Citation Nr: 1802733 Decision Date: 01/11/18 Archive Date: 01/23/18 DOCKET NO. 16-29 042 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to service connection for ulcerative colitis. ATTORNEY FOR THE BOARD C. J. Cho, Associate Counsel INTRODUCTION 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) (West 2012). The Veteran served on active duty in the United States Army from June 1955 to October 1955. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. This case was previously remanded by the Board in May 2017. FINDINGS OF FACT 1. Clear and unmistakable evidence shows that ulcerative colitis preexisted the Veteran's entrance into service. 2. Clear and unmistakable evidence shows that preexisting ulcerative colitis was not aggravated by service. CONCLUSION OF LAW The criteria for service connection for ulcerative colitis have not been met. 38 U.S.C. §§ 1110, 1111, 5107 (West 2012); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION A. Duty to Assist As an initial matter, the Board notes that VA's duty to assist has been satisfied in this case. An April 2014 response from the National Personnel Records Center (NPRC) via the Personnel Information Exchange System (PIES) reports that the Veteran's military records are "fire related," which is presumably a reference to service treatment records that were destroyed during a July 1973 fire at the NPRC. VA has a heightened duty to assist in these cases. O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991); see also Cromer v. Nicholson, 19 Vet. App. 215 (2005) (destruction of service medical records does not create a heightened benefit of the doubt, but only a heightened duty on the part of VA to consider the applicability of the benefit of the doubt, to assist the claimant in developing the claim, and to explain its decision). However, the NPRC also indicated that all military records that were available for the Veteran have been provided, and the Board has determined that they have been associated with the claims file. Therefore, the Board finds no indication that other available outstanding military records exist, that any additional efforts to obtain the missing records would be futile, and all records identified by the Veteran as relating to this claim have been obtained to the extent possible. Moreover, the record contains sufficient evidence to make a decision on the claims addressed herein. Additionally, pursuant to the Board's May 2017 remand directives, the Agency of Original Jurisdiction scheduled the Veteran for a VA examination and obtained an addendum opinion for this claim in June 2017. Collectively, the examination report and addendum opinion reflect that the June 2017 VA examiner examined the Veteran in-person, reviewed the claims file, including the August 1955 military hospitalization record, which provides a discussion of the Veteran's medical history prior to entrance into military service, and provided sufficient opinions on the questions at issue in this case. Therefore, the June 2017 VA examination report and addendum opinion are adequate for evaluation purposes. See Barr v. Nicholson, 21 Vet. App. 303 (2007). Accordingly, appellate review may proceed without prejudice to the Veteran with respect to his claims. See Bernard v. Brown, 4 Vet. App. 384 (1993). B. Legal Criteria and Analysis The Veteran is seeking entitlement to service connection for ulcerative colitis, which he contends began during his active duty service in the United States Army. Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a link between the claimed in-service disease or injury and the present disability. Romanowsky v. Shinseki, 26 Vet. App. 289, 293 (2013). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303 (a). Here, the evidence reflects the Veteran has a current disability of ulcerative colitis; therefore, the first element of the claim of service connection has been met. See, e.g., June 2017 VA examination report. Next, the Board turns to the question of whether there was in-service incurrence or aggravation of ulcerative colitis. A Veteran will be considered to have been in sound condition when examined, accepted and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable (obvious or manifest) evidence demonstrates that (1) an injury or disease existed before acceptance and enrollment into service (2) and was not aggravated by such service. 38 U.S.C. § 1111; 38 C.F.R. § 3.304 (b); Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004); Bagby v. Derwinski, 1 Vet. App. 225, 227 (1991). Only such conditions as are recorded in examination reports are to be considered as noted. 38 U.S.C. § 1111; 38 C.F.R. § 3.304 (b). However, application of the presumption of soundness is not precluded if a service entrance examination is unavailable. See, e.g., Quirin v. Shinseki, 22 Vet. App. 390, 397, n.5 (2009) (citing Lee v. Brown, 10 Vet. App. 336, 339 (1997); Doran v. Brown, 6 Vet. App. 283, 286 (1994) (implicitly finding that where a veteran's service entrance examination report was unavailable (presumed been lost in a fire at the NPRC in 1973), "as a matter of law, the presumption of soundness was rebutted by clear and unmistakable evidence consisting of appellant's own admissions during clinical evaluations" during service "of a preservice history of psychiatric problems."). Absent evidence to the contrary, it is presumed that an entrance examination was provided to a veteran, prior to all periods of active duty service. In the present case, there is no enlistment or entrance or induction examination of record, despite the Veteran being admitted into service; thus, it appears the initial examination is missing from the record. Because there is no evidence that an entrance examination was not provided to the Veteran, and because it appears that the Veteran's entrance examination is "fire related," it follows that the presumption of soundness applies in the present case. Therefore, the Veteran is presumed sound as to ulcerative colitis. Next, in order to rebut the presumption of soundness, VA must first prove that there is clear and unmistakable evidence that the disability existed prior to acceptance and enlistment into service. Here, the Board finds that there is such clear and unmistakable evidence. First, service treatment records available for review show treatment for ulcerative colitis and a prolapsed rectum with severe anemia on July 2, 1955, two days after the Veteran entered onto active duty service. The service treatment records also show the military physicians' determination that the Veteran's ulcerative colitis had existed prior to the Veteran's entry to military service, and that as a result of this determination, the Veteran was discharged from his military service. Moreover, the Veteran is competent to provide testimony regarding whether he experienced observable symptoms prior to service (see Kahana v. Shinseki, 24 Vet. App. 428 (2011)), and here, Veteran's lay statements also support a finding that the disability existed prior to his enlistment into service. Specifically, the service treatment records available for review show that the Veteran reported to his military physicians that he had experienced a multiple year history of rectal bleeding and hematochezia prior to his entry onto active duty service. He also reported that only two weeks prior to his entry onto active duty, he suffered an incapacitating episode of weakness due to bloody diarrhea. He further reported that he had been treated symptomatically for his gastrointestinal disability a few times prior to his military service by his family physician. Additionally, at a June 2015 VA examination, the Veteran reported to the June 2015 VA examiner that he experienced bloody streaks on bowel movement in 1953, which is prior to his active duty service, but began experiencing bloody stools and abdominal pain in 1955 during service. While the Board also acknowledges the Veteran's recent conflicting statements in his VA Form-9 that indicate a contention that he did not have ulcerative colitis or the symptoms thereof prior to service, the Board finds the Veteran's statements made at the time he was treated in service and to VA examiners to be more credible than his later VA Form-9 account of what occurred prior to service. In his VA Form-9, the Veteran did not address the previous statements that he made to his doctors that his symptoms began prior to service. Moreover, lay statements made to clinicians for purposes of diagnosis and treatment are exceptionally trustworthy because the declarant has a strong motive to tell the truth in order to receive proper care. FED. RULES OF EVID. 803(4); see Rucker v. Brown, 10 Vet. App. 67, 73 (1997) ("Recourse to the [Federal] Rules [of Evidence] is appropriate where they will assist in the articulation of the Board's reasons."). Therefore, as between his reports made contemporaneous to service and to treating doctors, where there was no reasonable motivation for providing inaccurate information and the report was not subject to the effects of time on memory, the Board finds the reports made during service and to his doctors to be more probative. See Curry v. Brown, 7 Vet. App. 59, 68 (1994). Finally, pursuant to the Board's May 2017 remand directives, the Veteran was afforded a VA examination in June 2017 by a VA examiner, who opined that the evidence demonstrated that the Veteran had a very advanced stage of ulcerative colitis at the time he was admitted to military service. In making this conclusion, the June 2017 VA examiner performed an in-person examination of the Veteran and reviewed the claims file, including the August 1955 military hospital record (which the June 2015 VA examiner had failed to do). The June 2017 VA examiner reported that his conclusion - that by the time the Veteran was admitted to military service, the Veteran already had advanced ulcerative colitis with all symptoms and clinical appearances of this condition - was based on the facts that shortly after the Veteran enrolled into military service, the Veteran was admitted to the military hospital with abdominal cramps, severe anemia, bloody diarrhea, and weight loss -symptoms which the examiner stated were in keeping with a two year history of ulcerative colitis. In summary, the Board concludes that the record contains clear and unmistakable evidence, in particular, the June 2017 VA examiner's opinion, which is based on a review of not only the Veteran's history provided in service, but also on the medical evidence created at the time of treatment in service and the Veteran's lay statements, and the Veteran's lay statements made to his doctors, that ulcerative colitis preexisted the Veteran's service. In order to rebut the presumption of soundness, the Board must further prove by clear and unmistakable evidence that the preexisting disability was not aggravated by service. A lack of aggravation may be shown by establishing that there was no increase in disability during service or that any increase in disability was due to the natural progress of the preexisting condition. Quirin v. Shinseki, 22 Vet. App. 390, 397 (2009). In this case, the June 2017 VA addendum opinion provides clear and unmistakable evidence that ulcerative colitis was not aggravated by an in-service event, injury, or illness. The examiner explained that the Veteran had a very advanced stage of ulcerative colitis at the time he entered military service, which is why he was caused to be admitted into a military hospital only two days after he enrolled into military service. Moreover, the records, including the August 1955 military hospitalization record, indicate to the examiner that the Veteran's symptoms were a natural progression of the disease. Further, as the examiner reported, there was no chance for any aggravation of the ulcerative colitis to occur while in service because the Veteran was then subsequently discharged from the military. The Board notes that the June 2015 VA examiner also addressed whether the Veteran's condition was aggravated by his service; however, as the Board determined in its May 2017 remand, that examiner did not have the opportunity to review probative records in rendering an opinion, including the August 1955 military hospitalization record. Therefore, the Board places little weight of probative value on it. The record does not contain any other evidence addressing whether ulcerative colitis was aggravated by service. Hence, the Board concludes that the June 2017 addendum opinion provides clear and unmistakable evidence that ulcerative colitis was not aggravated by the Veteran's service. In this case, the evidence clearly and unmistakably establishes that the Veteran's ulcerative colitis preexisted his service and that it was not aggravated by his service. Hence, the presumption of soundness is rebutted. As such, the Veteran's ulcerative colitis cannot be found to have been incurred in service, and service connection for ulcerative colitis must be denied. ORDER Service connection for ulcerative colitis is denied. ____________________________________________ YVETTE R. WHITE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs