Citation Nr: 1640933	
Decision Date: 10/19/16    Archive Date: 11/08/16

DOCKET NO.  03-31 023	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Boston, Massachusetts


THE ISSUE

Entitlement to service connection for a disability of the gastrointestinal system, including intra-abdominal abscess, phlegmon affecting the ileum and jejunum, perforation of the small bowel, fistulas, anal fissure, recurrent ventral hernia or incisional hernia, or any other diagnoses or findings related to or resulting from the appellant's diagnosed gastrointestinal pathology and June 1998 surgery during a period of active duty training from May 30, 1998 to June 5, 1998, including any residuals of the foregoing. (This issue was previously phrased as "[e]ntitlement to service connection for residuals of a colectomy with incisional hernia for rectal cancer.")


REPRESENTATION

Appellant represented by:	Jeany Mark, Attorney



WITNESSES AT HEARING ON APPEAL

The appellant and his spouse


ATTORNEY FOR THE BOARD

J. Rutkin, Counsel


INTRODUCTION

The appellant was enlisted in the Army National Guard from October 1969 to February 2000.  He was ordered to annual training from May 30, 1998 to June 5, 1998, which is the period at issue in this case. 

This matter comes to the Board of Veterans' Appeals (Board) on appeal from a May 2002 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Boston, Massachusetts.  

The issue on appeal was originally phrased as "[e]ntitlement to service connection for residuals of a colectomy with incisional hernia for rectal cancer."  The Board has rephrased the issue on appeal to reflect more specifically the various diagnoses under review in light of the findings in a recent joint motion for remand, which is discussed below, but not to limit in any way the scope of the claim on appeal as hitherto considered. 

The Board initially denied this claim in a March 2007 decision.  In a November 2010 opinion, the United States Court of Appeals for Veteran Claims (Court) vacated the Board's decision and remanded the case for further proceedings consistent with the Court's opinion.  

In June 2013, the Board referred this case for an independent medical opinion (IMO) from a physician specializing in gastroenterology at Tufts University School of Medicine, which was provided in August 2013.  See VHA Directive 2010-044 (September 29, 2010); 38 U.S.C.A. §§ 5103A, 7109 (West 2014); 38 C.F.R. § 20.901 (2016).  

The Board again denied this claim in a January 2014 decision.  In a May 2015 Order, the Court endorsed a joint motion for remand (JMR), vacated the Board's January 2014 decision, and remanded the case for further action consistent with the terms of the joint motion.  Specifically, the parties to the JMR agreed that the August 2013 IMO was inadequate, as the physician did not specify each gastrointestinal condition with which the appellant was diagnosed, including an anal fissure, in terms of whether it was incurred in or aggravated by the active duty training period at issue.  Thus, the JMR concluded that an adequate medical opinion or addendum must be obtained which "directly identifies each gastrointestinal condition with which [the appellant] was diagnosed from March 30, 1998 [sic], including anal fissure, and explicitly determines whether each condition was incurred, or increased in severity beyond its natural progression, during his period of [active duty training] from March 30, 1998 to June 5, 1998."

Pursuant to the JMR, the Board obtained an IMO in July 2016 from a medical doctor and professor of surgery in the section of colon and rectal surgery at the University of Wisconsin at Madison.  The opinion separately addresses each diagnosis in terms of whether it was a pre-existing condition or a new development during the period of active duty training, and if a pre-existing condition, whether it was aggravated beyond its natural progression.  A copy of the medical opinion was provided to the appellant and his representative, and they were offered the opportunity to present additional evidence or argument in response.  See 38 C.F.R. § 20.903 (2016); Thurber v. Brown, 5 Vet. App. 119 (1993).  Such a response was submitted in September 2016, which acknowledged review of the opinion and set forth additional argument based on the physician's findings.  

The appellant's representative submitted additional evidence and argument in September 2015 correspondence, including treatise evidence and an August 2015 affidavit by the appellant asserting that he had duties lifting heavy boxes during the active duty training period.  In the September 2015 letter, the representative waived regional office consideration of all arguments and evidence submitted.  See 38 C.F.R. § 20.1304(c) (2016) 

Attached to a September 2016 letter submitted by the appellant's representative are printouts from webpages reflecting definitions by Merriam-Webster dictionary of the words "injury" and "perforation."  The printouts of these definitions were submitted to support the argument advanced in the September 2016 letter that the appellant's bowel perforation was an injury incurred during the active duty training period.  A waiver was not submitted with regard to these webpage printouts.  See 38 C.F.R. § 20.1304(c).  The Board finds that these printouts either do not constitute new evidence, but merely support the definitions of the words "injury" and "perforation" used in the September 2016 letter, which quotes from those print-outs-definitions which are essentially common knowledge and are not in dispute-or, in the alternative, are not pertinent, as the issue is not whether the bowel perforation is an injury, but whether it was incurred in or aggravated by the period of active duty training, which does not turn on its status as an injury.  Accordingly, a waiver of initial review by the agency of original jurisdiction (AOJ) is not required.  See 38 C.F.R. § 20.1304(c) (providing that any pertinent evidence accepted directly at the Board must be referred to the AOJ for initial review unless this procedural right is waived by the appellant) (emphasis added).  Moreover, the appellant, who is represented by an attorney, has not indicated that he wished the RO to review these definitions, and in light of the previous waiver, the Board assumes that he wishes for the Board to proceed with appellate review. 

Documents added to the claims file in May 2016 are all duplicates of evidence previously of record when the claim was last adjudicated, and thus waiver of AOJ consideration is not required.  See id.  

The appellant and his spouse testified at a hearing before the undersigned in September 2004.  A transcript is of record. 



FINDING OF FACT

The appellant does not have a gastrointestinal condition, including intra-abdominal abscess, phlegmon affecting the ileum and jejunum, perforation of the small bowel, fistulas, anal fissure, or recurrent ventral hernia or incisional hernia, resulting from disease or injury incurred or aggravated during a period of active duty for training in the Army National Guard from May 30, 1998 to June 5, 1998. 


CONCLUSIONS OF LAW

1. The criteria for veteran status for the period of active duty for training in the Army National Guard from May 30, 1998 to June 5, 1998 are not satisfied.  38 U.S.C.A. § 101 (West 2014); 38 C.F.R. §§ 3.1, 3.6 (2016).

2. The criteria for entitlement to service connection for a gastrointestinal condition, including intra-abdominal abscess, phlegmon affecting the ileum and jejunum, perforation of the small bowel, fistulas, anal fissure, or recurrent ventral hernia or incisional hernia, are not satisfied.  38 U.S.C.A. §§ 101, 1110, 1131, 1137, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303 (2016).


REASONS AND BASES FOR FINDING AND CONCLUSIONS

I. Duties to Notify and Assist

VA's duties to notify and assist under the Veterans Claims Assistance Act of 2000 (VCAA) have been satisfied.  See 38 U.S.C.A §§ 5103, 5103A (West 2014); 38 C.F.R. §§ 3.159, 3.326(a) (2016).  

Notice letters were sent to the appellant in April 2003 and December 2004 followed by adequate time for him to submit information and evidence before adjudication or readjudication of this claim.  See Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 484 (2006); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); 38 C.F.R. § 3.159(b); see also Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007).  As service connection has not been established, any defective notice with regard to the degree of disability and effective date elements was harmless.  See Vogan v. Shinseki, 24 Vet. App. 159, 163 (2010) (holding that an error that does not affect the outcome of a claim is harmless). 

The appellant's service treatment records and private treatment records identified by him have been associated with the claims file.  See 38 C.F.R. § 3.159(c).  Two requests each were made for records from the offices of Dr. Silva and Dr. Cordts, which were unavailing.  The appellant was notified of this fact in a July 2005 letter, and provided an opportunity to submit new authorized release forms to enable VA to again request these records, or to submit them himself.  He responded in a July 2005 letter that all the information had already been submitted, and noted that Dr. Silva's office had been taken over by his colleague Dr. Counihan, whose records are in the file.  He did not submit new authorized release forms.  Moreover, there are numerous private treatment records dating to the time the appellant underwent initial abdominal surgery, and no indication that any missing records would provide additional pertinent information not already before VA.  Indeed, treatment records authored by Dr. Silva and Dr. Cordts are already in the file.  

The Board notes that in a September 2016 letter, the appellant, through his representative, stated that a copy of a March 1998 private operation report should be obtained and provided to the physician who authored the July 2016 IMO for consideration in order to "facilitate a more conclusive opinion," citing to Jones v. Shinseki, 23 Vet. App. 382 (2010).  

The Board disagrees.  The physician stated in the July 2016 IMO that it was "not entirely clear as to why the original post-operative abscess occurred," and that it "could have been from a perforated ulcer . . . or possibly due to [the appellant's] prior radiation history affecting the small bowel and possibly further aggravated at the time of the colectomy surgery."  The physician then observed that "[t]his [i.e. the cause of the original post-operative abscess] may become clearer if the operative note from the 1998 colectomy surgery is obtained."  There is no question that the "original" post-operative abscess, specifically a ruptured duodenal ulcer with abscess formation, occurred in March 1998 or April 1998 as a complication of the March 1998 surgery, as reflected in an April 1998 hospital discharge summary, and thus prior to the active duty training period.  The issue in this case does not concern the cause of the "original" post-operative abscess following the March 1998 colectomy, which occurred prior to the active training period, but rather whether the abscess diagnosed in June 1998 (diagnosed as a "recurrent" abscess, indicating that it was a re-occurrence of the original abscess)) was incurred in or aggravated by the active duty training period.  

The July 2016 IMO does not suggest that definitively determining whether the cause of the original March 1988 post-operative abscess-which pre-existed the active duty training period-was due to the March 1998 colectomy or the radiation therapy would have a bearing on whether the June 1998 abscess or other gastrointestinal pathology diagnosed at the time was incurred in or aggravated by the active duty training period.  The Board can discern no reason why it would.  The July 2016 IMO merely observes-and in parentheses that underscore the nature of this observation as a side remark unrelated to the substance of the opinion on the actual medical issue presented-that the March 1998 surgery report might clarify whether the original abscess was due to that surgery or other factors such as radiation.  

The July 2016 IMO is unequivocal in its conclusion that the appellant's gastrointestinal pathology, including the abscess diagnosed in June 1998 (as opposed to the "original" abscess diagnosed in March or April 1998), was not incurred in or aggravated by the active duty training period, and does not in any way suggest that further evidence or information was needed to make this determination.  Thus, the representative's citation to Jones v. Shinseki, 23 Vet. App. 382 (2010) in the September 2016 letter is inapposite, as the July 2016 IMO does not state that an opinion cannot be rendered without resort to mere speculation or suggest that there is information or evidence missing from the record that might help formulate a more definitive opinion or might alter the conclusion reached.  

In light of the above, the March 1998 private colectomy operation report is not relevant to the medical issue presented to the July 2016 physician, and would be duplicative of the ample evidence already of record showing that the appellant underwent a total colectomy in March 1998 and experienced post-surgical complications manifested by a ruptured duodenal ulcer with abscess formation.  Accordingly, a remand to attempt to obtain this record would only delay resolution of this appeal with no reasonable possibility of a benefit flowing to the appellant as a result of such development.  Such a remand is not warranted.  Cf. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994).  

The appellant has not identified any other records or evidence he wished to submit or have VA obtain, but rather indicated in a July 2005 letter that he wished VA to proceed with adjudication of this claim.  Thus, further efforts to obtain any outstanding treatment records are not warranted.  See 38 C.F.R. § 3.159(c). 

Several medical opinions have been obtained in this case.  An October 2005 VA physician's opinion and a December 2006 IMO adequately address the issue of causation, providing clear explanations for the conclusions reached based on the appellant's medical history.  An independent medical opinion by a physician specializing in gastroenterology was obtained in August 2013 to address the issue of whether any of the appellant's current abdominal disorders were permanently aggravated as a result of the annual training period with the Army National Guard.  See VHA Directive 2010-044 (September 29, 2010); 38 U.S.C.A. §§ 5103A, 7109; 38 C.F.R. § 20.901.  This opinion was obtained pursuant to the Court's directive that an adequate opinion was not of record addressing the issue of aggravation, and that it was required as a result of the Board's December 2004 remand for such an opinion.  See Stegall v. West, 11 Vet. App. 268, 271 (1998).  Finally, pursuant to the JMR endorsed in the May 2015 Court Order, the Board obtained a new independent medical opinion in July 2016 from a medical doctor and professor of surgery in the section of colon and rectal surgery at the University of Wisconsin at Madison that separately addresses each diagnosis in terms of whether it was incurred in or aggravated by the training period at issue.  The Board finds that together the medical opinions are adequate to make an informed decision.  See D'Aries v. Peake, 22 Vet. App. 97, 104 (2008). 

The Board notes that the August 2013 IMO was found inadequate in the JMR endorsed in the Court's May 2015 Order because it did not separately identify and address each diagnosis in terms of whether it was incurred in or aggravated by the appellant's active duty training period (although it seemed the physician simply grouped them together for the sake of efficiency under the terms "disease" or "complications").  This deficiency was cured by the July 2016 IMO.  The Board continues to find that apart from the inadequacy identified in the JMR with respect to the scope of the August 2013 IMO in terms of separately addressing each diagnosis (and which was the only inadequacy identified), it is adequate to the extent that it does address the appellant's diagnoses, as it is grounded in a review of the pertinent medical history and is supported by an explanation linking the data to the conclusions reached that enables the Board to make a fully informed decision when considered in conjunction with the other opinions and evidence of record.  See D'Aries v. Peake, 22 Vet. App. 97, 104 (2008); Monzingo v Shinseki, 26 Vet. App. 97, 107 (2012) (holding that "examination reports are adequate when, as a whole, they sufficiently inform the Board of a medical expert's judgment on a medical question and the essential rationale for that opinion" even when the rationale does not explicitly "lay out the examiner's journey from the facts to a conclusion") (citing Acevedo v. Shinseki, 25 Vet. App. 286, 293 (2012) (noting that the law imposes no reasons-or-bases requirement on examiners)).  

Some phrasing in the August 2013 opinion can seem a little confusing on its face when read in isolation.  For example, the physician stated that symptoms of abdominal pain, nausea, vomiting, chills, fever, and malaise that first manifested during the appellant's training period were "incurred" during this period.  However, when viewed in the context of the physician's discussion, it is clear that the physician was using the word "incurred" as a way of demarcating symptoms that first occurred during the training period as opposed to those that pre-existed this period (as he was directed to do in the Board's opinion request), and not to suggest that these symptoms were incurred in the line of duty or caused by the appellant's training period, or were unrelated to the pre-existing condition.  On the contrary, while these symptoms did first occur during the period of training, the examiner definitively attributed them to pre-existing complications of the appellant's previous March 1998 abdominal surgery.  Specifically, the discussion goes on to state that these symptoms were associated with the appellant's bowel perforation and other complications of his surgery, explaining that although they were "subclinical" prior to the training period, they would have occurred "regardless" of the appellant's activity level (the physician emphasized the word "regardless").  To illustrate this point, the physician stated that, for example, the appellant may have had inflammatory changes and fluid collection in the abdominal gutter prior to his training period that would not necessarily have been symptomatic at the time and thus would not have prevented the appellant from activity without restriction if he was otherwise feeling well.  

In short, while the physician used the word "incurred" in reference to symptoms or pathology that manifested during the period of training, he found that these symptoms and manifestations were the natural progression of an underlying pre-existing condition, and were not caused or aggravated by the training.  To the extent that the physician used the word "incurred" to denote symptoms that first manifested during the period of active duty training, service connection may not be established for the symptoms themselves, but rather for the underlying pathology, and that pathology was found to pre-exist the active duty training period and not to have been aggravated by it, even if the symptoms first manifested during that period.  Cf. Sanchez-Benitez v. West, 13 Vet. App. 282, 285 (1999), appeal dismissed in part, and vacated and remanded in part sub nom. Sanchez-Benitez v. Principi, 259 F.3d 1356 (Fed. Cir. 2001) (holding that service connection is established for disease or injury rather than symptoms in and of themselves).  When read as a whole, and as concluded in the July 2016 IMO, it is evident that the August 2013 IMO found that the symptoms that manifested in June 1998 represented the natural progression of the pre-existing pathology, and were not "incurred" in the sense that they were caused (i.e. incurred in the line of duty) or aggravated by the training period. 

Similarly, with regard to the issue of aggravation, although the August 2013 opinion observes in general that small bowel fistulas, enterocutaneous fistulas, and small bowel adhesive disease can be worsened by increased levels of emotional or physical stress, the physician never found that the appellant's training caused an increase in severity of this pathology beyond its natural progression, and noted that the small bowel perforation, right abdominal gutter abscess, with pathologic findings of acute, chronic serositis and chronic inflammation, with enterocutaneous fistula, "would not have remained quiescent," that is, irrespective of whether the appellant participated in active duty training.  Indeed, with regard to what the physician generally referred to as "bowel disease," he stated that although there was an increase in severity during the training period, the increase was not beyond the natural progression of this disorder.  

In sum, when the August 2013 physician's opinion is read as a whole, his basic conclusion that there was no permanent worsening of the appellant's pre-existing residuals of a colectomy is evident and unambiguous (he stated at least three times that these would have occurred regardless of the appellant's training period), even if there may have been temporary worsening of symptoms due to increased levels of emotional or physical stress.  See Monzingo, 26 Vet. App. at 107; Acevedo, 25 Vet. App. at 293.  Accordingly, the August 2013 independent medical opinion is adequate for making an informed decision on this claim to the extent it specifically addresses the diagnoses mentioned in that opinion. 

As discussed above, pursuant to the JMR endorsed in the May 2015 Court Order, the Board obtained a new IMO in July 2016.  The opinion separately addresses each diagnosis in terms of whether it was a pre-existing condition or a new development during the period of active duty training, and if a pre-existing condition, whether it was aggravated beyond its natural progression.  The Board finds that the opinion is adequate and is adequately responsive to the issues identified in the JMR.  Although the reasoning in the July 2016 IMO may not be entirely spelled out, it is sufficient to "inform the Board of [the] medical expert's judgment on [the] medical question and the essential rationale for that opinion," especially in light of, and in conjunction with, the other medical opinions obtained in this case.  See Monzingo, 26 Vet. App. at 107; Acevedo, 25 Vet. App. at 293.  Specifically, the July 2016 IMO concludes that the appellant's gastrointestinal conditions diagnosed during the active duty for training period were pre-existing complications of previous surgery and treatment, including the March 1998 total colectomy and prior radiation treatment, and did not worsen beyond their natural progression during the active duty training period and were not otherwise aggravated by this period, including due to physical activity.  Thus, any subsequent gastrointestinal conditions, including incisional hernias and anal fissures, that might have resulted from such pathology or the June 1998 surgery, cannot be service-connected, as they either stem from the pre-existing condition, from the surgery performed to ameliorate it, or from other causes unrelated to the training period.  See 38 C.F.R. §§ 3.303(a), 3.306(b)(1) (2016); see also Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009).

In the September 2016 letter, the appellant, through his representative, challenged the adequacy of the July 2016 IMO.  The letter singles out several findings in the IMO as not supported by adequate explanations or not entitled to probative value because conflicting with other evidence or self-contradictory, as asserted by the appellant's representative.  Specifically, and as discussed in more detail above regarding the duty to obtain relevant records on the claimant's behalf, the letter states that the March 1998 total colectomy operation report was needed for the July 2016 physician to render a more conclusive opinion regarding the cause of the "original post-operative abscess."  The Board has already explained why this report is not needed and why it has no bearing on the physician's conclusion regarding the actual medical issue presented on which the outcome of the claim turns, which is supported by an adequate explanation.  

The letter also notes as a second asserted deficiency that the July 2016 IMO stated that the anal fissure "may or may not have been related to the [appellant's] prior total colectomy and ileorectal anastomosis."  The physician further stated that because there was no mention of this condition prior to 2000, it was "difficult to say."  The September 2016 letter asserts that this opinion is inadequate because the physician did not have access to the total colectomy report and "could not have known whether it was diagnosed or not."  The July 2016 physician was not asked to determine whether the anal fissure was caused by the prior total colectomy or diagnosed prior to the active training period, including at the time of the March 1998 surgery, but rather whether it was incurred in or aggravated by the active duty training period, which is the legal issue presented in this case going to the merits of the claim.  The physician did not suggest that a copy of the total colectomy operation report would have a bearing on this determination, but merely observed that the anal fissure may have been due to the prior total colectomy and ileorectal anastomosis or, as the physician went on to state, may have been due to altered bowel habits (increased frequency) related to the prior ileorectal anastomosis and prior radiation history which predisposed the appellant to developing anal fissures.  The physician concluded that "[r]egardless" of what actually caused the anal fissure, it was not incurred during the period of active duty training and was not a result of the pathology diagnosed during that time or at the time of the surgery.  Because there is no evidence that the anal fissure occurred during the training period itself, as found in the July 2016 IMO, there was no need for the physician to discuss whether it was aggravated beyond its natural progression.  Clearly then, neither the total colectomy report nor any other evidence that might potentially help pin down the actual cause of the anal fissure was required for the physician to render a definitive conclusion regarding the medical issue on which the merits of the appeal actually turn.  The Board also notes that given the fact that the pathology diagnosed during the active duty training period pre-existed and was not aggravated by the training period, any subsequent diagnoses resulting from that pathology or the surgery performed to treat it cannot be service connected as a matter of law, and thus further opinion is not required.  

The third inadequacy asserted in the September 2016 letter is that the July 2016 IMO states that the recurrent incisional hernia was related to multiple prior abdominal surgeries, and further states that it was most likely related to the more recent laparotomy and small bowel resections performed in June 1998 during the training period.  The physician noted that at the time of the June 1998 surgery there was no mention of a pre-existing hernia, but that the previous mesh from earlier surgery was encountered and incised upon abdominal entry.  Thus, the physician concluded that this was a new development as a complication of the June 1998 surgery.  The September 2016 letter asserts that these statements are contradictory and should not be afforded any probative value, without any explanation as to why they are considered contradictory, let alone sufficiently contradictory in terms of the substance of the discussion to vitiate their probative value. 

The Board discerns no contradiction in the physician's basic observation that several abdominal surgeries could result in a recurrent incisional hernia, and that the most recent incisional hernia diagnosed in March 1999-that is, the most recent occurrence-was a new complication of the June 1998 surgery.  Indeed, the evidence shows that the appellant underwent incisional hernia repair in 1997, consistent with the physician's statement that the appellant had a recurrent incisional hernia related to multiple prior abdominal surgeries.  The term "recurrent" means that the hernia occurred, was repaired, and then re-occurred, and thus there is no contradiction in finding that a recurrent incisional hernia was related to multiple prior operations, and that the most recent occurrence was due to the most recent operation (with a suggestion reasonably embedded in this discussion and in the nature of the concept of "recurrence" that there was predisposal to recurrence of the hernia due to the prior surgeries).  Moreover, the October 2005 VA medical opinion also found that the appellant's hernia was a complication of his operation.  In any event, because the usual effects of surgery during service cannot be service connected if the surgery had the effect of ameliorating a condition incurred prior to service, and because the Board has found that service connection is not established for the pathology that the surgery was performed to ameliorate, service connection for the incisional hernia cannot be granted as a matter of law, and therefore any deficiency in the medical opinion on this issue is moot.  See 38 C.F.R. § 3.306(b).  Further opinion is not warranted. 

The last deficiency asserted in the September 2016 letter respecting the July 2016 IMO is that the physician stated that there was no evidence of intestinal or bowel disease at the time of the June 1998 surgery.  The letter states that this finding is in direct contradiction with the findings of the June 2013 IMO, which found that the appellant "developed his small bowel disease and related complications only after his surgery in March 1998."  These findings are not contradictory, especially when the actual discussion provided in each opinion is considered.  The July 2016 IMO specifically notes that the June 1998 surgery report states that "no primary intrinsic small bowel disease" was found at the time, and there is no evidence of a bowel "disease" separate or distinct from the various diagnoses and pathology specifically considered in both opinions and in the December 2006 IMO, October 2005 VA medical opinion, and letters submitted by Dr. Counihan.  The August 2013 IMO merely observes that the appellant developed small bowel disease after the March 1998 surgery, but does not state that he developed the bowel disease during the active duty training period itself or that it was caused or aggravated by the training period, or that this was separate from the other pathology diagnosed, including the perforated bowel, phlegmon, abscess, and fistula.  Thus, as a matter of logic, the July 2016 IMO does not contradict the August 2013 IMO in this respect, and is moreover consistent with the actual June 1998 report of surgery.  

In the alternative, and as discussed in more detail below, to the extent that the August 2013 IMO indicates that the bowel disease occurred in March 1998 or April 1998 immediately following the total colectomy, or occurred in June 1998 during the active duty training period, the physician was clearly referring to the same diagnoses and pathology considered in the July 2016 IMO, using different terminology, as there is no evidence of a diagnosed disease or pathology in addition to or distinct from the diagnoses already addressed in that opinion. 

In light of the observations made in the preceding paragraph, there seems to be merely a difference in the nomenclature employed in the two opinions, with the August 2013 IMO characterizing the abscess and small bowel perforation with related complications, including a fistula, as "small bowel disease," and the July 2016 IMO characterizing these as surgical complications but not as bowel or intestinal "disease."  This difference in nomenclature when discussing the same pathology is made even more apparent when the October 2005 VA medical opinion is considered.  In that opinion, the examiner stated that the appellant developed complications from the March 1998 operation, which resulted in fistulae in his abdomen because of the small bowel intestinal "disease" subsequent to that operation.  The physician went on to state that the perforated small bowel secondary to the intraabdominal abscess and the resolving small bowel enterocutaneous fistulas which were diagnosed in June 1998 did not represent separate disabilities.  Rather, these were complications of the appellant's March 1998 surgery and were associated with his prior disease (in reference to the appellant's cancer and polyps resulting in the total colectomy).  In other words, the "disease" subsequent to the operation was clearly a reference to the recurrent intraabdominal abscess and perforated small bowel.  Indeed, no medical professional has stated that the appellant had a "disease" of the bowel in addition to these diagnoses, the phlegmon, the recurrent hernia, the fistula, and the anal fissures.  For example, the December 2006 IMO characterizes the appellant's recurrent fistula as "fistulous disease."  As stated by the October 2005 examiner, the perforated small bowel secondary to intraabdominal abscess and the resolving small bowel enterocutaneous fistulas diagnosed in June 1998 did not represent a separate disability, but were a complication of the March 1998 total colectomy with an ileoanal anastomosis; they were not a "separate disease."  The October 2005 examiner similarly found that the appellant's hernia was a complication of the operation. 

Whether the appellant's bowel and abdominal pathology is characterized as a "disease" or not, the August 2013 IMO and July 2016 IMO, and indeed every medical opinion obtained in this case, clearly agree-and with no competent medical professional finding differently-that the pathology diagnosed during the active duty training period represented complications of pre-existing surgery or treatment.  The August 2013 and July 2016 IMOs also both agree that there was no aggravation of these complications or pathology by the training period in terms of a worsening beyond their natural progression.  Therefore, the Board finds that these opinions do not contradict each other in substance or with regard to the ultimate medical issues going to the merits of the claim, and are consistent with all other medical opinions with regard to the pathology at issue, even if there may be superficial differences in the language used.  Thus, they are sufficient to render an informed decision.  Accordingly, further opinion is not warranted. 

In light of the above, the appellant has had a meaningful opportunity to participate effectively in the processing of this claim, and no prejudicial error exists.  See Shinseki v. Sanders, 556 U.S. 396, 407, 410 (2009); Conway v. Principi, 353 F.3d 1369, 1374 (Fed. Cir. 2004); Arneson v. Shinseki, 24 Vet. App. 379, 389 (2011). 


II. Merits of the Appeal

The appellant seeks service connection based upon a period of active duty for training (ACDUTRA) from May 30, 1998 to June 5, 1998 with the Army National Guard for various gastrointestinal conditions, including a small bowel perforation, recurrent abdominal abscesses, recurrent fistulas, anal fissure, small bowel disease, and a recurrent ventral incisional hernia, including any residuals of the foregoing.  He states that these conditions were caused or aggravated by physical or psychological stress during the training period.  Further, he states that the manifestation of the bowel perforation and other conditions during the training period establishes their incurrence or aggravation in the line of duty, since some of these conditions, especially the bowel perforation, were not diagnosed prior to the training period, and previous manifestations of other conditions such as the abdominal abscess had apparently resolved prior to the training period. 

A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence on any issue material to the claim.  See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102 (providing, in pertinent part, that reasonable doubt will be resolved in favor of the claimant).  When the evidence supports the claim or is in relative equipoise, the claim will be granted.  See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); see also Wise v. Shinseki, 26 Vet. App. 517, 532 (2014).  If the preponderance of the evidence weighs against the claim, it must be denied.  See id.; Alemany v. Brown, 9 Vet. App. 518, 519 (1996). 

For the following reasons, the Board finds that service connection is not established.  

i. Applicable Law

As a threshold matter, veteran status must be established as a condition of eligibility for service connection benefits.  Bowers v. Shinseki, 26 Vet. App. 201, 206 (2013) (observing that it is "axiomatic that, to receive VA disability compensation benefits, an appellant must first establish veteran status") (citing Cropper v. Brown, 6 Vet. App. 450, 452 (1994)); see also 38 U.S.C.A. §§ 1110, 1131.  The term "veteran" is defined, in relevant part, as "a person who served in the active military, naval, or air service."  38 U.S.C.A. § 101(2) (West 2014); 38 C.F.R. § 3.1(d) (2016).  The term "active military, naval, or air service" includes: (1) active duty; (2) any period of ACDUTRA during which the individual concerned was disabled or died from a disease or injury incurred or aggravated in the line of duty; and (3) any period of inactive duty for training (INACDUTRA) during which the individual concerned was disabled or died from an injury incurred or aggravated in the line of duty, or from an acute myocardial infarction, a cardiac arrest, or a cerebrovascular accident occurring during such training.  38 U.S.C.A. § 101(24); 38 C.F.R. § 3.6(a) (2016).  The term "active duty for training" includes, among other things, certain full time duty in the Army National Guard.  38 U.S.C.A. § 101(22); 38 C.F.R. § 3.6(c)(3).

Thus, in order for the appellant to establish veteran status and eligibility for service connection with respect to his period of active duty for training with the National Guard from May 30, 1998 to June 5, 1998, the record must establish that the appellant was disabled from a disease or injury incurred or aggravated in the line of duty during that period.  See 38 U.S.C.A. § 101(24).; Mercado- Martinez v. West, 11 Vet. App. 415, 419 (1998); Paulson v. Brown, 7 Vet. App. 466, 470 (1995); Biggins v. Derwinski, 1 Vet. App. 474, 478 (1991). 

Service connection means that a veteran has a disability resulting from disease or injury incurred in or aggravated by active service.  38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a).  Entitlement to service connection is established when the following elements are satisfied: (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship or "medical nexus" between the current disability and the disease or injury incurred or aggravated during service.  Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); see 38 C.F.R. § 3.303(a).  

Unless and until veteran status is established for any period of ACDUTRA or INACDUTRA-or with regard to the presumption of soundness, veteran status with respect to a prior period of service and a report of examination prior to the training period at issue-the presumption of soundness under 38 U.S.C.A. § 1111 (West 2014), the presumption of aggravation under 38 U.S.C.A. § 1153 (West 2014), and the presumptions of service connection accorded certain diseases under 38 U.S.C.A. §§ 1112-1137 (West 2014) and 38 C.F.R. §§ 3.307, 3.309 (2016) do not apply to such periods.  See Bowers, 26 Vet. App. at 206-07; Smith v. Shinseki, 24 Vet. App. 40, 45-48 (2010) (holding that presumptions of service connection and the presumptions of soundness and aggravation cannot apply to appellants whose claims are based only on a period of active duty for training); Acciola v. Peake, 22 Vet. App. 320, 324 (2008) (holding that a presumption of service connection is inapplicable without previously established veteran status (citing Biggins, 1 Vet. App. at 478)).  

Moreover, in the context of a claim based on aggravation of a preexisting disorder during an active duty for training period, the claimant must show "both that a worsening of [the] condition occurred during the period of active duty for training and that the worsening was caused by the active duty for training."  Smith, 24 Vet. App. at 48 (emphasis in original) (citing 38 U.S.C.A. § 101(24)(B) (West 2014)).  Thus, in contrast to claims based on a period of active service, there must be direct evidence of causation of the worsening of the disorder by the period of active duty for training.  See id. ("Because . . . the definition of the phrase 'active military, naval or air service' differs for a person serving on active duty and one serving on active duty for training, the proof that a particular disability was aggravated during active duty for training may be established only by direct evidence.").  Causation is established with evidence showing that the disorder worsened beyond its natural progression during the active duty for training period.  See 38 U.S.C.A. § 1153 (West 2014).  Because the presumption of aggravation does not apply in claims based on a period of active duty for training when veteran status is not established, the burden is on the appellant to demonstrate that he experienced a permanent increase in disability beyond the natural progress of that disease or injury during his period of active duty for training. 


ii. Analysis

The record reflects that the appellant received treatment for colon cancer in 1996.  In September 1997, he underwent incisional hernia repair.  

An April 1998 discharge summary from the University of Massachusetts (UMass) Medical Center reflects that the appellant had a history of sigmoid colon cancer which was invasive to the bladder, for which he had previously undergone chemoradiation after a sigmoid colectomy.  In March 1998, he underwent a total colectomy and ileorectal anastomosis for multiple polyps of the colon.  During hospitalization in April 1998, his total abdominal colectomy was complicated by what appeared to be a ruptured duodenal ulcer with abscess formation.  This was drained percutaneously and the appellant did well on antibiotics.  He was discharged home after a prolonged ileus in the hospital, according to the April 1998 hospital discharge summary. 

The April 1998 hospital discharge summary further reflects that the appellant returned to the hospital with increasing fevers and an inability to tolerate a regular diet.  On examination, it was noted that he had one CT guided drain in the left lower quadrant.  Intravenous (IV) antibiotics were started and he underwent repeat catheter drainage.  His fever then resolved.  He was discharged home on total parental nutrition (TPN) and IV antibiotics in good condition  

An August 1998 letter from the appellant's treating physician, Dr. Counihan, further specifies that the appellant developed a complication of an intra-abdominal abscess, which was thought to be related to a perforated duodenal ulcer.  

Doctor Counihan also authored a May 1998 letter to support the appellant's petition to his National Guard unit to retain him for continued unit participation.  The letter was enclosed with and referred to in the appellant's own letter to the National Guard disputing his "non-selection" for continued participation.  Doctor Counihan wrote that the appellant was recovering and should be able to gradually return to full normal activity within 8 to 12 weeks.  His colon cancer had been "completely cured" and his other medical problems were also temporary and related to his operation, according to the letter.

The appellant was ordered to active duty training from May 30, 1998 to June 5, 1998.  The service treatment records reflect that on June 3, 1998, the appellant awoke with abdominal pain and was taken to the emergency room.  The admission report reflects that the appellant had had "a good 3 weeks of eating well and feeling well."  He was in Cape Cod with the National Guard and over the past 4 days had "eaten well, not excessively, no alcohol [sic], and [had] played golf every day."  Then, "suddenly" at around 5:00 a.m. the appellant awoke with abdominal pain, and subsequently had nausea and vomiting, chills, and malaise.  The admission diagnosis was "probable recurrent intraabdominal abscesses."  His history of "significant intraabdominal surgery" and postoperative complications was noted, including a perforated peptic ulcer that was not treated by surgery but rather by placement of intraabdominal drains and intravenous antibiotics managed at home and which were discontinued approximately three weeks earlier. 

An emergency exploratory laparotomy for small bowel perforation was performed on June 5, 1998, requiring two separate anatomic sites small bowel resection with two small bowel reanastomosis, and also debridement and drainage of the right abdominal gutter abscess.  A June 1998 pathology report reflects acute and chronic serositis with multiple serosal abscesses of the distal ileum and jejunum.  There was secondary edema of submucosa with mild secondary acute and chronic inflammation, but no primary intrinsic small bowel disease.  A fistulous tract was histologically suggested in sections from the area of the constricted loop.  Surgical margins demonstrated unremarkable small bowel mucosa with mild secondary acute and chronic serositis.  The discharge diagnosis was a perforated small bowel secondary to intraabdominal abscess and resolving small bowel enterocutaneous fistula.  

An August 1998 treatment record from Dr. Counihan reflects this physician's finding that the appellant had sprouted a new fistula, apparently, in the right previous percutaneous drain site.  This was shown on a recent computed tomography (CT) scan of the abdomen "which was taken down on the Cape."  He was doing well overall.  

In an August 1998 letter, Dr. Counihan wrote that at the time of his return to National Guard duty in May 1998, the appellant's intra-abdominal abscess had been completely cured.  There was no leak from the small intestine, as shown by multiple CT scans of the abdomen, and he was in condition for full physical activity.  Dr. Counihan stated that it would not be predictable that he would develop another intra-abdominal abscess related to radiation changes in his small bowel, since the prior CT scan was normal.  Dr. Counihan added that he understood that the appellant had developed another intra-abdominal abscess and underwent surgery.  He stated that the leak was from radiation changes in the small bowel, which may or may not have been related to any of his prior abdominal operations.  However, he added that it was clear in May 1998 that the appellant had no intra-abdominal abscess and was ready for unrestricted physical activity.

In September 1998, the appellant was treated for drainage from one of his old drain sites.  In November 1998, he reported intermittent drainage from a lateral fistula site. 

In a letter dated in December 1998, Dr. Counihan stated that the condition from which the appellant was recovering was an enterocutaneous fistula, secondary to surgery for a pre-cancerous condition.  At the time he cleared the appellant for military service he was on a regular, unrestricted diet and his fistula was healed.  His activity level was also unrestricted.  Dr. Counihan clarified that in the May 1998 letter he wrote to the National Guard, he intended to convey that the appellant was able to perform the duties expected of him, and the statement that the appellant should gradually return to full normal activity was not intended to be restrictive; rather, such statement allowed leeway for patients who were tired after a partial day's work or needed a period of strength training to accomplish more rigorous activities.  He added that he had specifically discussed with the appellant the nature of his duties and encouraged the appellant to perform them.  Dr. Counihan stated that "there was no way that any physical activity could possibly cause a perforation of the intestine, and that "[a]ny reasonable person, and indeed surgeons expert at treating these conditions, would not consider this."  He concluded that the intestinal perforation which occurred while the appellant was on annual training was not a predictable consequence of his original surgery, since recurrence of fistulas after they are healed was exceedingly rare (probably less than 2% in this kind of case).

In March 1999, the appellant was seen at the UMass Medical Center for an incisional hernia status post subtotal colectomy for polyps and resultant small bowel fistulas related to radiation enteritis.  An operative report from later that month reflects that the appellant underwent a repair of recurrent ventral hernia with mesh.  The post-operative diagnosis was recurrent ventral hernia, status post multiple laparotomies.  

In February 2000, the appellant underwent a sigmoidoscopy at UMass Memorial Medical Center which revealed an anal fissure and a single small sessile polyp.  The pathology report regarding biopsy from the rectum revealed large intestinal mucosa with nonspecific chronic inflammation and focal cryptitis.  Subsequent sigmoidoscopy performed in August 2000 revealed rectum to small bowel anastomosis, with no polyps visualized in the rectum.  

A July 2001 sigmoidoscopy again revealed an anal fissure.  There was widely patent anastomosis, but no polyps present.  

An August 2001 private treatment record reflects that the appellant had six to eight bowel movements daily.  He had a chronic anal fissure. 

A February 2002 treatment record notes that the appellant's anal fissure had "been a problem since his surgery in 1998."  The record does not specify which surgery.  However, another treatment record of the same date notes that the appellant underwent surgical resection for rectal cancer in October 1996, and underwent a total colectomy in March 1998, and then states that the appellant had a chronic anal fissure since the second surgery, clearly in reference to the March 1998 surgery as no other surgery was mentioned. 

The Board remanded the case in December 2004 in order to obtain a medical opinion.  The Board instructed that the VA physician should review the records and provide an opinion as to whether or not the appellant's status post colectomy underwent a permanent increase in severity beyond its natural progression during annual training from May 30, 1998 to June 5, 1998.  The physician was also asked to comment as to whether or not the perforated small bowel secondary to intraabdominal abscess and resolving small bowel enterocutaneous fistula diagnosed in June 1998 represented a disability which was separate and distinct from the pre-existing status post colectomy for rectal cancer.  If this did represent a separate and distinct disability, the physician was to opine as to whether or not the condition had its onset during the appellant's period of annual training.  

In October 2005, a VA doctor reviewed the claims folder.  He commented that the appellant underwent colectomy for symptoms consistent with rectal cancer in 1996, followed by chemotherapy.  Multiple colonic polyps which were, in the opinion of the physician, likely congenital in origin (as the appellant's father had colon cancer) were revealed on follow-up colonoscopies.  Therefore, the appellant had a total colectomy and ileoanal anastomosis in March 1998.  The appellant developed complications from the March 1998 operation, which resulted in fistulae in his abdomen because of the small bowel intestinal disease subsequent to that operation.  The physician opined that there was no relationship between these findings or the appellant's cancer and his active duty training, and thus his multiple chronic problems associated with the cancer and surgery could not be service-connected.  The physician went on to state that the perforated small bowel secondary to the intraabdominal abscess and the resolving small bowel enterocutaneous fistulas which were diagnosed in June 1998 did not represent separate disabilities.  Rather, these were complications of the appellant's March 1998 surgery and were associated with his prior disease.  The physician opined that service connection was not warranted as the appellant's disease, manifested by multiple polyps of the colon and the development of a villous adenoma with cancer, was of a congenital origin.  He concluded that service duty could not have been a causal factor in the appellant's primary abdominal cancer and subsequent hernia and development of enterocutaneous fistulas.  He stated that the hernia and fistulas were complications of surgical procedures.  

In April 2006, the Board requested an independent medical opinion to address the question of whether the appellant's status post colectomy residuals underwent a permanent increase in severity beyond their natural progression during annual training from May 30, 1998 to June 5, 1998.  In December 2006, a private physician responded that the question posed was somewhat confusing, but she interpreted it as asking whether returning to annual training had caused the return of the appellant's fistulous disease.  She answered that it did not.  She stated that the appellant had had surgery and was healing from complications of that surgery and opined that he probably returned to duty "too early."  In this regard, she explained that because of his history of radiation enteritis and a fistula that took some time to heal, it was "not unexpected that he could have a setback and the fistula could reopen."  

In the August 2013 independent medical opinion, a physician specializing in gastroenterology stated that the appellant developed small bowel disease, stress-related mucosal disease, and peptic ulceration with perforation as complications of his March 1998 bowel surgery.  The physician found that the bowel disease pre-existed the appellant's training period from May 1998 to June 1998.  The physician opined that there was an increase in severity of the disease during service, and noted in this regard that he assumed the appellant was under increased levels of physical and emotional stress, and had "some level of hesitancy regarding his return."  In fact, the Board here notes that the appellant himself had petitioned to continue his service with the National Guard, and there is no indication of emotional stress related to this training period.  As noted in the June 1998 hospital admission report, the appellant was in Cape Cod playing golf every day during this period, "eating well and feeling well."  

Significantly, the physician opined that he did not believe the increase in severity of the bowel disease was beyond the natural progression of the condition, noting that "these complications would have occurred whether or not the [appellant] had returned to annual training."  

The physician further opined that the appellant's "conditions of abdominal pain, malaise, fever, chills, and some nausea and vomiting were incurred during" the training period.  The physician stated that the stress of the appellant's duty may have aggravated his condition, although he believed these conditions were "sub-clinical" prior to the training period and would have occurred "regardless of what the [appellant's] activity level would have been at the time - the question being only the timing of the presentation."  In this regard, the physician observed that the findings of small bowel perforation, right abdominal gutter abscess, with pathologic findings of acute, chronic, serositis and chronic inflammation, with enterocutaneous fistula, would "not have remained quiescent."  The physician explained that small bowel and enterocutaneous fistulas and small bowel adhesive disease can be debilitating complications of major abdominal surgery, which can be worsened by increased levels of emotional or physical stress.  He noted that if the appellant had inflammatory changes and a small fluid collection in the abdominal gutter prior to beginning the training period, these findings would not have prevented the appellant from activity without restriction if he was otherwise feeling well. 

In other words, the physician did not find a causal relationship between the worsening of the bowel disease and the appellant's training period, even if there was a temporal one.  As discussed above, for claims based on a period of active duty for training, a causal relationship between that period and the aggravation of the disorder in question must be shown; it is not sufficient that manifestation or aggravation of the disorder merely coincided with the training period absent evidence that the condition worsened beyond its natural progression.  Smith, 24 Vet. App. at 48.  The burden is on the appellant to produce such evidence.  Because the physician clearly stated that the bowel disease did not increase in severity beyond its natural progression, a causal relationship is not established.  See id.; 38 U.S.C.A. § 1153.  Importantly, as discussed above, the physician used the word "incurred" in the temporal rather than the etiological sense to demarcate symptoms that first presented during the training period as opposed to prior to that time, even though they stemmed from the appellant's pre-existing abdominal disorder and surgical complications.  

After the Board denied this claim again in the January 2014 decision, and for the first time during the pendency of the appeal, the appellant stated in an August 2015 affidavit that during the active duty training period he was assigned to a detail unloading and moving rations for about 500 people, which involved picking up heavy boxes and carrying them for about 60 feet.  He stated that he carried the heavy items against his stomach and did this for about three hours, and that it was strenuous work and he was worn out.  Finally, he stated that three or four hours after finishing this task, he experienced the onset of the abdominal symptoms that led to his being hospitalized.  

The Board does not find the history provided in the August 2015 affidavit to be credible.  It directly conflicts with the history provided in the June 1998 surgery report, which states that the appellant had "suddenly" awoke at 5:00 a.m. with abdominal pain and subsequently had nausea and vomiting.  There is no mention of prior pain or a history of moving heavy items.  Rather, the report notes that the appellant had stated that over the past four days he had eaten well and played golf every day, and that over the past three weeks he had been feeling well.  Thus, contrary to the appellant's assertion that he experienced abdominal symptoms several hours after moving heavy boxes and carrying them against his stomach which led to his hospitalization, this report states that he suddenly awoke in the morning with the abdominal symptoms and nausea and vomiting.  

The appellant provided a similar account at the September 2004 Board hearing, stating that he was awoken at night and had a ruptured lower intestine.  He made no mention of lifting or carrying heavy boxes or experiencing the abdominal symptoms a few hours after this activity that led to his hospitalization, as asserted in the affidavit, but only stated that he was "awoken at night" and rushed to the hospital, which is in keeping with the history provided in the June 1998 surgery report.  Indeed, if there were any question as to the accuracy of the history provided in the June 1998 surgery report, the appellant's testimony at the Board hearing supports that history. 

The June 1998 surgery report carries more probative weight than the appellant's statements in the August 2015 affidavit.  In this regard, contemporaneous evidence generally has greater probative value than history as reported by the claimant.  See Curry v. Brown, 7 Vet. App. 59, 68 (1994).  Moreover, statements made for the purpose of medical diagnosis or treatment are exceptionally trustworthy because the declarant has a strong motive to tell the truth in order to receive a proper diagnosis or treatment.  See White v. Illinois, 502 U.S. 346, 356, 112 S. Ct. 736 (1992).  Although the Federal Rules of Evidence do not apply in the Board's adjudication of appeals concerning claims for VA benefits, recourse to these rules may be appropriate if it assists in the articulation of the reasons for the Board's decision.  See Rucker v. Brown, 10 Vet. App. 67, 73 (1997).  Indeed, the aforementioned principle regarding statements made to treating physicians is one of common sense and on that basis alone is sufficient to guide the Board's weighing of the evidence.  

Thus, because the appellant's August 2015 statement regarding carrying heavy boxes directly conflicts with the more probative June 1998 surgery report, and is not otherwise supported by the evidence of record, the Board finds that it is not credible and therefore carries no probative weight.  See Caluza v. Brown, 7 Vet. App. 498, 511 (1995) (holding that when determining whether lay evidence is satisfactory, the Board may properly consider, among other things, its consistency with other evidence submitted on behalf of the Veteran); see also Washington v. Nicholson, 19 Vet. App. 362, 368 (2005) (noting that the witness's credibility affects the weight to be given to his testimony).  

The Board also finds it implausible that during the more than ten years that this appeal had been pending at the time, which included a hearing before the Board in which the appellant provided an account similar to the one provided in the June 1998 surgery report, the appellant would not once mention such an apparently important history until the August 2015 affidavit, including in his hearing testimony.  Similarly, the Board finds it implausible that this history would not once be mentioned in any of the treatment records pertaining to the appellant's June 1998 symptoms and pathology, or in any subsequent records, especially in those records discussing the history of the appellant's medical condition and symptoms.  In light of this implausibility, in light of the fact that it directly conflicts with the history provided in the actual June 1998 report of surgery and with the history provided by the appellant at the Board hearing, and in light of the fact that it was only first provided after the Board had twice denied this appeal, the Board cannot overlook the appellant's bias in submitting this statement in the context of supporting a claim for benefits.  See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (holding that "the Board, as fact finder, is obligated to, and fully justified in, determining whether lay evidence is credible in and of itself, i.e., because of possible bias[.]") (emphasis added).  Accordingly, this history lacks credibility on these grounds as well.  See id.; Caluza, 7 Vet. App. at 511.

In short, the Board does not find it credible that the appellant lifted heavy boxes during the active duty training period, or that he experienced the symptoms leading to his June 1998 hospitalization and surgery a few hours after lifting the heavy boxes.  In the alternative, and as discussed below, even assuming that the appellant did lift heavy boxes during the active duty training period as described by him, the preponderance of the evidence still shows that such lifting did not cause or aggravate the conditions diagnosed and treated during the training period, which were complications of previous surgery and treatment. 

In the July 2016 IMO, the physician concluded that the appellant's phlegmon affecting the ileum and jejunum requiring resection, the recurrent intra-abdominal abscess, the perforation of the small bowel secondary to intraabdominal abscess and resolving small bowel enterocutaneous fistula, the acute and chronic serositis with multiple serosal abscesses of the distal ileum and jejunum, the small bowel enterocutaneous fistula, the anal fissure, the recurrent ventral hernia / incisional hernia status post subtotal colectomy for polyps and resultant small bowel fistulas related to radiation, and intestinal or bowel disease were not incurred in or aggravated by the active duty training period.  

The July 2016 physician explained that the phlegmon affecting the ileum and jejunum, the intra-abdominal abscess, and the perforated small bowel secondary to intraabdominal abscess and resolving small bowel enterocutaneous fistula were pre-existing complications of the March 1998 total colectomy and ileorectal anastomosis.  They were not new developments and not aggravated beyond their natural progression by the period of active duty training.  Rather, the physician stated that they were going to occur regardless of any type of physical activity.  

With regard to the perforation of the small bowel, the physician stated that this was likely precipitated by the previous intraabdominal abscess noted after the colectomy surgery (i.e. the March 1998 total colectomy) with subsequent percutaneous drainage noted in April 1998.  In this regard, the physician noted that the appellant was readmitted in April 1998 for IV antibiotics and drain replacement once again.  

With regard to the acute and chronic serositis with multiple serosal abscesses of the distal ileum and jejunum, the July 2016 physician explained that these histopathology findings were consistent with the radiologic and surgical findings, and would be expected within the bowel specimens removed from a complicated phlegmon and intra-abdominal abscess; they were not distinct findings.  

With regard to the small bowel enterocutaneous fistula, the July 2016 IMO explains that this was likely a result of the prior abscess (i.e. the abscess that occurred in March 1998 or April 1998 as a complication of the March 1998 colectomy) or related to its percutaneous drainage catheter.  It was not a new development and was not aggravated beyond its natural progression by the period of active duty training.  

With regard to the anal fissure diagnosed in February 2000, the July 2016 physician stated that it was not incurred during the period of active duty training and not a result of the pathology diagnosed during that time or at the time of the surgery.  Rather, it may or may not have been related to the appellant's prior total colectomy and ileorectal anastomosis, or was possibly due to the appellant's altered bowel habits (increased frequency) related to his prior ileorectal anastomosis and prior radiation history, which could predispose him to an anal fissure.  The physician also noted that an anal fissure is not an uncommon condition.  

With regard to the recurrent ventral hernia or incisional hernia, the July 2016 physician stated that this was a new development as a complication of the June 1998 surgery, but was not incurred during the period of active duty training and was not aggravated beyond its natural progression, as it was not present at the time of the June 1998 surgery. 

With regard to intestinal or bowel disease, the July 2016 physician stated that the histopathology findings in the June 1998 surgery reported revealed "no primary intrinsic small bowel disease," but only "acute and chronic serositis with multiple serosal abscesses."  Therefore, the physician concluded that these findings were all related to complications of the March 1998 total colectomy surgery, and were not a new development.  Further, they were not aggravated beyond their natural progression during the active duty training period.  

The Board notes that to the extent that other physicians may have suggested that the appellant had intestinal or bowel disease during or following the active duty training period, there is no evidence of any other diagnoses than those addressed by the July 2016 physician, who also concluded that he could not find any other diagnosis or condition.  Thus, as discussed above regarding VA's duty to assist and the adequacy of the opinion, while there may be a difference in the nomenclature used, the July 2016 physician clearly agrees in substance with the other medical opinions of record that the pathology that was diagnosed during and since the active duty training period was not incurred in line of duty or aggravated by this period. 

The Board notes that although the fistula or other pathology diagnosed during the training period might have been "new" in the sense that it had not been detected or even manifested before, it was not "new" in the sense that it was incurred in line of duty or aggravated by the training period.  Rather, the above medical opinions clearly show that the fistula was found to be the natural progression of the pre-existing complications from the March 1998 surgery.  

For example, Dr. Counihan found in the August 1998 treatment record that the appellant had sprouted a "new" fistula that was apparently in the right previous percutaneous drain site, as shown on a recent computed tomography (CT) scan of the abdomen "which was taken down on the Cape."  The new fistula shown on CT scan "taken down on the Cape," is clearly in reference to the June 1998 records, as the appellant's surgery and treatment occurred in Cape Cod during the training period.  However, as noted by Dr. Counihan, the "new" fistula was in the right previous percutaneous drain site, which was created when the appellant was hospitalized in April 1998.  Significantly, the July 2016 IMO concludes that this fistula was likely a result of the March 1998 abscess that occurred as a complication of the March 1998 colectomy, or was related to its percutaneous drainage catheter, i.e. the April 1998 percutaneous drain site, consistent with the October 2005 VA opinion.  

Thus, when the July 2016 opinion states that the fistula was not a "new development," the physician clearly means that the fistula was going to occur as a complication of the previous abscess or percutaneous drainage catheter site regardless of whether the appellant was on active duty training.  The December 2006 IMO similarly notes that because of the appellant's history of radiation enteritis and a fistula that took some time to heal prior to the training period, it was "not unexpected that he could have a setback and the fistula could reopen."  The word "reopen" indicates that the fistula diagnosed during the training period was by its nature subject to recurrence, and the October 2005 VA opinion, the December 2006 IMO, the August 2013 IMO, and the July 2016 IMO all conclude that such recurrence was not caused or aggravated by the active duty training, but rather indicate that its recurrence was inherent in the nature of the condition and thus a natural progression of it or of the other pre-existing conditions such as the abdominal abscess.  As stated in the August 2013 IMO, serositis and chronic inflammation, with enterocutaneous fistula, would "not have remained quiescent," and would have occurred "regardless of what the [appellant's] activity level would have been at the time - the question being only the timing of the presentation."  

In order to establish service connection, it is not necessarily enough that the fistula manifested or "reopened" at the time of the appellant's active duty training period, assuming this to be the case for the sake of argument.  The December 2006, August 2013, and July 2016 IMO's all show that the recurrent fistula and other conditions diagnosed during the training period were the natural progression of pre-existing complications of the March 1998 surgery or prior treatment.  Therefore, it is clear that regardless of whether the fistula was a "new development" or was in fact already present before the appellant commenced the active duty training period, it was not caused or aggravated by such period, even assuming its manifestation first occurred coincident with the training period.  There is no medical opinion of record suggesting otherwise, and the appellant has not met his burden of showing worsening beyond the natural progression of the pre-existing complications, including the fistula. 

In sum, the preponderance of the evidence, as summarized above, shows that the appellant had a pre-existing gastrointestinal condition when he entered the annual training period in May 1998 as a result of complications associated with the March 1998 total colectomy and prior radiation treatment, and that the natural progression of this condition included a recurring intra-abdominal abscess, phlegmon, a bowel perforation, and a recurrent fistula.  Anal fissures were also found in the July 2016 IMO to be unrelated to the period of ACDUTRA, but instead due to the pre-existing surgical complications or to factors occurring after that training period.  The recurrent ventral incisional hernia has been shown to be due to surgery performed prior to the training period, or to the surgery performed during that training period to ameliorate a pre-existing condition.  

No competent medical professional has opined that these conditions were incurred in the line of duty during this training period, or worsened beyond their natural progression, but rather have uniformly found the opposite.  Although the August 2013 physician stated that the appellant's symptoms of abdominal pain, malaise, fever, chills, and nausea and vomiting were "incurred" during this period in the sense that they first manifested at that time, he did not find that they were incurred in the line of duty, but rather attributed them to the pathology diagnosed when the appellant underwent the June 1998 operation, which he stated was "subclinical" at the time of entrance onto the training period, but would not have "remained quiescent," the "question being only the timing of the presentation."  In substance, and in light of the July 2016 IMO and other medical opinions that have been provided, he found that these symptoms were the natural progression of the pre-existing complications, notwithstanding his use of the word "incurred."  Indeed, the October 2005 VA medical opinion, the December 2006 independent medical opinion, the August 2013 IMO, the July 2016 IMO, and the December 1998 letter by Dr. Counihan all state that physical activity and the appellant's training period could not have caused any of the appellant's pathology or abdominal problems.  The appellant has not submitted any competent evidence showing otherwise. 

Notably, the recurrent abdominal abscess to which the appellant's fistula and small bowel perforation were attributed in the June 1998 hospital records had also occurred shortly after and as a complication of the March 1998 bowel surgery, and indeed while the appellant was still recovering in the hospital from that surgery.  As noted in the June 1998 admission record, the perforated ulcer was not treated by surgery.  The abscess was apparently closely linked to this ulcer, as the April 1998 private treatment record reflects a diagnosis of "ruptured duodenal ulcer with abscess formation."  The Boards notes that the word "duodenal" refers to the "duodenum," which is the first or proximal portion of the small intestine.  
DORLAND'S ILLUSTRATED MEDICAL DICTIONARY (31st ed. 2007).  The word "bowel" is a synonym for intestine.  See id.  Thus, it is readily apparent that the intra-abdominal abscess and resultant small bowel perforation (as found in the June 1998 treatment records) occurred in the same relative area as the ruptured duodenal ulcer with abscess formation diagnosed in March or April 1998.  Indeed, in the August 1998 letter, Dr. Counihan specifically stated that the appellant developed a complication of an intra-abdominal abscess thought to be related to a perforated duodenal ulcer.  The record shows that the only perforated duodenal ulcer diagnosed was the one following the March 1998 surgery.  In any event, the August 2013 and July 2016 IMO's found this pathology to be the natural progression of pre-existing complications of the March 1998 surgery and other treatment prior to the training period. 

Although Dr. Counihan stated that it was rare for fistulas or abdominal abscesses to recur once they had healed, he never stated or suggested that they were unrelated to the appellant's March 1998 surgery or represented worsening of pre-existing complications of that surgery beyond their natural progression.  He merely stated that in the December 1998 letter that intestinal perforations were "not a predictable consequence of" this surgery.  The Board also notes that the December 2006 IMO concludes because of the appellant's history of radiation enteritis and a fistula that took some time to heal, it was "not unexpected" that the appellant could have a setback and the fistula reopen.  Indeed, the close proximity in time-less than one month-between the apparent resolving of the appellant's abdominal abscess and fistula and the recurrence of these in early June 1998 while on active duty for training further supports a finding that they were not incurred in line of duty or worsened beyond their natural progression in light of the medical opinions of record.  

In the alternative, even assuming it is rare for a fistula or abdominal abscess to recur, as stated by Dr. Counihan, this does not in itself show that such recurrence was beyond the natural progression of the complications of the appellant's March 1998 colectomy in this case; it only indicates that the progression might be rare or have been unexpected.  In other words, the fact that it might be rare or unexpected does not necessarily mean that it is unnatural in the sense of being caused or aggravated beyond its natural progression, and Dr. Counihan never suggested that it was related in any way to the appellant's training period or manifested beyond its natural progression, notwithstanding the fact that the recurrence was unexpected.  Every medical professional who has opined on this case has not found the fistula or abscess to be incurred or aggravated by the appellant's training period. 

Accordingly, the preponderance of the evidence weighs against a finding that the appellant's pre-existing abdominal conditions and complications of the March 1998 surgery were aggravated as a result of the training period or beyond their natural progression.  Although the December 2006 private physician opined that the appellant "probably returned to duty too early," she clearly meant that it was inadvisable in light of the possibility of a recurrence of the fistula during this time period, and not because any activities during the training itself would cause or aggravate its recurrence.  

Further, as discussed above, the August 2013 private physician stated that the appellant's small bowel disease was not aggravated beyond its natural progression by the appellant's training period, and never stated that his fistula or abdominal abscess and resulting perforation were permanently aggravated beyond their natural progression during this period.  His general observation that emotional and physical stress can aggravate these conditions does not equate to such a finding, as he made a similar observation with regard to the appellant's small bowel disease and yet found no permanent increase beyond its natural progression.  Moreover, as found by the October 2005 VA physician, the abdominal fistula was a result of the bowel disease, which in turn, as found by the August 2013 physician, was not aggravated beyond its natural progress by the appellant's training period.  It follows that the secondary fistula likewise was not aggravated beyond its natural progression.  If there were any remaining doubt on the matter, the surgeon who authored the July 2016 IMO similarly concluded that the fistulas and abdominal abscess were not caused or aggravated by the training period.  

Even assuming for the sake of argument that it were possible for fistulas, bowel perforations, and abscesses to be permanently aggravated (and not just temporarily aggravated in terms of symptoms as opposed to the underlying pathology) by emotional or physical stress, whether the appellant in fact experienced enough stress to actually result in permanent aggravation of these conditions during the training period is inherently speculative, especially given his very recent history of "significant" abdominal surgery with complications of an intraabdominal abscess and fistula that took some time to heal (as observed by the December 2006 private physician).  There is also no credible evidence that the appellant experienced any emotional stress related to this training period (as assumed by the August 2013 physician) but in fact had petitioned to train again with the National Guard.  Although this does not necessarily weigh against it, the fact that the training occurred in Cape Cod and that the appellant played golf every day, "eating well and feeling well," as noted in the June 1998 hospital admission report, certainly does not support a finding of emotional or psychological stress related to the training period.

Further, while the appellant may have participated in some drilling exercises (although it remains unclear to what extent he participated in them given his medical authorization for some "leeway" in this regard, as noted in Dr. Counihan's December 1998 letter), it is similarly speculative that these activities would amount to physical stress sufficient to aggravate permanently his abdominal perforation or fistula or other surgical complications beyond their natural progression, and the August 2013 physician never suggested that this was in fact the case for the appellant, as explained above.  As discussed above, the Board does not find it credible that the appellant had duties lifting and carrying heavy boxes.  Moreover, the December 1998 letter by Dr. Counihan and the July 2016 IMO similarly found no causation or worsening beyond the natural progression of the pathology diagnosed during and after the active duty training period, and similarly state that physical activity would not cause or aggravate the appellant's pathology.  

Finally, the July 2016 IMO specifically concludes that the phlegmon affecting the ileum and jejunum, the intra-abdominal abscess, and the perforated small bowel secondary to intraabdominal abscess and resolving small bowel enterocutaneous fistula were going to occur regardless of any type of physical activity.

Thus, August 2013 IMO's general observations that there can be a relationship between stress and aggravation of abdominal conditions does not amount to more than hypothesis and speculation as to whether there is any likelihood that the appellant's training period actually caused the permanent aggravation of his disorders beyond their natural progression.  Thus, these observations are not sufficient to show such a relationship.  See 38 C.F.R. § 3.102 (providing that in order for the benefit-of-the-doubt rule to apply, there must be some "positive" evidence supporting the claim such that the doubt is "within the range of probability as distinguished from pure speculation or remote possibility"; Obert v. Brown, 5 Vet. App. 30, 33 (1993) (holding that medical evidence that is speculative, general or inconclusive in nature cannot support a claim).  Further, the physician's definitive finding that the "conditions . . . would have occurred regardless of what the [appellant's] activity level would have been" during the training period, and the July 2016 IMO's definitive finding that the pathology diagnosed during and after the training period was not caused or aggravated by that period, weighs against a worsening of these conditions beyond their natural progression, and outweighs the general remarks in the August 2013 IMO regarding the possibility of a relationship between stress and aggravation of abdominal conditions in terms of support that the appellant's conditions in this case worsened beyond their natural progression.

Although the anal fissure was not specifically discussed in the August 2013 IMO, the July 2016 IMO concludes that the fissure was not diagnosed during the appellant's active duty training period, and was not incurred in the line of duty, but was rather due to causes unrelated to the appellant's training period, including due to prior abdominal surgery, radiation, or more frequent bowel movements.  As already discussed, the opinion is sufficient to make an informed decision that the anal fissure was not incurred or aggravated during the active duty training period, even if it does not conclusively pin point its exact cause among several potential causes unrelated to the training period.  According to the February 2002 treatment records, the anal fissures had been a problem ever since the appellant's March 1998 total colectomy, further indicating that they resulted from this surgery and were not incurred in line of duty.  Moreover, there is no indication that they worsened beyond their natural progression during the active training period, and indeed they were not noted at all at the time. 

The Board finds the July 2016 IMO is especially probative, as it represents the informed conclusion of a surgeon specializing in colon and rectal surgery.  The surgeon carefully reviewed the appellant's pertinent medical history and concluded that his diagnosed gastrointestinal conditions were pre-existing complications of surgery and treatment performed prior to the active duty training period, consistent with the findings of all other medical opinions obtained in this case, and did not worsen beyond their natural progression during such period.  As already discussed, with regard to the incisional hernia, the surgeon found that its most recent occurrence was likely due to the June 1998 surgery, and that prior occurrences were due to the surgeries performed prior to the training period.  To the extent it was caused by the June 1998 surgery, service connection cannot be established as a matter of law.  See 38 C.F.R. § 3.306(b).  The same holds true with regard to the appellant's anal fissures to the extent they may be attributed to the June 1998 surgery.

In sum, the preponderance of the evidence weighs against a relationship between the appellant's active duty training and the abdominal abscess, small bowel perforation, fistula, anal fissure, recurrent ventral hernia, and all other gastrointestinal diagnoses of record.  Rather, the evidence shows that these conditions represent the natural progression of pre-existing complications of surgeries and treatment prior to the training period, or are otherwise unrelated to the training period.  

To the extent the appellant has any current residuals of the June 1998 operation that occurred during the active duty for training period, including a recurrent incisional hernia that was also diagnosed and repaired prior to the training period in 1997, because this treatment was performed to ameliorate conditions that were incurred prior to the annual training, any residuals or complications of the operation cannot be service connected as a matter of law unless the underlying condition for which the appellant was treated was aggravated by the annual training.  See 38 C.F.R. § 3.306(b)(1).  The Board has already found that this is not the case, as discussed above. 


In the September 2016 letter, the appellant, through his representative, stated that the small bowel perforation was an "injury," and that "[s]ince the perforation was spontaneous, it should be considered an injury incurred during ACDUTRA."  As already discussed, the evidence shows that the small bowel perforation resulted from pre-existing complications of surgery performed prior to the active duty training period.  Even assuming that the perforation actually first occurred during the training period itself, and was not already present when the appellant commenced the training period but had not yet become symptomatic, this alone does not establish that it was incurred in the line of duty.  Rather, the preponderance of the evidence shows that it was the natural progression of the pre-existing complications of the March 1998 surgery, as found by the medical professionals who have opined on the issue.  

The Board is also not convinced-as the appellant's arguments suggest-that the presumption of incurrence in the line of duty under 38 U.S.C.§ 105(a) accorded diseases or injuries that occur during an active service period applies to a period of ACDUDTRA or INACDUTRA when veteran status is not established.  See 38 U.S.C.A. § 105(a) (West 2014) (providing, in pertinent part, that an injury or disease incurred during active military, naval, or air service will be deemed to have been incurred in line of duty); Holton, 557 F.3d at 1366 (holding that section 105(a) creates" a presumption that an injury or disease incurred by a veteran during active service was incurred in the line of duty"); Shedden, 381 F.3d at 1166 (holding that section 105(a) creates a presumption of service connection); 38 C.F.R. § 3.1(k) (providing that service-connected means, in relevant part, that a disability was incurred or aggravated in line of duty in the active military, naval, or air service); Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2012) (noting that the presumptive provisions of 38 C.F.R. § 3.307(a) (2016) establish service connection in the "narrower" sense of showing service incurrence or aggravation); cf. Smith, 24 Vet. App. at 47-48 (noting that a claimant whose claim is based on a period of active duty for training can never be entitled to the presumption of service connection); Bowers, 26 Vet. App. at 206 (absent established veteran status, presumptions of service connection are not applicable).  

If the presumption of service connection under § 105(a) does not apply, then a disease or injury will not be "deemed" to have been incurred in line of duty solely because its manifestation coincided with the training period.  Rather, there must be direct evidence of a causal relationship to the active duty for training period.  Of course, such duty encompasses the entire duty period regardless of what the individual was doing at the time, subject to certain exceptions such as willful misconduct and avoidance of duty.  Cf. Holton, 557 F.3d at 1366 ("[A] veteran need not show that his injury occurred while he was performing service-related duties or acting within the course and scope of his employment in order to receive disability benefits; for purposes of disability compensation, a service member's workday never ends.").  However, this does not obviate the claimant's burden of establishing a causal relationship.  When the presumption does not apply, the manifestation of pathology or symptoms during the training period does not per se establish incurrence in the line of duty.  Here, the evidence weighs against incurrence in the line of duty, as it shows that there is no causal relationship to the training period. 

Be that as it may, whether or not the presumption under § 105(a) applies to the appellant's period of ACDUDTRA, the presumptions of soundness and aggravation do not.  The preponderance of the evidence shows that the perforated bowel and other pathology diagnosed during the active duty training period represented the natural progression of pre-existing complications of surgery and radiation treatment performed prior to the training period, even if the perforated bowel was first detected at this time.  Accordingly, even if the perforation is defined as an injury in the sense of a "rupture in a body part caused . . . by accident or disease," this does not alter the conclusion that it was not incurred or aggravated during the training period.  The preponderance of the evidence shows that the "accident or disease" that led to the perforation was the March 1998 surgery and associated complications occurring prior to the training period, and that the perforation would have occurred regardless of the training period as the natural progression (even if unexpected or rare) of the pre-existing complications. 

The Board has considered the appellant's opinion regarding the incurrence or aggravation of his gastrointestinal disorders as a result of the May 1998 to June 1998 annual training with the National Guard.  Lay testimony may be competent with regard to both the diagnosis of a condition and its etiology or cause.  Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009).  However, the Board finds that the appellant's lay opinion in this case lacks probative value and is outweighed by the numerous medical opinions provided in this case.  In this regard, there is no indication that he has a medical background or training, and thus he is considered a lay person in the medical field.  Consequently, the medical opinions discussed above carry more weight than the appellant's lay opinion as to whether his gastrointestinal disorders and ventral hernia were incurred or aggravated during the active duty training period, as they represent the objective conclusions of medical professionals and are supported by extensive explanation specific to the facts of the appellant's medical history and informed by their own medical expertise.  See King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2012) (affirming the Court's conclusion that the Board did not improperly discount the weight of a lay opinion in finding a medical expert's opinion more probative on the medical issue in question); Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997) (holding that the Board has the "authority to discount the weight and probity of evidence in the light of its own inherent characteristics and its relationship to other items of evidence").  

In the alternative, because of the medical complexity of this issue, the appellant's lay opinion does not constitute competent evidence supporting the claim, as this is not a determination that cannot be made based on lay observation alone, but instead requires medical expertise.  See Jandreau v. Nicholson, 492 F. 3d 1372, 1376-77 (Fed. Cir. 2007); Barr v. Nicholson, 21 Vet. App. 303, 309 (2007); Layno v. Brown, 6 Vet. App. 465, 469-71 (1994).  It thus lacks probative value on this ground as well.  See Layno, 6 Vet. App. at 470-71 (holding that in order for testimony to be probative of any fact, the witness must be competent to testify as to the facts under consideration).  In any event, the Board has considered the appellant's statements and all other evidence of record, and has explained in substantive terms why the preponderance of the evidence weighs against the claim.

Because the Board finds that a disease or injury was not incurred or aggravated during the active duty for training period at issue, veteran status is not established.  See 38 U.S.C.A. § 101(24); 38 C.F.R. §§ 3.1(d), 3.6(a); Bowers, 26 Vet. App. at 206.

In sum, the preponderance of the evidence is against the appellant's claim.  Consequently, the benefit-of-the-doubt rule does not apply, and service connection for the claimed gastrointestinal conditions and residuals of the June 1998 surgery performed to ameliorate the appellant's pre-existing gastrointestinal conditions and complications of prior surgery, including recurrent incisional hernia to the extent it can be attributed to the June 1998 surgery, is denied.  See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 55. 


ORDER

Service connection for a disability of the gastrointestinal system, including intra-abdominal abscess, phlegmon affecting the ileum and jejunum, perforation of the small bowel, fistulas, anal fissure, recurrent ventral hernia or incisional hernia, or any other diagnoses or findings related to or resulting from the appellant's gastrointestinal pathology and June 1998 surgery during a period of active duty training from May 30, 1998 to June 5, 1998, including any residuals of the foregoing (previously phrased as "[e]ntitlement to service connection for residuals of a colectomy with incisional hernia for rectal cancer") is denied. 



____________________________________________
P. M. DILORENZO 
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs