Citation Nr: 18122002 Decision Date: 07/27/18 Archive Date: 07/27/18 DOCKET NO. 08-01 721 DATE: July 27, 2018 ORDER Entitlement to service connection for residuals of gallbladder removal, to include as due to exposure to herbicide agents; and as secondary to medications used to treat service-connected conditions, is denied. FINDING OF FACT The Veteran’s residuals of gallbladder removal were first manifested many years after service separation and were not shown to have been caused or aggravated by any treatment for a service-connected disability or were in any other way related to service, including exposure to an herbicide agent. CONCLUSION OF LAW The criteria for service connection for residuals of gallbladder removal have not been met. 38 U.S.C. §§ 1110, 1112(a), 1116 (2012); 38 C.F.R. § 3.303, 3.307, 3.309, 3.310 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1969 to September 1971. He was awarded the Combat Infantry Badge for his service in the Republic of Vietnam. This matter is on appeal from a February 2007 rating decision and was previously remanded by the Board of Veterans’ Appeals (Board) in March 2014, September 2014, February 2016, and May 2017. In a July 2017 rating decision, the Regional Office (RO) continued to rate the Veteran’s headaches as 30 percent disabling, declined to reopen a claim for service connection for liver condition and denied service connection for deep vein thrombosis, dyspnea, hypertension, loss of vision in the right eye, and thyroid condition. The Veteran filed a notice of disagreement (NOD) in August 2017. The RO acknowledged receipt of this disagreement in correspondence to the Veteran dated September 1, 2017. To date, the RO has not yet issued a Statement of the Case. As the RO has acknowledged receipt of the Veteran’s notice of disagreement, this situation is distinguishable from Manlincon v. West, 12 Vet. App. 238 (1999), where a NOD had not been recognized. Therefore, the Board will not assume jurisdiction of these issues for the sole purpose of remanding them for a SOC. Entitlement to service connection for residuals of gallbladder removal, to include as due to exposure to an herbicide agent; and as secondary to medications used to treat service-connected conditions. In Vietnam, the Veteran sustained a head injury which has resulted in several ongoing disabilities including PTSD, a skull defect, headaches, petit mal epilepsy, hearing loss, and tinnitus. He now seeks service connection for gallbladder disease to include removal of the gallbladder, which he asserts is the result of interactions and side effects from medications prescribed for his service-connected disabilities over many years. He also contends that his gallbladder issues began in service and have been present since that time, or are related to service, including in-service exposure to herbicide agents during service in Vietnam. Service connection may be granted for disabilities resulting from disease or injury incurred or aggravated during active service. 38 U.S.C. § 1110 (2012); 38 C.F.R. § 3.303 (2018). Service connection may also be granted for any injury or disease diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). Generally, service connection requires (1) evidence of a current disability; (2) medical evidence, or in certain circumstances lay testimony, of in-service incurrence or aggravation of an injury or disease; and (3) evidence of a nexus between the current disability and the in-service disease or injury. See Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff’d per curiam, 78 F.3d 604 (Fed. Cir. 1996); see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303. Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden/Caluza elements is through a demonstration of continuity of symptomatology. However, service connection based solely on continuity of symptomatology is only available for claims predicated on chronic diseases as set forth under 38 C.F.R. § 3.309 (a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Moreover, where a veteran served continuously for ninety (90) days or more during a period of war, or during peacetime service after December 31, 1946, and calculi of the gallbladder becomes manifest to a degree of 10 percent within one year from date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. §§ 1101, 1112, 1113, 1137 (2012); 38 C.F.R. §§ 3.307, 3.309. Service connection may also be granted on a secondary basis for a disability that is proximately due to, the result of, or aggravated by a service-connected disease or injury. 38 C.F.R. § 3.310 (a) (2018). Service connection on a secondary basis may not be granted without medical evidence of a current disability and medical evidence of a nexus between the current disability and a service-connected disability. See Allen v. Brown, 7 Vet. App. 439, 488 (1995) (en banc). The Veteran had active service in the Republic of Vietnam and is thus presumed to have been exposed to herbicide agents. Indeed, a Veteran who served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, will be presumed to have been exposed to an herbicide agent during such service unless there is affirmative evidence to the contrary. 38 C.F.R. § 3.307 (a)(6). The term “herbicide agent” means a chemical in an herbicide, including Agent Orange, used in support of the United States and allied military operations in the Republic of Vietnam during the Vietnam Era. 38 C.F.R. § 3.307 (a)(6)(i). Regulations provide that if a Veteran was exposed to an herbicide agent during active service, presumptive service connection is warranted for the following disorders: chloracne or other acneform disease consistent with chloracne; type II diabetes mellitus, Hodgkin’s disease; multiple myeloma; Non-Hodgkin’s lymphoma; early onset peripheral neuropathy; porphyria cutanea tarda; prostate cancer; respiratory cancers (cancer of the lung, bronchus, larynx, or trachea); soft-tissue sarcoma (other than osteosarcoma, chondrosarcoma, Kaposi’s sarcoma, or mesothelioma); hairy cell leukemia and other chronic B-cell leukemias; Parkinson’s disease; and ischemic heart disease. 38 C.F.R. § 3.309 (e). For purposes of the aforementioned section, the term ischemic heart disease does not include hypertension or peripheral manifestations of arteriosclerosis such as peripheral vascular disease or stroke, or any other condition that does not qualify within the generally accepted medical definition of ischemic heart disease. 38 C.F.R. § 3.309 (e), Note 3 (effective August 31, 2010). The regulations do not include gallbladder disease. Through studies of the National Academy of Sciences, VA has determined that there is no positive association between exposure to herbicides and any condition for which the Secretary has not specifically determined a presumption of service connection is warranted. See Notice, 68 Fed. Reg. 27,630-41 (May 20, 2003). That stated, a claimant may still establish service connection based on exposure to herbicide agents with proof of actual direct causation. See Stefl v. Nicholson, 21 Vet. App. 120 (2007) (holding that the availability of presumptive service connection for some conditions based on exposure to Agent Orange does not preclude direct service connection for other conditions based on exposure to Agent Orange); Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994); Brock v. Brown, 10 Vet. App. 155 (1997). Upon consideration of the evidence of record, and as will be discussed below, the Board finds that the preponderance of the evidence is against a finding that the Veteran’s gallbladder disability, to include removal and removal residuals, are related to his service, or to any service-connected disability. Treatment records confirm that the Veteran was found to have acute or chronic calculous cholecystitis with a dilated common bile duct and common bile duct stone and had his gallbladder removed in June 2000. See treatment records from Appalachian Regional Healthcare, Inc. Hazard-ARH Hospital. VA obtained medical opinions from a VA examiner addressing the etiology of the Veteran’s gallbladder conditions in April 2014 and September 2014, but both opinions were deemed inadequate by the Board. In a May 2016 VA opinion, a different VA examiner found that the claimed condition (gallbladder and subsequent cholecystectomy) was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner reasoned that the Veteran’s complaints were remote and certainly could not be ascribed to gallbladder disease. The examiner noted that the Veteran was free of this and had no symptoms until he had a cholecystectomy. From 1969 to his cholecystectomy, he was not treated for gallbladder disease. Moreover, the examiner added gallbladder disease rarely occurred at such a young age and did not remain quiet for decades and then cause symptoms about 30 years later. In a May 2017 VA medical opinion, another VA examiner opined that the Veteran’s gall bladder condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event or illness, noting review of the Veteran’s records in VBMS, including but not limited to service treatment records, VAMC records, non-VA medical records and statement by the Veteran as well as interested friends and family. The examiner reasoned that the available service treatment records were silent regarding abdominal pain that would classically be associated with gallbladder disease. The examiner explained that classic gallbladder pain was located in the right upper quadrant of the abdomen, as well as the right shoulder/upper thorax region. The examiner reported that available records in the years immediately following service discharge were silent regarding abdominal symptoms. A non-VA primary care physician patient summary to VA (dated in December 1972) was silent regarding abdominal symptoms. Also, three handwritten notes from family and friends in this same time period were silent regarding the Veteran’s abdominal symptoms. Records for the period from January 1998 through April 2000 were silent regarding abdominal pain, or a history thereof. Additionally, the examiner reported that the topic of Cholecystitis was reviewed on UpToDate (last literature review April 2017, and last update December 2016) failed to reveal any new information that would be favorable to the Veteran's claim. The examiner stated that from his professional experience as both a pharmacist and physician, with approximately 40 years of clinical encounters, this clinical situation did not cause one to consider that the Veteran's gallbladder condition was present in service. The examiner added that abdominal pain was generally “NOT” an easy symptom to evaluate and arrive at a definitive diagnosis. Therefore, to the extent the Veteran had abdominal symptoms but did not report them in service, they were very difficult to assign to a gallbladder condition, especially since the gallbladder condition did not "manifest itself" until June 2000. The expert provided a list of other conditions that could give rise to symptoms in the upper abdomen, which may be confused with biliary colic or acute cholecystitis. Also with regard to the Veteran's reports that he experienced epigastric pain, nausea, vomiting, and cold sweats during service, the examiner found that this information was less likely as not due to gallbladder issues due to the location of the complaints. Also, nausea, vomiting, and cold sweats could be seen in multiple medical conditions, and were not specific. Regarding the March 2007 statement in which the Veteran reported that he sought treatment for stomach pain, sickness, vomiting, and cold sweats after service and his private doctor told him that the symptoms were related to a gallbladder problem, the examiner found that this information was not verified in the available medical records for the years immediately following service discharge. In the January 2017 statement in which the Veteran stated that he had experienced stomach problems since his time in the Army, and his gallbladder problems had been present since leaving the service until the gallbladder was finally removed, the examiner reported that the pain could have been from numerous causes, and gallbladder disease was “LESS” common in young males (relating to Veteran’s claim of the condition beginning in service). The examiner also stated that abdominal pain on a clinical basis was difficult to assign causation without specific testing. In a May 2018, a VHA medical expert opined that it was less likely than not (less than 50 percent probability) that the appellant’s gallbladder removal was related to his military service. The expert reasoned that a review of service treatment records, as well as a handwritten letter from the appellate at the time of separation form service, show no indication of any symptoms during his period of service that in any way would be suspicious for gallbladder disease. In addition, there was a letter from a private physician who reviewed the disability issues and abdominal pain suggestive of gallbladder disease was not mentioned. The expert reported that the Veteran’s gallbladder disease did not manifest until 2003 (the Board acknowledges that gallbladder disease was diagnosed in 2000), which was still well after his time in service. Collectively, the May 2016, May 2017, and May 2018 VA medical opinions are reasoned and consistent with the factual record, and thus these opinions are highly probative. See Prejean v. West, 13 Vet. App. 444, 448-49 (2000) (stating that factors for assessing the probative value of a medical opinion are the physician’s access to the claims folder and the thoroughness and detail of the opinion). Additionally, there is no competent and probative evidence to the contrary. The Board observes that the contemporaneous evidence shows that the Veteran did not report having gallbladder problems in service. The Veteran’s service treatment records are negative for a complaints, treatment, or findings of a disability affecting the gallbladder. On his September 1971 report of medical history, the Veteran specifically denied currently having or ever having frequent indigestion and stomach, liver, or intestinal trouble. An accompanying report of medical examination did not reveal any abnormalities in the abdomen and viscera or gastrointestinal and urinary system. Gallbladder problems were first reported many years subsequent to the Veteran’s period of service. When the Veteran initially complained of upper abdominal pain in June 2000, he reported a duration of four days. See June 2000 Appalachian Regional Healthcare, Inc Hazard-ARH Hospital treatment records. To the extent the Veteran asserts he did have complaints of epigastric pain, nausea, vomiting, and cold sweats during service that were unreported, VA physicians above have addressed these observations, noting that they are unlikely related specifically to gallbladder problems. In May 2016, regarding the Veteran’s assertions of symptoms beginning in service, the VA examiner found that gallbladder disease rarely occurred at such a young age. In May 2017, the examiner determined that abdominal symptoms in service were very difficult to assign to a gallbladder condition. The expert provided a list of other conditions that could give rise to symptoms in the upper abdomen, which may be confused with biliary colic or acute cholecystitis. Regarding the Veteran’s reports that he experienced epigastric pain, nausea, vomiting, and cold sweats during service, the examiner found that this information was less likely as not due to gallbladder issues due to the location. Also, nausea, vomiting, and cold sweats could be seen in multiple medical conditions, and were not specific. The examiner reported that the pain could have been from numerous causes and gallbladder disease was “LESS” common in young males (relating to Veteran’s claim of the condition beginning in service). The Board finds that the Veteran’s acute or chronic calculous cholecystitis with a dilated common bile duct and common bile duct stone and gallbladder removal were not manifested within a year of the Veteran’s separation from service and, therefore, may not be service connected on that basis. Specifically, the Board notes that the Veteran was first diagnosed with acute or chronic calculous cholecystitis with a dilated common bile duct and common bile duct stone in June 2000, over 29 years after service, and that he underwent a laparoscopy, open cholecystectomy, common bile duct exploration, and removal of common bile duct stones in June 2000. See 38 C.F.R. § 3.307(a). The Veteran also argues that service connection is warranted based on his presumptive exposure to an herbicide agent (Agent Orange). Although the Veteran is shown to have served in Vietnam, and is therefore presumed to have been exposed to herbicides such as Agent Orange, the applicable law does not include the chronic calculus cholecystitis, and dilated common bile duct with common duct stone and subsided acute pancreatitis that preceded the Veteran’s June 2000 gallbladder removal, as diseases presumed to be related to such exposure. 38 C.F.R. § 3.309(e). Additionally, there is no competent and probative evidence of record to show that the Veteran’s gallbladder disease and residuals of gallbladder removal are due to exposure to herbicide exposure on a direct basis. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994); see also 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307 (a)(6), 3.309(e). In a May 2018 VHA medical expert opined that it was less likely than not (less than 50 percent probability) that the appellant’s gallbladder removal was related to exposure to herbicide agents in the Republic of Vietnam. The expert determined that there was no established relationship between agent orange exposure and gallbladder disease in the medical literature on a current UpToDate review. The Veteran has also indicated that his physicians told him that his gallbladder problems were caused by medications taken to treat the residuals of his service-connected head injury. He asserts that if his disability claim could not be granted on a direct basis, it should be granted as secondary to his service-connected conditions, to specifically include the medications used to treat such conditions. The Board sought a VHA medical expert opinion addressing this contention, and in November 2011, Dr. J.E.P. summarized the Veteran’s medical history and prescribed medications. The expert opined that it was highly unlikely that the medications that the Veteran took for his service-connected disabilities, including his head injury and its residuals and PTSD, have caused the disorders which necessitated his gallbladder removal. The expert listed known risk factors as well as the side effects associated with his medications. He also noted that NSAIDs encompassed a broad group of medications, but none of them were felt to have a significant association with gallstones or cholecystitis. For the same reasons, the expert also opined that it was highly unlikely that the medications which the Veteran took to treat his service-connected disabilities have aggravated any gallbladder disorder, necessitating its removal. The expert suggested further review by a gastroenterologist or a clinical pharmacist. In June 2012, the Board obtained an opinion from a gastroenterologist who noted the multiple medications used to treat the Veteran’s head injury, such as phenobarbital, methocarbamol, omeprazole, Neurontin, meclizine, propoxyphene, buspirone, citalopram, etodolac, trazadone, codeine, and nonsteroidal anti-inflammatories. The expert found that it was highly unlikely that any of the medications the Veteran took for his service-connected head injury and its residuals or PTSD had caused or aggravated the disorder, which necessitated his gallbladder removal. The expert reasoned that the above-mentioned medications were not known to cause gallstones. In an addendum opinion in September 2012, the expert noted that the Veteran’s liver function tests in November 2008 had been normal, which included albumin, total bilirubin, direct bilirubin, alkaline phosphatase, AST, ALT, and his platelet count was also normal at 316, 000. There were also no reports that these medications caused gallstones. In September 2013, the Board obtained an opinion from a clinical pharmacist, who reviewed all of the medication taken by the Veteran for his disabilities as well and their likely side effects. In addition, the expert noted that Veteran has taken NSAIDs “on his own to treat his ongoing pain.” The expert offered a seemingly contradictory opinion that was clarified in a subsequent December 2013 letter. In December 2013, the expert clarified that the adverse effects of the prescribed medications that related to gallbladder were listed as being minimal (<1%). These minimal adverse effects occurred with extended use. The expert reported that she also documented form chart review that the Veteran exhibited some non-medicinal risk factors for gallbladder disease, i.e. weight gain/loss, and alcohol use. The expert opined that the Veterans claimed gallbladder disease was less likely than not caused by a reaction to or side effect of the medications prescribed by the VA for the Veteran’s service-connected disabilities. Furthermore, the expert opined that the gallbladder disease was less likely than not aggravated by a reaction to or side effect of these medications. The reason for this opinion was due to other contributing non-medicinal risk factors for gallbladder disease documented in the chart and mentioned above. In a May 2017 VA medical opinion, upon review of the record, the VA examiner reported that the topic of Cholecystitis was reviewed on UpToDate (last literature review April 2017, and last update December 2016) failed to reveal any new information that would be favorable to the Veteran's claim. The examiner stated that from his professional experience as both a pharmacist and physician, with approximately 40 years of clinical encounters, this clinical situation did not cause one to consider that the Veteran's gallbladder condition was caused by the medications mentioned in the records. The multiple expert medical opinions, all weigh against a link between the Veteran’s gallbladder disease/residuals of gallbladder removal and any of his medications used to treat his service-connected disabilities. While the Veteran is competent to report that this treating physician(s) told him that the gallbladder problems might be due to his use of specific medications, such as NSAIDs and other painkillers, his reports are of limited probative value, because there is no reported rationale supporting the opinions. The experts consulted by the Board, including a gastroenterologist, and a clinical pharmacist, have all reviewed the medications taken by the Veteran, the length of time those medications were in use, and the specific disabilities asserted by the Veteran. All of the experts have offered their opinion that the medications and the underlying conditions did not cause or aggravate the Veteran’s gallbladder disease and subsequent removal of the gallbladder. Because these opinions are based on full review of the record, and are supported by clinical rationales, they are more probative than the Veteran’s reports of what his physicians told him. Therefore, the Board finds that the preponderance of the evidence is against service connection for these disabilities on a secondary basis under 38 C.F.R. § 3.310. As to the Veteran’s beliefs that any gall bladder disorder is related to his period of service, to include by way of herbicide exposure such as Agent Orange, or in the alternative has been caused or aggravated by medications for his service-connected disabilities, the question of causation of such current gallbladder disorder extends beyond an immediately observable cause-and-effect relationship, and, as such, the Veteran is not competent to address etiology in the present case. See Jandreau supra. In this case, the Veteran does not have the requisite training or expertise to diagnose the cause of his current gall bladder disorder. The Veteran’s representative has recently argued that VA missed months of severe gallbladder problems, to include jaundice and right upper quadrant pain resulting in additional disability, and warranting consideration of compensation under the provisions of 38 U.S.C. § 1151. See the July 11, 2008 Written Brief Presentation. If the Veteran wishes to pursue a compensation claim under the provisions of 38 U.S.C. § 1151, he is free to do so, but must file the claim with VA on a form prescribed by the Secretary. The Veteran’s representative has also proposed that it may be possible the Veteran’s PTSD caused the Veteran to drink excessively, which has in turn caused liver disability, and that a liver disability, in turn could cause gallbladder problems. Pertinently, the Veteran’s representative observed in his July 2018 brief that drinking has no particular direct harmful effect on the gall bladder, and no evidence has been submitted to VA suggesting as much. There is therefore no indication that a direct relationship may exist between the Veteran’s PTSD (to include alcohol consumption) and the Veteran’s gallbladder disability. The Board observes that the Veteran is not currently service-connected for a liver disability, and secondary service connection may not be granted on that basis. In sum, the Board finds that the evidence of record weighs against a finding that the Veteran’s gallbladder disabilities, to include residuals of removal, had onset in, or were otherwise related to the Veteran’s period of service, to include in-service exposure to herbicide agents. The evidence also weighs against a finding that such disabilities were caused or aggravated by his other service-connected disabilities, to specifically include medications taken to treat his service-connected disabilities. For the foregoing reasons, the preponderance of the evidence is against the Veteran’s claim. The benefit-of-the-doubt doctrine is therefore not applicable and the claim for service connection for a residuals of gallbladder removal must be denied. See 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. at 5-57. V. Chiappetta Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD L. Crohe, Counsel