Citation Nr: 1820179	
Decision Date: 04/06/18    Archive Date: 04/16/18

DOCKET NO.  14-38 040	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Louis, Missouri


THE ISSUE

Entitlement to service connection for a gastrointestinal disorder, to include ulcerative colitis.


REPRESENTATION

Appellant represented by:	Jeffrey J. Bunten, Attorney


WITNESSES AT HEARING ON APPEAL

The Veteran (Appellant) and his spouse


ATTORNEY FOR THE BOARD

L.M. Yasui, Counsel

INTRODUCTION

The Veteran, who is the appellant in this case, served on active duty from April 1973 to 1976.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri.

In January 2018, the Veteran and his spouse testified in a Videoconference Board hearing before the undersigned Veterans Law Judge.  A copy of the hearing transcript is associated with the file located in the Veterans Benefits Management System (VBMS).  

After reviewing the contentions and evidence of record, including the applicable regulations and case law, the Board finds that the issue on appeal is more accurately stated as listed on the title page of this decision.  In the October 2012 rating decision, the RO denied service connection for ulcerative colitis, status post colon resection, and service connection for gastrointestinal complications.  Pursuant to an October 2013 Notice of Disagreement, wherein the Veteran disagreed solely with the denial of service connection for gastrointestinal complications, the Veteran was provided a Statement of the Case in August 2014, which was timely perfected in an October 2014 Substantive Appeal.  The Veteran did not initiate an appeal as to the issue of service connection for ulcerative colitis, status post colon resection, with a timely Notice of Disagreement.  Significantly, however, the Veteran has consistently reported that the symptoms associated with the gastrointestinal disorder, which have continued from service to the present, include loose bowels, diarrhea, and bloody stools.  See Hearing Transcript at 15.  In this regard, the issue on appeal encompasses all conditions that may be manifested by loose bowels, diarrhea, and bloody stools.  See Clemons v. Shinseki, 23 Vet. App. 1 (2009) (holding that the scope of a disability claim includes any disability that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record).  As such, given the Veteran's contentions and the Court's holding in Clemons, the Board finds that the issue on appeal is more appropriately characterized by service connection for a gastrointestinal disorder, to include ulcerative colitis.


FINDING OF FACT

The Veteran did not sustain a gastrointestinal injury or disease in service.


CONCLUSION OF LAW

The criteria for service connection for a gastrointestinal disorder have not been met.  38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2017).


REASONS AND BASES FOR FINDING AND CONCLUSION

Duties to Notify and Assist

With respect to the Veteran's appeal decided herein, VA has met all statutory and regulatory notice and duty to assist provisions.  See 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2017); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015).

The Board notes that neither the Veteran nor his representative has stated that there are missing service treatment records.  The record shows that the Veteran submitted an original claim for compensation benefits in September 1985.  In October 1985, VA requested the Veteran's service treatment records from the National Personnel Records Center, which records were sent to VA the following month.  In April 2013, a rating specialist noticed that there was no separation examination with the Veteran's service treatment records.  The rating specialist noted that the Veteran should be contacted and asked if he had a separation examination and asked if he was provided a separation physical.  In July 2013, VA contacted the Veteran and told him that the service treatment records it had did not include a separation physical.  It asked the Veteran if he had a copy of the separation physical, to please send it to VA and that if he did not have a separation physical when he was released from service, he should inform VA of such fact.  The Veteran did not respond to this inquiry.  The record shows that the Veteran's representative received a copy of the claims file in its entirety in December 2014, which would include the July 2013 letter that informed the Veteran there was no separation physical in the service treatment records in VA's possession.  The Board reiterates that neither the Veteran nor his representative has raised an issue of incomplete service treatment records.  The Board finds that the service treatment records are complete.

During the January 2018 Videoconference Board hearing, the Veteran identified outstanding post-service VA and private treatment records, purporting to show treatment for gastrointestinal problems as early as nine months after service discharge.  However, as explained herein, the Board has found that the weight of the evidence demonstrates that the Veteran did not sustain a gastrointestinal injury or disease in service, and, even if, arguendo, there were to be found, upon further review, a current gastrointestinal disability or symptoms of disability after service, because no in-service injury or disease to which a competent medical opinion could relate any current disability or a factual basis of continuous symptoms that would support an opinion, there is no reasonable possibility that post-service gastrointestinal disorder could aid in substantiating the current claim of service connection for a gastrointestinal disorder.  See 38 U.S.C. § 5103A(a)(2) (VA "is not required to provide assistance to a claimant . . . if no reasonable possibility exists that such assistance would aid in substantiating the claim"); 38 C.F.R. § 3.159(d) (VA to discontinue assistance where there is "no reasonable possibility that further assistance would substantiate the claim).  The duty to assist of obtaining post-service treatment records is not invoked in this case because there is no reasonable possibility that such assistance would aid in substantiating service connection for a gastrointestinal disorder.  See 38 U.S.C. § 5103A(a)(2); 38 C.F.R. § 3.159(d).

Service Connection for a Gastrointestinal Disorder

Service connection may be granted for disability arising from disease or injury incurred in or aggravated by active service.  38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a).  Service connection may be granted for any disease 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).  As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service.  Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); see also Hickson v. West, 12 Vet. App. 247, 253 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996).

When all the evidence is assembled, 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 a claim, in which case, the claim is denied.  38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

The Veteran contends that he experienced dysentery in service, which resulted in the current gastrointestinal disorders, to include ulcerative colitis.  Upon review of all the evidence of record, both the lay and medical, the Board finds that the weight of the competent and credible evidence demonstrates that the Veteran did not sustain a gastrointestinal injury or disease in service, nor did he demonstrate symptoms of a gastrointestinal disorder in service.  Service treatment records do not reflect any history, complaints, treatment, or diagnosis of any gastrointestinal disorder.  The complaints and symptoms for which the Veteran did seek treatment or report to medical professionals during service included other conditions, such as blisters, cold symptoms, and depression, which suggests it is highly likely that, if the Veteran experienced any gastrointestinal problems or injury, he would have also reported those symptoms and/or sought treatment.  See Kahana v. Shinseki, 24 Vet. App. 428, 438 (2011) (stating that VA may use silence in the service treatment records as evidence contradictory to a veteran's assertions if the service treatment records appear to be complete and the injury, disease, or symptoms involved would ordinarily have been recorded had they occurred) (Lance, J., concurring); Cf. AZ v. Shinseki, 731 F.3d 1303 (Fed. Cir. 2013) (recognizing and applying the rule that the absence of a notation in a record may be considered if it is first shown both that the record is complete and also that the fact would have been recorded had it occurred); Buczynski v. Shinseki, 24 Vet. App. 221, 224 (2011) (the absence of a notation in a record may only be considered if it is first shown both that the record is complete and also that the fact would have been recorded had it occurred); see also Fed. R. Evid. 803(7) (indicating that the absence of an entry in a record may be evidence against the existence of a fact if such a fact would ordinarily be recorded).

The Board has relied on not only the absence of service treatment records for complaints of, and treatment for, gastrointestinal symptoms in service, but also the evidence of record that is inconsistent with the Veteran's contentions regarding the onset (incurred during service) of gastrointestinal symptoms.  See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (lengthy period of absence of medical complaints for condition can be considered as one factor in resolving a claim); see also Pond v. West, 12 Vet. App. 341 (1999) (although Board must take into consideration the veteran's statements, it may consider whether self-interest may be a factor in making such statements).  While the Veteran initially filed a claim for benefits after discharge from service in September 1985 (service connection for depression), he did not mention gastrointestinal problems or file a claim of service connection for a gastrointestinal disorder until August 2012.  This tends to suggest to the Board that there were no pertinent gastrointestinal symptoms at the time he submitted a claim for VA compensation in September 1985.

While inaction regarding filing a claim is not necessarily indicative of the absence of symptoms, where, as here, a veteran takes action regarding another claim, it becomes reasonable to expect that he or she is presenting all issues for which he or she is experiencing symptoms that the veteran believes are related to service.  The Veteran demonstrated that he understood the procedure for filing a claim for VA compensation, and he followed that procedure in another instance where he believed he was entitled to that benefit.  In such circumstances, it is more reasonable to expect a complete reporting than for certain symptoms to be omitted.  Thus, the Veteran's inaction regarding a claim or mention of a gastrointestinal disorder, when viewed in the context of his actions of making another claim for compensation, may reasonably be interpreted as indicative of the lack of gastrointestinal symptoms at the time he filed the claim prior to August 2012.

Further, in a November 2009 VA treatment record (located in the Legacy Content Manager Documents, formally Virtual VA), the Veteran reported that he had dysentery about three times when he was stationed Turkey.  In contrast and inconsistent with the November 2009 record, during the January 2018 Videoconference Board hearing, the Veteran testified that, while in Turkey, he reported to the dispensary on a weekly basis to obtain Lomotil for the dysentery, which continued for eight (8) months.  Hearing Transcript at 4.

The Veteran also testified that, during service after February 1975 and before service discharge in June 1976, he once sought treatment at the dispensary at Tinker Air Force Base in Oklahoma City, Oklahoma, for what he thought was the cold or the flu with symptoms of bleeding.  See Hearing Transcript at 6.  He reported that, at that time, he was told that he had hemorrhoids and was recommended hemorrhoid cream for treatment.  Inconsistent with the Veteran's testimony, while a service treatment record from September 1975 reflects treatment for a cough and a sore throat (diagnosed as an upper respiratory infection), and continued complaints at sick call in October 1975 of a head cold with nasal congestion, the service treatment records are absent for any complaints of bleeding or hemorrhoids with recommended treatment with hemorrhoid cream.  In short, the absence of any in-service complaint, finding, or reference to treatment for a gastrointestinal disorder or any gastrointestinal-related symptoms, weighs against a finding that the Veteran had a gastrointestinal disorder in service or sustained an in-service injury or disease of the gastrointestinal system.

For the reasons discussed above, the Board finds that the weight of the evidence demonstrates that the Veteran did not sustain an injury or disease related to a gastrointestinal disorder during service.  As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application, and the appeal must be denied.  38 U.S.C. § 5107; 38 C.F.R. § 3.102.  

The Board acknowledges that the Veteran submitted an October 2013 letter from his private treating physician, Dr. A.T., who opined that there is at least a 50 percent possibility that the colonic infections (dysentery) were connected with the Veteran's current ulcerative colitis.  Here, because the Board has determined that there is no existence of a gastrointestinal injury or disease in service, it does not reach the additional question of the relationship (nexus) between any gastrointestinal disorder and service.  Regardless, this medical opinion is based on an inaccurate factual history and, as a result, has no probative value.  See Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (the Board is not bound to accept a physician's opinion when it is based exclusively on the recitations of a claimant that have been previously rejected).


ORDER

Service connection for a gastrointestinal disorder, to include ulcerative colitis, is denied.




____________________________________________
A. P. SIMPSON
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs