Citation Nr: 1800137	
Decision Date: 01/03/18    Archive Date: 01/19/18

DOCKET NO.  17-00 519	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in North Little Rock, Arkansas


THE ISSUE

Entitlement to service connection for diverticulitis.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

A. Labi, Associate Counsel



INTRODUCTION

The Veteran served on active duty in the U.S. Army from June 1967 to June 1969.  The Veteran also had service in the United States Army Reserves.

This matter comes to the Board of Veterans Appeals (Board) on appeal from an October 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Little Rock, Arkansas.

The claim of entitlement to service connection for diverticulitis was previously before the Board in October 2015.  At that time, the Board remanded the claim so that the RO could furnish the Veteran with a statement of the case (SOC) pursuant to Manlincon v. West, 12 Vet. App. 238 (1999).  An appropriate SOC was furnished to the Veteran, and he has since perfected the appeal.  The Board finds that this constitutes substantial compliance with the previous remand instructions.  Stegall v. West, 11 Vet. App. 268, 271 

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017).  38 U.S.C. § 7107(a)(2) (2012).


FINDING OF FACT

The Veteran's diverticulitis did not have onset during his active service and was not caused by his active service.


CONCLUSION OF LAW

The criteria for establishing service connection for diverticulitis have not all been met.  38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2017).



REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran contends that his diverticulitis is directly related to service.

Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service.  See 38 U.S.C. § 1110 (2012); 38 C.F.R. § 3.303(a) (2017).  "To establish a right to compensation for a present disability, 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"- the so-called "nexus" requirement."  Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).

VA treatment notes, a VA examination in March 2016, and a VA examination in October 2014 indicate a diagnosis of diverticulitis in 2007.  Thus, the first element of service connection is established.

Service treatment records (STRs) reflect complaints, treatment, or a diagnosis similar to the Veteran's claim for diverticulitis.  The Veteran's examination on April 21, 1967 indicates that the Veteran's abdomen was marked as abnormal and that the Veteran complained of nausea, abdominal cramps.  The Veteran's separation examination in April 1969 notes the abdomen and viscera (include hernia) as abnormal.  The report of medical examination on March 24, 1973 indicates that everything was marked as normal.  An enlistment examination for Reserve service indicates that everything is marked normal, and a record, dated January 9, 1977, notes indigestion but no severe problem.

The Veteran underwent a VA examination in October 2014 for intestinal conditions, including diverticulitis.  The examination indicates that the Veteran was diagnosed with diverticular disease of the colon in 2007 after being evaluated for some blood streaks on his bowel movement.

The Veteran underwent a VA examination in March 2016, which noted that a colonoscopy revealed diverticulosis.

A June 2016 addendum opinion notes that an October 2014 and a March 2016 VA examination were reviewed.  The addendum opinion indicates that the Veteran was not diagnosed with and did not have symptoms of diverticulosis in service.  The addendum opinion indicates that because the Veteran was not treated for diverticulitis or diverticulosis in service, his condition is not service-related.

Significantly, there is no probative evidence of a nexus between the Veteran's current diagnosis of diverticulitis and his active service.  The record in this case is negative for any indication, other than the Veteran's own lay assertions, that his diverticulitis is due to service.  The Board has nevertheless considered the Veteran's lay statements, which are probative insofar as they report symptomatology capable of lay observation, see Layno, 6 Vet. App. 465; however, to the extent that the Veteran attempts to provide a nexus between his diverticulitis and service, such statements are not competent evidence.  See Jandreau, 492 F.3d 1372.  This is because the cause of diverticulitis is a complex question and not subject to lay nexus opinion evidence.

The Board has considered the Veteran's contentions, but finds the Veteran's STRs, medical records, VA examination, and VA addendum opinion to be highly probative.  In weighing the medical and lay evidence of record, the Board finds that the Veteran's contention that his diverticulitis is related to service is outweighed by the competent and probative evidence of record.

For these reasons, the Board finds that the preponderance of evidence weighs against the claim of service connection for diverticulitis; consequently, the claim must be denied.  Therefore, the benefit of the doubt doctrine does not apply.  See 38 U.S.C. § 5107; 38 C.F.R. § 3.102.


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ORDER

Service connection for diverticulitis is denied.



____________________________________________
JAMES G. REINHART
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs