Citation Nr: 1753046 Decision Date: 11/17/17 Archive Date: 11/22/17 DOCKET NO. 09-42 096 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for a disorder attributable to abdominal pain. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Matthew Schlickenmaier, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Army from December 1974 to February 1990. This case initially came before the Board of Veterans' Appeals (Board) on appeal from a March 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. In August 2011, the Veteran testified at a hearing before a Decision Review Officer (DRO). In March 2016 and June 2017, the Board remanded the issue on appeal for additional development. This issue has been returned to the Board for further appellate review. This appeal was processed using the Virtual VA and Veterans Benefits Management System (VBMS) paperless claims processing systems. Accordingly, any future consideration of this appellant's case should take into account the existence of these electronic records. FINDING OF FACT The evidence shows that the Veteran's currently diagnosed diverticulosis and diverticulitis are not related to service. CONCLUSION OF LAW The criteria for establishing entitlement to service connection for a disorder attributable to abdominal pain have not been met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist The requirements of 38 U.S.C.A. §§ 5103 and 5103A have been met. There is no issue as to providing an appropriate application form or completeness of the application. In July 2008, VA notified the Veteran of the information and evidence needed to substantiate his claim, to include notice of what part of that evidence is to be provided by the claimant, and notice of what part VA will attempt to obtain. VA fulfilled its duty to assist the Veteran in obtaining identified and available evidence needed to substantiate a claim, and as warranted by law, affording VA examinations. There is no evidence that additional records have yet to be requested, or that additional examinations are in order. Pursuant to the March 2016 and June 2017 Board remands, the Veteran was afforded a VA examination and an addendum opinion which addressed the etiology of any current abdominal disorders. These actions substantially complied with the prior remand directives. Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). To establish entitlement to service-connected compensation benefits, a veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010). Service connection may be granted for any disease initially diagnosed after service when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. VA shall consider all information and lay and medical evidence of record in a case and when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). The Veteran in this case claims entitlement to service connection for a disorder attributable to abdominal pain. In this regard, at the DRO hearing at the RO in August 2011, he stated that the left side of his abdomen was swollen during his active duty service. He stated that the pain was located in his left lower quadrant and that his colon would swell. He stated that this was associated with his diagnosed diverticulitis. March 2008 VA and private treatment records confirm post-service diagnoses of diverticulitis. Service treatment records show complaints of abdominal pain in October 1987. An August 2008 VA examination report shows that Veteran's abdomen was found to be moderately obese, to include an umbilical hernia. Otherwise, it was soft and nontender without masses or organomegaly. He was diagnosed with diverticulosis. The examiner did not provide an opinion as to whether this disorder was related to service. In March 2016, the Board remanded the appeal for a VA examination and opinion to address the etiology of any gastrointestinal condition, to include abdominal pain and "diverticulosis, found upon examination." In July 2016, after reviewing the claims file and examining the Veteran, a VA examiner opined that it was less likely as not that the Veteran had any current abdominal disability related to active duty. The examiner noted that service treatment records showed several episodes of left sided abdominal pain which was related to kidney stones with hematuria. There was no report of episodes of diverticulitis or findings of diverticulosis in the claims file until a colonoscopy dated January 2005 which showed mild diverticulosis without diverticulitis. The examiner additionally noted that based on a review of diagnostic studies, the Veteran did not have any clinical presentation or clinical diagnosis of diverticulitis which he claimed was causing his left sided abdominal pain. In June 2017, the Board again remanded the appeal, noting that the July 2016 examiner had failed to provide an opinion as to whether the August 2008 diagnosis of diverticulosis, rendered during the appeal period, was related to service. The Board again requested an opinion as to the etiology of diverticulosis. In a June 2017 addendum, the same examiner opined, after reviewing the claims file again, that it was less likely as not that the diagnosis of diverticulosis rendered by the August 2008 VA examiner had its onset during service or caused by the October 1987 complaints and assessment of abdominal pain. The Veteran's service treatment records showed several episodes of left sided abdominal pain which was related to kidney stones with hematuria. There was no report of episodes of diverticulitis or findings of diverticulosis in the service treatment records until the colonoscopy dated January 2005 which showed mild diverticulosis without diverticulitis. The examiner added that diverticulosis is defined by the presence of diverticula and may be asymptomatic or symptomatic. The Veteran had abdominal pain due to kidney stones but not diverticulitis during service. These two disorders affect different organs. Hematuria with kidney stone happens in the urinary tract but diverticulosis occurs in the intestinal tract. Furthermore, this Veteran never had diverticular disease which is defined as clinically significant and symptomatic diverticulosis due to diverticular bleeding, diverticulitis, segmental colitis associated with diverticula or symptomatic uncomplicated diverticular disease. Based on the above, the Board finds that a preponderance of the evidence is against the claim. The rationale offered in June 2017 opinion is consistent with the evidence of record, clarified any discrepancies appearing in the July 2016 opinion and was provided by a physician with sufficient medical training and expertise to render such an opinion following review of the claims file. Accordingly, the Board affords this opinion significant probative value. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning; threshold considerations are whether the person opining is suitably qualified and sufficiently informed). Although the examiner did not specifically address the March 2008 diagnoses of diverticulitis, because the examiner reviewed the entire claims file and considered the Veteran's contentions and because a diagnosis of diverticulitis is predicated on a diagnosis of diverticulosis, see Mayo Clinic, "Diverticulosis and diverticulitis," https://www.mayoclinic.org/diseases-conditions/diverticulitis/multimedia/diverticulosis-and-diverticulitis/img-20006098 (observing that diverticulosis occurs when small, bulging pouches (diverticula) develop in your digestive tract and that when one or more of these pouches become inflamed or infected, the condition is called diverticulitis), it is clear that the rationale is applicable to both diagnoses. See Monzingo v. Shinseki, 26 Vet. App. 97, 106 (2012) (the fact that the rationale provided by an examiner "did not explicitly lay out the examiner's journey from the facts to a conclusion," did not render the examination inadequate). In addition, given the clear evidence of the March 2008 diagnoses of diverticulitis and the fact that the examiner reviewed the claims file, the June 2017 examiner's statement that the Veteran "never had diverticular disease" is clearly intended to mean that he never had diverticular disease during service. Acevedo v. Shinseki, 25 Vet. App. 286, 294 (2012) (medical reports must be read as a whole and in the context of the evidence of record). While the Veteran has offered his opinion that his in-service abdominal pain is related to his post-service diverticular disease, the Board finds his statements are not competent for this purpose. Although it is error to categorically reject a lay person as competent to render a medical opinion, not all such questions are subject to non-expert opinion. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). Whether a layperson is competent to provide a medical opinion depends on the facts of the particular case. In Davidson, the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) drew from its earlier decision in Jandreau v. Nicholson to explain its holding. Id. In that earlier decision, the Federal Circuit stated as follows: "[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional." Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The Federal Circuit provided an example, stating that a layperson would be competent to identify a simple condition such as a broken leg, but not competent to provide evidence as to a more complex medical question such as a form of cancer. Id. at n.4. Also of note is that the Veterans Court has explained that non-expert witnesses are competent to report that which they have observed with their own senses. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). Taking Davidson, Jandreau, and Layno together, leads the Board to the conclusion that the complexity of the question and whether a medical opinion could be rendered based on personal observation are factors in determining whether a non-expert medical opinion or diagnosis is competent evidence. In the instant case, while the Veteran is competent to report symptoms such as abdominal pain, the question of the cause of those symptoms is not an observable fact. It requires specialized medical training to make the appropriate interpretations, judgments, and conclusions about the significance of certain symptoms in the context of the Veteran's medical history as indicated in the claims file. Therefore, the Board finds that the Veteran's assertion that his in-service abdominal pain is related to his post-service diverticular disease is not competent evidence. The competent and most probative evidence of record is the June 2017 opinion. The examiner there considered all the evidence of record, provided adequate rationale for her conclusion, and added the weight of medical knowledge which adds to the probative value. In sum, the most probative evidence of record shows that the Veteran's diverticulitis and diverticulosis are not related to service. Accordingly, the claim must be denied. In reaching this decision the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the claim, the doctrine is not for application. 38 U.S.C.A. § 5107. ORDER Entitlement to service connection for a disorder attributable to abdominal pain is denied. ____________________________________________ GAYLE E. STROMMEN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs