Citation Nr: 21070273 Decision Date: 11/23/21 Archive Date: 11/23/21 DOCKET NO. 09-28 475 DATE: November 23, 2021 ORDER Service connection for a gallbladder disorder, to include post cholecystectomy syndrome, is denied. FINDING OF FACT The Appellant's preexisting gallbladder disorder was not aggravated during active duty for training. CONCLUSION OF LAW The criteria for service connection for a gallbladder disorder, to include post cholecystectomy syndrome, have not been met. 38 U.S.C. §§ 1131, 1132, 1133, 1153, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.306, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Appellant was a member of the Army National Guard from December 1978 to August 1983, and had active duty for training (ACDUTRA) from April 4, 1979 to June 29, 1979. The Board of Veterans' Appeals (Board) remanded the claim for service connection for post cholecystectomy syndrome to the agency of original jurisdiction (AOJ) in May 2012, February 2016, and August 2021. The AOJ substantially complied with the Board's remand instructions, and the claim is ready for further review. Stegall v. West, 11 Vet. App. 268, 271 (1998). Service Connection for a Gallbladder Disorder The Appellant seeks service connection for post cholecystectomy syndrome, or residuals of a cholecystectomy. He contends his gallbladder problems started while on ACDUTRA in 1979. After careful review, the Board finds that service connection is not warranted. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection generally requires evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship ("nexus") between the current disability and the disease or injury incurred or aggravated during service. Walker v. Shinseki, 708 F.3d 1331, 1333 (Fed. Cir. 2013). For service connection purposes, "active military, naval, or air service" means (1) active duty (that is, full-time duty in the Armed Forces, other than ACDUTRA); (2) any period of ACDUTRA during which a veteran was disabled or died from a disease or injury incurred or aggravated in the line of duty; and (3) any period of inactive duty for training (INACDUTRA) during which a veteran was disabled or died from an injury incurred or aggravated in the line of duty. 38 U.S.C. § 101(24); 38 C.F.R. § 3.6(a). ACDUTRA includes full-time duty in the Armed Forces performed by members of the Reserves for training purposes. 38 U.S.C. § 101(22); 38 C.F.R. § 3.6(c). INACDUTRA is generally duty (other than full-time duty) prescribed for Reserves or duty performed by a member of the National Guard (other than full-time duty). 38 U.S.C. § 101(23); 38 C.F.R. § 3.6(d). Annual training is an example of ACDUTRA, while weekend drills are INACDUTRA. For periods of ACDUTRA, service connection may be granted for disability resulting from injuries or diseases incurred or aggravated during such periods. For periods of INACDUTRA, service connection may be granted for disability resulting only from injuries incurred or aggravated during such periods, not disability resulting from diseases. 38 U.S.C. § 101(22), (24); 38 C.F.R. § 3.6; see McManaway v. West, 13 Vet. App. 60, 67 (1999). For service connection claims based on a period of ACDUTRA or INACDUTRA, certain presumptions, including the presumptions of sound condition (or soundness) upon entry into service, aggravation of a preservice disability, and service connection for certain chronic diseases, are not applicable. Smith v. Shinseki, 24 Vet. App. 40, 47 (2010). In this case, the Appellant served with the Army National Guard, and military personnel records show that he did not have active duty service. He has not previously established service connection for any disability based on a period of ACDUTRA or INACDUTRA. In other words, he has not established "veteran" status, and none of the presumptions above apply here. The most probative evidence of record demonstrates that the Appellant's preexisting gallbladder disorder was not aggravated during his period of ACDUTRA service (April through June 1979). Non-military hospital records show that the Appellant went to the emergency room for abdominal pain and vomiting in January 1979. On examination, he had tenderness in the right upper quadrant of the abdomen. He was given medication and told to consult with his own physician as needed. Two months later, in March 1979, he returned to the emergency room with abdominal pain and right upper quadrant tenderness. He also reported difficulty breathing. His diagnosis at the time was "epigastric distress." The Appellant continued to have symptoms during, and shortly after, ACDUTRA. Service treatment records show complaints of abdominal pain with right upper quadrant tenderness and shortness of breath in May and June 1979. The assessment at that time was "gastritis," and treatment included mylanta. Additional emergency room visits for abdominal pain followed in July, September, November, and December 1979. According to the July 1979 treatment report, the Appellant reported having pain in the right upper quadrant for the past three months; the pain was "apparently intermittent" and had returned a few days earlier. Eventually, in December 1979, the Appellant was hospitalized "with a [chief] complaint of abdominal pain for 1 year." This hospital stay lasted three weeks. Diagnostic testing revealed he had a "non-functioning" gallbladder, and he underwent a cholecystectomy. His discharge diagnosis was chronic cholecystitis and cholelithiasis. The Board remanded for an addendum medical opinion on the nature and etiology of the Appellant's current gallbladder disorder. A VA contractor reviewed the claims file and provided an opinion in September 2021. First, the 2021 examiner determined that symptoms of the currently diagnosed post cholecystectomy syndrome existed prior to the Appellant's period of ACDUTRA. The examiner explained that the complaints of right upper quadrant pain and vomiting in January 1979 are "textbook [symptoms]" of gallstones or a gallbladder problem. The examiner also highlighted the December 1979 hospital notes, which indicate he'd had the same symptoms for one year. The examiner found this evidence of a preexisting disability "clear and unmistakable." Next, the 2021 examiner determined that the disability was less likely than not aggravated by ACDUTRA. The examiner explained there is no evidence of increasing or worsening complaints during the three months he was on ACDUTRA, and that aggravation did not occur until December 1979, which then led to removal of the gallbladder. According to the examiner, the typical risk factors for development of gallstones include being overweight, sedentary lifestyle, and a high fat diet. The examiner suggested that the Appellant's period of ACDUTRA would likely have improved these conditions through increased exercise and possibly weight loss. The 2021 examiner's opinion is based on an accurate medical history and provides explanations with clear conclusions and supporting data. The Board finds this opinion highly probative. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The October 2008 medical opinion from "Dr. G.A.," on the other hand, has little probative value. Dr. G.A. wrote that the Appellant's "gallbladder disease, according to his history, as I understand it, began during the service." Dr. G.A. offered no other rationale in support of this conclusion. Dr. G.A. later confirmed that he reviewed the Appellant's medical records in preparing the opinion. See November 2009 Correspondence. Nevertheless, the private opinion is inadequate to establish service connection. Unlike the 2021 VA opinion, it lacks sufficient detail to inform the Board of Dr. G.A.'s medical judgment, and it is not based on all of the pertinent medical history. Namely, G.A. failed to discuss the significance of the 1979 medical records documenting symptoms prior to the Appellant's ACDUTRA service. Monzingo v. Shinseki, 26 Vet. App. 97, 105 (2012). The Board has also considered the Appellant's hearing testimony from June 2011. Much of this testimony is consistent with the information in the 1979 medical records. However, the Appellant also testified that his gallbladder symptoms started about a month after he reported to Fort Sill for ACDUTRA. As discussed above, the medical records show that he actually began having symptoms months earlier. His testimony about the specific onset of the disability is inconsistent with the other evidence of record and is therefore not credible. Caluza v. Brown, 7 Vet. App. 498, 511 (1995). Ultimately, the Appellant has not met his burden of showing that he had a permanent increase in disability during his period of ACDUTRA service, and that such an increase was beyond the natural progress of the disease. Donnellan v. Shinseki, 24 Vet. App. 167, 173-75 (2010). As the preponderance of evidence is against the claim, the benefit-of-the-doubt rule is not applicable in this instance. Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Service connection must be denied. KELLI A. KORDICH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D.Z. Wall, 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.