Citation Nr: 1822158 Decision Date: 04/13/18 Archive Date: 04/25/18 DOCKET NO. 14-31 396 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUE Entitlement to service connection for Crohn's disease. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD G.C., Associate Counsel INTRODUCTION The Veteran served on active duty from June 1967 to December 1969 in the Air Force. The Veteran served honorably, and among other awards, received the Vietnam Service Medal. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a July 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia. FINDING OF FACT Crohn's disease did not have onset in service and was not caused or permanently aggravated by the Veteran's active military service. CONCLUSION OF LAW The criteria for entitlement to service connection for Crohn's disease have not been met. 38 U.S.C. §§ 101, 1110, 1112, 1131 (2012); 38 C.F.R. §§ 3.303, 3.310 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist VA must provide claimants with notice and assistance in substantiating claims for benefits. 38 U.S.C. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Proper notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 U.S.C. § 5103 (a); 38 C.F.R. § 3.159 (b)(1). There is no indication in this record of a failure to notify. See Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). The RO mailed the Veteran VCAA letters detailing the evidentiary requirements of a service connection claim, the evidence that the Veteran should send to VA, and VA's responsibilities to assist the Veteran. The Veteran has neither alleged, nor demonstrated, any prejudice with regard to the content or timing of VA's notices or other development. See Shinseki v. Sanders, 129 U.S. 1696 (2009) (clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination). Pursuant to the duty to assist, VA must obtain "records of relevant medical treatment or examination" at VA facilities. 38 U.S.C. §5103A (c)(2). All records pertaining to the conditions at issue are presumptively relevant. See Moore v. Shinseki, 555 F.3d 1369, 1374 (Fed. Cir. 2009); Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2010). In addition, where the Veteran "sufficiently identifies" other VA medical records that he or she desires to be obtained, VA must also seek those records even if they do not appear potentially relevant based upon the available information. Sullivan v. McDonald, 815 F.3d 786, 793 (Fed. Cir. 2016) (citing 38 C.F.R. § 3.159 (c)(3)). The Board finds that VA adhered to its duty to assist by procuring all relevant records. D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c). The evidence of record contains in-service treatment records, outpatient treatment records, and military personnel records. No other relevant records have been identified and are outstanding. For the foregoing reasons, the Board concludes that VA's duty to assist in procuring all relevant records have been fulfilled with respect to the issue on appeal. The duty to assist also includes providing a medical examination or obtaining a medical opinion when necessary to make a decision on a claim, as defined by law. 38 C.F.R. § 3.159(c)(4). In this case, the Veteran was afforded a VA medical examination in December 2012. Based on the examination and the records, the VA medical examiner was able to provide an adequate opinion. Accordingly, the Board determines that the VA's duty to provide a medical examination and to obtain a medical opinion has been satisfied. In conclusion, the Board finds that the duty to assist in this case is satisfied since VA has obtained all relevant identified records and provided the Veteran with VA medical examinations. 38 C.F.R. § 3.159(c)(4). Further, the Board finds the available medical evidence is sufficient for adequate determinations; and there has been substantial compliance with all pertinent VA law and regulations, as to not cause any prejudice to the Veteran. Service Connection Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303 (a) (2017). In general, service connection requires competent and credible evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the current disability. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). 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) (2017). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of the matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107 (2012); 38 C.F.R. § 3.102 (2017); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), 1 Vet. App. At 54. The Veteran's service treatment records (STRs) were reviewed, and do in fact contain some gastrointestinal complaints. Specifically, in October 1967 the Veteran complained of stomach pain; in December 1976, the Veteran complained of stomach cramps; and in October 1969, the Veteran reported a burning sensation in the upper part of his stomach. However, there is no follow-up care of record which would suggest permanence or chronicity of any particular gastrointestinal condition. In fact, on discharge examination in December 1969, the Veteran's abdomen, viscera, anus, rectum, endocrine and genitourinary systems were noted to be normal. Nothing was listed in the summary of defects and diagnoses regarding any gastrointestinal issues or complaints, and in fact, the Veteran denied any significant medical or surgical history other than that which was listed. Private treatment records reflect that in November 1994, the Veteran presented to a private hospital for gastrointestinal complaints, including increasing nausea and hunger pain, and gastrointestinal bleeding. It was noted that he was diagnosed with Crohn's disease in 1990. An endoscopy was conducted, and the Veteran was assessed to be status post gastrojejunostomy without resection, to have anastomotic ulcers of the jejunal side of the gastrojejunostomy most likely causing bleeding, and probable recurrent Crohn's disease. The Veteran underwent another endoscopy in May 1996, showing similar results, including an anastomotic ulcer at the gastrojejunostomy and inflammation in the apex of the duodenal bulb. In November 1997, another endoscopy was conducted, showing probable Crohn's disease involving the duodenum. Private treatment records dating from July 1993 to August 2001 show sporadic reoccurrences of the Veteran's Crohn's disease. In February 2001, the Veteran had a CT scan of the abdomen which showed a pancreatic mass. The mass was assessed as probable carcinoma of the pancreas, but the Veteran's history of Crohn's disease was noted as possibly related. In November 2001, another endoscopy showed a gastric outlet obstruction, assessed as probably related to Crohn's disease. In May 2001, the Veteran underwent a surgical closure of a colostomy, after a prior pancreatic oduodenectomy. In April 2003, Dr. J.M. examined the Veteran, stating that he had a gastric surgery revision one year and a half prior. Pertinently, the doctor stated that the Veteran has been "doing great", and that his Crohn's disease is inactive. Next, in January 2006, Dr. J.M. again saw the Veteran for diarrhea complaints. Pertinently, it was noted that in 2001, the Veteran developed what seemed to be a gastric outlet obstruction, which was thought to have resulted from an activation of Crohn's disease. However, after surgery, it was found that the Veteran had an abscess, and had been doing well since. In June 2012, the Veteran was afforded a VA examination to assess the nature and etiology of his Crohn's disease. The examiner reviewed the entire claims file, and confirmed the Veteran's diagnosis of Crohn's disease. It was noted that continuous medication was required for control of the Veteran's condition. The Veteran was also noted to have severe diarrhea since a Whipple procedure. No episodes of bowel disturbance with abdominal distress or exacerbations or attacks were noted, nor was any weight loss, tumors or neoplasms. A blood test was conducted. Pertinently, the examiner opined that the Veteran's current Crohn's disease is less likely than not incurred in or caused by service. The examiner offered a detailed rationale. The examiner stated that the Veteran does not have current acute or flared Crohn's disease findings. The examiner further pointed to medical research stating that NSAID prescriptions must be for at least 15 days per month to increase the risk of Crohn's disease, and stated there is no indication the Veteran was prescribed nonsteroidal or aspirin medications for such lengths of time. Furthermore, the examiner stated that there is no indication of a cause in the Veteran's military record for his Crohn's disease. The examiner in fact stated that the Crohn's disease is most likely caused by a combination of immunological factors in conjunction with the Veteran's personal health care habits, and/or contact with environmental triggers. In December 2012, the Veteran underwent a colonoscopy and EGD. Normal findings were noted. In fact, the reviewing physician stated that the Veteran's examinations were "reassuring", and Crohn's disease was ruled out. VA medical records were also reviewed. In September 2014, the Veteran had a follow-up visit after the 2012 colonoscopy which found no evidence of Crohn's disease. The Veteran denied any current complaints, though he has multiple daily bowel movements. The Veteran's Crohn's disease was assessed as "currently stable", with a recommendation for a follow-up in five years. Upon careful review of the record, the Board has concluded that service connection is not warranted for Crohn's disease. While there is a post-service diagnosis of Crohn's disease, the most competent and probative evidence of record does not etiologically link any such diagnosis to service or any incident or exposure therein. Rather, the record demonstrates that a substantial period elapsed between service and this diagnosis in 1990, and is negative for any competent evidence suggesting that Crohn's disease is related to service. As noted, relevant examinations were negative at separation from service in December 1969, and the initial diagnosis of Crohn's disease dates to many years following service. There is simply no evidence of a link between this diagnosis and service. In so finding, the Board finds compelling that the May 2012 examiner considered the entire record and ultimately concluded that Crohn's disease is not related to service. In assigning high probative value to this opinion, the Board notes that the examiner reviewed the record, obtained a history from the Veteran, and conducted a complete examination. The examiner also included a discussion of the rationale underlying the opinion. There is no indication that the examiner was not fully aware of the Veteran's past medical history or that he misstated any relevant fact. The Board thus finds the examiner's opinion to be of greater probative value than the Veteran's unsupported assertions. Importantly, there is no contradictory opinion of record. To the extent that the Veteran asserts that he has Crohn's disease that is related to service, the Board observes that he may attest to factual matters of which he has first-hand knowledge, such as subjective complaints, and his assertions in that regard are entitled to some probative weight. See Washington v. Nicholson, 19 Vet. App. 362 (2005). He is competent to report incidents and symptoms in service and symptoms since then. He is not, however, competent to render an opinion as to the cause or etiology of the current diagnosis because he does not have the requisite medical knowledge or training, and because this matter is beyond the ability of a lay person to observe. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The grant of service connection requires competent evidence to establish a diagnosis and, as in this case, relate the diagnosis to the Veteran's service. The preponderance of the evidence is against finding that any diagnosis is related to any injury or disease in service. Accordingly, the doctrine of reasonable doubt is not applicable in the instant appeal. Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990); 38 C.F.R. § 3.102 (2017). ORDER Entitlement to service connection for Crohn's disease is denied. ____________________________________________ CAROLINE B. FLEMING Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs