Citation Nr: 20004374 Decision Date: 01/17/20 Archive Date: 01/17/20 DOCKET NO. 14-27 967 DATE: January 17, 2020 ORDER Entitlement to service connection for post-operative residuals of abdominal adhesions is denied. FINDINGS OF FACT 1. The Veteran’s post-operative residuals of abdominal adhesions were noted at the time of examination for entrance into active service. 2. The probative evidence of record indicates that it is less likely than not that the Veteran’s preexisting post-operative residuals of abdominal adhesions were aggravated beyond their natural progression during active service. CONCLUSION OF LAW The criteria for entitlement to service connection for post-operative residuals of abdominal adhesions have not been met. 38 U.S.C. §§ 1110, 5103, 5107A; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.306. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran had active service from November 1990 to September 1991. In March 2017, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the record. The Board remanded this issue in March 2018. The March 2018 Board remand directed the Agency of Original Jurisdiction (AOJ) to ask the Veteran to identify and authorize release of any outstanding, relevant treatment records from VA and private health care providers and to obtain a VA opinion as to whether the Veteran’s preexisting post-operative residuals of abdominal adhesions were aggravated during his active service. Pursuant to the March 2018 remand, the AOJ sent the Veteran a letter in November 2018 asking him to identify and authorize release of any outstanding, relevant treatment records. The Veteran submitted records in February 2019, but did not otherwise identify or authorize release of any other outstanding medical records. In September 2019, the AOJ obtained a VA opinion that is responsive to the March 2018 Board remand directives and that provides the information required to render a full decision as to the appeal. Accordingly, the Board finds that VA at least substantially complied with the March 2018 Board remand. See 38 U.S.C. § 5103A(b); Stegall v. West, 11 Vet. App. 268, 271 (1998); D’Aries v. Peake, 22 Vet. App. 97, 105 (2008). Neither the Veteran nor his representative has raised any issues with regard to the duty to notify or duty to assist as they pertain to the issue decided in this decision. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board.”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). The analysis in this decision focuses on the most relevant evidence and on what the evidence shows or does not show with respect to the issue denied in this decision. The Veteran should not assume that evidence that is not explicitly discussed in this decision has been overlooked. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (noting that the law requires only that reasons for rejecting evidence favorable to the claimant be addressed). Entitlement to service connection for post-operative residuals of abdominal adhesions The Veteran seeks entitlement to service connection for post-operative residuals of abdominal adhesions. He contends that he entered service with residuals of abdominal adhesions due to a gunshot wound he sustained in 1983. He states that the condition was asymptomatic when he entered active service, it became symptomatic during his active service, and he was eventually medically discharged due to the condition. He asserts that service connection is warranted because the increase in symptoms during his active service constitutes an aggravation of the preexisting condition. He has also argued that, because the condition was asymptomatic at the time of his entrance into active service, the presumption of soundness should apply in this case. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). Under the governing criteria, every veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease clearly and unmistakably existed before acceptance and enrollment and was not aggravated by service. 38 U.S.C. § 1111; 38 C.F.R. § 3.304(b). If a preexisting disorder is noted upon entry into service, the Veteran cannot bring a claim for service connection for that disorder, but the Veteran may bring a claim for service-connected aggravation of that disorder. A preexisting injury or disease will be considered to have been aggravated by active military, naval, or air service, where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 C.F.R. § 3.306. Turning to the evidence of record, the Veteran’s service treatment records include a March 1990 report of medical examination that notes several gunshot scars and a surgical scar. At the time of the Veteran’s entrance into active service in November 1990, a medical board acknowledged the Veteran’s history of a gunshot wound in 1983 with subsequent surgery and that the Veteran experienced abdominal pain and infrequent bowel movements during physical training, which the board concluded were secondary to the gunshot wound and its residuals. The board found that the Veteran’s preexisting condition was not an obstacle to him being mobilized. Accordingly, the Veteran’s gunshot wound and its residuals, including the post-operative residuals, were noted at the time of his examination for entrance into active service, the presumption of soundness does not apply in this case, and the Veteran’s claim may only be considered on the basis of aggravation of a preexisting condition under 38 C.F.R. § 3.306. The Veteran’s service treatment records show that he underwent a medical examination for separation from active service in late November 1990. The report for that examination reflects that the had scars from the original gunshot wound, surgical scars, and complaints of chronic abdominal pain. In January 1991, a medical evaluation board recommended that the Veteran be separated by reason of physical disability. It found that the condition existed prior to entry into military service and was not aggravated during the period of active service. The Veteran was seen for abdominal pain in February and March 1991. In July 1991, the Veteran accepted preliminary findings by a physical evaluations board that he was unfit for duty due to preexisting abdominal pain and gunshot wound residuals that were not aggravated during his active service. Private treatment records show that the Veteran underwent exploratory laparotomy and excision of adhesive band shortly after his separation from active service in November 1991. In June 2002, he underwent a left hemicolectomy and central venous line placement to address abdominal pain and a left colon polyp. The Board acknowledges the Veteran’s assertions that his preexisting post-operative residuals of abdominal adhesions increased in severity during his active service. He is considered competent to report his in-service symptoms. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). However, he is not considered competent to opine as to whether it was aggravated beyond its natural progression during active service, as doing so requires medical knowledge and expertise the Veteran has not been shown to possess. See Kahana v. Shinseki, 24 Vet. App. 428 (2011); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Therefore, his statements are not probative in that regard, and the Board turns to the competent medical evidence of record to determine whether the Veteran’s preexisting condition was aggravated during his active service. The September 2019 VA examiner noted the in-service treatment for abdominal pain, as well as the post-service surgeries in November 1991 and June 2002. Based on his review of the record, the examiner opined that it is less likely than not that the Veteran’s abdominal adhesions condition was aggravated beyond its natural progression by an in-service injury, event, or illness. As a rationale for that opinion, the examiner explained that the natural course of abdominal adhesions can just as likely worsen as it is to remain static, particularly following significant abdominal trauma as might be seen with a gunshot wound. Although the Veteran reported abdominal pain while on active duty and he later underwent lysis of adhesions in November 1991, such is not evidence of worsening beyond the natural progression of the condition nor that the condition was made permanently symptomatic from an asymptomatic state upon entry. The examiner also noted that the most recent treatment records pertaining to the post-operative residuals of abdominal adhesions are dated in 2002, and that the lack of any treatment over the last 17 years suggests that the condition is presently symptomatically quiescent. Given this extended period of apparent absence of medical care, it is not reasonable to conclude that the adhesions were aggravated beyond their natural progression. The Board finds the September 2019 VA examination’s opinion to be probative because the examiner provided supporting rationale that offers insight into the medical aspects of the Veteran’s condition. The examiner explained why the in-service symptoms and post-service surgeries are not clear evidence of an aggravation beyond the natural progression of the condition. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Prejean v. West, 13 Vet. App. 444 (2000). The Board therefore affords probative value to the examiner’s opinion. There are no probative opinions of record that weigh against the September 2019 VA examiner’s opinion. In view of the foregoing, the Board concludes that the preponderance of the evidence is against the claim for entitlement to service connection for post-operative residuals of abdominal adhesions. Because the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is not for application, and the claim must be denied. 38 U.S.C. § 5107(b); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). MICHAEL MARTIN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. J. Anthony, 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.