Citation Nr: 1536922 Decision Date: 08/28/15 Archive Date: 09/04/15 DOCKET NO. 11-28 301 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUE Entitlement to service connection for a gastrointestinal disability, to include irritable bowel syndrome (IBS), diverticulosis, hemorrhoids, and anal fissure, to include as due to undiagnosed illness based on Persian Gulf War (PGW) service. . REPRESENTATION Appellant represented by: North Carolina Division of Veterans Affairs ATTORNEY FOR THE BOARD K. L. Wallin, Counsel INTRODUCTION The Veteran served on active duty from September 1986 to February 1992. She also had a period of service in the Army National Guard until June 1993. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The matter was previously before the Board in August 2014 and January 2015. On both occasions the claim was remanded for further development and adjudication. The matter has been returned to the Board and is now ready for appellate disposition. FINDINGS OF FACT 1. The Veteran served in the Southwest Asia Theatre of Operations from September 1990 to March 1991 and thus, the Persian Gulf War (PGW) presumption of service connection applies; however, IBS and diverticulosis, hemorrhoids, and anal fissure are known diagnoses. 2. The competent and probative medical evidence of record preponderates against a finding that the Veteran has a gastrointestinal disability, to include IBS, diverticulosis, hemorrhoids, and anal fissure, that is due to events in active service or disease or injury incurred or aggravated during a period of ACDUTRA. CONCLUSION OF LAW The criteria for service connection for a gastrointestinal disability, to include IBS, diverticulosis, hemorrhoids, and anal fissure, to include as due to undiagnosed illness, have not been met. 38 U.S.C.A. §§§ 101(24), 1101, 1110, 1112, 1113, 1117, 1131, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309, 3.317 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Notice and Assistance VA has duties to notify and assist claimants in substantiating a claim for VA benefits. See 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159. Adequate notice was provided in March 2009. The duty to assist has also been met. VA has obtained VA and private medical records; assisted the Veteran in obtaining evidence; and obtained VA medical opinions or examinations. The examinations are adequate as they provide all information necessary to decide the claims. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). In January 2015, the Board remanded the Veteran's claims for attempts to be made to obtain any missing service treatment records for the Veteran's period of National Guard Service ending in June 1993 and in particular, records from Womack Army Hospital at Fort Bragg, North Carolina, dated in June 1993. Attempts to obtain these records resulted in a negative response. See electronic mail dated April 14, 2015, and May 1, 2015. Any further efforts to obtain these records would be futile. 38 C.F.R. § 3.159(c)(2). In cases where records once in the hands of the government are lost, the Board has a heightened obligation to explain its findings and conclusions and to consider carefully the benefit-of-the doubt rule where applicable. See O'Hare v Derwinski, 1 Vet App 365, 367 (1991). Because there may be missing records (though the Board would note there are some treatment notes from Womack Army Hospital of record), the analysis below has been undertaken with this heightened duty in mind. The case law does not, however, lower the legal standard for proving a claim for service connection but rather increases the Board's obligation to evaluate and discuss in its decision all of the evidence that may be favorable to the claimant. See Russo v Brown, 9 Vet App 46 (1996). The Board also remanded the claims for attempts to be to obtain private treatment records from Dr. O. The RO sent the Veteran a letter in March 2015 and requested that she submit a release to obtain the treatment records on her behalf from Dr. O and/or obtain and send the information herself. The Veteran did not provide the requested completed consent form or obtain and send the information herself. The duty to assist in the development and the adjudication of a claim is not a one-way street. Wamhoff v. Brown, 8 Vet. App. 517, 522 (1996); Zarycki v. Brown, 6 Vet. App. 91, 100 (1993); Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). All known and available records relevant to the issues on appeal have been obtained and associated with the Veteran's claims record; and the Veteran has not contended otherwise. II. Analysis 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). Active service includes any period of active duty training (ACDUTRA) during which the individual concerned was disabled or died from a disease or injury incurred or aggravated in the line of duty and any period of inactive duty training (INACDUTRA) during which the individual concerned was disabled or died. 38 U.S.C.A. § 101(24). Service connection generally requires evidence of a current disability with a relationship or connection to an injury or disease or some other manifestation of the disability during service. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); Mercado-Martinez v. West, 11 Vet. App. 415, 419 (1998) (citing Cuevas v. Principi, 3 Vet. App. 542, 548 (1992)). Where the determinative issue involves medical causation or a medical diagnosis, there must be competent medical evidence to the effect that the claim is plausible; lay assertions of medical status do not constitute competent medical evidence. Alternatively, the nexus between service and the current disability can be satisfied by medical or lay evidence of continuity of symptomatology and medical evidence of a nexus between the present disability and the symptomatology. See Voerth v. West, 13 Vet. App. 117 (1999); Savage v. Gober, 10 Vet. App. 488, 495 (1997). Under 38 U.S.C.A. § 1117 and 38 C.F.R. § 3.317, VA shall pay compensation in accordance with chapter 11 of title 38, United States Code, to a Persian Gulf veteran with a qualifying chronic disability that became manifest either during active military, naval, or air service in the Southwest Asia Theater of Operations during the Persian Gulf War, or to a degree of 10 percent or more not later than December 31, 2016. The term "qualifying chronic disability" means a chronic disability resulting from any of the following (or any combination of any of the following): (1) A medically unexplained chronic multi-symptom illness (such as chronic fatigue syndrome, fibromyalgia, and irritable bowel syndrome) that is defined by a cluster of signs or symptoms; (2) any diagnosed illness that the Secretary determines warrants a presumption of service connection; (3) an undiagnosed illness in a veteran who exhibits objective indications of chronic disability resulting from an illness or combination of illnesses manifested by one or more signs or symptoms such as those listed below, provided that such disability by history, physical examination, and laboratory tests cannot be attributed to any known clinical diagnosis. "Objective indications of chronic disability" include both "signs," in the medical sense of objective evidence perceptible to an examining physician, and other, non-medical indicators that are capable of independent verification. For purposes of this section, disabilities that have existed for six months or more and disabilities that exhibit intermittent episodes of improvement and worsening over a six-month period will be considered chronic. The six-month period of chronicity will be measured from the earliest date on which the pertinent evidence establishes that the signs or symptoms of the disability first became manifest. For the purposes of this section, signs or symptoms which may be manifestations of undiagnosed illness include, but are not limited to: (1) Fatigue, (2) signs or symptoms involving the skin, (3) headache, (4) muscle pain, (5) joint pain, (6) neurologic signs or symptoms, (7) neuropsychological signs or symptoms, (8) signs or symptoms involving the respiratory system (upper or lower), (9) sleep disturbances, (10) gastrointestinal signs or symptoms, (11) cardiovascular signs or symptoms, 12) abnormal weight loss, or (13) menstrual disorders. Compensation shall not be paid under this section if there is affirmative evidence that an undiagnosed illness was not incurred during active military, naval, or air service in the Southwest Asia Theater of Operations during the Persian Gulf War; or if there is affirmative evidence that an undiagnosed illness was caused by a supervening condition or event that occurred between the veteran's most recent departure from active duty in the Southwest Asia theater of operations during the Persian Gulf War and the onset of the illness; or if there is affirmative evidence that the illness is the result of the veteran's own willful misconduct or the abuse of alcohol or drugs. 38 U.S.C.A. § 1117; 38 C.F.R. § 3.317. If signs or symptoms are medically attributed to a diagnosed (rather than an undiagnosed) illness, the Persian Gulf War presumption of service connection does not apply. See VAOPGCPREC 8-98 (Aug. 3, 1998), 63 Fed. Reg. 56703 (1998); see also Neumann v. West, 14 Vet. App. 12, 22-23 (2000), vacated on other grounds, 14 Vet. App. 304 (2001) (per curiam order). In this decision, the Board has considered all lay and medical evidence as it pertains to the issue. 38 U.S.C.A. §§ 5107(b), 7104(a); 38 C.F.R. § 3.303(a). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67 (1997); Layno v. Brown, 6 Vet. App. 465 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24 (1991). In determining whether statements submitted by a veteran are credible, the Board may consider internal consistency, facial plausibility, consistency with other evidence, and statements made during treatment. Caluza v. Brown, 7 Vet. App. 498 (1995). The record shows that the Veteran is a Veteran of the Persian Gulf War, having served in the Southwest Asia Theatre of Operations from September 1990 to March 1991, and, therefore, the initial threshold criterion is met for service connection for the entity claimed under the provisions of 38 U.S.C.A. § 1117 and 38 C.F.R. § 3.317. However, she has been diagnosed with IBS and diverticulosis, hemorrhoids, and anal fissure-known diagnoses. Thus, presumptive service connection based on such service is precluded. That aside, service treatment records show the Veteran was treated for abdominal pain, blood vomitus and diarrhea in March 1990 and placed on a temporary profile for gastrointestinal syndrome, but they symptoms was attributed to a viral syndrome by the medical provider. In November 1991 she was prescribed a suppository, as needed, for hemorrhoids. The mere fact that she was treated for a viral syndrome and given a prescription for hemorrhoids is not enough to establish that a chronic disability manifested in service. Post-service, diverticulosis coli and internal hemorrhoids were not revealed until colonoscopy in October 2005, more than twelve years after her discharge from service. This prolonged period without medical complaint or treatment, and the amount of time which has elapsed since military service, can be considered as evidence against the claim. See Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). Service connection may be granted when the evidence establishes a medical nexus between military service and current complaints. The Board finds that the preponderance of the competent evidence is against a finding of a nexus between the Veteran's diverticulosis, hemorrhoids, and anal fissure. On VA examination in October 2014 and April 2015, the examiner opined diverticulosis and hemorrhoids less likely as not had their onset in service nor were they otherwise related to service. The examiner reasoned that there was no documentation of symptoms consistent with diverticulosis in service and that the diagnosis of diverticulosis was not found until 2005. The examiner concluded this was not indicative of an onset during military service. The examiner further noted that guaiac positive stool (blood in stool in 2005) was consistent with bleeding internal hemorrhoids and not a bleed associated with diverticulosis, which usually was abrupt, painless, and large in volume requiring emergency transfusion. The examiner found no documentation of hemorrhoids during service or proximate to her military service. The examiner indicated he was unable to find the prescription for dibucaine for hemorrhoids in 1991, but nonetheless, 1991 would be right after the Veteran gave birth and it was reasonable to suspect a hemorrhoid as medical literature indicates hemorrhoids were common during pregnancy and the postpartum period and often go away on their own or help from simple measures. The examiner opined it was less likely as not that the Veteran's diverticulosis, hemorrhoids, and anal fissure were etiologically related to the Veteran's active service, as the medical literature did not support a claim that gastrointestinal symptoms noted in service caused diverticulosis, hemorrhoids, or anal fissure. The examiner also opined that diverticulosis, hemorrhoids, and anal fissure were less likely than not related to an injury during her Reserve service as medical literature did not support the claim that an injury can cause diverticulosis, hemorrhoids, or anal fissure. The examiner found no service treatment records that indicated the Veteran experienced injury to her rectum that would cause hemorrhoids. As outlined above, the competent medical evidence of record concludes that a gastrointestinal disability, to include IBS, diverticulosis, hemorrhoids, and anal fissure is not related to the Veteran's military service (active or reserve). A chronic gastrointestinal disability was not present to a degree capable of identifying the disease entity during service. Diverticulosis, hemorrhoids, and anal fissure did not develop until many years after service. The only evidence of record to support the Veteran's contentions is her statements, which do not establish a nexus between any acquired pathology and her military service. Although lay evidence is acceptable to prove the occurrence of an injury during active duty/ACDUTRA or symptomatology over a period of time when such symptomatology is within the purview of or may be readily recognized by lay persons, lay testimony is not competent to prove a matter requiring medical expertise. The only other evidence in the record concerning the etiology of the Veteran's disorders are the Veteran's own statements. Lay persons are competent to provide opinions on some medical issues. Kahana v. Shinseki, 24 Vet. App. 428(2011). However, the disabilities at issue in this case could have multiple possible causes and thus, falls outside the realm of common knowledge of a lay person. Jandreau v. Nicholson, 429 F.3d 1372 (Fed. Cir. 2007). In short, service connection is not warranted on a direct or presumptive basis due to her PGW service, to include as due to an undiagnosed illness, for the claimed gastrointestinal disability, to include IBS, diverticulosis, hemorrhoids, and anal fissure. The Board finds that the evidence is not in relative equipoise; thus, the Veteran may not be afforded the benefit of the doubt and his claim must be denied. 38 U.S.C.A. § 5107(b); see generally Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER ____________________________________________ M. E. LARKIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs