Citation Nr: 21062330 Decision Date: 10/07/21 Archive Date: 10/07/21 DOCKET NO. 16-05 641 DATE: October 7, 2021 ORDER Entitlement to service connection for diverticulosis and diverticulitis, as secondary to medication taken for service-connected migraine headaches, is granted. FINDING OF FACT Resolving any reasonable doubt in the Veteran's favor, his diverticulosis and diverticulitis are aggravated by non-steroidal anti-inflammatory medication taken for service-connected migraine headaches. CONCLUSION OF LAW The criteria for service connection for diverticulosis and diverticulitis have been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.310 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 2001 to December 2004. This matter came before the Board of Veterans' Appeals (Board) on appeal from a January 2014 rating decision of a Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a Board videoconference before a Veterans Law Judge in October 2019; a transcript is of record. This case was previously before the Board in December 2019 and May 2021 when it was remanded for further development. The case has now returned for further appellate consideration. Service Connection Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection may also be granted for any injury or disease diagnosed after discharge, 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). Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009). Service connection may alternatively 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) (2020). Secondary service connection may also be established for a disorder which is aggravated by a service-connected disability. See 38 C.F.R. § 3.310 (b) (2017); Allen v. Brown, 8 Vet. App. 374 (1995). The Board must analyze the credibility and probative value of the evidence, account for the evidence that it finds persuasive or unpersuasive and provide the reasons for its rejection of any material evidence favorable to the claimant. Kahana v. Shinseki, 24 Vet. App. 428, 433 (2011). This includes weighing the credibility and probative value of lay evidence against the remaining evidence of record. See King v. Shinseki, 700 F.3d 1339 (Fed. Cir. 2012); Kahana, 24 Vet. App. at 433-34. A claimant bears the evidentiary burden to establish all elements of a service connection claim, including the nexus requirement. Fagan v. Shinseki, 573 F.3d 1282, 1287 (Fed. Cir. 2009). In making its ultimate determination, the Board must give an appellant the benefit of the doubt on any issue material to the claim when there is an approximate balance of positive and negative evidence. Id. at 1287 (quoting 38 U.S.C. § 5107(b)). Gastrointestinal Disorder The Veteran asserts that he has a gastrointestinal disability that is due to service. In the alternative, he asserts that the disability is proximately due to or aggravated by non-steroidal anti-inflammatory drug (NSAID) medication taken for his service-connected migraine headaches. He submitted medical literature discussing that the use of aspirin and NSAIDs increases the risk of diverticulitis and diverticular bleeding. Turning to the evidence, his service treatment records do not reflect any complaints, diagnosis, or treatment of any gastrointestinal problems. It is noted however, that at his separation examination in September 2003, the Veteran reported that he was taking Excedrin Extra-Strength (ES) for his migraine headaches. He also reported concerns over his occupational exposure to depleted uranium ordnance and nitric acid vapor. At a VA examination in July 2005, the Veteran reported using three to four Excedrin tablets for headaches. In a September 2013 statement in support of his claim, the Veteran reported that he was exposed to Nitric Acid vapor, burn pits, depleted uranium and vehicle carcasses in service. He also stated that he had to take two to five tablets of Excedrin ES daily due to his headaches, which led to intestinal bleeding and two episodes of NSAID induced diverticulitis. He submitted a medical abstract dated May 2011, which stated that the use of NSAIDs increased the risk of diverticulitis and diverticular bleeding. An emergency room discharge record dated in November 2012 reflects the Veteran was treated for diverticulitis without hemorrhage. At a VA migraine examination in October 2013, the Veteran reported having migraine headaches one to two times per week which he treated with Excedrin or Imitrex. The Veteran was afforded a VA intestinal examination in December 2013. The examiner, a medical doctor, diagnosed diverticulitis from the November 2012 hospital treatment. The examiner noted that the Veteran was treated with medication and was currently asymptomatic, not requiring medication. Physical examination was normal. The examiner opined that diverticulitis was less likely than not due to the Veteran's medication for migraine headaches. She explained that while the incidence of acute diverticulitis is lower in younger individuals, it occurs in approximately 16 percent of individuals under 45 years old. The examiner cited environmental and lifestyle factors as important risk factors, and noted that although NSAIDs have been implicated in an increased risk of both diverticulitis and diverticular bleeding, the Veteran's BMI is 45 and he is in obese class III ("very severely obese") category. The examiner concluded that it was more likely than not that the Veteran's lifestyle factors, and obesity was the major cause of diverticular disease. At the October 22, 2019, Board hearing, the Veteran reported that he suffered from migraines during and following service which he treated with large amounts of Excedrin, taking four to five at a time, that he believes caused stomach bleeding. He first began noticing symptoms of diverticulitis about 2005. In 2011, he had an actual episode of diverticulitis that was treated at the emergency room and was told that he had NSAID induced diverticulitis from medication for his migraines. He also reported that he was exposed to Gulf War hazards as he was exposed to burn pits, uranium and other types of fumes. The Veteran was afforded an additional VA intestinal examination conducted through video telehealth in October 2020. The examiner, a nurse practitioner, diagnosed diverticulitis. The Veteran reported that he was treated for acute diverticulitis in 2012; the examiner noted that he had acute flares of diverticulosis known as diverticulitis every three to six months or two to three times a year lasting a couple of days which he treated with medication. The examiner concluded that the Veteran's gastrointestinal disorder, diverticulosis/diverticulitis, was less likely as not incurred in or caused by service or exposure to Gulf War environmental hazards. The examiner explained that diverticulosis and diverticulitis are a mechanical pouching out in the colon, and they are most likely not caused by external occupational hazards. Regarding secondary service connection, the examiner found no evidence that the Veteran's gastrointestinal disorder was due to or aggravated beyond its natural progression by NSAID medication for migraines. The examiner explained that there is no medical or mechanical relationship between diverticulosis and migraine headaches and that NSAIDS do not cause diverticulum to occur although bleeding risk is increased on some NSAIDS. The examiner added that the medical evidence was insufficient to support a determination of a baseline of severity and there was no evidence of aggravation of the Veteran's diverticulosis beyond natural progression by NSAID use. In an October 2020 addendum, the same VA examiner noted that the gastroenterology abstract submitted by the Veteran had been reviewed and stated that aspirin does not cause diverticulosis or diverticulitis. The examiner noted that aspirin in general can cause increased bleeding for up to 10 days post use which would cause temporary increase bleeding with active diverticulitis. The examiner noted that the temporary increased bleeding did not constitute a chronic aggravation beyond natural progression of diverticulosis or diverticulitis. In a May 2021 clarifying medical opinion, a different VA examiner, a medical doctor, opined that the Veteran was currently diagnosed with diverticulosis and diverticulitis which were less likely than not etiologically related to the Veteran's military service, to include as due to exposure to hazardous materials. The examiner first explained that the Veteran was diagnosed with diverticulosis which was asymptomatic in the absence of inflammation, infection or perforation (diverticulitis). The Veteran had acute diverticulitis about one every two years per his medical record which was caused by micro- or macroscopic perforation of the diverticulum. The examiner explained that the perforation was thought to be primarily the result of erosion of the diverticular wall due to increased intraluminal pressure or inspissated food particles. The examiner noted there was no evidence the Veteran ever had an extreme episode of diverticulitis and no evidence of diverticulosis during active service. The examiner stated that the reviewed medical literature did not identify evidence of any of the Veteran's exposures during service in the Southwest theater of operations causing diverticulosis (which had to be present to have diverticulitis). In support of the medical opinion, the examiner cited to specific medical literature. The VA examiner also opined that it was less likely than not that the Veteran's diverticulosis or diverticulitis was due to or the result of the Veteran's service-connected migraines, to include his regular use NSAIDs for migraines ,or that his diverticulosis was aggravated by his use of NSAIDs. The examiner explained that there is no evidence in medical literature supporting the Veteran's contention that his headaches directly cause or aggravate diverticulosis or diverticulitis. The examiner acknowledged that anti-inflammatories raise the risk of diverticulitis and diverticular bleeding when taken regularly, but that the risk stops when use of the anti-inflammatories stops. The anti-inflammatories are a known risk only for potential acute complications of diverticulosis. The examiner concluded that if NSAIDs taken for headaches in the past contributed to his previous episodes of diverticulitis, there was no residual from those episodes and no current disability related to the previous episodes. On review, the Board finds that the Veteran has current gastrointestinal disability, variously diagnosed as diverticulosis and diverticulitis. See Medical Treatment Record Non-Government facility dated October 1, 2013, and C&P examinations dated December 13, 2013, and October 19, 2020. The Board also finds that the evidence is at least in equipoise as to whether the diagnosed gastrointestinal disorder is aggravated by the Veteran's use of medications for his service-connected migraine headaches. The Veteran has reported taking Excedrin for his headaches throughout the pendency of the claim. He reported taking Excedrin as early as at his separation examination and more recently, during the 2019 hearing, he reported eating Excedrin "like candy" to control his headaches. Evidence against the claim includes the 2020 VA examiners' opinions that the Veteran's gastrointestinal disorder was less likely than not proximately due to or aggravated by the Veteran's use of medications for service-connected migraine headaches. However, the Board assigns little probative weight to the examiner applied a more stringent standard of aggravation than is required and provided a rationale based on an inaccurate statement of fact. The claims file also contains May 2021 VA clarifying opinions. Of note, the 2021 VA examiner opined that it is at least as likely as not that the Veteran's previous episodes of diverticulitis were aggravated by his NSAID use for headaches. In Ward v. Wilkie, 31 Vet. App. 233, 239 (2019), the Court of Appeals of Veterans Claims held that permanent worsening is not a requirement for secondary service connection of a non-service-connected injury or disease. Here, the VA examiners have agreed that anti-inflammatories raise the risk of diverticulitis and diverticular bleeding. The 2021 VA examiner indicated that the Veteran's use of NSAIDs likely contributed to previous episodes of diverticulitis. Again, the Court has made it clear that permanent worsening is not required. Therefore, resolving all doubt in the Veteran's favor, the Board finds that service connection is warranted on a secondary basis. S. B. MAYS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Beach, 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.