Citation Nr: 21072450 Decision Date: 12/03/21 Archive Date: 12/03/21 DOCKET NO. 19-31 112 DATE: December 3, 2021 ORDER Entitlement to service connection for Crohn's disease is granted. Entitlement to service connection for end stage renal disease (ESRD) is granted. FINDINGS OF FACT 1. The Veteran's Crohn's disease did not clearly and unmistakably pre-exist his military service. 2. The Veteran's Crohn's disease was incurred in service and he has had continuous symptoms of this disability since service. 3. The Veteran's ESRD was caused by his service-connected Crohn's disease. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for Crohn's disease have been met. 38 U.S.C. §§ 1101, 1111, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. 2. The criteria for entitlement to service connection for ESRD on a secondary basis have been met. 38 U.S.C. §§ 1101, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1962 to August 1964, with additional service in the reserves until August 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2018 rating decision issued by a Department of Veterans Affairs (VA) agency of original jurisdiction (AOJ). The Veteran died in December 2020; his wife has been substituted as the appellant. This case was previously before the Board in December 2019 and April 2020. The April 2020 Board decision denied entitlement to service connection for Crohn's disease and ESRD. The Veteran appealed that decision to the United States Court of Appeals for Veterans Claims (Court). In April 2021, the Court granted a Joint Motion for Remand of the Veteran and the Secretary of Veterans Affairs on the grounds that the Board failed to provide adequate reasons and bases for finding that the Veteran's Crohn's disease clearly and unmistakably pre-existed service. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 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). Service connection may also be granted for a disease first 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). Service connection may be granted on a secondary basis for a disability that is proximately due to or the result of an established service-connected disability. 38 C.F.R. § 3.310(a). Service connection will also be granted on a secondary basis for an additional disability that results from aggravation of a nonservice connected disability by a service-connected disability. 38 C.F.R. § 3.310(b). A veteran is presumed to be sound upon entrance into service except for disorders noted at entrance into service. 38 U.S.C. § 1111. Only those disorders that are noted on an examination report at the time of entrance into service are considered to have been "noted." 38 C.F.R. § 3.304(b). For conditions not so noted, the presumption of soundness may be rebutted by clear and unmistakable evidence that the disorder preexisted service and clear and unmistakable evidence that the disorder was not aggravated by service. 1. Entitlement to service connection for Crohn's disease The Veteran had a diagnosis of Crohn's disease during the pendency of the appeal. See October 2018 and February 2020 VA examinations. Therefore, the first element of service connection has been met. The evidence of record indicates that the Veteran's Crohn's disease may have pre existed his service. However, the Board finds that no gastrointestinal (GI) disorder was noted upon entry into service. The July 1962 enlistment clinical evaluation indicated a normal abdomen with no notations showing any GI abnormalities. Accordingly, the presumption of soundness applies as to the Veteran's Crohn's disease. In order to rebut the presumption of soundness, the Board must find (1) that clear and unmistakable evidence shows that Crohn's disease preexisted service; and (2) that clear and unmistakable evidence shows that Crohn's disease was not aggravated by service. 38 C.F.R. § 3.304(b). The Board finds that there is not clear and unmistakable evidence that the Veteran's Crohn's disease preexisted service. The Veteran submitted a July 2018 correspondence stating that he was diagnosed with Crohn's disease in 1958, while he was a freshman in college. However, the record contains a June 1961 Reserve Officers' Training Corps (ROTC) cadet report, where the Veteran did not indicate any history of GI issues. Additionally, the ROTC cadet clinical medical examination did not indicate any GI issues. The Veteran's July 1962 report of medical history on entry into active duty did not indicate a history of GI symptoms. As discussed above, no GI symptoms or disorder were noted by the medical examiner on entry to active duty in July 1962. At the October 2018 VA examination, the Veteran stated that his onset of symptoms was in 1958, but he also stated that his condition began during military service. The February 2020 VA examiner found that Crohn's disease preexisted service. In making this finding, the examiner relied on the Veteran's July 2018 correspondence and statement to the 2018 VA examiner. However, in giving this opinion, the examiner did not discuss or consider the contradictory statements or records in the claims file. As noted above, there is both evidence in the record that supports finding that the Veteran's Crohn's disease preexisted service, and evidence that indicates the Veteran's Crohn's disease did not preexist service. Clear and unmistakable evidence means that the evidence "cannot be misinterpreted and misunderstood, i.e., it is undebatable." Vanerson v. West, 12 Vet. App. 254, 258 (1999) (citing definition of "clear and unmistakable error" in Russell v. Principi, 3 Vet. App. 310, 313-14 (1992)). The clear and unmistakable evidence standard is an onerous one. Laposky v. Brown, 4 Vet. App. 331, 334 (1993) (citing Akins v. Derwinski, 1 Vet. App. 228, 232 (1991)). Therefore, the Board finds that considering the conflicting evidence of record, the clear and unmistakable standard has not been met, and the presumption of soundness has not been rebutted. Turning to the second element of service connection, the evidence of record supports an in-service incurrence of a GI disorder. In December 1963, the Veteran's service treatment records indicate he was treated for gastroenteritis and complained of pain on both sides. In a May 2021 statement, the Appellant stated she visited the Veteran at the infirmary at Fort Jackson where the Veteran received treatment for his intestinal issues during service. At separation in June 1964, the Veteran marked "yes" to stomach, liver, or intestinal trouble. In addition, in the physician summary of the separation report, the doctor noted "nervous stomach." Therefore, the record supports an in-service incurrence of a GI disorder. The record contains a July 2019 private provider opinion from Dr. M. He stated that during active duty, the Veteran was afflicted with a severe intestinal problem, Crohn's disease, from which he has never recovered. The doctor noted the Veteran had many surgeries that resulted in having his entire colon removed. The doctor stated that the Veteran's Crohn's disease was service connected. The Veteran reported GI symptoms beginning in service, and he stated they continued since service. The Veteran's spouse reported that his issues escalated during service, as well as his time after in the reserves, and steadily worsened after service. She stated the Veteran received care at a hospital in New York City and further care in Atlanta, though she was unable to provide the medical records since it was so long ago. She further stated that about 25 years ago, Crohn's disease resulted in the removal of the Veteran's intestines. The Veteran's treatment records from 1999 by Dr. G. in Atlanta, Georgia, indicate that the Veteran had a long history of Crohn's disease, to include colon removal in 1973. The evidence of records supports the Veteran had GI symptoms in service, and a post-service diagnosis of Crohn's disease, which was severe enough to cause a colon removal in 1973. The report from Dr. M. supports the finding that the Veteran's GI symptoms in service were symptoms of the later diagnosed Crohn's disease. Therefore, although Crohn's disease was diagnosed post-service, the evidence of record supports an in-service incurrence of this disease and continuous symptoms since service. The Board notes the February 2020 VA examiner found that the Veteran's Crohn's disease clearly and unmistakably preexisted service and was clearly and unmistakably not aggravated beyond its normal progression during service. The Board accords this opinion little probative weight because the examiner did not consider evidence of record or statements from the Veteran that indicate Crohn's did not preexist service when making that determination. Therefore, as the most probative evidence of record indicates that the Veteran had symptoms of Crohn's disease in service and has experienced continuous symptoms since service, the Board finds that his Crohn's disease was incurred in service. With resolution of any reasonable doubt in the Veteran's favor, service connection for Crohn's disease is warranted. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 2. Entitlement to service connection for ESRD The Veteran contends that his ESRD was caused by his Crohn's disease. The Veteran had a current diagnosis of ESRD, as identified in the October 2018 VA examination. Therefore, the first element of service connection has been met. The July 2019 private provider statement from Dr. M. stated that the Veteran's Crohn's disease and colon removal has resulted in a severe electrolyte imbalance and eventual renal failure, which has required renal dialysis. As such, this report indicates that the Veteran's ESRD is proximately due to his service connected Crohn's disease. The October 2018 VA examiner did not offer an opinion as to whether the Veteran's ESRD was due to his Crohn's disease, as at the time, service connection had not yet been granted for Crohn's disease. The Board finds the statement from Dr. M. the only probative evidence of record regarding whether ESRD is caused by Crohn's disease. Therefore, the preponderance of the evidence supports a grant of service connection for ESRD on a secondary basis. There is no reasonable doubt to be resolved. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Tiffany Dawson Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N. Patrick, 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.