Citation Nr: 18144695 Decision Date: 10/25/18 Archive Date: 10/24/18 DOCKET NO. 06-21 166 DATE: October 25, 2018 ORDER Entitlement to service connection for familial polyposis is denied. FINDING OF FACT The preponderance of the evidence is against finding that the Veteran’s familial polyposis, a congenital disease, was incurred in or caused by active service, to include as due to aggravation. CONCLUSION OF LAW The criteria for establishing entitlement to service connection for familial polyposis have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310(a). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty with the United States Marine Corps from June 1972 to November 1972, April 1973 to April 1975, and from September 1975 to September 1977. Review of the record indicates that this matter has been remanded on multiple occasions, to include most recently, in December 2016. In that decision, additional development was requested including an addendum opinion regarding the possibility of in-service rectal polyps and aggravation due to active service. As the requested development has been completed, this matter has been returned to the Board for appellate consideration. Service connection, generally Service connection may be granted for any current disability that is the result of a disease contracted or an injury sustained while on active duty service. 38 U.S.C. § 1110, 1131; 38 C.F.R. §§ 3.303(a), 3.304. Entitlement to service connection benefits 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 between the current disability and the disease or injury incurred or aggravated during service (the medical ‘nexus’ requirement). See Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); 38 C.F.R. § 3.303 (a) (2018). Service connection also is permissible on a secondary basis for disability that is proximately due to, the result of, or aggravated by a service-connected disability. 38 C.F.R. § 3.310. In order to prevail on the issue of entitlement to secondary service connection, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and, (3) nexus evidence establishing a connection between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). Furthermore, in determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of the matter, the benefit of the doubt will be given to the Veteran. The Board notes that it has thoroughly reviewed the record in conjunction with this case. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). Rather, the Board’s analysis below will focus specifically on what the evidence shows, or fails to show, on the claim. See Timberlake v. Gober, 14 Vet. App. 122, 129 (2000) (noting that the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant). Lay evidence, if competent and credible, may serve to establish a nexus in certain circumstances. See Davidson v. Shinseki, 581 F.3d 1313 (2009) (noting that lay evidence is not incompetent merely for lack of contemporaneous medical evidence). When considering whether lay evidence may be competent, the Board must determine, on a case by case basis, whether the Veteran’s particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (holding that “[w]hether lay evidence is competent and sufficient in a particular case is a factual issue. Entitlement to service connection for familial polyposis The Veteran contends that his familial polyposis was causally related to active service, to include as due to aggravation. The threshold inquiry before the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that, while the Veteran has a current diagnosis of familial polyposis and the evidence shows that he was treated for perirectal abscess in service, the preponderance of the evidence weighs against finding that the Veteran’s diagnosis of familial polyposis was incurred in or caused by active service, to include as due to aggravation. Service treatment records indicate that the Veteran developed a large perirectal abscess which was incised and drained in September 1975. An operation report, baring the same date, referenced complaints of rectal pain and tenderness with bowel movements. No prior history of colon, rectal, or a gastrointestinal disease was documented. Diagnostic testing was negative for any current condition. At separation in September 1977, no gastrointestinal symptoms or conditions were reported. Post service treatment records show that the Veteran underwent a total colectomy in April 1991 with permanent ileostomy due to multiple polyps. Post-surgery, complications were described as an inability to ejaculate. In August 2004, the Veteran underwent an esophagogastroduodenoscopy (EGD) and ileostomy. A clinical note, dated March 2007, showed that polyps removed during a previous ileostomy had returned. The polyps were described as large and bleeding. A subsequent ileostomy was performed in January 2009. Preoperative diagnoses included familial polyposis. The Veteran’s history of surgical removal of polyps was noted. In November 2011, an upper gastrointestinal endoscopy was conducted. Biopsies of the esophagus, stomach, and duodenum were negative for cancer, precancerous changes (dysplasia), or an infection. However, a repeat evaluation was recommended due to the appearance of adenomatous in samples of the small intestine. Review of the record shows that the Veteran was afforded multiple VA examinations. In March 2006, the examiner noted a history of intermittent rectal bleeding, pain, and surgical procedures to remove polyps. No family history of polyposis or colorectal cancer was reported. During active service, a rectal abscess was incised and drained. Following the clinical evaluation, the examiner opined that the Veteran’s condition was likely hereditary due to an inherited gene, which likely resulted in polys beginning to form in his teens or early twenties. During a subsequent examination in May 2012, the examiner acknowledged that the Veteran underwent a total colectomy with ileotomy in 1991 to address recurrent polyp formation. His condition was described as limiting his ability to perform heavy lifting, pushing, and pulling, to include with repetitive bending. Based upon the clinical interview, the examiner concluded that the Veteran was the first in his family to be diagnosed familial polyposis of the colon. Thus, the condition was classified as a disease rather than a defect. The examiner opined that it is less likely than not that the Veteran’s familial polyposis was aggravated by active service. In support of the stated conclusion, the examiner noted a single incident of hemorrhoids with rectal bleeding in service however, it was not deemed clinically significant as it was reported in the 1970s, but the diagnosis of familial polyposis and surgery remove polyps occurred in 1991. In September 2013, the Veteran was afforded a new examination. During the clinical evaluation, he acknowledged a recent review of his family history. The history revealed that the Veteran’s great-grandfather, two sisters, and a brother were also diagnosed familial polyposis of the colon. One sister reportedly passed away due to complications related to the condition. As a family history had been established and the Veteran’s condition was deemed a genetic defect. Review of the medical literature revealed that familial polyposis is genetically pre-determined disease. Considering the updated family history, the examiner concluded that no additional co-existing or superimposed disease or injury impacted the Veteran’s formation of pre-malignant polyps in the colon. Pursuant to an April 2015 Joint Motion for Remand, the VA opinions of May 2012 and September 2013 were deemed inadequate as the opinions offered conflicting opinions as to whether the Veteran’s condition is a defect or disease. In December 2015, a VA examiner reviewed the record and prepared an opinion in the absence of an in-person interview with the Veteran. The opinion indicated that familial adenomatous polyposis (FAP) follows an autosomal dominant pattern of inheritance with near complete penetrance of the colonic manifestations but variable penetrance of the extracolonic manifestations of the disease. FAP, then, is not a congenital defect or the result of an injury. Further, polyposis typically develops in the second or third decade of life and colorectal cancer occurs in essentially 100 percent of untreated individuals by age 45 years. Patients with FAP may present with gastrointestinal bleeding, abdominal pain, and diarrhea but most patients are asymptomatic until they present with symptoms of colorectal cancer. Review of the Veteran’s STRs fail to show any complaints of gastrointestinal bleeding, abdominal pain, or diarrhea. In September 1975, a perirectal abscess with rectal pain was incised and drained. On the same date, a physical examination did not reveal any rectal polyps. The examiner concluded that since polyposis typically develops in the second or third decade of life, an opinion as to an in-service occurrence could not be offered because STRs were silent for complaints of gastrointestinal bleeding, abdominal pain, diarrhea or follow-up colonoscopy during active duty. Pursuant to a December 2016 Board Remand, the Veteran was again, afforded a VA examination. Specifically, the examiner was invited to resolve the conflicting medical opinions and comment on the possibility of a causal connection between the Veteran’s familial polyposis and active service. Accordingly, the Veteran underwent a new evaluation November 2017. On examination, the VA examiner acknowledged review of the Veteran’s STRs, post-service treatment records, and prior medical opinions. Based upon the forgoing, the examiner opined that it is less likely than not that this Veteran’s familial polyposis was incurred in or caused by his active duty service. Further, as there is no evidence of treatment for rectal or colonic disease during service, the examiner also concluded that record does not support a finding of permanent worsening or aggravation due to active military service. As to the prior VA examinations, the examiner found no conflict between the VA opinions in January 2006 and December 2015. Specifically, the 2006 opinion suggested that Veteran has familial polyposis coli, a hereditary condition which typically causes polyps to form between the teens and twenties. Therefore, it is likely that the Veteran was carrying polyps during active service. The actual onset of his condition however, was unknown. In December 2015, a separate examiner acknowledged an inability to conclude that the Veteran’s familial polyposis specifically occurred during active service. While it is possible that his condition was present during active duty (based on his age at the time of his service and the natural history of the disease), the Veteran’s STRs fail to show any evidence of worsening symptoms. In fact, the surgical drainage for the unrelated perirectal abscess (which occurred outside of active duty service periods) documented a negative anoscopy for polypoid masses or lesions affecting the rectal area. Based upon the forgoing, the examiner opined that it is less likely than not that this Veteran’s FAP was incurred during active duty service. On review of the record, the Board finds that service connection is not warranted. Post-service treatment records show that the Veteran was not diagnosed with familial polyposis until April 1991, almost two decades after separation from service. While the Veteran is competent to report having experienced symptoms of rectal pain, bleeding and recurrent polyps intermittently since service, he is not competent to provide a diagnosis in this case or determine that these symptoms were manifestations of in-service treatment for perirectal abscess or evidenced aggravation of a diagnosis of familial polyposis rendered decades later. The issue is medically complex, as it requires medical expertise, training, and the ability to interpret complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). There is no evidence that the Veteran possesses the necessary skills or expertise. Taken together, the VA opinions of record, to include March 2009, March 2012, December 2015, and November 2017 show that the Veteran’s familial polyposis is not casually related to active service. Notably, in November 2017, the VA examiner opined that it is less likely as not that the Veteran’s familial polyposis was incurred in, caused, or aggravated by active service. In support of the stated conclusion, the examiner concluded the record failed to show complaints of rectal polyps, symptom worsening, or an in-service diagnosis of familial polyposis. The Board finds the examiner’s opinion probative, because it reflects an accurate review of the Veteran’s medical history, offers a comment on the apparent conflict, and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). While the Board acknowledges the Veteran’s subjective belief that his familial polyposis is causally related to active service, the evidence of record does not support his contention. Notably, though this case has bounced between the RO, the Board, and the Court numerous times over the last decade, neither the Veteran nor his representative have submitted competent evidence supporting the idea that his current disability is related to, had its onset during, or was permanently aggravated during his active service. Accordingly, as the preponderance of the evidence is against the claim, the provisions of 38 U.S.C. § 5107(b) regarding reasonable doubt are not applicable. The Veteran’s claim of entitlement to service connection for familial polyposis must be denied. EVAN DEICHERT Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD N. Whitaker, Associate Counsel