Citation Nr: 18152925 Decision Date: 11/26/18 Archive Date: 11/26/18 DOCKET NO. 14-10 979A DATE: November 26, 2018 ORDER Service connection for irritable bowel syndrome (IBS) is granted. Service connection for Crohn's disease is granted. Service connection for the residuals of a May 7, 2009 colonoscopy and a May 9, 2009 hemicolectomy to include incisional hernia is granted. FINDINGS OF FACT 1. The competent medical evidence demonstrates that the Veteran has a current diagnosis of IBS; the Veteran has provided a credible statement that he experienced gastrointestinal symptoms for a prolonged period in service, and the most persuasive medical opinions find it is as likely as not that the current IBS is related to the in-service gastrointestinal symptoms. 2. The competent medical evidence demonstrates that the Veteran has a current diagnosis of Crohn's disease; the medical opinions are in equipoise as to whether his Crohn’s disease was aggravated due to his service-connected PTSD. 3. The May 7, 2009 colonoscopy was conducted to examine the Veteran’s service connected Crohn’s disease; on May 9, 2009 a laparotomy with right hemicolectomy was done to treat a viscus perforated during the colonoscopy, and residuals include incisional hernia. CONCLUSIONS OF LAW 1. The criteria for service connection for irritable bowel syndrome have been met. 38 U.S.C. §§ 1110, 1131, 1154(a), 5107(b) (2012); 38 C.F.R. § 3.303 (2017). 2. The criteria for service connection for Crohn's disease have been met. 38 U.S.C. §§ 1110, 1131, 5107(b) (2012); 38 C.F.R. §§ 3.303, 3.310(a) (2017). 3. The criteria for service connection for residual disability resulting from a May 7, 2009 colonoscopy and May 9, 2009 hemicolectomy to include incisional hernia have been met. 38 U.S.C. §§ 1110, 1131, 5107(b) (2012); 38 C.F.R. § 3.310(a) (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from August 1970 to February 1976. This matter comes before the Board of Veterans’ Appeals (Board) on appeal of rating decisions of a Department of Veterans Affairs (VA) regional office (RO). A videoconference hearing was held before the undersigned Veterans Law Judge in November 2017. The Veteran did not appear, but provided permission for his representative to submit statements on his behalf. A transcript is in the records. Service Connection The Veteran contends that he is entitled to compensation for his gastrointestinal disabilities. He believes that his IBS began during active service and that he has continued to suffer periodically from this disability since discharge. The Veteran also believes that this disability may have been caused or aggravated by his service connected post-traumatic stress disorder (PTSD), which is evaluated as 70 percent disabling. The Veteran further contends that his IBS or his PTSD caused or aggravated his Crohn’s disease. Finally, the Veteran notes that he sustained a perforated bowel during a colonoscopy at a VA facility. This required follow up surgical repair, which resulted in the removal of part of the colon and hernias at the site of the incisions. He believes that he is entitled to compensation for this under the provisions of 38 U.S.C. § 1151 or, as the colonoscopy was administered because of the treatment of his Crohn’s disease, that service connection on a secondary basis is warranted for the residuals of the perforation and follow up surgery, to include incisional hernias. 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 military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); 38 C.F.R. § 3.303. Consistent with this framework, service connection is warranted for a disease first diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden/Caluza element is through a demonstration of continuity of symptomatology. However, this method may be used only for the chronic diseases listed in 38 C.F.R. § 3.309. Walker v. Shinseki, 708 F.3d 1331, 1336-38 (Fed. Cir. 2013). The Veteran’s claimed disabilities are not among those that are listed. As noted, the Veteran contend that his service connected PTSD may have caused or aggravated his IBS or Crohn’s disease. Regulations provide that service connection is warranted for a disability which is aggravated by, proximately due to, or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Further, a disability which is aggravated by a service-connected disorder may be service connected to the degree that the aggravation is shown. Allen v. Brown, 7 Vet. App. 439, 449 (1995); 38 C.F.R. § 3.310(b). To establish entitlement to secondary service connection, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; (3) medical evidence establishing a nexus between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). In relevant part, 38 U.S.C. § 1154(a) (2012) requires that VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability benefits. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). The Federal Circuit has held that "[l]ay 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." Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) ("[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence"). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b). The Board observes that the Veteran has a long and complicated history of gastrointestinal complaints that may be relevant to all his claims. A review of his service treatment records show that the Veteran answered “yes” to complaints of frequent indigestion on a Report of Medical History form he completed in February 1973. He denied a history of stomach, liver, or intestinal trouble on the same form. A medical examination conducted at the same time did not include any findings or diagnosis relating to a gastrointestinal disability. Additional service treatment records from May 1975 show that the Veteran complained of chest pain for the past two or three months. After conducting an examination and obtaining the Veteran’s history, the impression was of increased acidity associated gas buildup. Post-service medical records include a February 1988 private X-ray study of the colon. This revealed a mass lesion, diverticulosis, a small hiatal hernia and evidence of gastritis. A colonoscopy was recommended. This was performed and showed cecal diverticulosis and an irritable colon. A September 2006 VA gastroenterology note states that the Veteran was seen due to the possibility of Crohn’s disease. During a recent hospitalization for cardiac issues he was found to be severely anemic and iron deficient. An esophagogastroduodenoscopy (EGD) showed gastritis, and colonoscopy showed an area of ulceration compatible with Crohn’s disease. The Veteran reported having gastric problems over the years and could not use most medications due to stomach cramping. VA treatment records dated October 2006 report that the Veteran had recently been seen at a local hospital for angina when he was noted to have microcytic anemia. An upper and lower endoscopy was conducted and the Veteran was diagnosed with Crohn’s colitis. The endoscopy report noted mild gastritis of the antrum; and ulceration with scarring and deformity of the colon. The examiner suspected that this had been going on for a long time and was the probable cause of the Veteran’s anemia. He denied diarrhea and bleeding from the rectum. Crohn’s colitis was suspected. An April 2010 VA cardiology consultation reviewed the Veteran’s medical history and notes that he was status post-bowel perforation during a May 2009 colonoscopy. The assessments included Crohn’s disease. The Veteran submitted a statement in support of his claims in December 2012. He states that his stomach and intestinal problems began shortly after arriving in Vietnam. The Veteran said that the water was contaminated, which was not always corrected by purification measures. He developed an intestinal bug after about six months, which resulted in stomach cramps, nausea, diarrhea and frequent trips to the restroom. His symptoms worsened after his 1976 discharge. He experienced an increase in gas, bloating, and blood in his stool. These symptoms continued throughout the 1980s and interfered with the requirements of his profession. A September 2013 VA Intestinal Conditions Disability Benefits Questionnaire completed by P.B.M., M.D. describes the history of the Veteran’s intestinal condition as a long-term history and colectomy. His symptoms included alternating diarrhea and constipation, which the examiner said was related to an inflamed intestine and colectomy. The examiner’s remarks reported gastrointestinal problems and colonic dysfunction longstanding, but worse since colectomy. The diagnoses were irritable bowel syndrome and Crohn’s disease. A VA PTSD Questionnaire was also completed by Dr. P.B.M. in September 2013. The remarks section adds that the Veteran has severe medical problems with ongoing Crohn’s disease and a history of a colectomy, which were all exacerbated by PTSD. A separate report of a psychiatric examination conducted at this time by Dr. P.B.M. recounts the Veteran’s medical history of IBS and a colonoscopy. Among other things, this examiner notes that the Veteran had his colon removed and that his bowels do not work. He had diarrhea and constipation and could not depend on a normal kind of digestive activity at all. The doctor concluded that all of this comes directly from PTSD. In a lengthy October 2013 opinion by R.D.H., M.D., he opined that the proper diagnoses of the Veteran’s current condition was irritable bowel syndrome/diverticulosis, and Crohn’s disease, status post right hemicolectomy secondary to colonic perforation. He believed the Veteran’s current disability was a combination of IBS and Crohn’s disease. The examiner believed it was highly likely that the Veteran contracted a gastrointestinal infection while in Vietnam, during which time he also experienced a lot of anxiety and stress. The examiner added it was highly likely that the Veteran’s IBS began in Vietnam. The February 1973 reference to indigestion and the May 1975 reference to increased acidity in the service treatment records were consistent with IBS, as was the diverticulosis noted at the post service 1988 colonoscopy. He adds that this colonoscopy appears to have been negative for Crohn’s disease. Dr. R.D.H. believed that the IBS and Crohn’s disease worked to aggravate each other. He believed that based on the Veteran’s normal colonoscopy and biopsy in 1988 and the scarring discovered at the 2006 colonoscopy, the Crohn’s disease began sometime in the period between these procedures. The Veteran underwent a VA examination for intestinal conditions by B.D., M.D., in April 2018. His extensive medical history was reported by the examiner in her report. His diagnoses included IBS and Crohn’s disease. These were both said to have been diagnosed in 2008, although the examiner also states that the onset of IBS symptoms was in 1969. She notes the Veteran’s contentions that he experienced diarrhea in service but was told his anti-malaria medication was to blame. The reports of indigestion and chest pain due to gas were also reported, and his long post service history of treatment was also described. In a separate April 2018 report Dr. B.D. opined that it was less likely than not that the Veteran’s disabilities were incurred due to active service. She notes that the service treatment records did not record treatment for IBS, Crohn’s disease, or any other significant gastrointestinal disability. She did not believe that the Veteran’s reports of indigestion and acid build up during service were consistent with IBS or Crohn’s disease, and was not convinced by the opinion of Dr. R.D.H. that these complaints were evidence of IBS. She felt that the absence of care of symptoms consistent with IBS or Crohn’s disease prior to these two episodes was suggestive that the Veteran did not have these disabilities during service. The examiner added that the normal 1988 colonoscopy and biopsy was further evidence against the existence of Crohn’s disease during service, and said there was no evidence of an injury or condition in service that would result in or predispose to the development of IBS or Crohn’s disease. In a third April 2018 report, Dr. B.D. addressed the possibility of secondary service connection. She opined that the Veteran’s disabilities were less likely than not proximately due to or the result of the Veteran’s service connected disabilities. Dr. B.D. said that the pathophysiology of IBS remains in uncertain. She said that to date, the medical literature has not recognized psychiatric conditions as a cause of IBS, although it was recognized that it could affect the severity of this condition. Crohn’s disease is a disorder of uncertain etiology, but believed to result from dysregulated immune responses. Dr. B.D. felt it would be medically implausible that a psychiatric condition would cause the immune responses resulting in Crohn’s disease, and notes that Dr. R.D.H. did not indicate there was a causative relationship between IBS and Crohn’s disease and the psychiatric disability. She felt there was no medical evidence to support this doctor’s model of the “brain gut axis”. She added that while Dr. R.D.H. offered that IBS may significantly aggravated Crohn’s disease, he did not state that one can cause the other, but only that the symptoms other than bleeding overlap. She believed it implausible that IBS caused the Veteran’s Crohn’s disease. Finally, she felt it less likely than not that the Veteran’s PTSD aggravated the IBS or Crohn’s disease, as there was no evidence that his symptoms had been aggravated. She said that current records do not confirm symptoms as severe as those described by the Veteran. A private medical opinion was obtained in September 2018 from E.A., M.D. He conducted an extensive review of the record, with a focus on comparing the opinions of Dr. R.H.D. and Dr. B.D. He also reviewed the Veteran’s December 2012 statement. Dr. E.A. concluded that the favorable opinion from Dr. R.H.D. was the most accurate. He provided a discussion of dysentery in the context of military history and noted that literature reports at least 25 percent of all military personnel in Vietnam experienced diarrhea that was self-treated. Other literature notes that Veterans with disabilities such as IBS and Crohn’s disease often reported that their symptoms began during service. This examiner notes that the other two doctors acknowledged that there was no evidence in the records of a gastrointestinal infection during military service. However, Dr. E.A. believed that the symptoms described by the Veteran in his December 2012 statement were entirely plausible and consistent with the experiences of other veterans. He concludes that it was at least as likely as not that the Veteran’s IBS is related to the gastrointestinal illness he describes suffering in Vietnam, and adds that the lack of documentation in the service treatment records does not preclude the symptoms described by the Veteran as having happened. Dr. E.A. continued and notes that medical literature supports a relationship between PTSD or anxiety and IBS. He quoted from several different medical publications to support this proposition. Based on this research, Dr. E.A. once again agreed with Dr. R.H.D.’s statement that the Veteran’s PTSD is as likely as not another causative and/or aggravating factor in his IBS/Crohn’s disease, and also stated that it is at least as likely as not that the IBS and the Crohn’s disease are secondarily related to the service connected PTSD. Service connection for IBS The Board finds that entitlement to service connection for IBS is supported by the evidence. The record establishes that he has a current diagnosis of IBS. His service treatment records include only two references to gastrointestinal symptoms and the medical professionals disagree as to whether the symptoms as reported could relate to IBS. However, the Veteran’s December 2012 statement describes in detail the gastrointestinal symptoms he experienced during service. He is competent to describe these symptoms. Moreover, his statement is credible, and as demonstrated in the literature cited by Dr. E.A., entirely consistent with the experiences of other Vietnam veterans and with a gastrointestinal infection. The Board finds that this constitutes evidence of in-service incurrence of IBS. Thus, the competent and credible evidence of record establishes the first two elements of service connection. The remaining question that must be addressed is whether there is a relationship between the Veteran’s current diagnosis of IBS and the symptoms he reported during service. In this regard, the record includes three opinions from medical doctors who have addressed this question. The opinions from Dr. R.D.H. and Dr. E.A. are that it is at least as likely as not that the Veteran’s IBS began during active service. They have offered reasons and bases based on the Veteran’s treatment history and from medical literature to support their opinions. Dr. P.B.M. also opines that the Veteran’s symptoms are due to PTSD, but failed to provide a rationale. In contrast, Dr. B.D. opines that the Veteran’s IBS is not as likely as not related to active service. She has also cited to the Veteran’s treatment history and offered general references to the medical literature in support of her position. However, the Board observes that her rationale is based in part on the absence of treatment for a gastrointestinal infection in the service treatment records. As already noted, the Board finds that the Veteran’s December 2012 statement, especially as explained by Dr. E.A., is credible evidence that such an infection occurred. The Board finds that the opinions that support the Veteran’s claim are the most persuasive, and concludes it is as likely as not that his IBS is related to active service. As this is a complete grant of the benefits sought regarding IBS, the question of if this disability was incurred or aggravated by the Veteran’s service-connected PTSD becomes moot, and will not be addressed. Crohn's disease The Board finds that it is at least as likely as not that the Veteran’s Crohn’s disease was aggravated secondary to his service-connected PTSD. VA treatment records dated August 2012 include an assessment of Crohn’s disease. The September 2013 VA Questionnaire includes Crohn’s disease as a current diagnosis. The October 2013 opinion from Dr. R.D.H. expresses the belief that the proper diagnosis for the Veteran’s current disability includes Crohn’s disease. While his active Crohn’s disease and strictures had been surgically removed, the Crohn’s was still present. The April 2018 VA examination conducted by Dr. B.D. also includes a current diagnosis of Crohn’s disease. Based on the foregoing competent medical evidence, the Board finds that the first criterion for service connection has been met. It appears to be the consensus opinion that the Veteran did not have Crohn’s disease during service or until many years after discharge from service. As described in the October 2013 opinion from Dr. R.D.H., the fact that a 1988 colonoscopy was negative for Crohn’s means that one can say “with a high likelihood” that the onset of this disability was after 1988. And, as a 2006 colonoscopy showed scarring, it appears that Crohn’s was present prior to 2006. The subsequent opinions have basically agreed with this rationale. However, Dr. R.D.H. did provide an opinion that the Veteran’s service-connected PTSD was as likely as not a significant factor in causing flare-ups of his Crohn’s disease. In doing so, he discussed what he termed the “brain gut axis” in which there was a link between cognitive and emotional centers of the brain to other systems, to include the immune system which was felt to be related to IBD. He was unable to say that stress alone would have caused IBD/Crohn’s, but believed it was a possible causative factor and that it clearly played a role in exacerbations of Crohn’s disease. He also stated that IBS and IBD/Crohn’s have some overlapping symptoms and can aggravate each other. Similarly, the September 2018 opinion from Dr. E.A. states that he agrees with the opinion of Dr. R.D.H. He cites to studies that recognize the role between psychosocial stressors and digestive issues. Dr. E.A. opined that it was at least as likely as not that the Veteran’s “IBS and Crohn’s disease are secondarily related to the service connected PTSD.” Further, the opinion of Dr. P.B.M. also relates the Veteran’s gastrointestinal symptoms to PTSD, but did not provide a rationale. As with the IBS, Dr. B.D. disagrees with these two physicians, and opined that it was less likely than not that the Veteran’s PTSD caused or aggravated his Crohn’s disease. She notes that Crohn’s disease is a disorder of uncertain etiology, but was felt to arise from dysregulated immune responses to luminal bacteria. Therefore, it was medically implausible that a psychiatric condition would cause the immune responses that result in Crohn’s disease, and added that the “brain gut axis” was only a theoretical model without medically accepted scientific evidence of such a relationship. The Board will find that the positive and negative opinions are at least in equipoise, in which case all doubt is resolved in favor of the Veteran. Dr. R.D.H. and Dr. E.A. believe that there is a connection between stress to include PTSD and the gastrointestinal system to include Crohn’s disease, while Dr. B.D. does not. However, Dr. R.D.H. and Dr. E.A. cite to specific medical literature that supports their opinion, while Dr. B.D. does not. These medical opinions demonstrate that the Veteran’s Crohn’s disease was aggravated by his PTSD, and service connection is warranted. Perforation and resection of large intestine, with incisional hernia As noted, the Veteran contends that he sustained a perforated colon during a colonoscopy at a VA facility. He contends that he is entitled to service connection for the residuals of this injury, to include the surgery that repaired the injury and an incisional hernia. VA treatment records show that the Veteran underwent a routine colonoscopy on May 7, 2009. A May 6, 2009 surgery nursing note states that the purpose of the procedure was to “Check on progress of problems in colon and stomach”. This record shows that his problems included Crohn’s disease, and that a previous colonoscopy had identified ulceration of the left colon, transverse colon, and near the ileocecal valve. The Veteran was provided with a consent form that explained the risks and dangers of a scheduled colonoscopy. These risks included a tear in the wall of the colon that might require surgery. The Veteran acknowledged having the risks explained to him and signed this form, dated May 7, 2009. The record of the procedure states that there were no complications. However, private medical records from May 2009 show that the Veteran was seen in an emergency room with complaints of abdominal pain. He was noted to have undergone an EGD and colonoscopy the previous day at a VA facility. A May 8, 2009 VA treatment note shows that the Veteran was seen for complaints of abdominal pain. He was first seen at a private facility but transferred to VA. The Veteran was noted to have Crohn’s disease and to have undergone a routine colonoscopy the previous day, at which time a strictured, tortuous area of the ascending colon was encountered and biopsied. An examination resulted in an impression of pneumoperitoneum, suspected secondary to colonoscopic negotiation of strictured ascending colon. An exploratory laparotomy, likely with partial colectomy was believed the safest option. Another May 8, 2009 VA treatment note states that the Veteran was scheduled for an exploratory laparotomy for free air to treat a probable perforated viscus. A consent form for the laparotomy and small bowel resection was obtained on May 8, 2009. VA surgical records show that the Veteran underwent a right hemicolectomy on May 9, 2009. A December 13, 2010 VA medical opinion states that the Veteran underwent colonoscopy on May 7, 2009 because of abdominal pain and a previous diagnosis of Crohn’s disease. Shortly after, the Veteran was found to have a colonic perforation, and on May 9, 2009 he underwent a right hemicolectomy. It was noted that his path confirmed active colitis consistent with Crohn’s disease. Later, the Veteran developed an incisional hernia. An April 2018 VA hernia examination confirms that the Veteran has a current diagnosis of a ventral hernia. An April 2018 VA examination for intestinal surgery by Dr. B.D. states that the Veteran had a history of intestinal surgery. This was a resection of the large intestine. The reason for surgery was stated to be colon perforation during colonoscopy to assess the activity of Crohn’s disease. The Veteran also had a history of ventral hernia repairs in February 2012 and April 2012, and incisional hernia repair in April 2012. In the April 2018 opinions from Dr. B.D., she says that the records clearly show the Veteran’s colonoscopy was done to assess the activity of his Crohn’s disease. A veteran may be awarded compensation for additional disability, not the result of willful misconduct, if the disability was caused by hospital care, medical or surgical treatment, or examination furnished the Veteran under any law administered by VA, either by a VA employee or in a VA facility as defined in 38 U.S.C. § 1701(3)(A) (2012), and the proximate cause of the disability was (1) carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing the hospital care, medical or surgical treatment, or examination, or (2) an event not reasonably foreseeable. 38 U.S.C. § 1151; 38 C.F.R. § 3.361(c), (d)(1), (d)(2). However, the Board agrees with the alternative theory for compensation that was presented by the Veteran’s representative, and finds that service connection for the residuals of the May 2009 colonoscopy and hemicolectomy as secondary to his service connected Crohn’s disease is warranted. As discussed, service connection is warranted for a disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). In this case, the medical records without question establish that the May 2009 colonoscopy was performed to examine the Veteran’s Crohn’s disease. This was acknowledged in both the December 2010 and the April 2018 VA opinions. As service connection has now been established for Crohn’s disease, it follows that service connection is also warranted for additional disability that results from the treatment of this disability. This includes the residuals of the colonoscopy that was conducted on May 7, 2009 and the residuals of the hemicolectomy on May 9, 2009, to include the incisional hernia. Therefore, service connection for these disabilities as secondary to the Veteran’s service connected Crohn’s disease is established. As service connection is established, the provisions of 38 U.S.C. § 1151 are no longer relevant and no further discussion is required. Paul Sorisio Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. L. Prichard, Counsel