Citation Nr: 21031127 Decision Date: 05/20/21 Archive Date: 05/20/21 DOCKET NO. 16-34 225 DATE: May 20, 2021 ORDER Entitlement to service connection for diverticulosis, claimed as secondary to service-connected irritable bowel syndrome (IBS), is denied. REMANDED Entitlement to service connection for bilateral plantar fasciitis is remanded. Entitlement to service connection for a menstrual disability is remanded. FINDING OF FACT The Veteran's diverticulosis is not due to or permanently aggravated beyond natural progression by her service-connected IBS. CONCLUSION OF LAW The criteria for entitlement to service connection for diverticulosis as secondary to service-connected IBS are not met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty service from July 1985 to August 1991, to include service in the Southwest Asia theater of operations during the Persian Gulf war. These matters come before the Board of Veterans' Appeals (Board) on appeal from an August 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). These matters were before the Board in October 2018. The Board remanded the matters for additional development. The case has returned to the Board for review. The Board finds that there has been substantial compliance with the remand directives pertaining to the claim of entitlement to service connection for diverticulosis as secondary to service-connected IBS. See Stegall v. West, 11 Vet. App. 268 (1998). Unfortunately, there has not been substantial compliance with the remand directives pertaining to the issues of entitlement to service connection for bilateral plantar and for a menstrual disability. Id. In November 2011, the Agency of Original Jurisdiction (AOJ) requested the Veteran submit any relevant private treatment records or submit information with which VA can assist the Veteran in obtaining private treatment records. In a letter dated November 2011, the Veteran identified 10 private treatment providers and submitted VA form 21-4142s for private treatment records. In an April 2012 Report of General Information, the AOJ reported that they spoke to the Veteran on the telephone and she stated that she did want them to obtain any of her private medical records. She stated that she had submitted all the private treatment she wished to have considered, and that she would like to move forward with the claims. The RO continued to send VCAA letters, to include following the Board Remand, to the Veteran requesting that she submit any relevant private treatment records or submit information for the AOJ to obtain relevant private treatment records. Thus, the Board finds that VA has satisfied the duty to assist. No further notice or assistance to the Veteran is required to fulfill VA's duty to assist in development. Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); Quartuccio v. Principi, 16 Vet. App. 183 (2002) Although the Board has reviewed all the evidence of record, the Board does not need to discuss each piece of evidence. Gonzalez v. West, 218 F. 3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, including the Veteran's lay statements, and the Board's analysis below will focus specifically on what the relevant evidence shows. 1. Entitlement to service connection for diverticulosis, claimed as secondary to service-connected irritable bowel syndrome In the July 2016 VA Form 9, the Veteran asserts that her diverticulosis was caused by her service-connected IBS. She has consistently attributed her claimed disorder to her service-connected IBS. See e.g. November 2011 statement. The Veteran has not claimed, nor does the evidence show, that her diverticulosis onset during service. A disability may also be found service connected on a secondary basis by demonstrating that the disability is either (1) proximately due to or the result of an already service-connected disease or injury or (2) aggravated by an already service-connected disease or injury. See Allen v. Brown, 7 Vet. App. 439, 448 (1995); 38 C.F.R. § 3.310. The Veteran underwent a colonoscopy in January 2010 which showed sigmoid diverticulosis. Thus, a present disability is shown. In addition, the Veteran is presently service connected for IBS. The Veteran had a VA examination for intestinal conditions in May 2012. The examiner continued the diagnosis of diverticulosis and noted that it was first diagnosed in January 2010. The examiner opined that the Veteran's diverticulosis was less likely as not related to a specific exposure event experienced by the Veteran during service in Southwest Asia. As rationale, the examiner stated that many people have small pouches, or diverticula, in the lining of the colon that bulge outward through weak spots. This condition, called diverticulosis, affects about 10 percent of Americans older than 40 years of age. The condition becomes more common as people age, and diverticula are most common in the sigmoid portion of the large intestine, which is where the Veteran's diverticula are located. In a June 2013 addendum opinion, a VA examiner opined that the Veteran's diverticulosis is less likely as not proximately due to or the result if her service-connected IBS. The examiner provided the same discussion of diverticulosis as was provided in the May 2012 examination report, noting that IBS has not been documented as a cause of diverticulosis. In October 2019, the Veteran had a VA examination for intestinal conditions. The examiner noted that he reviewed the Veteran's entire record, which include her lay statements, and conducted an in-person examination. The examiner continued the Veteran's diagnosis of diverticulosis. The Veteran described the onset and course of her diverticulosis. She stated that she went to the Emergency Room in 2006 for lower abdominal pain and was told that she had IBS. She then went to her private primary care physician, who referred her to a gastrointestinal physician, for a colonoscopy which showed diverticulosis. The examiner opined that the Veteran's diverticulosis is not at least as likely as not caused or aggravated by her service-connected IBS. As rationale, the examiner stated that the medical literature does not indicate a causal relationship between IBS and diverticulosis. Although the examiner provided the following rationale for his direct service connection opinion, it supports his opinion regarding secondary service connection. The examiner stated that diverticulosis is not uncommon, and that up to 20 percent of the population have it, the likelihood of having diverticulosis increases with age, and further, that risk factors for diverticulosis are age over 40 years, a low fiber diet, sedentary lifestyle, and obesity. The Board finds that the October 2019 VA examiner's opinion is highly probative and weighs against the claim. The Board notes that the Veteran was born in November 1965, thus she was over 40 on the date of her initial diverticulosis diagnosis in January 2010. A September 2011 private treatment record states that the Veteran had just begun a high fiber diet. She was noted to be 5'4" tall and weighed 211 pounds. In the August 2013 VA examination for chronic fatigue symptom, the examiner noted that the Veteran's "overweight body habitus" has been documented since at least in 1989. In October 2014, approximately two years following her diverticulosis diagnosis, VA treatment records state that she had a history of obesity and what she was scheduling bariatric surgery. A November 2014 treatment record states that the Veteran is able and interested in beginning the MOVE program and that they will help the Veteran achieve goals in the areas of nutrition, physical activity and behavior. She was informed that she was not meeting the physical activity recommendations for Americans. The Board finds that such evidence supports a finding that it is as likely as not the Veteran had all 4 risk factors for diverticulosis. Such evidence is highly probative and weighs against a finding that her diverticulosis is due to or aggravated by her service-connected IBS. The Veteran has consistently stated that her diverticulosis is secondarily related to her service-connected IBS. The only evidence indicating an association between the Veteran's diverticulosis and her service-connected IBS are her assertions. It is well established that a layperson without medical training is not qualified to render a medical opinion regarding the etiology of certain disorders and disabilities. See 38 C.F.R. § 3.159 (a) (1). The origin or cause of diverticulosis are not simple questions that can be determined based on personal observation by a lay person. It is not shown that the appellant is qualified through specialized education, training, or experience to offer a medical opinion as to her diverticulosis. Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). Thus, the Veteran's lay statements are not competent to establish medical etiology or nexus for her diverticulosis. Id. The matter of the etiology of diverticulosis does not lie within the range of common experience or knowledge but requires special experience or knowledge. There is no competent evidence of record showing that the Veteran's diverticulosis is due to or aggravated by her service-connected IBS. The Board affords greater probative value to the October 2019 VA examiner's negative nexus opinion and to the medical evidence of record which shows that it is as likely as not that the Veteran had all 4 risk factors for diverticulosis. In the written statement from the Veteran received in July 2020, the Veteran asserts that the October 2019 VA examination for diverticulosis was inadequate due to the examiner's bias against her. The Veteran asserts the examiner did not read any of her statements and that he did not listen to her. She also asserts that the examination was conducted so quickly that it was obvious that VA's only concern was completing the examination in order to support their original denial of her claim. She then reasserted that her IBS constipation was the cause of her diverticulosis. She then described why she believes that her constipation from her service-connected IBS caused her diverticulitis and how her diverticulitis affects her life. The Board find that the VA examination report does not reflect examiner bias or raise doubts regarding the examiner's credibility. The examiner offered a full medical opinion based on a review of the Veteran's claims file, which contains all of her lay statements, and an in-person examination of the Veteran. He then provided a complete medical opinion regarding secondary service connection, with a complete rationale based on the relevant information. Once again, the evidence shows that the VA examiner considered the Veteran's lay assertions of record, which include her assertions that her diverticulitis is due to her service-connected IBS. As such, the Board finds that the October 2019 examiner is credible. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine does not apply. 38 U.S.C. § 5107 (b); Gilbert v. Derwinsky,1 Vet. App. 49 (1990). Accordingly, the claim of entitlement to service connection for diverticulosis, claimed as secondary to service-connected IBS, is denied. REASONS FOR REMAND Where VA provides the veteran with an examination in a service connection claim, the examination must be adequate. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Further, when a Veteran has provided lay testimony of an in-service event, an examiner cannot ignore that lay evidence and base his or her opinion on a finding that there is no relationship to service on the absence of in-service corroborating medical records. Dalton v. Nicholson, 21Vet. App.23, 39-40 (2007). Unfortunately, there has not been substantial compliance with the Board's previous remand directives regarding the issues of entitlement to service connection for bilateral plantar fasciitis and entitlement to service connection for a menstrual disability. See Stegall. 1. Entitlement to service connection for bilateral plantar fasciitis is remanded. The Veteran asserts she has bilateral plantar fasciitis that onset during service. In the October 2019 decision, the Board remanded the appeal to obtain an examination. The Board explicitly stated that the examiner must specifically address the Veteran's assertions of in-service bilateral foot pain and that the pain existed ever since discharge from service. The October 2019 examiner did not specifically address the Veteran's assertions of in-service bilateral foot pain which continued after service to the present. His rationale for his negative nexus opinion was that the Veteran's STRs and discharge examination are silent for bilateral plantar fasciitis and that she was not diagnosed until well after discharge from service. Thus, the matter must be remanded for an addendum opinion. 2. Entitlement to service connection for a menstrual disability is remanded. The Veteran contends that she is entitled to service connection for a menstrual disorder. Specifically, the Veteran alleges that she had no unusual bleeding or menstrual cycles prior to her service in Saudi Arabia until she received an inoculation. In the alternative, she contends that her menstrual disorder was an undiagnosed illness, or a qualifying chronic disability for which service connection is warranted based on her service as a Persian Gulf veteran. In October 2018, the Board remanded the appeal to obtain an examination to determine the etiology of any menstrual disability. The Veteran had a VA examination for gynecological conditions in October 2019. The Board finds the October 2019 VA examination is inadequate for adjudication purposes. When assessing a claim, VA may not consider the absence of evidence as substantive negative evidence. See Horn v. Shinseki, 25 Vet. App. 231, 239 (2012), Forshey v. Principi, 284 F.3d 1335, 1363 (Fed. Cir. 2002). In this regard, the October 2019 VA examiner provided negative etiological opinions for both the direct service connection claim and the undiagnosed illness claim, relying solely on the absence of documented evidence in the Veteran's service treatment records and separation examination. The Board finds the October 2019 VA examination opinions are inadequate for adjudication purposes. When assessing a claim, VA may not consider the absence of evidence as substantive negative evidence. See Horn v. Shinseki, 25 Vet. App. 231, 239 (2012), Forshey v. Principi, 284 F.3d 1335, 1363 (Fed. Cir. 2002). As such, remand is required to obtain addendum medical opinions. The matters are REMANDED for the following action: 1. Update the Veteran's VA treatment records. 2. Obtain an addendum opinion from the examiner who conducted the October 2019 VA examination, or if the examiner is not available, from another medical examiner to determine the etiology of any bilateral plantar fasciitis. The entire claims file should be made available to and be reviewed by the examiner, and it should be confirmed that such records were available for review. If a new examination is deemed necessary BY THE EXAMINER, then one should be scheduled. Following a complete review of the evidence of record and with consideration of the Veteran's lay statements, assuming the statements are credible for the limited purpose of the request herein, the examiner is requested to provide the following opinion: whether it is at least as likely as not (50 percent or greater probability) that the Veteran's bilateral plantar fasciitis onset in, or is otherwise related to, active military service. The examiner must specifically address the Veteran's assertions of in-service onset of bilateral foot pain and that pain has continued since service. 3. Obtain an addendum opinion from the examiner who conducted the October 2019 VA examination, or if the examiner is not available, from another medical examiner to determine the etiology of any gynecological disorder. The entire claims file should be made available to and be reviewed by the examiner, and it should be confirmed that such records were available for review. If a new examination is deemed necessary BY THE EXAMINER, then one should be scheduled. Following a complete review of the evidence of record and with consideration of the Veteran's lay statements regarding the full history of her claimed symptoms, to include the onset thereof, assuming the statements are credible for the limited purpose of the request herein, the examiner is requested to provide the following opinions: The examiner must opine as to whether it is at least as likely as not (a 50 percent or greater possibility) that any current gynecological disorder is causally or etiologically related to service. The examiner must address the Veteran's statements and records, including but not limited to, her contention that her menstrual disorder is due to in-service inoculations, and her report of a change in menstrual pattern in the April 1985 Report of Medical History. (Continued on the next page) The examiner must also determine whether any of the Veteran's gynecological complaints is due to an (A) an undiagnosed illness; or (B) a medically unexplained chronic multisymptom illness that is defined by a cluster of signs or symptoms, such as: (1) chronic fatigue syndrome; (2) fibromyalgia; (3) functional gastrointestinal disorders. The examiner is reminded that a medical opinion based solely on the absence of medical documentation in the record, or that does not consider the Veteran's reports of symptoms and history, is inadequate. Jennifer White Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Susan Leary 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.