Citation Nr: 1753956 Decision Date: 11/27/17 Archive Date: 12/07/17 DOCKET NO. 13-14 207 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUE Entitlement to service connection for residuals of a torn rectum, to include diverticulosis. REPRESENTATION Appellant represented by: Virginia Department of Veterans Services WITNESSES AT HEARING ON APPEAL Veteran, Veteran's Wife ATTORNEY FOR THE BOARD J. Saikh, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1980 to September 1985. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia (Agency of Original Jurisdiction (AOJ)). In August 2016, the Veteran testified before the undersigned Veterans Law Judge (VLJ) at a Board videoconference hearing held at the Roanoke RO. A transcript of the hearing has been associated with the record. The case is now before the Board for appellate review. FINDING OF FACT Residual disabilities from a torn rectum injury which occurred in service are not shown to have first manifested in service, or to be causally or etiologically related to that injury in service. CONCLUSION OF LAW Residual disabilities resulting from a torn rectum were not incurred in, or aggravated by service. 38 U.S.C. §§ 1101, 1110, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA), in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (2012); 38 C.F.R. § 3.159 (2017). VA is required to notify the claimant and his or her representative of any information, and any medical or lay evidence, not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 U.S.C. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). VCAA notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the AOJ. Dingess/Hartman v. Nicholson, 19 Vet App. 473 (2006); see also Pelegrini v. Principi, 18 Vet App. 112 (2004). However, the VCAA notice requirements may be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. See Pelegrini, 18 Vet. App. at 121. The duty to notify, including the timing and contents requirements, was fully satisfied by a pre-adjudicatory letter sent to the Veteran in March 2011. The VCAA also requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate his claim. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c), (d). This "duty to assist" contemplates that VA will help a claimant obtain records relevant to his claim, whether or not the records are in Federal custody, and that VA will provide a medical examination or obtain an opinion when necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4). In this case, VA has fulfilled its duty to assist in obtaining identified and available evidence needed to substantiate the claim. VA treatment records and lay statements of the Veteran have been associated with the file. VA also afforded the Veteran an examination in March 2012, and obtained an advisory medical opinion from a specialist with the Veterans Health Administration (VHA) in May 2017. In the most recent May 2017 medical opinion, the examiner reviewed the evidence of record, considered the Veteran's medical history and statements, and rendered a medical opinion based upon the facts of the case and his knowledge of medical principles. The Veteran has argued that the VHA opinion lacks probative value as the Veteran was not physically examined. It is unclear, however, how this would add any additional probative value to the opinion obtained. In this respect, the record contains a physical examination of the Veteran in service, a specific examination in 2012, findings in the clinic setting and reports from colonoscopy procedures. The nurse practitioner opinion which he submitted in support of his claim does not reference any physical findings apart from what is shown in the documentation which calls into question the need for actual examination. Rather, the dispositive issue concerns the onset/cause of an internal gastrointestinal condition. The nurse practitioner does not attribute current disease to any residuals of "anal tear" in terms of an alteration of his anal structure which may be determined by physical examination. As such, the Board finds that the VHA examiner opinion is adequate and additional VA examinations are not required. See McClendon v. Nicholson, 20 Vet App. 79, 81 (2006); Nieves-Rodriguez v. Peake, 22 Vet App. 295, 301 (2008). For the reasons set forth above, the Board finds that VA has complied with the VCAA's notification and assistance requirements. There is no additional evidence which needs to be obtained. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. Service Connection Laws and Regulations Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009). Service connection may also be granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Where a Veteran served for at least 90 days during a period of war or after December 31, 1946, and manifests certain chronic diseases to a degree of 10 percent within one year from the date of termination of such service, such disease shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. Diverticulosis and rectal or anal fissures are not listed as chronic diseases under 38 C.F.R. § 3.309(a). Alternatively, service connection may be established under 38 C.F.R. § 3.303(b) by (a) evidence of (i) the existence of a chronic disease in service or during an applicable presumption period under 38 C.F.R. § 3.307 and (ii) present manifestations of the same chronic disease, or (b) when a chronic disease is not present during service, evidence of continuity of symptomatology. However, the use of continuity of symptoms to establish service connection is limited only to those diseases listed at 38 C.F.R. § 3.309(a) and does not apply to other disabilities which might be considered chronic from a medical standpoint. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Again, diverticulosis and rectal/anal fissures are not listed as chronic diseases under 38 C.F.R. § 3.309(a). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; see also 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). Analysis The Veteran contends that anal fissures he sustained in service either caused or are related to his current diagnosis of diverticulosis. Service treatment records show that in January 1981, the Veteran was admitted to general surgery after having constipated bowel movements for 3 days prior to his admission. He also reported experiencing pain and bleeding with his bowel movements. Upon examination, the Veteran was found to have a superficial anal fissure, and was treated conservatively with Sitz baths, suppositories, and stool softeners. The examiner noted that the Veteran's anal fissure healed after four days, and he was sent out on convalescent leave and later discharged. The Veteran's July 1985 separation examination was normal, and there were no abnormalities noted with regard to the Veteran's rectal and prostate exam. In a May 2010 VA clinical record, the Veteran reported that while lifting a helicopter propeller in service, he heard a "pop on [his] bottom" and started to bleed from his rectum. Since that time, he had been having diarrhea twice a day, with instances of light tinged blood. The Veteran denied any abdominal or anal pain. In a January 2011 VA clinical record, the Veteran was noted to have undergone a colonoscopy. After the procedure, the examiner found that the Veteran had diverticulosis coli of the sigmoid colon. In his June 2012 Notice of Disagreement, the Veteran reported that the anal fissure he sustained in service was not due to constipation, but because of the weight he had to bear when lifting a helicopter blade. The Veteran also reported that he continued to experience bleeding of the rectum, could not pass hard stool, had sudden severe abdominal pain, and could not lift more than 25 pounds without putting pressure on his rectum. In the March 2012 VA examination, the examiner noted that the Veteran was status post anal fissure in service, although he now did not have any findings, signs, or symptoms attributable to any of his diagnoses. The examiner indicated that it was a normal exam, and that the Veteran's condition did not impact his ability to work. The examiner found that at present, there was no anal fissure, and there was no evidence of any anal fissure on the Veteran's May 2011 colonoscopy. In a November 2012 radiology report of the Veteran's colon, the examiner noted that the Veteran had diverticulosis, but that his condition was otherwise unremarkable. His abdomen did not show any abnormalities, although there were a few diverticula in the distal descending and sigmoid segments. There was no evidence of a constricting lesion or persistent polypoid filling defects. In April 2013, the Veteran submitted a printout from an online medical website which indicated that diverticular disease was caused by diverticula, or outpouchings of the colon wall. Diverticula could cause bleeding in the lower digestive tract, including the colon, rectum, and anus. VA clinical records, including clinical records from October 2014 and February 2016, note that the Veteran had diagnoses of colonic diverticulitis as well as diverticulosis of the colon without diverticulitis. During the August 2016 Board hearing, the Veteran testified that he had bleeding, stomach pain, bloating, and swelling during service. He would also have diarrhea. The Veteran testified that he was now formally diagnosed with diverticulitis, and was put on a restricted diet with medication. He continued to experience bleeding, bloating, constipation, diarrhea, nausea, and vomiting. The Veteran testified that his disability affected his work because he would start bleeding whenever he had to pick something up, which was embarrassing in front of his other coworkers. In August 2016, the Veteran's submitted a statement from his nurse practitioner which indicated that it was highly probable that the Veteran's current condition of diverticulitis was directly related to military service. The nurse practitioner indicated that the Veteran's symptoms of pain and bleeding with bowel movements may have been due to the Veteran having early stages of diverticulosis. The practitioner also noted that constipation was a common symptom of the disease, and that anal fissures are often caused by inflammation of the anorectal area resulting from inflammatory bowel diseases such as diverticulosis. In the May 2017 medical opinion, the examiner stated that diverticulosis and anal fissures were two common, but separate and unrelated conditions in gastroenterology. Diverticulosis is a common, benign condition characterized by the diverticula, or sac-like protrusions of the colonic wall. The exact cause of diverticulosis is unknown. Diverticulitis results from inflamed diverticulum (singular form of diverticula), which can result in abdominal pain, fever, nausea, vomiting, or changes in bowel habits. Anal fissures are a common, benign anorectal condition which is typically caused by elevated anal pressure resulting in a superficial tear. The majority are caused by local trauma to the anorectal region, such as constipation, prolonged diarrhea, vaginal delivery, or in some cases, anal sex. Secondary causes, which are less common, include inflammatory bowel disease, prior anal surgical procedures, malignancy, and communicable diseases. The examiner then opined that it was highly unlikely that the Veteran's current diverticulosis was caused by an anal fissure sustained in service, or any event that may have led to the development of the anal fissure, which includes the Veteran's reports of lifting a heavy object. The examiner explained that there was no published literature demonstrating a pathophysiologic connection between diverticulosis and rectal fissures, and that the two were common, but unrelated conditions. The examiner also clarified that the Veteran had never been diagnosed with diverticulitis, but that his condition was characterized as diverticulosis. In a June 2017 statement, the Veteran expressed disagreement with the May 2017 VA medical opinion because the examiner had not examined the Veteran. The examiner referenced the nexus opinion submitted in August 2016, which found that the Veteran's diverticulosis was related to his service. After considering the pertinent evidence of record, the Board finds that service connection for residuals of a torn rectum, to include diverticulosis, is not warranted. The credible, persuasive evidence does not show that there is any nexus between the Veteran's diverticulosis and any event or injury incurred in service, including the anal fissure the Veteran sustained in service. The Veteran was diagnosed with diverticulosis, as evidenced by the January 2011 clinical record. Service treatment records also note that the Veteran was treated for an anal fissure in January 1981. However, there is no nexus between the Veteran's current diagnosis of diverticulosis and his anal fissure. The weight of the evidence is also against a finding that the Veteran's diverticulosis is etiologically related to any event in service. In this regard, the May 2017 medical opinion is most probative. The Board considers evidence to be more probative if it includes clear conclusions and supporting data with a reasoned analysis connecting the data and conclusions. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). To that end, the Board finds that this opinion has significant probative because it is based on a thorough review of the Veteran's medical history. The May 2017 opinion outlined the common causes of both anal fissures and diverticulosis, and noted that these were separate and unrelated issues in gastroenterology. The examiner noted that diverticulosis was characterized by sac-like protrusions in the colon wall, and the cause for this condition was unknown. In contrast, anal fissures were typically caused by local trauma to the area, and were less frequently caused by any inflammatory bowel condition. Regardless, there was no evidence of the presence of any anal fissure in the March 2012 VA examination. Furthermore, the examiner also explained that there was no published literature demonstrating a pathophysiologic connection between diverticulosis and rectal fissures. Thus, the evidence shows that the anal fissure the Veteran sustained in service is likely unrelated to his diagnosis of diverticulosis, weighing against any finding of a nexus between his current disability and any injury or event in service. To the extent that the Veteran himself contends that a medical relationship exists between his diverticulosis and anal fissure sustained in service, the Board acknowledges that the Veteran is competent to testify as to his observations. Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Furthermore, lay witnesses may, in some circumstances, opine on questions of diagnosis and etiology. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). In the instant case however, the Board finds the question as to the onset and etiology of the Veteran's diverticulosis requires medical expertise to answer. While the Veteran is competent to describe symptoms which he has knowledge of, an opinion regarding the onset and etiology of his disability is not within the competence of a layperson. See Kahana v. Shinseki, 24 Vet. App. 428, 433 (2011). Thus, while the Veteran did sustain an anal fissure in service, this alone does not establish the onset of diverticulosis in service. Overall, the Board places greater probative weight on the examiner findings regarding the absence of any anal fissure observed post-service, as was noted in the March 2012 VA examination, as well as the May 2017 opinion which noted that diverticulosis and anal fissures were unrelated conditions. His description of recurrent symptoms since service, which has been considered by the 2017 expert examiner, is insufficient to support an award of service connection based on continuity of symptomatology alone. Walker, 708 F.3d 1331 (Fed. Cir. 2013) In contrast, the August 2016 letter submitted by the Veteran's nurse practitioner has less probative value. The practitioner indicated that the Veteran's symptoms of pain and bleeding with bowel movements "may have" been due to the Veteran having early stages of diverticulosis, which is speculative in nature. See Tirpak v. Derwinski, 2 Vet. App. 609, 610 (1992) (doctor's letter stating probability in terms of "may or may not" was speculative); Bostain v. West, 11 Vet. App. 124, 127-28 (1998), quoting Obert v. Brown, 5 Vet. App. 30, 33 (1993), (a medical opinion expressed in terms of "may" also implies "may or may not" and is too speculative to establish a causal relationship). The examiner did not address the normal rectal examination the Veteran at the time he separated from service. She also stated that anal fissures are often caused by inflammation of the anorectal area resulting from inflammatory bowel diseases such as diverticulosis, however this is not consistent with the Veteran's own report that his anal fissure was caused by heavy lifting during service. Additionally, the examiner who provided the May 2017 medical opinion has a greater level of expertise with regard to gastroenterology which provides greater weight to the May 2017 opinion. Thus, the Board finds that the well-reasoned analysis of the May 2017 opinion substantially outweighs the August 2016 opinion provided by the nurse practitioner. Additionally, the Board finds that the medical literature provided by the Veteran has some probative value in this case. However, the probative value of this generic material - which does not speak to the particular facts of this case - is greatly outweighed by the May 2017 opinion which applied medical principles to the particular facts of this claim. In sum, the Board finds that service connection for residuals of a torn rectum, to include diverticulosis, must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER Entitlement to service connection for residuals of a torn rectum, to include diverticulosis, is denied. ____________________________________________ T. MAINELLI Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs