Citation Nr: 18148126 Decision Date: 11/06/18 Archive Date: 11/06/18 DOCKET NO. 16-06 072 DATE: November 6, 2018 ORDER Service connection for chronic diarrhea is denied. Service connection for acquired psychiatric disorder, to include as secondary to chronic diarrhea, is denied. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that the Veteran has a disability manifested by chronic diarrhea due to service. 2. The preponderance of the evidence is against finding that the Veteran has an acquired psychiatric disorder due to service or secondary to a service-connected disability. CONCLUSIONS OF LAW 1. The criteria for service connection for disability manifested by chronic diarrhea are not met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). 2. The criteria for service connection for an acquired psychiatric disorder are not met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a), 3.310(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1995 to January 1999. In his substantive appeal, the Veteran requested a Board videoconference hearing. However, prior to his scheduled hearing the Veteran told personnel from the Regional Office that he wished to have his request for a hearing withdrawn and the claim be sent to the Board for decision. Accordingly, the Board considers his request for a hearing to be withdrawn and will proceed to adjudicate the case based on the evidence of record. See 38 C.F.R. § 20.704(d), (e). Service Connection The question for 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. 1. Chronic diarrhea The Veteran contends that he has had chronic diarrhea since service. The Board concludes that, while the Veteran has a current diagnosis of diarrhea, and the evidence shows a single in-service event of viral gastroenteritis, the preponderance of the evidence weighs against finding that the Veteran’s diagnosis of diarrhea is related to an in-service injury, event, or disease. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a), (d). The December 2015 VA examiner opined that the Veteran’s diarrhea was less likely than not caused by military service. The rationale was that service treatment records from June 1998 reported that the one episode of diarrhea was due to viral gastroenteritis and had resolved. [Also noted as “stomach virus” in the service treatment records.] The examiner further stated that following this episode of viral gastroenteritis the service treatment records were absent for further complaints of diarrhea or chronic gastrointestinal symptoms. The examiner’s opinion is probative, because it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The Veteran’s diagnosis of diarrhea has occurred almost 15 years after discharge from service. There are no treatment records showing a diagnosis of diarrhea prior to the December 2015 VA examination, as the Veteran was not under a doctor’s care for this condition. See December 2015 VA examination; see also Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (holding that the Board may take into consideration the passage of a lengthy period of time in which the Veteran did not complain of the disorder at issue). While the Veteran is competent to report having experienced diarrhea since service, he is not competent to provide a diagnosis in this case or determine that his current diarrhea is etiologically related to service. Lay 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. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Lay testimony is also competent as to matters capable of lay observation, but not with respect to determinations that are “medical in nature” Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). In the present case, the Board finds that linking a general and common symptom, like diarrhea, to a single documented event in service is an inherently complex medical question not capable of lay observation and is not the type of medical issue for which a lay opinion may be accepted as competent evidence. See Kahana v. Shinseki, 24 Vet. App. 428, 438 (2011); see also Colantonio v. Shinseki, 606 F.3d 1378, 1382 (Fed. Cir. 2010) (recognizing that in some cases lay testimony “falls short” in proving an issue that requires expert medical knowledge). Consequently, the Veteran’s lay statements in this regard are not competent or probative evidence supporting his claim. Furthermore, although the Veteran has reported that he had diarrhea since service; his service treatment records document that following his episode of viral gastroenteritis in June 1998 there are no further gastrointestinal complaints to include his August 1998 lead paint screening and November 1998 separation examination. This further weighs against the claim. Additionally, the record does not support that the Veteran has received any special training or acquired any medical expertise in evaluating an etiological connection between his current diarrhea and service. 38 C.F.R. § 3.159(a)(2); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Therefore, a medical expert opinion would be more probative regarding an etiology opinion in this case. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). Consequently, the Board finds that the most probative evidence of record is the December 2015 VA examination, as it is the only medical opinion of record and the Board adopts the opinion of the VA examiner, who ultimately found that the Veteran’s diarrhea was not related to service. Neither the Veteran nor his representative have presented or identified any contrary medical opinion or treatment that supports his claim. VA adjudicators are not free to ignore or disregard the medical conclusions of a VA physician, and are not permitted to substitute their own judgment on a medical matter. Colvin v. Derwinski, 1 Vet. App. 171 (1991); Willis v. Derwinski, 1 Vet. App. 66 (1991). In sum, the Board finds that the preponderance of the evidence is against this service connection claim, and the claim must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 2. Acquired psychiatric disorder The Veteran contends that he has had major depression and a panic disorder since service. The Board has recharacterized the claim as that for an acquired psychiatric disorder, as reflected on the cover page. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). The Board concludes that, while the Veteran has a diagnosis of generalized anxiety disorder with panic attacks, the preponderance of the evidence is against finding that it began during active service, or is otherwise related to an in-service injury, event, or disease. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a), (d). The December 2015 VA examiner found that the Veteran’s anxiety disorder was related to a variety of factors, however his report does not ascribe this disorder to the Veteran’s military service. Moreover, during the examination, the Veteran had reported that he had experienced similar anxiety symptoms for much of his life. Similarly, VA mental health treatment records associated with the claims file indicated a history of anxiety and depressive symptoms since childhood. The Board finds highly probative the June 2011 VA psychiatric consult during which the Veteran reported problems with anxiety since childhood. As the Veteran’s report was given for purposes of medical treatment, rather than for compensation purposes, the Board finds this record to be highly probative. See Rucker v. Brown, 10 Vet. App. 67, 73 (1997) (statements made for purposes of medical treatment may be afforded greater weight because there is a strong motive to tell the truth to receive proper care); see also Harvey v. Brown, 6 Vet. App. 390, 394 (1994); Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997). In addition, VA mental health treatment records do not indicate mental health treatment related to an event, injury, or disease that occurred during military service. Rather, the Veteran has received mental health treatment for issues not related to military service, to include difficulty with a prior girlfriend, unemployment, and financial hardship. Based on the foregoing medical history, the Board finds that the Veteran’s statement in his notice of disagreement, that he has not experienced depression or panic attacks prior to service, to be not credible as medical evidence indicates that the Veteran has reported such symptoms as existing since childhood. Moreover, the Veteran has not presented a plausible relationship between his military service and his current psychiatric symptoms. The Veteran does not contend in the record does not support aggravation of a pre-existing illness. The Board notes that upon enlistment, the military examiner found that the Veteran did not have a significant history for a mental health condition when the Veteran reported family counseling due to his parents divorcing, and the military examiner deemed that the condition was resolved. Elsewhere, the Veteran’s service treatment records are silent for complaints, treatment, or diagnoses of an acquired psychiatric disorder or symptoms. Additionally, during the June 2011 VA psychiatric consult, the Veteran reported that in 2002 he was struck by a train and thereafter experienced an increase in his symptoms of anxiety and anger. In reaching its conclusion that there is no basis upon which to grant direct service connection for an acquired psychiatric disorder, the Board is aware that the December 2015 VA examiner did not provide a direct service connection etiology opinion and did not address other diagnosed acquired psychiatric disorders within VA mental health treatment records (i.e., mood disorder NOS and depressive disorder NOS). The Board finds that a remand to obtain another opinion or examination would serve no purpose, but to delay further the adjudication of the Veteran’s claims with no benefit flowing to him. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (holding strict adherence to requirements in the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on the VA with no benefit flowing to the Veteran) and Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (holding remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the claimant are to be avoided). See also McLendon v. Nicholson, 20 Vet. App. 79 (2006) (requiring, in part, an indication that a disability or persistent or recurrent symptoms of a disability be associated with service or with another service-connected disability). In the present case, the evidence does not support that there is an in-service disease, injury or event. As noted above, the file contains no medical evidence suggesting a current acquired psychiatric disorder attributable to service. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303 (a), (d). Again, the June 2011 VA psychiatric consult is highly probative; it does not indicate any correlation between the Veteran’s current psychiatric symptoms and military service. While the Veteran believes his anxiety and depressive symptoms are related to service, he is not competent to provide a nexus opinion in this case. The Board finds that psychiatric etiology opinions are complex medical questions not capable of lay observation and are not the type of medical issue for which a lay opinion may be accepted as competent evidence. See Kahana v. Shinseki, 24 Vet. App. 428, 438 (2011); see also Colantonio v. Shinseki, 606 F.3d 1378, 1382 (Fed. Cir. 2010) (recognizing that in some cases lay testimony “falls short” in proving an issue that requires expert medical knowledge). Accordingly, the Veteran’s lay statements in this regard are not competent or probative evidence supporting his claim. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). Finally, to the extent that the Veteran contends that his acquired psychiatric disorder is caused by or aggravated by his chronic diarrhea, service connection for an acquired psychiatric disorder cannot be established on a secondary basis, as chronic diarrhea is not service-connected. Service connection cannot be established for a secondary disability where the primary disability is not service-connected. 38 C.F.R. § 3.310.   In sum, the Board finds that the preponderance of the evidence is against this service connection claim, and the claim must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Nathaniel J. Doan Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Dellarco, Associate Counsel