Citation Nr: 22016320 Decision Date: 03/21/22 Archive Date: 03/21/22 DOCKET NO. 09-45 845 DATE: March 21, 2022 ORDER Service connection for pancreatitis is denied. FINDING OF FACT The Veteran's pancreatitis did not have its onset in service, did not manifest within one year of service, was not caused by an in-service event, injury, disease, nor was it caused or aggravated by any service-connected disability. CONCLUSION OF LAW The criteria for service connection for pancreatitis have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from August 1966 to August 1968, including service in the Republic of Vietnam from March 1967 to March 1968. The Veteran unfortunately died in November 2021. The Appellant is the Veteran's surviving spouse and has been substituted as the claimant for the purposes of processing the above-listed claims to completion. 38 U.S.C. § 5121A. This matter come before the Board of Veterans' Appeals (Board) on appeal from a December 2007 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the Board in a November 2014 hearing before a Veterans Law Judge (VLJ) who has since retired. In a May 2017 letter, the Board notified the Veteran that the VLJ who chaired the November 2014 hearing was no longer employed by the Board and was thus not available to adjudicate his appeal. The letter advised the Veteran that he could be afforded another Board hearing. Another hearing was scheduled but the Veteran subsequently cancelled his request. As such, the Board will proceed to adjudicate the appeal based on the current record. This case was previously remanded by the Board in August 2014, January 2015. When this matter was before the Board in March 2016, the Board denied service connection for pancreatitis, to include as secondary to the Veteran's diabetes mellitus and/or heart disease. The Veteran appealed the Board's March 2016 decision to the United States Court of Appeals for Veterans Claims (Court), which in an April 2017 order, granted the parties' joint motion for remand, vacating the Board's March 2016 decision and remanding the case for compliance with the terms of the joint motion. In July 2018, October 2019 and October 2020 remanded the claim for further development. Service Connection Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). In general, service connection requires (1) evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the current disability. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Secondary service connection may also be established for a nonservice-connected disability which is aggravated by a service-connected disability. In such an instance, the Veteran may be compensated for the degree of disability over and above the degree of disability existing prior to the aggravation. 38 C.F.R. § 3.310(b); see Allen v. Brown, 7 Vet. App. 439, 448 (1995). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and recurrence of symptoms. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case-by-case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d at 1377 (Fed. Cir. 2007) (holding that "[w]hether lay evidence is competent and sufficient in a particular case is a factual issue to be addressed by the Board"). Service connection for pancreatitis The Appellants contends that Veteran is entitled to service connection for his pancreatitis which developed as a result of his service-connected diabetes mellitus type II and/or his service-connected coronary artery disease (CAD). See April 2007 Statement in Support of Claim. The Veteran's medical records show a diagnosis of acute pancreatitis from February 16 to February 20, 1995. The Veteran's service treatment records do not contain any complaints, treatment, or diagnoses for a pancreatitis condition. At his November 2014 Board hearing, the Veteran testified that he went to the ER in 1995 and was told he had a pancreatitis attack. The Veteran was provided a VA Pancrease Conditions examination in May 2015 in which he was not diagnosed with a gallbladder or pancreas condition. The examination reflects the Veteran's admittance for severe abdominal pain for 24 hours and diffusely inflamed pancreas suggestive of pancreatitis from February and March 1995. The VA examiner held that the Veteran has remained asymptomatic since the 1995 acute attack. The examiner noted the Veteran reported he experienced symptoms of what could be pancreatitis (unconfirmed by any medical records) in the early 1980s but was seen initially in the local ER in 1995 for an acute attack, approximately 20 years after separation from service. The examiner added that the Veteran's diabetes and pancreatitis occurred around the same time and the discharge summary from the pancreatitis hospitalization in 1995 does not document a blood sugar or a diabetes medication upon discharge; it does show very high triglycerides and the Veteran had a history of cigarette smoking. Therefore, the examiner opined it was less likely than not the Veteran's pancreatitis was caused by his diabetes. As to the CAD, the VA examiner opined that there is no documented evidence in the medical literature establishing a connection between pancreatitis and CAD; further, the Veteran's acute attack of pancreatitis occurred eight years before his diagnosis of CAD and stents. Therefore, it was deemed less likely than not that the CAD caused the pancreatitis. As noted above, the Veteran's claim of service connection for pancreatitis was denied by the Board in March 2016. The Veteran appealed to the Court, which granted the parties' Joint Motion for Partial Remand (JMPR); the parties agreed to vacate and remand the March 2016 Board decision as to the issues of entitlement to service connection for hypertension, pancreatitis, and erectile dysfunction. An order memorializing the JMPR was issued by the Court in April 2017. Specifically, the April 2017 JMPR found that the Board erred by relying on the report of an April 2015 VA examination report in which the VA examiner opined that the Veteran's hypertension, erectile dysfunction, and pancreatitis were not permanently aggravated by his service-connected diabetes mellitus or CAD. The JMPR emphasized that "permanent aggravation" was not required in order to find secondary aggravation to a service-connected condition. There is no requirement of permanent worsening for a veteran to be entitled to service connection due to aggravation, only that the worsening is not caused by natural progression. See Ward v. Wilkie, 31 Vet. App. 233, 239 (2019) (the Court concluded instead that "compensation was due for any incremental increase in disability... in non-service-connected disabilities resulting from service-connected conditions, above the degree of disability existing before the increaseregardless of its permanence,). As such, the Board found that the April 2015 VA examination report was inadequate, and a new examination should be obtained upon remand which address the issue of aggravation using the appropriate standard. See July 2018 BVA Decision. In a March 2019 VA Medical Opinion, a VA examiner opined that Veteran would be classified as having chronic pancreatitis based largely on imaging findings, but the condition can be asymptomatic which appears to be the Veteran's condition. Based on interview and a review of the file, the examiner found no evidence of aggravation of his pancreatitis in that it is asymptomatic. In October 2019, the Board acknowledged that, unlike the May 2015 VA examination that the JMPR deemed inadequate, the March 2019 VA examiner's opinion did not include the permanence language, clarification was still needed based on the question presented by the Board and in the VA examination. The claim was again remanded to obtain another VA medical opinion. In November 2019, the Veteran was provided another VA medical opinion regarding the etiology of his pancreatitis. The VA examiner noted the pancreatitis was resolved without residuals, confirmed by March 2019 VAMC medical treatment records. Therefore, the condition less than likely had its clinical onset during service or is due to an event or incident of active service. The examiner also determined the pancreatitis is less than likely proximately due to or aggravated beyond its normal progression by the service-connected diabetes mellitus or CAD. The Board subsequently noted in October 2020 that VA treatment records showed a treatment noted in March 2016 indicating the Veteran had a CT scan showing chronic pancreatitis changes and stable cystic lesion in tail of pancreas at 1.4cm. In January 2020, treatment notes still listed "chronic pancreatitis" as one of the Veteran's active problems. As such, the Board remanded the matter for further development and to obtain a contemporaneous VA medical opinion. Post-remand, the Veteran was afforded a VA pancreas conditions examination in November 2020 and was diagnosed with chronic pancreatitis. Continuous medication was not required for control of the condition, and the Veteran did not show any symptoms, signs or findings attributable to any pancreas conditions or residuals of treatment for pancreas conditions upon examination. The VA examiner affirmed that the Veteran's pancreatitis is asymptomatic and March 2016 treatment records noted the Veteran's last episode of pancreatitis occurred in the mid-1990's. The chronic pancreatitis has been diagnosed primarily from imaging done several years after his acute diagnosis. The examiner added that the available lay and medical evidence does not support a diagnosis of pancreatitis prior to 1995; hospital records, office records and the lay statements from the Veteran all indicate the onset of the condition was in 1995. There is nothing to support a contention that Veteran's pancreatitis was a chronic disability on active duty or was acute near his separation from service that then became chronic. The examiner opined that there is no reasonable medical nexus to service. The VA examiner additionally stated that Veteran was diagnosed with diabetes mellitus type II (DM2) in 1995, the same year he was diagnosed with acute pancreatitis; DM2 is the type where in the body makes its own insulin, but the cells of the body resist the effect of insulin and high blood sugars then result. Veteran was diagnosed with CAD in 2003, eight years after his pancreatitis diagnosis. According to medical literature, the examiner held that the most likely cause of Veteran's pancreatitis are his past history of smoking and high triglycerides, which were "sky high" at the time of the onset of his pancreatitis. "Longstanding diabetes appears to product a type of pancreatic injury termed diabetic pancreatopathy;" however, the Veteran's asymptomatic chronic pancreatitis has been diagnosed for years, and the normal expectation is that if he had the diabetes mellitus type I related condition, he would have showed symptoms, which he did not. The VA examiner also opined that Veteran's pancreatitis was not caused by medication, specifically any medication he might have been taking for his DM2. Further, the VA examiner noted that information in UpToDate.com did not list CAD as a possible cause of chronic pancreatitis and the medical evidence of record does not suggest a relationship between CAD and chronic pancreatitis such that CAD can aggravate pancreatitis. While the Board acknowledges that the Veteran asserted that his chronic pancreatitis was proximately caused by his DM2 and/or CAD, for which service connection was granted, the Veteran and the Appellant have not shown they possess the specialized training sufficient to render such an opinion. Although lay witnesses are competent to provide evidence regarding matters that can be perceived by the senses, they are not competent to provide an opinion regarding etiology. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Barr, 21 Vet. App. 303 (lay testimony is competent to establish the presence of observable symptomatology). As such, the Board gives more probative weight to the VA examiners' medical opinions than the Veteran's lay contentions. The most probative medical evidence of record has demonstrated that the Veteran's pancreatitis is less likely than not related to service, or proximately caused or aggravated by any service-connected condition, to include the service-connected DM2 and CAD. The Veteran's service treatment records contain no indications of treatment, complaints of diagnoses of pancreatitis or any other pancreas condition, and there is no credible evidence linking the condition to service or to his service-connected diabetes mellitus type II or coronary artery disease. Accordingly, the claim for service connection for pancreatitis is denied. For the above reasons, the evidence is neither evenly balanced nor approximately so with regard to whether service connection for pancreatitis is warranted. Rather, the evidence persuasively weighs against a grant of service connection. The benefit of the doubt doctrine, see 38 U.S.C. § 5107(b), is therefore not for application as to this claim. Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021) (en banc) (only when the evidence persuasively favors one side or another is the benefit of the doubt doctrine not for application). STEVEN D. REISS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Zarar Ahmed, Attorney Advisor 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.