Citation Nr: 21027149 Decision Date: 05/04/21 Archive Date: 05/04/21 DOCKET NO. 16-33 440 DATE: May 4, 2021 ORDER The claim of entitlement to service connection for diverticulitis is denied. REMANDED The claim of entitlement to service connection for hemorrhoids is remanded. FINDING OF FACT The preponderance of the evidence of record is against finding that the Veteran has had diverticulitis, or functional impairment caused by diverticulosis, at any time during or approximate to the pendency of the claim. CONCLUSION OF LAW The criteria for service connection for diverticulitis are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Air Force from July 1978 to October 1979, February 1 through February 5, 1991, January 2002 to November 2002, March 2003 to March 2004, May 2009 to October 2009, October 2010 to February 2011, September 2011 to May 2012, and September 2013 to May 2014. He had service in Southwest Asia (SWA). He had additional service as a member of the National Guard. These matters come before the Board of Veterans' Appeals (Board) on appeal from a January 2016 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In December 2019, the Board remanded these matters to the RO for more development, including to obtain private treatment records and to provide medical examinations to assess the onset and etiology of the claimed conditions. The Board concludes that there has been substantial compliance with its prior remand directives only as to the condition of diverticulitis. The Board finds the VA examination of the Veteran's hemorrhoid condition to be inadequate, as the examiner's report contains factual inaccuracies and insufficient medical rationale. As such, an addendum medical opinion is needed. See Stegall v. West, 11 Vet. App. 268 (1998). 1. The claim of entitlement to service connection for diverticulitis. The Veteran asserts that he was diagnosed with diverticulitis by VA, and that it was "caused by diet and stress while flying on [active duty]." See March 2016 Notice of Disagreement (NOD). He further contends that he was first diagnosed with diverticulitis shortly after a period of active duty service, which was the first time he ever had a colonoscopy to assess the nature of his disability. As a result, he contends that it is logical to conclude that his condition had its onset in service, but that he did not get a formal diagnosis until shortly after active duty. See July 2016 Form 9. 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). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 C.F.R. § 3.102. When the preponderance of the evidence weighs against the claims of the Veteran, the claim will be denied on its merits, and when the preponderance of the evidence weighs for the claims of the Veteran, the claim will be granted on its merits. In those cases, the benefit of the doubt doctrine is inapplicable. 38 U.S.C. § 5107; Gilbert, 1 Vet. App. at 54. As for the first element of service connection, the Board finds that the Veteran does not have a current disability of diverticulitis. The Veteran received a Gulf War medical examination in April 2015, which noted no digestive conditions. Following the Board's remand, the Veteran received another Gulf War examination and VA examination specific for intestinal conditions. See February 2020 Gulf War Disability Benefits Questionnaire (DBQ); February 2020 Intestinal Conditions DBQ. The examiner explained that the Veteran has diverticulosis a separate condition that is considered "a variation of normal" without episodes of diverticulitis. The examiner indicated that the Veteran's diagnostic and imaging studies showed no evidence of diverticulitis in December 2015, and that the condition (if present) would have shown up on imaging of the abdomen in 2017 and 2018. According to the DBQ, diverticulosis is a common finding in Western and industrialized societies, and 60 percent of the population will have diverticulosis by age 60. Other risk factors for developing diverticulosis include dietary intake of red meat, low fiber, lack of vigorous physical activity, genetics, and smoking. The examiner noted that the Veteran's diverticulosis was identified in 2015 when the Veteran was age 56, and that the Veteran had a history of smoking. The Board notes that as of 2004, the Veteran had a 25-pack year history of smoking. See January 2004 private treatment records. The Board acknowledges the Veteran's belief that he has a diverticular condition attributable to his periods of active service; however, review of the Veteran's service medical and private treatment records throughout his periods of active duty fail to show complaint or treatment for diverticulitis or diverticulosis. The Veteran was routinely cleared of gastrointestinal conditions on medical examinations during active service dates and within a year of discharge. See e.g., February 2011 annual examination (private); April 2014 post-deployment health assessment (STR); October 2015 primary care evaluation (VA). Further, while the Veteran is competent to report having experienced gastrointestinal symptoms, he is not competent to provide a diagnostic impression or etiological assessment of his symptoms. These issues are medically complex, as they require knowledge of the interaction between multiple organ systems in the body and the interpretation of medical research. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). The VA examination in this case contains extensive review of the medical evidence of record, with citation to current medical research relating to the claimed condition. Consequently, the Board gives more probative weight to the February 2020 VA medical DBQ and opinion. With respect to the Veteran's claim as it relates to 38 C.F.R. § 3.317 and Gulf War Illness, the February 2020 VA examiner reviewed the Veteran's deployment dates and locations and considered his military occupation in conducting her analysis. The examiner noted that the Veteran does not have a disability pattern, any undiagnosed illness, or a chronic multi-symptom illness of unknown or partially explained etiology. Further, the examiner stated that the Veteran did not describe any specific exposure events that caused any symptoms while in SWA, and that medical literature does not support any SWA exposure events as causative factors in any of the relevant conditions diverticulitis and/or diverticulosis. The examiner explained that diverticulosis has a clear and specific etiology and diagnosis. As such, the Board finds the Veteran's claimed diverticular condition is not a qualifying chronic disability under 38 C.F.R. § 3.317. In considering the Veteran's appeal, the Board notes that without proof of a present disability there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Still, the Board is aware that even in the absence of a formally diagnosed disability, symptoms such as pain can cause functional impairment, which may qualify as a disability under 38 U.S.C. § 1110. Saunders v. Wilkie, 886 F.3d 1356, 1368 (Fed. Cir. 2018). To establish the presence of a disability under Saunders, there must be competent, claimant-specific evidence showing that the "impairment rises to a level to affect earning capacity, which may include showing manifestations of a similar severity, frequency, and duration as those VA has determined by regulation would cause impaired earning capacity in an average person." Wait v. Wilkie, 33 Vet. App. 8, 17 (2020). In this case, the record reflects that while the Veteran has occasional complaints of diarrhea or abdominal pain, the Board finds no probative evidence that the symptoms rise to a level to affect the Veteran's earning capacity. See e.g., January 2017 VA treatment record (complaint of abdominal cramps and diarrhea after eating out at a restaurant); October 2017 VA treatment note (Veteran denied abdominal pain, diarrhea, constipation, etc.); October 2018 VA treatment record (abdominal pain described as "slight" and improving). Considered under relevant rating criteria, the Veteran's symptoms would be considered noncompensable (mild, with disturbances of bowel function with occasional episodes of abdominal distress). See 38 C.F.R. § 4.114, Diagnostic Code 7327. Accordingly, upon review of the entire record, the Board finds the preponderance of the evidence is against the Veteran's claim. As such, the Veteran's appeal for service connection for diverticulitis, to include impairment caused by diverticulosis, is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. REASONS FOR REMAND 1. The claim of entitlement to service connection for hemorrhoids is remanded. The Veteran contends that his hemorrhoids were "caused by hours of sitting while flying, stress and dehydration while flying," and that the condition was "documented numerous times" in his service records and in his private medical records received in February 2015. See March 2016 NOD. He also contends that while on active duty he sought private treatment for his hemorrhoids and that his active duty service further aggravated his condition. See July 2016 Form 9. The Board remanded this matter with specific instructions regarding the medical examination evidence required to accurately adjudicate the appeal. On remand, the Veteran was provided a VA medical examination in February 2020. The examiner incorrectly listed the Veteran's dates of active service, failing to include an active service period from March 2003 to March 2004. See DD 214s. The examiner also incorrectly stated that the first documented history of subjective complaint of hemorrhoids was in January 2004. For factual clarity, the Board notes that the Veteran's early service medical evaluations through April 1988 are silent for identification of hemorrhoids. An April 1988 Report of Medical Examination conducted for the Air National Guard flying class III duty indicated that the Veteran's rectum was "normal to digital examination" and his stool was negative for occult blood." The Veteran reported being in excellent health. See Report of Medical History. However, in June 1998, the Veteran sought treatment from a private physician with the initials S.C., complaining of rectal pain following a diarrheal illness the week before. Rectal examination revealed "marked external hemorrhoids," which were engorged but not thrombosed or hemorrhaging. According to Dr. S.C., the Veteran's rectal pain was "due to external hemorrhoids, and most likely recent diarrhea illness." Dr. S.C. prescribed treatment, including suppositories, and noted that a referral to a proctologist should be considered if the Veteran's symptoms persisted. This June 1998 treatment record appears to contain the first diagnosis of hemorrhoids and the first subjective report of such symptoms. A January 2004 private treatment record, again from Dr. S.C., noted the Veteran was a "flight engineer, who has just come back from Iraq," and was seeking care due to elevated blood pressure readings. The Veteran reported having "epigastric indigestion," and Dr. S.C. noted the Veteran "does have a history of hemorrhoids." It appears that the February 2020 VA examiner incorrectly relied on this record to decide that January 2004 was the first subjective complaint of hemorrhoids. The VA examiner also failed to address records from another private physician with the initials D.W., which show that the Veteran had hemorrhoids "present" during a review of symptoms in April 2012, and that the Veteran complained of hemorrhoids in December 2015, while his service connection claim was pending. See records received February 2015; VA treatment records dated December 2015. As such, an addendum opinion is needed to address the discrepancies included in the February 2020 VA opinion, and clarify whether the Veteran's hemorrhoid condition was aggravated by his active duty service. The matter is REMANDED for the following action: 1. Obtain an addendum medical opinion from a suitable clinician (preferably the clinician who examined the Veteran in February 2020). The RO should ensure that the opinion addresses the factual inaccuracies outlined above. A copy of this remand should be provided to the clinician. Correct dates of active service should be provided to the clinician. 2. The opining clinician is asked to do the following: (a.) Fully review the Veteran's claims file, with attention to active duty service dates, service medical records, post-service VA and private treatment records, and lay statements related to the claimed hemorrhoid condition. The clinician is also asked to specifically review the opinion provided in February 2020 along with the evidence contained in the June 1998 private treatment record of Dr. S.C., which found current hemorrhoids at that time. (b.) Then, opine as to whether there is clear and unmistakable ("obvious or manifest") evidence that the Veteran's hemorrhoids pre-existed any of his periods of active duty service? (c.) If there is clear and unmistakable evidence that the hemorrhoids pre-existed any period of active service, then is there also clear and unmistakable evidence that the pre-existing hemorrhoids did not undergo an increase in the underlying pathology during subsequent active service? In providing this opinion, the clinician should consider the Veteran's contention that his hemorrhoids were "caused by hours of sitting while flying, stress and dehydration while flying." (d.) If there was an increase in the severity of the Veteran's hemorrhoids, the examiner should offer an opinion as to whether such increase was clearly and unmistakably due to the natural progress of the condition. Additionally, if aggravation beyond the natural progress of the condition is found, the examiner should address the following medical issues: (1) the baseline manifestations of the Veteran's hemorrhoids found prior to aggravation; and (2) the increased manifestations which, in the examiner's opinion, are proximately due to active duty service. (e.) If there is no clear and unmistakable evidence that hemorrhoids pre-existed any period of the Veteran's active duty service, then the clinician is asked whether it is at least as likely as not that the condition had its onset in, or is directly related to, his active duty service and, if so, describe in detail the symptoms of the condition. 3. Following completion of the foregoing, the agency of original jurisdiction (AOJ) should review the record and readjudicate the claim on appeal. If it remains denied, the AOJ should issue an appropriate supplemental statement of the case, afford the Veteran and his representative an opportunity to respond, and return the case to the Board. B. MULLINS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Hart, 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.