Citation Nr: 20002850 Decision Date: 01/13/20 Archive Date: 01/13/20 DOCKET NO. 14-41 724 DATE: January 13, 2020 ORDER Service connection for diverticulitis with bloody stools is granted. FINDING OF FACT Diverticulitis with bloody stools had its onset in service. CONCLUSION OF LAW The criteria for diverticulitis with bloody stools have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. § 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty from January 1983 to August 1991, to include service in the Southwest Asia theater of operations. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a February 2012 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. The Veteran appeared at a hearing before the undersigned Veterans Law Judge in August 2017. In November 2017, the Board, in pertinent part, remanded the issue of entitlement to service connection for diverticulitis for further development. The Veteran seeks entitlement to service connection for a diverticulitis with bloody stools. He contends that he has experienced episodes of diverticulitis in and since service. See, e.g., Substantive Appeal (December 4, 2014). During the August 2017 Board hearing, he testified that he was initially diagnosed with diverticulitis in 1991, immediately following separation from service, and has been hospitalized for diverticulitis numerous times since service. The earliest treatment note, dated June 3, 2011, confirms that he had been hospitalized for diverticulitis eight times prior to 2011. During the August 2017 Board hearing, the Veteran identified outstanding VA treatment records from VA medical centers in South Texas, New Braunfels, Audie Murphy, and Crista Santa Rosa, dated from 1991 to 2011 and from 2014 to present. In its November 2017 remand, the Board requested such records; however, upon remand, the RO indicated that VA is unable to obtain such records. In January 2012, a VA examiner diagnosed diverticulitis, but opined that such was not related to exposure to environmental hazards in the Persian Gulf. The examiner did not, however, address whether the Veteran’s current diverticulitis is related to his longstanding history of diverticulitis. Accordingly, in November 2017, the Board requested a VA medical opinion to clarify the nature and etiology of the Veteran’s current diverticulitis and gastrointestinal problems. On VA examination in September 2019, the Veteran reported recurrent episodes of diverticulitis and bloody stools. The examiner explained that the Veteran’s blood stools are of unknown etiology. The examiner also acknowledged that the available treatment records show continued episodes of diverticulitis from 2012 to 2018. The examiner opined that the Veteran’s current diverticulitis and bloody stools are not related to service. The rationale was that such were not medically identified until 2012, that is, 11 years after leaving service, and that there is no evidence in the records or literature indicating that such disabilities are “due to” service in Southwest Asia. Initially, the Board notes that the Veteran’s current disability need not be “due to” service. Instead, establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability). See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303(a). In this case, the evidence shows that the Veteran has had diverticulitis and bloody stools throughout the appeal period. Additionally, the Board finds that the lay and medical evidence of record sufficiently establishes that the Veteran’s current diverticulitis and bloody stools had its onset in service. See Layno v. Brown, 6 Vet. App. 465 (1994). Indeed, the unavailability of VA treatment records from separation from service to 2011, does not weigh against the Veteran’s claim. This is particularly so in light of the facts of this case because the Veteran has provided consistent, credible reports of treatment for diverticulitis and bloody stools since service. The credibility of the Veteran’s report is bolstered by the fact that the available treatment records indicate treatment for diverticulitis and bloody stools before and after 2011. The Board acknowledges the September 2019 VA examiner’s opinion that the Veteran’s current diverticulitis and bloody stools are not related to service but finds that such carries no probative as it is predicated on the absence of documented medical treatment. See Dalton v. Nicholson, 21 Vet. App. 23, 39 (2007). (Continued on the next page)   In light of the foregoing, and after resolving any doubt in the Veteran’s favor, the Board finds that his current diverticulitis and bloody stools had onset in service. Thus, all three elements necessary to establish service connection have been met. STEVEN D. REISS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Joshua R. Castillo, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.