38 of the Code of Federal Regulations ("38 C.F.R.") and the precedential rulings of the Court of Appeals for the Federal Circuit (as noted by citations to "Fed. Cir.") and the Court of Appeals for Veterans Claims (as noted by citations to "Vet. App."). The Board is bound by statute to set forth specifically the issue under appellate consideration and its decision must also include separately stated findings of fact and conclusions of law on all material issues of fact and law presented on the record, and the reasons or bases for those findings and conclusions. See 38 U.S.C.A. § 7104(d); see also 38 C.F.R. § 19.7 (implementing the cited statute); see also Vargas-Gonzalez v. West, 12 Vet. App. 321, 328 (1999); Gilbert v. Derwinski, 1 Vet. App. 49, 56-57 (1990) (the Board's statement of reasons and bases for its findings and conclusions on all material facts and law presented on the record must be sufficient to enable the claimant to understand the precise basis for the Board's decision, as well as to facilitate review of the decision by courts of competent appellate jurisdiction). The Board must also consider and discuss all applicable statutory and regulatory law, as well as the controlling decisions of the appellate courts. Under the Veterans Claims Assistance Act (VCAA), when VA receives a complete or substantially complete application for benefits, it must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 C.F.R. § 3.159 (2013). Here, the Veteran was provided with the relevant notice and information in an October 2006 letter prior to the initial adjudication of his claims. Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). He has not alleged any notice deficiency during the adjudication of his claim. Shinseki v. Sanders, 129 S. Ct. 1696 (2009). VA also has a duty to assist the Veteran in obtaining potentially relevant records, and providing an examination or medical opinion when necessary to make a decision on the claim. Here, the Veteran's service records, VA records, and identified private treatment records have been obtained and associated with the claims file. The Veteran was also provided with VA examinations which, collectively, contain a description of the history of the disabilities at issue; document and consider the relevant medical facts and principles; and provide opinions regarding the etiology of the Veteran's claimed condition. VA's duty to assist with respect to obtaining relevant records and an examination has been met. 38 C.F.R. § 3.159(c); Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Finally, the Veteran testified at an RO hearing. The hearing was adequate as the Judge who conducted the hearing explained the issue and identified possible sources of evidence that may have been overlooked. 38 C.F.R. 3.103(c)(2); Bryant v. Shinseki, 23 Vet. App. 488 (2010). Service Connection Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C.A. § 1110. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. 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). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). In order to establish service connection for the claimed disorder on a direct basis, generally there must be probative evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). Service connection may also be granted for a chronic disease, including diabetes, when it is manifested to a compensable degree within one year of separation from service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2013). The Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The evaluation of evidence generally involves a 3-step inquiry. First, the Board must determine whether the evidence comes from a 'competent' source. The Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007) (observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible). The third step of this inquiry requires the Board to weigh the probative value of the proffered evidence in light of the entirety of the record. Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. Layno v. Brown, 6 Vet. App. 465 (1994). Lay evidence may be competent and sufficient to establish a diagnosis of a condition when: (1) a layperson is competent to identify the medical condition (i.e., when 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); (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 (Fed. Cir. 2007); see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009) (where widow seeking service connection for cause of death of her husband, the Veteran, the Court holding that medical opinion not required to prove nexus between service connected mental disorder and drowning which caused Veteran's death). In ascertaining the competency of lay evidence, the Courts have generally held that a layperson is not capable of opining on matters requiring medical knowledge. In certain instances, however, lay evidence has been found to be competent with regard to a disease with 'unique and readily identifiable features' that is 'capable of lay observation.' See, e.g., Barr v. Nicholson, 21 Vet. App. 303 (2007) (concerning varicose veins); see also Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) (a dislocated shoulder); Charles v. Principi, 16 Vet. App. 370 (2002) (tinnitus); Falzone v. Brown, 8 Vet. App. 398 (1995) (flatfeet). Laypersons have also been found to not be competent to provide evidence in more complex medical situations. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (concerning rheumatic fever). Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also include statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). After determining the competency and credibility of evidence, the Board must then weigh its probative value. In this function, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498, 511-512 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (per curiam) (table); see Madden v. Brown, 125 F.3d 1447 (Fed Cir. 1997) (holding that the Board has the 'authority to discount the weight and probative value of evidence in light of its inherent characteristics in its relationship to other items of evidence'). The standard of proof to be applied in decisions on claims for veterans' benefits is set forth in 38 U.S.C.A. § 5107 (West 2002). A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. See 38 C.F.R. § 3.102. When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). Analysis The Veteran asserts that his diabetes mellitus was caused by the hydrocortisone treatment for his proctitis in service. He also reports that he currently has colitis and that his colon cancer and other rectal and colon problems are related to the proctitis in service. Service treatment records reveal that the Veteran had ulcerative proctitis to a distance of approximately 25 centimeters (cm) from the anal verge in 1971 and 1972. He was treated with hydrocortisone suppositories. A June 1971 note appears to indicate colon inflammation and colitis. However, his December 1972 medical examination indicates no evidence of a colon disorder or diabetes. Post-service VA treatment records include a June 2004 pathology report which showed microscopic adenoma of the colon and hyperplastic polyp of the rectum. A June 2009 colonoscopy revealed a sigmoid mass at 40 cm from the anal verge, and pathology reports identified the mass as an infiltrating moderately differentiated adenocarcinoma. At his December 2006 VA examination the Veteran reported rectal bleeding in service. He was treated with Fleets enemas daily for a year and a half. He stated that after he quit using the Fleets enemas his colon symptoms subsided. He had recently had colon polyps removed, all of which were benign, in 2004. The examiner found no current evidence of proctitis, colitis, or rectal and colon polyps and no relationship between the rectal and colon polyps found in 2004 and service. Colon cancer was not diagnosed as the time of the December 2006 VA examination. A history of colon polyps was reported in a June 2009 private treatment record. In June 2009 the Veteran submitted medical information from two web sites indicating that diabetes may be a side effect of hydrocortisone treatment for colon disorders. At his March 2010 VA examination the Veteran reported developing ulcerative proctitis in service. After treatment there was no recurrence of proctitis. See also May 2001 VA treatment record. He had since been diagnosed with colon cancer. He was diagnosed with diabetes in 2001 while on a heart study. He had a positive family history of diabetes. The March 2010 VA examiner did not link the Veteran's colitis to service because the condition healed well over 30 years previously, without residuals and more recent biopsies showed normal tissue. The examiner also reported that the in service colon condition also did not cause colon cancer. The March 2010 VA examiner also opined that the diabetes was not likely ("less likely than not") related to the hydrocortisone treatments, in part because those treatments result in minimal systemic absorption of the hydrocortisone. He also reiterated that there was a 30 year interval between the time of the enemas and the discovery of diabetes. Diabetes was related to genetics, as the positive family history showed. In a September 2011 addendum opinion the examiner did not link the Veteran's diabetes to hydrocortisone treatment as he had not taken it orally. The examiner further noted that the medical evidence did not link hydrocortisone enemas and suppositories to diabetes. Post service the Veteran has been diagnosed with colon cancer and polyps. Neither condition has been related to the Veteran's in-service colon diagnosis. To the contrary, the VA physicians have opined that the Veteran's current colon disorders are not related to service. There is also no competent, probative medical opinion linking the Veteran's diabetes to service. While the Veteran argued that diabetes was related to medication he was prescribed in service, the March 2010 VA examiner found that the Veteran did not take oral hydrocortisone tablets and the Veteran's prescribed hydrocortisone enemas and suppositories were not linked to diabetes. See also September 2011 addendum opinion. The Board has considered the medical evidence supplied by the Veteran related to hydrocortisone and diabetes. The Board assigns this evidence less probative value than other evidence offered, such as the March 2010 VA examiner's opinion. While informative, the evidence provided in the article is general in nature and no examiner has specifically related this information to the Veteran. See Sacks v. West, 11 Vet. App. 314 (1998). Therefore, the Board assigns more weight to the VA medical opinion noted above, which considered the facts and circumstances of the Veteran's particular history. The Board has also considered the Veteran's statements and testimony regarding his claimed conditions. At the Veteran's November 2009 Board hearing the Veteran surmised that since his colon cancer was in the "same area" where he was treated for colitis in service, the in-service treatment and current disorders were related. However, he also testified that after separation from service he did not see a doctor for approximately 30 years. He testified that he believed the medications he took for colitis caused his current diabetes. The Board has considered the Veteran's contentions that a colon disorder and diabetes are related to service and warrant service connection. The Veteran is competent to report observable symptoms such as pain and requiring the use of prescribed medication. Layno v. Brown, 6 Vet. App. 465 (1994). However, although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issue in this case, diagnosing the etiology and nature of a colon disorder and diabetes, these fall outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer). The Board assigns the most probative value to the VA examiners' opinions which did not link the Veteran's claimed conditions to service. The examiners were fully informed of the Veteran's medical history, provided fully articulated explanations, and supported their opinions with reasoned analyses. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 303-04 (2008); see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ('[A] medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions.'). The Veteran's diabetes also did not manifest to a compensable degree within one year of separation from service. Accordingly, the presumption of service connection does not apply. 38 U.S.C.A. §§ 1101, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2013). The preponderance of the evidence is against the claims for service connection and the benefit of the doubt rule does not apply. See 38 U.S.C.A. § 5107 (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). The claims of entitlement to service connection are denied. ORDER Entitlement to service connection for a colon disorder is denied. Entitlement to service connection for diabetes is denied. ____________________________________________ Vito A. Clementi Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs