Citation Nr: 20007568 Decision Date: 01/29/20 Archive Date: 01/29/20 DOCKET NO. 12-35 382 DATE: January 29, 2020 ORDER Entitlement to service connection for pancreatitis, including as secondary to his service-connected ulcerative colitis disability, is denied. FINDING OF FACT 1. The preponderance of the evidence of record is against finding that the Veteran has had pancreatitis at any time during or approximate to the pendency of the claim. 2. The Veteran’s diagnosis of pancreatitis for 1 month was due to alcohol consumption. CONCLUSION OF LAW The criteria for service connection for pancreatitis due to service or his service-connected ulcerative colitis are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from November 2007 to December 2008. Subsequently, the Veteran served in the United States Army Reserve until his medical discharge in September 2010. The Board notes that the Veteran’s December 2008 Certificate of Release or Discharge from Active Duty (DD-214) reflects that the Veteran also had 5 months and 12 days of prior active service and 8 months and 1 day of prior inactive service. The Board considered remanding the file to obtain the records related to the Veteran’s prior active service and reserve service. However, because the decision would be the same with or without the additional records, the Board has determined that a remand is not warranted. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a September 2009 rating decision by the Pittsburg, Pennsylvania Regional Office (RO) of the United States Department of Veterans Affairs (VA). In March 2013, the Veteran testified at a Board hearing before a Veterans Law Judge (VLJ), sitting at the Regional Office (RO) in Pittsburgh, Pennsylvania. A transcript of the hearing has been associated with the record on appeal. In June 2015, the Board remanded the issue of entitlement to service connection for pancreatitis, including as secondary to his service-connected ulcerative colitis disability to obtain VA treatment records and private treatment records since December 2008, and to afford the Veteran a VA examination. In January 2018, the Board again remanded the issue of entitlement to service connection for pancreatitis, including as secondary to his service-connected ulcerative colitis disability to obtain updated VA treatment records and private treatment records, and to obtain an addendum medical opinion. The RO requested any treatment records that the Veteran had in support of his claim on April 27, 2018. The Veteran has not provided any additional records. The RO obtained an addendum medical opinion in January 2019 after consideration of the evidence of record. The Board finds that there has been substantial compliance with the Board’s previous remand directives regarding the issue(s) on appeal. Stegall v. West, 11 Vet. App. 268, 271 (1998). In December 2019, the Veteran was advised that the VLJ who conducted the March 2013 Board hearing was no longer employed by the Board and provided 30 days to request a new hearing. The Veteran has not replied to the December 2019 correspondence. 1. Entitlement to service connection for pancreatitis, including as secondary to his service-connected ulcerative colitis disability Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). To establish a right to compensation for a present disability, a Veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service - the so-called “nexus” requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may be granted for any disease initially diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). An injury or disease incurred during active service will not be deemed to have been incurred in the line of duty if the injury or disease was a result of the person’s own willful misconduct, including abuse of alcohol or drugs. 38 U.S.C. § 105; 38 C.F.R. §§ 3.1(m), 3.301(c)(3)(d). The isolated and infrequent use of drugs by itself will not be considered willful misconduct; however, the progressive and frequent use of drugs or alcohol to the point of addiction will be considered willful misconduct. Where drugs are used to enjoy or experience their effects and the effects result proximately and immediately in disability or death, such disability or death will be considered the result of the person’s willful misconduct. 38 C.F.R. § 3.301(c)(3). Service connection may also be established on a secondary basis for a disability which is proximately due to, or the result of, a service-connected disability. 38 C.F.R. § 3.310(a). Secondary service connection may also be established for a disorder which is aggravated by a service-connected disability; compensation may be provided for the degree of the disability (but only that degree) over and above the degree of disability existing prior to the aggravation. 38 C.F.R. § 3.310(b) (2017); Allen v. Brown, 8 Vet. App. 374 (1995). In order to prevail on the issue of secondary service condition, the record must show: (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical nexus evidence establishing a connection between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998); see also Allen, supra. Alcohol and drug-related disorders are also recognized as disorders within the medical community. See American Psychiatric Association of Diagnostic and Statistical Manual of Mental Disorders, Fifth edition (DSM-5). Moreover, while service connection for alcohol and drug abuse disabilities on a primary basis is barred, an alcohol and/or drug abuse disability arising as a direct result of a psychiatric disability may be service connected. Allen v. Principi, 237 F.3d 1368 (Fed. Cir. 2001) (interpreting 38 U.S.C. § 1110). In Allen, overruling Barela v. West, 11 Vet. App. 280 (1998), the United States Court of Appeals for the Federal Circuit held that veterans can recover for an alcohol or drug abuse disability secondary to a service-connected disability if they can adequately establish that their alcohol or drug abuse disability is secondary to or is caused by their primary service-connected disability. Compensation would only result where there is clear medical evidence establishing that the alcohol or drug abuse disability is indeed caused be a veteran’s primary service-connected disability. The Allen case primarily concerns situations where a veteran has a service-connected psychiatric disability and is attempting to receive additional compensation, etc., for his alcohol and/or drug abuse on the premise that it is proximately due to or the result of his service-connected psychiatric disability. The Veteran asserts that he is entitled to service connection for pancreatitis because it occurred at the same time as his ulcerative colitis. Alternatively, the Veteran asserts that his pancreatitis is secondary to his ulcerative colitis, specifically caused by the medication he was prescribed at the time for his ulcerative colitis. Direct Service Connection First, the Board finds that there is not a current disability. See Holton, 557 F.3d at 1366; 38 C.F.R. § 3.303(d). The Veteran was diagnosed with acute and active alcohol-induced pancreatitis in January 2009. However, the Veteran’s pancreatitis was resolving by January 24, 2009 and his February 7, 2009 Lipase lab work was within normal limits demonstrating resolution of pancreatitis. The Board notes that the Veteran applied for service connection over one month after resolution of pancreatitis, in March 2009. In the absence of a disability during the pendency of the claim, service connection cannot be established. See Brammer v. Derwinski, 2 Vet. App. 223 (1992). There is also insufficient evidence of a disability at any point during the claim period or shortly before. See McClain v. Nicholson, 21 Vet. App. 219 (2007); Romanowsky v. Shinseki, 26 Vet. App. 289 (2013). Accordingly, entitlement to service connection is denied. At the core of service connection is functional impairment, which can be a disability even if there is no underlying diagnosis. Consideration should be given to the impact of functional limitation. See Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir., 2018). Here there is no assertion of functional limitation due to pancreatitis. The Board notes that the Veteran continues to take pancreatic enzymes, however this is by his own choosing with no documented acute or chronic pancreatitis or any residuals of pancreatitis. Specifically, the enzymes have been continued because the Veteran reports that he thinks that the enzymes are helping. Even if the Board had found that there was a current disability, the Veteran would then need to have an in-service event, injury or disease. See Holton, 557 F.3d at 1366; 38 C.F.R. § 3.303(d). VA treatment records reflect that the Veteran reported that he had a long history of alcohol use and had been binge drinking since his return from Iraq in late November 2008. Furthermore, the Veteran was diagnosed with acute pancreatitis that resolved after the Veteran stopped drinking and the October 2015 VA examiner opined that the Veteran’s pancreatitis was at least as likely as not caused by the Veteran’s alcohol consumption. The Board notes that the Veteran’s diagnosis began an ended within 1-year of his separation from service. However, even if the Board found that the Veteran had a current disability, the Board finds that there is not a qualified in-service event or onset of the Veteran’s pancreatitis diagnosis from January 2009 to February 2009 because it was alcohol-induced from binge drinking since November 2008. The Veteran was afforded a VA examination in October 2015 and an addendum VA opinion was issued in January 2019. The October 2015 VA examiner opined that the Veteran’s history of pancreatitis was at least as likely as not (50 percent probability or greater) resolved without residuals, and was alcohol induced. The January 2019 VA examiner opined that it is less likely than not (less than 50 percent probability) that the Veteran has a present diagnosis of pancreatitis or any residuals thereof and that the January 2009 diagnosis (and resolution) of acute and active pancreatitis clearly documented that the pancreatitis was alcohol-induced and had been relieved by the end of the month (January 2009). Furthermore, the Board finds that the Veteran’s alcohol use constitutes “willful misconduct” and therefore, even if the alcohol use began during active service, the Veteran’s diagnosis of pancreatitis for 1-month is not considered an in-service event, injury or disease. Thus, without more, the preponderance of the evidence is against a finding of an in-service incurrence of pancreatitis. The second element of service connection has not been met, and an award of service connection is not warranted. See Holton, supra. Accordingly, service connection is denied. In reaching this decision the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the Veteran’s claim, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Secondary Service Connection In order to prevail on the issue of secondary service condition, the record must show: (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical nexus evidence establishing a connection between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998); see also Allen, supra. First, as noted above, the Board finds that there is not a current disability. See Holton, 557 F.3d at 1366; 38 C.F.R. § 3.303(d). The Veteran was diagnosed with acute and active alcohol-induced pancreatitis in January 2009. However, the Veteran’s pancreatitis was resolving by January 24, 2009 and his February 7, 2009 Lipase lab work was within normal limits demonstrating resolution of pancreatitis. The Board notes that the Veteran applied for service connection over one month after resolution of pancreatitis, in March 2009. In the absence of a disability during the pendency of the claim, service connection cannot be established. See Brammer v. Derwinski, 2 Vet. App. 223 (1992). There is also insufficient evidence of a disability at any point during the claim period or shortly before. See McClain v. Nicholson, 21 Vet. App. 219 (2007); Romanowsky v. Shinseki, 26 Vet. App. 289 (2013). Accordingly, entitlement to service connection is denied. At the core of service connection is functional impairment, which can be a disability even if there is no underlying diagnosis. Consideration should be given to the impact of functional limitation. See Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir., 2018). Here there is no assertion of functional limitation due to pancreatitis. The Board notes that the Veteran continues to take pancreatic enzymes, however this is by his own choosing with no documented acute or chronic pancreatitis or any residuals of pancreatitis. If the Board had found that there was a current disability, the Veteran would then need to have evidence of a service-connected disability. The Board finds that the Veteran has a service-connected disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998); see also Allen, supra. The Veteran is currently service-connected for two disabilities. The first service-connected disability is ulcerative colitis and the second service-connected disability is scars, status post colectomy with ileostomy and reversal associated with ulcerative colitis. The Board finds that there is not a medical nexus connecting his service-connected disabilities and the Veteran’s diagnosis of pancreatitis from January 2009 to February 2009. See Wallin v. West, 11 Vet. App. 509, 512 (1998); see also Allen, supra. The Veteran was afforded a VA examination in October 2015 and obtained an addendum VA opinion in January 2019. The October 2015 VA examiner opined that the Veteran’s pancreatitis was at least as likely as not (50 percent probability or greater) that the Veteran’s history of pancreatitis, resolved without residuals, and the pancreatitis was alcohol induced. The January 2019 VA examiner opined that it is less likely than not (less than 50 percent probability) that the Veteran has a present diagnosis of pancreatitis or any residuals thereof and that the January 2009 diagnosis (and resolution) of acute and active pancreatitis clearly documented that the Veteran’s pancreatitis was alcohol-induced which had been relieved by the end of the month. The Board notes that the Veteran has provided documentation by private providers that have asserted that the Veteran’s pancreatitis may be the result of medication initially prescribed for the Veteran’s service-connected disability of ulcerative colitis. However, any medical opinion provided that supports the Veteran’s contention only provides that a nexus is possible, but does not include that the nexus is at least as likely as not (50 percent probability or greater). The Board notes that the mere possibility of a nexus does not rise to the level required for a grant of service connection. The Court of Appeals for Veterans Claims has held that the use of equivocal language such as “could” or “may have” makes a statement by an examiner speculative in nature. See Bostain v. West, 11 Vet. App. 124, 127-28, quoting Obert v. Brown, 5 Vet. App. 30, 33 (1993) (medical opinion expressed in terms of “may” also implies “may or may not” and is too speculative to establish medical nexus). Furthermore, the private opinions do not include a detailed rationale for the opinions offered. Therefore, the Board finds the private medical opinions to be inadequate. The Veteran’s inconsistent statements included within the Board hearing testimony, VA treatment records, and VA examinations compel the Board to find that the Veteran’s more recent statement as to alcohol consumption are not credible. See Caluza v. Brown, 7 Vet. App. 498, 510-11 (1995) (Board must evaluate credibility of all evidence; lay statements may be evaluated based on, inter alia, inconsistent statements, facial plausibility, and consistency with other evidence of record); see also Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006). To be clear, the Board is not questioning the Veteran’s honesty or moral character. The Veteran is attempting to recollect events that transpired a long time ago, and the passage of time, along with the inconsistencies noted above, compels a conclusion that the Veteran is not an accurate historian as to these particular statements. See Caluza, 7 Vet. App. at 510-11. Therefore, the Board cannot assign them probative weight. Id. The Board has considered the Veteran’s reports attributing his pancreatitis to service, including as secondary to his service-connected ulcerative colitis, but the evidence of record does not demonstrate that the Veteran has the requisite medical training, expertise, or credentials needed to render a diagnosis or a competent opinion as to medical causation. Therefore, the Veteran is not competent to provide an opinion on the etiology of his pancreatitis. See Jandreau v. Nicholson, 492 F. 3d 1372, 1377 (2007). For the above reasons, the Board finds that even if there was a current disability, the Veteran’s pancreatitis would not be service-connected due to the Veteran’s own willful misconduct. The Board also notes that the Veteran’s May 2009 release for medical records from Allegheny General Hospital excluded mental health, drug, or alcohol treatment. (Continued on the next page)   In reaching this decision the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the Veteran’s claim, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). M. Tenner Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board G. Deemer, Associate 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.