Citation Nr: 21022010 Decision Date: 04/14/21 Archive Date: 04/14/21 DOCKET NO. 17-27 190 DATE: April 14, 2021 ORDER Entitlement to service connection for a gall bladder condition to include gall stones is granted, as aggravated by service-connected disabilities. Entitlement to an evaluation in excess of 10 percent for service-connected scars, right lower anterior chest, is dismissed. Entitlement to an effective date earlier than April 14, 2004, for the grant of a 10 percent rating for service-connected scars, right lower anterior chest, is denied. FINDINGS OF FACT 1. The Veteran’s gall bladder condition (diagnosed as cholelithiasis or gall stones) was not caused by or incurred during his active service and was not caused by any service-connected disability. However, giving the Veteran the benefit of every reasonable doubt, his diagnosed gall bladder condition has been aggravated by his service-connected disabilities, including residuals of abdominal surgery related to ulcerative colitis. 2. At the October 2020 Board Hearing, prior to the promulgation of a decision in the appeal, the appellant, with advice of his representative and after discussion of the consequences of withdrawal, requested a withdrawal of the issue of entitlement to an evaluation in excess of 10 percent for service-connected scars, right lower anterior chest. 3. The Veteran did not appeal the May 2004 Rating Decision that granted a 10 percent rating for service-connected scars, right lower anterior chest, effective April 14, 2004, and VA did not receive any new evidence relating to that claim within one year of that decision. 4. The December 2015 Rating Decision did not award an increase for the service-connected scars, right lower anterior chest, so there was no effective date determination with which the Veteran could disagree. CONCLUSIONS OF LAW 1. The criteria for entitlement to direct service connection and for secondary service connection based on causation for a gall bladder condition to include gall stones have not been met. However, the criteria for entitlement to service connection for a gall bladder condition to include gall stones as aggravated by service-connected disabilities have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.310. 2. The criteria for withdrawal of the claim of entitlement to an evaluation in excess of 10 percent for service-connected scars, right lower anterior chest, by the appellant (or his or her authorized representative) have been met, and the claim is dismissed. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 3. The criteria for entitlement to an effective date earlier than April 14, 2004, for the grant of a 10 percent rating for service-connected scars, right lower anterior chest, have not been met. 38 U.S.C. § 5110; 38 C.F.R. §§ 3.155 and 3.400(o). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1984 to September 1994. The Veteran testified before the undersigned at an October 2020 Board Hearing held virtually. The claims file includes a transcript of the hearing. The Veteran has testified at additional hearings on other issues. See October 2015 Board Hearing; April 2020 Board Hearing; and October 2020 Board Hearing #2. The claims file also includes transcripts of each of those hearings. The record contains evidence not yet considered by the agency of original jurisdiction (AOJ); however, the Veteran has waived consideration of that evidence by the AOJ prior to a decision on the merits. October 2020 Board Hearing Tr. at 2. Also, the gall bladder claim is being granted and the additional evidence is not pertinent to the earlier effective date claim. Therefore, the Board may proceed to the merits of the service connection and earlier effective date claims. See 38 C.F.R. § 20.1305(c). Moreover, the claim of entitlement to a higher rating for service-connected scars is being dismissed as withdrawn. The Board notes that the above claims are part of a legacy appeal and are part of one of several appeal streams. See July 2020 Board Remand (labeling the above as “appeal stream #3”). The Board will not repeat the full procedural history of the four separate appeal streams; however, a brief discussion may clarify what is at issue in this decision and what is not at issue in this decision. There is one pending appeal in the modernized review system, also known as the Appeals Modernization Act (AMA), which involves a claim of entitlement to service connection for a right knee disability. That claim was remanded in a July 2020 Board Remand, and is before the AOJ. In addition, there are three separate appeals streams in the legacy appeal system. See July 2020 Board Remand (describing in detail the three separate legacy appeal streams). Appeal stream #1 remains at the AOJ pursuant to a February 2019 Board Remand, so those claims will not be addressed at this time. Appeal stream # 2 involves the issues of entitlement to a rating in excess of 40 percent for service-connected ileoanal anastomosis with rectal stricture, entitlement to service connection for PTSD, and entitlement to a total disability rating based on individual unemployability (TDIU). Those issues were discussed in the second of the two October 2020 Board hearings and a separate Board decision was issued by Judge Kessel on March 19, 2021 addressing the claims in appeal stream #2, as well as noting the benefits that were granted in a January 2021 rating decision. See July 2020 Board Remand (labeling these three claims as “appeal stream #2”). And, finally, this appeal is the third appeal stream (“appeal stream #3”). This decision will only address the issues in appeal stream #3. 1. Entitlement to service connection for gall bladder condition to include gall stones as secondary to service-connected disabilities The Veteran contends that he has a current gall bladder condition that is aggravated by his service-connected disabilities, including residuals of abdominal surgery. Specifically, he contends that his treatment options for the gall bladder condition are limited due to residuals of prior abdominal surgery for service-connected conditions and, therefore, he suffers more pain and disabling effects than he otherwise would from the gall bladder condition. See October 2020 Board Hearing Tr. at 4-5; see also November 2020 Representative’s Brief (stating that the Veteran “is claiming secondary service connection for his gallbladder condition on the grounds that his service-connected ileoanal anastomosis aggravates his gallbladder.”). The June 2016 VA examination shows the Veteran has a current disability of cholelithiasis, chronic, (i.e., gall stones). See also May 2019 VA Report on Ultrasound (“Numerous stones filling the gall bladder lumen. Focal tenderness is reported scanning over the gall bladder.”). The Veteran does not allege, and the greater weight of the evidence, is against finding, that his service-connected disabilities caused his gall bladder condition. See, e.g., October 2020 Board Hearing Tr. at 6; June 2016 VA Examination (“there is no medical documentation that might link the previous surgery to the veteran’s gallstones”). Therefore, secondary service connection based on causation is not warranted. However, the Veteran alleges and the evidence supports finding that his service-connected disabilities (including residuals of prior surgeries) has aggravated the gall stone condition by preventing treatment to alleviate the symptoms and progression of that condition. In particular, the record includes the medical opinion of a VA surgeon who explained the medical facts and principles involved in advising the Veteran regarding the risks of the usually recommended surgical treatment of his gall bladder condition. See May 2019 VA Surgery Consult (“A lengthy discussion was held regarding cholelithiasis, cholecystitis, and cholecystectomy. Again, as he has multiple frequent loose BMs on a daily basis, cholecystectomy would not improve, rather it may significantly worsen this. Additionally, he has undergone proctocolectomy, the likelihood of RUQ adhesions would make any attempt at cholecystectomy more difficult, and carry with it an increased risk of complications, including bleeding, infection, injury to intra-abdominal structures. After this discussion, he has decided better to continue as is, avoid heavy or fatty meals, and not pursue cholecystectomy.”). The Veteran’s representative submitted an August 2020 Private Opinion Letter which addressed “whether his gall bladder condition, his ileostomy scar and fecal incontinence are related in any way to his service.” The physician briefly discussed the Veteran’s medical history, including the presence of both ulcerative colitis and gall bladder issues. The physician stated that the medical literature indicates that patients with ulcerative colitis have twice the incidence of gall bladder issues compared to the matched general population. The expert concluded: “As his UC is service-connected, his gall bladder is secondary to UC and, therefore, service-connected.” The Board finds that to the extent that the expert is offering a direct service connection opinion, it is not entitled to significant probative weight. First, the opinion purports to provide a legal conclusion, rather than make a medical assessment. Second, the reasoning of the opinion does not make any attempt to distinguish causation from correlation. Merely citing a statistic that patients with ulcerative colitis have a higher incidence of “gall bladder issues” (without specifying exactly what gall bladder issues, to include whether they are the same as the issues the Veteran had) does not indicate whether ulcerative colitis causes “gall bladder issues”, whether “gall bladder issues” cause ulcerative colitis, whether there is some other common factor (genetic predisposition, environmental exposure, or acquired condition) that tends to cause both ulcerative colitis and “gall bladder issues”, and, even if any of those questions were settled, whether this Veteran’s ulcerative colitis caused his particular gall bladder condition (to include gallstones). The August 2020 Private Opinion Letter has some probative weight in supporting the theory advanced by the Veteran’s representative. Specifically, the expert’s opinion is consistent with and provides some tangential support for the contention that ulcerative colitis aggravated this Veteran’s gall bladder condition. The statistic cited does suggest that it is plausible that ulcerative colitis and gall bladder issues may have some interrelation, perhaps including an intertwined aggravating relationship. The Board need not decide whether, standing alone, the opinion would be sufficient on the aggravation question, because, as already discussed, the record contains other opinions more directly and more persuasively reasoning that the service-connected disabilities aggravated the Veteran’s gall bladder condition. The letter opinion does not provide a sufficient basis to award direct service connection or to find the Veteran’s ulcerative colitis caused his gall bladder condition. The record does not contain any medical opinion against the Veteran’s claim on the issues of aggravation generally, or the theory put forward by the Veteran and his representatives in particular. The VA surgeon’s opinion is sufficient to decide the claim, so it is not necessary to obtain any additional opinions. Under the particular facts of this case, the fact that the Veteran’s service-connected disabilities prevent typical treatment of the gall bladder condition and, thereby, worsen the symptoms and associated functional impairments caused by the current gall bladder condition, entitlement to service connection for a gall bladder condition based on aggravation is warranted. The greater weight of the evidence weighs in favor of the Veteran’s claim of entitlement to service connection for a gall bladder condition based on aggravation. The claim is granted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 2. Entitlement to an evaluation in excess of 10 percent for service-connected scars, right lower anterior chest The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 19.55 (for legacy appeals). Withdrawal may be made by the appellant or by his or her authorized representative. Id. In the present case, the appellant, in consultation with his authorized representative, has withdrawn the claim of entitlement to an evaluation in excess of 10 percent for service-connected scars, right lower anterior chest, residuals of abdominal surgery. See October 2020 Board Hearing Tr. at 3-4. An oral withdrawal of an appeal, such as this one, must be (1) explicit, (2) unambiguous, and (3) done with a full understanding of the consequences of such action on the part of the claimant. DeLisio v. Shinseki, 25 Vet. App. 45, 57 (2011); see Acree v. O’Rourke, 891 F.3d 1009, 1014 (Fed. Cir. 2018). Here, the Veteran’s representative made an explicit and unambiguous request to withdraw the claim of entitlement to an increased rating for the scars. See October 2020 Board Hearing Tr. at 3 (“Regarding the issue of the scars, I believe we’ll be withdrawing the higher than 10%.”); see also November 2020 Representative’s Brief (noting the Veteran “withdraws his claim for a higher than 10 percent rating for scars”). The undersigned explained the consequences of the withdrawal, including that the claim would be dismissed and the Veteran current 10 percent rating would remain in effect. Id. The Veteran and his representative both unambiguously affirmed the Veteran’s intent to withdraw the claim. Id. at 3-4. The elements for an oral withdrawal of the claim of entitlement to a rating in excess of 10 percent for the scars of the right lower anterior chest have been met. Consequently, there remain no allegations of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review the appeal and it is dismissed. 3. Entitlement to an effective date earlier than April 14, 2004, for the grant of a 10 percent rating for service-connected scars, right lower anterior chest The Veteran seeks an effective date earlier than April 14, 2004 for the grant of a 10 percent rating for service-connected scars, right lower anterior chest, residuals of abdominal surgery. The RO granted the Veteran’s initial claim of entitlement to service connection for residual scars from abdominal surgery in a January 1995 rating decision and assigned a non-compensable rating for the service-connected scars. The Veteran did not appeal that decision and no new evidence was received within one year of the decision, so it became final. 38 C.F.R. § 20.1103. On April 14, 2004, the Veteran filed a claim seeking a higher rating for his service-connected ulcerative colitis. See April 2004 VA 21-4138. The RO interpreted the claim as also seeking a higher rating for the service-connected scars of the right lower anterior chest, residuals of abdominal surgery and granted a 10 percent rating for the scars effective April 14, 2004. See May 2004 Rating Decision. The Veteran did not appeal that decision and no new evidence was received within one year of the decision, so it became final. 38 C.F.R. § 20.1103. In the 2015 rating decision on appeal, the RO continued the 10 percent rating for the scars. The 2016 notice of disagreement indicated disagreement with the rating assigned and the effective date. However, as the 2015 rating decision did not award an increase for the scars, there was no effective date decision with which the Veteran could have disagreed. A NOD can only be valid in response to an adverse determination by the RO, and here there was no adverse determination in 2015 with respect to an effective date for the disability rating for the scars, as no increase was awarded. Therefore, this NOD was not valid on this issue. Regardless, the RO adjudicated the question of an earlier effective date in the Statement of the Case. Again, the 10 percent rating in effect was assigned in a 2004 rating decision. As noted above, that rating decision was not appealed and became final, so is not currently on appeal. 38 C.F.R. § 20.1103. The Veteran cannot generally bring a freestanding claim for an earlier effective date, as such a claim is not viable. Rudd v. Nicholson, 20 Vet. App. 296 (2006). The only other avenue to contest the effective date assigned in the May 2004 Rating Decision would be via a claim of clear and unmistakable error (CUE). Neither the Veteran nor his representatives have explicitly raised the issue of CUE. Clear and unmistakable error is a very specific and rare kind of error that must be pled with specificity. See Fugo v. Brown, 6 Vet. App. 40, 43 (1993); Andre v. Principi, 301 F.3d 1354, 1361 (Fed.Cir. 2002) (because a CUE claim involves an allegation of an error with 'some degree of specificity,' a veteran's assertion of a particular clear and unmistakable error by the RO constitutes a distinct claim"). The issue of CUE in the May 2004 Rating Decision has not been reasonably raised by the record, so will not be addressed here or referred back to the AOJ. Doing so could prejudice the rights of the Veteran to pursue a well-developed CUE claim in the future. In the absence of any indication that the Veteran intended to raise a CUE claim (to include any argument that would implicate CUE beyond the generic assertion of entitlement to an earlier effective date for the 10 percent rating for scars), it would be improper for the Board to refer a claim that may prevent the Veteran from later pursuing a fully considered and developed claim alleging CUE in the May 2004 Rating Decision. The Veteran’s representative indicated she would provide briefing on the earlier effective date issue outlining the theory supporting the award of an effective date prior to April 2004. She did file a post-hearing brief dated November 6, 2020, but she did not present any additional argument on the effective date issue. The Veteran’s filings do not reveal the legal or factual basis for his claim of entitlement to an effective date earlier than April 14, 2004, for the 10 percent rating for scars. See December 2016 Notice of Disagreement (indicating disagreement with the effective date of the award for “scars, right lower anterior chest, residuals of abdominal surgery” but containing no indication of the date sought or basis of the claim); August 2017 VA Form 9 (stating only: “I believe that the Regional Office was wrong in denying my client’s claim for a higher than 10 percent rating for scars of the right lower anterior chest, residuals of abdominal surgery with an earlier effective date prior to April 14, 2004 and we would like the opportunity to present the evidence to the Board as soon as possible.”); October 2020 Board Hearing Tr. at p. 3 (“I’ll brief the effective date issue for you. It’s just the…gallbladder for testimony today.”) and p. 7 (“JUDGE: …So let’s talk about an earlier effective date for [the 10 percent rating for scars]. [MS. JACKSON: Your Honor, I’d be happy to brief that for you, but I don’t think it actually…needs testimony.”). In short, the Board sees no viable claim of entitlement to an effective date prior to April 14, 2004, for the grant of a 10 percent rating for the service-connected scars of the right lower anterior chest. The claim is denied. Duties to Notify and Assist The Veteran has not raised any specific issues with the duty to notify or duty to assist. 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). Therefore, the Board does not need to discuss VA’s compliance with the duties to notify and assist. MICHELLE L. KANE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Kerry Hubers 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.