Citation Nr: 1808210 Decision Date: 02/08/18 Archive Date: 02/20/18 DOCKET NO. 10-09 086 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for diverticulitis. REPRESENTATION The Veteran represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD I. M. Hitchcock, Associate Counsel INTRODUCTION The Veteran had active military service from September 1989 to March 1995. The evidence of record reflects that he served in Bahrain from January 1991 to May 1991. These matters come before the Board of Veterans' Appeals (Board) on appeal from an August 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. In June 2011, the Veteran testified at a Travel Board hearing before the undersigned Veteran's Law Judge (VLJ) at the Nashville, Tennessee RO. A transcript of this hearing has been associated with the claims file. This matter has been remanded previously on several occasions: January 2013, November 2013, August 2014, and February 2016. As part of these remands, the AOJ was directed to further adjudicate the issues in this appeal and on the issue of service-connection for a bilateral foot condition. In December 2016, the RO granted service connection for this disorder. Therefore, this issue is no longer properly before the Board. The Board notes that the Veteran properly perfected an appeal for increased rating for his service-connected insomnia. However, this appeal has not yet been certified to the Board. As it appears that the RO is still developing that appeal, the Board finds that the Veteran's claim for increased rating for his service-connected insomnia is not ready for a disposition. The issue of service connection for bilateral hearing loss is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT There is no probative evidence that the Veteran's diverticulitis had its onset in or is otherwise related to his active service or his service-connected disabilities. The Veteran's epigastric symptoms that were present in-service are related to his service-connected gastroesophageal reflux disease (GERD), which is an upper-gastrointestinal disability, not diverticulitis, a lower-intestinal disability. CONCLUSION OF LAW Service connection for diverticulitis is not established. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303. 3.310 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran testified to his history of gastrointestinal (GI) issues at the June 2011 hearing. He related that he has had a history of difficulty swallowing, Crohn's disease, acid reflux, and GI issues. He contends that his exposure to biological and chemical weapons (herein after "exposure") in service led to his diverticulitis. Alternatively, he believes that his diverticulitis is secondary to his service-connected irritable bowel syndrome (IBS) and/or gastroesophageal reflux disease (GERD). Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110; 38 C.F.R. § 3.303(a). Direct service connection requires evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury. Secondary service connection may also be granted when there is evidence that the nonservice-connected disability is either proximately due to or the result of a service-connected disability; or aggravated (increased in severity) beyond its natural progress by the service-connected disability. 38 C.F.R. § 3.310; see Amin v. Shinseki, 26 Vet. App. 136 (2013). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the Veteran. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Veteran first attended a VA GI examination in May 2009. The examiner conducted a thorough review of the Veteran's file and service treatment records. Note: All GI examinations note a similar history of the following pertinent records. Records from between 1990 and 1991 note GI complaints including nausea, vomiting, diarrhea, and rectal/anal fissures/abrasions. Diagnoses during this time are for acute gastroenteritis and pharyngitis. An upper GI series from April 1994 showed mild to moderate reflux, mild to moderate gastritis, and significant duodenitis. More recent medical documents note additional GI issues. However, specific to the Veteran's lower intestinal track, a February 2005 note referenced a biopsy of the colon and stomach that showed no evidence of any significant abnormality, with minimal esophagitis and no evidence of colitis. He was hospitalized in November 2005 with acute diverticulitis. He underwent a procedure in January 2006 to resect his colon, and diverticulitis was confirmed at that time. Therefore, the first element of service connection is established. During the May 2009 examination, the VA examiner noted that the Veteran's service treatment records refer to acute gastroenteritis, but there is no mention of diverticulosis or diverticulitis. Indeed, service connection is in effect for gastroesophageal reflux disease with irritable bowel syndrome (claimed as gastric reflux disease, constipation, diarrhea, bowel problems, stomach problems and chest discomfort). Because the opinion did not address whether the stated in-service symptoms were early signs of the current diverticulitis, the Board remanded the claim. The Veteran had a second VA GI examination in February 2013. The VA examiner noted that the Veteran had a colon resection and that diverticulitis is a separate medical condition. Further, the examiner notes that the Veteran did not incur diverticulitis during his active military service and it is not related to his service-connected IBS, with constipation, or GERD symptoms. However, the examiner provided no reasons for the opinion given and failed to provide opinions regard exposure and aggravation. Therefore, the claim was remanded again. The Veteran had a third VA GI examination in January 2014. The VA examiner found that it is less likely than not that the Veteran's diverticulitis, status post-colon resection, with residuals, was caused or aggravated by his active duty service. The examiner noted that the Veteran's GI symptoms during military service were related to his upper GI conditions. As to whether the Veteran's diverticulitis is associated with his service-connected GERD, the examiner stated that GERD is a condition affecting the upper GI tract and does not contribute to the development of diverticulitis, which affects the lower GI tract. Regarding service-connected IBS, the examiner stated that IBS is a functional GI motility disorder and that research known to the examiner has not identified diverticulitis as a potential co-morbid condition with IBS. Further, the VA examiner found it is less likely than not that the Veteran's diverticulitis was caused by chemical exposure because diverticulitis is a condition with a clear and specific etiology, apparently relying on the unexplained illness regulation, without considering whether a direct relationship was found. However, the examiner did not give an opinion about whether the exposure aggravated the condition. The claim was once again remanded. The Veteran had a fourth VA GI examination in June 2015. The VA examiner found that diverticulitis is a condition caused by outpouching in the intestines, chiefly thought to be a problem related with low fiber diet, constipation, aging, and straining. Further, diverticulitis occurs with inflammation or infection in the diverticula and it has a known etiology. The examiner concluded that the diverticulitis is less likely than not to have been caused during his military service or aggravated by service. However, this opinion did not address whether the Veteran's exposure caused or aggravated the Veteran's diverticulitis and the claim was remanded again. The last VA GI examination was conducted in March 2016, with an addendum opinion in August 2016. The overall analysis was similar to that opinion. The examiner found that it is less likely than not that the Veteran's diverticulitis was either incurred during or aggravated by his active service, to include exposure. The examiner based this opinion on a review of the file, the Veteran's lay statements, and that there is no medical literature known to the examiner that links diverticulitis with exposure. Based on the foregoing, the Board finds that the probative evidence of record fails to show a link between the Veteran's service, to include chemical exposure and his current diverticulitis. This is most clearly evidenced by the opinions of the January 2014 and March 2016 examiners. As above, the VA examiners reviewed the claims file, interviewed the Veteran, and performed GI examinations. The March 2016 examiner specifically noted the Veteran's in-service treatment for GI issues, post-service treatment of diverticulitis, and his history of exposure, and opined that it was less likely than not that diverticulitis is related to military service, to include exposure. The January 2014 examiner provided an opinion on secondary service connection. She found that it is less likely than not that the Veteran's diverticulitis was caused by or aggravated by his service-connected GERD or IBS, with explanations as to why she formed her opinions. The Board accords great probative weight to these two VA examiners' opinions. They are predicated on interviews with the Veteran and a detailed review of his records, including his in-service and post-service records. Further, both cite to the known etiology of diverticulitis and the lack of medical literature supporting the Veteran's position. These opinions sufficiently address the potential link between the present diverticulitis, service, and secondary service connection, and they both contain clear conclusions with supporting data, as well as a reasoned medical explanation connecting the two. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A] medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions"). There are no contrary medical opinions of record. The Board notes that the Veteran has contended on his own behalf that his diverticulitis is related to his military service or is secondary to his service-connected IBS and GERD disorders. He has also taken general issue with the examiners' opinions, as noted in the May 2017 informal hearing presentation from his representative. Specifically, it notes that the Veteran found that the "supporting rationales are flawed." Lay witnesses are competent to provide testimony or statements relating to symptoms or facts of events that the lay witness observed and that are within the realm of his or her personal knowledge, but not competent to establish that which would require specialized knowledge or training, such as medical expertise. In the instant case, the Board finds that the question regarding the potential relationship between the Veteran's diverticulitis and any instance of his military service, to include his exposure, to be complex and inherently medical in nature. Therefore, while the Veteran is competent to describe his in-service GI issues, his exposure, and his current GI problems, he cannot, as a layperson, provide competent medical evidence establishing a connection between his current diverticulitis and his military service, to include exposure. Moreover, he has offered only conclusory statements regarding the relationship between his in-service exposure and his diverticulitis, and no specific arguments as to why the examiners' opinions have rationales that are flawed. Therefore, as the VA examiners possess the expertise necessary to identify the relevant factors to consider in assessing causality and provided opinions in consideration of all of the relevant evidence, the Board accords great probative weight to these opinions. As such, they are not outweighed by the lay opinion asserted by the Veteran. Based on the foregoing, the Board finds that service connection is not warranted for diverticulitis. In reaching this decision, the Board has considered the applicability of the benefit of the doubt doctrine; however, as the preponderance of the evidence is against the Veteran's claim, the benefit of the doubt provision does not apply. ORDER Service connection for diverticulitis is denied. REMAND As explained above, this matter has been remanded several times to develop the Veteran's claim of bilateral hearing loss. In January 2013, the matter was remanded to obtain a VA audiological examination. In November 2013, the Board found that the examination did not address the Veteran's lay statements surrounding his bilateral hearing loss. In August 2014, the matter was remanded because no additional opinion was received as directed by the November 2013 remand. The most recent remand, dated February 2016, found that the VA audiological examination dated June 2015 was inadequate because it did not consider the findings of the January 2013 VA audiological examination. The matter was again remanded so that the Veteran could have an adequate audiological examination. Pursuant to the February 2016 remand, a VA audiological examination of the Veteran was conducted in February 2016. After review of the file and examination, the VA examiner noted the pertinent history of the Veteran's service, his exposure to noise, and prior findings of audiological examinations. The VA examiner concluded that the Veteran's current hearing loss was less likely as not caused by or a result of military noise exposure. In so finding, the VA examiner explained that there were no significant threshold shifts in service and, therefore, there is no evidence that noise exposure caused a permanent noise injury affecting the Veteran's hearing sensitivity. However, the VA examiner did not consider the Veteran's lay statements about his hearing loss: that he has had bilateral hearing loss continuously since his active duty service. The competent lay evidence establishes that the Veteran currently experiences the recurrent symptom of difficulty hearing. The Veteran is also competent to contend that he had these symptoms in and since service. The question therefore remains whether the evidence indicates that there may be an association. Such an indication will be found when there is "medical evidence that suggests a nexus but is too equivocal or lacking in specificity to support a decision on the merits; or credible evidence of continuity of symptomatology such as pain or other symptoms capable of lay observation." McLendon v Nicholson, 20 Vet App 79, 83 (2006). Accordingly, the case is REMANDED for the following action: 1. Return the claims file to the VA examiner who conducted the Veteran's February 2016 audiological examination. The claims file and a copy of this Remand must be made available to the examiner. The examiner should note in the examination report that the claims file and the Remand have been reviewed. If the February 2016 VA examiner is not available, the claims file should be provided to an appropriate medical professional so as to render the requested opinion. The examiner is asked to provide an opinion as to the following: Is it at least as likely as not (50 percent or greater probability) that the Veteran's bilateral hearing loss began during service or is etiologically related to exposure to excessive noise during active duty service, including exposure to the noise of his service. A complete answer should address the Veteran's lay statements (including his history of symptoms) and any post-service noise exposure. In providing these opinions, the examiner must acknowledge the Veteran's conceded exposure to excessive noise in service. The examiner must also recognize that the fact that there was no diagnosis of bilateral hearing loss in service is not, by itself, a sufficient reason to deny service connection for bilateral hearing loss. The examiner is asked to explain the reasons behind any opinions expressed and conclusions reached. The examiner is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it. 2. After completing the aforementioned, readjudicate the Veteran's claims for entitlement to service connection for bilateral hearing loss in light of all additional evidence received. If the benefits sought on appeal remain denied, the Veteran and his representative should be furnished with a supplemental statement of the case and afforded an opportunity to respond before the file is returned to the Board for further appellate consideration. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012). ______________________________________________ BETHANY L. BUCK Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs