Citation Nr: 0002714 Decision Date: 02/03/00 Archive Date: 02/10/00 DOCKET NO. 98-03 152 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUE Entitlement to service connection for irritable bowel syndrome. REPRESENTATION Veteran represented by: AMVETS WITNESS AT HEARING ON APPEAL The veteran ATTORNEY FOR THE BOARD K. Conner, Associate Counsel INTRODUCTION The veteran had active military service from July 1969 to February 1971. This matter comes to the Board of Veterans' Appeals (Board) from a January 1997 rating decision of the Department of Veterans Affairs (VA) Chicago Regional Office (RO) which denied service connection for chronic intermittent diarrhea. In May 1999, the veteran testified at a Board hearing at the RO in support of his claim. FINDING OF FACT The record contains no competent medical evidence of a nexus between the veteran's current irritable bowel syndrome and his military service, any incident therein, or any reported continuous symptomatology. CONCLUSION OF LAW The claim of entitlement to service connection for irritable bowel syndrome is not well grounded. 38 U.S.C.A. 5107(a) (West 1991). REASONS AND BASES FOR FINDING AND CONCLUSION I. Factual Background The veteran's service medical records show that in March 1970, he went to sick call with complaints of light headedness and diarrhea; the initial impression was viral gastroenteritis. His symptoms reportedly persisted and two days later, he was hospitalized for treatment. On admission, he reported symptoms of nausea, vomiting, and diarrhea, with watery stools up to 20 times daily. During the course of his eight-day hospitalization, he was treated with antibiotics and his condition improved markedly. The diagnosis on discharge from the hospital was diarrhea, probably secondary to shigellosis. The veteran was returned to full duty. Subsequent service medical records are negative for complaints or findings of irritable bowel syndrome or diarrhea. An October 1970 treatment record shows that he was seen for a fever and chills, but denied nausea, vomiting, or diarrhea. At his February 1971 military separation medical examination, clinical evaluation revealed no pertinent abnormalities and the veteran indicated that his health was "fairly good." Following his separation from service, in February 1971, the veteran filed a claim of service connection for nervousness and a stomach disability, stating that his stomach hurt "quite often." Upon receipt of his claim, the RO scheduled the veteran for a VA medical examination, but he responded that he did not need a medical examination as his family physician had concluded that his stomach trouble was caused by nerves. By April 1971 letter, the RO notified the veteran that his claim had been denied. He did not appeal the RO's determination. Post-service medical records show that in November 1971 and July 1975, the veteran's private physician prescribed antibiotics for treatment of acute gastroenteritis. In December 1975, the veteran was hospitalized with symptoms of chills, nausea, vomiting, and diarrhea. The diagnosis was acute gastroenteritis. During the course of hospitalization, he was treated with antibiotics and fluids; his symptoms improved and he was discharged in good condition in January 1976. In September 1976, the veteran was again hospitalized with complaints of nausea, vomiting, diarrhea, and acute epigastric pain. During the course of hospitalization, an upper gastrointestinal series revealed duodenitis, which was felt to account for some of the veteran's symptoms. The final diagnosis was acute gastroenteritis. In November 1980, he was again seen for symptoms of vomiting and diarrhea. The diagnosis was acute gastroenteritis and antibiotics were prescribed. In December 1991, the veteran sought VA outpatient treatment for recurrent diarrhea, which he indicated had been present since he was hospitalized in Vietnam for gastroenteritis. He reported that, at that time, he had received an experimental medication and had lost ten pounds. Since that time, he indicated that he had had four to eight stools daily. The veteran also indicated that he was very nervous and felt that this nervousness exacerbated his symptoms. The assessment was chronic, intermittent diarrhea with baseline frequent stools. The examiner indicated that the veteran's symptoms were probably secondary to irritable bowel disease and exacerbated by caffeine and nervousness. In January 1995, the veteran sought private treatment for a two week history of rectal bleeding. He denied diarrhea, constipation, or hemorrhoids. A flexible sigmoidoscopy was performed and revealed sessile polyps which were excised the following month. In February 1996, he was seen on follow-up and reported a tendency towards diarrhea, having four to five stools daily. He stated that this had been happening most of his life. A repeat colonoscopy showed a small polyp in the right colon, which was removed. The rest of the examination was unremarkable and a follow-up examination in three years was recommended. On VA neurological examination in December 1996, the veteran reported chronic diarrhea and intermittent urinary dribbling. He indicated that his symptoms had been present since his military service when he was hospitalized for treatment of an infection. However, he indicated that his symptoms had become increasingly worse and that he had undergone surgical removal of a polyp from his colon. Neurological examination was within normal limits and the veteran appeared to have normal bulbocavernosus reflex and rectal tone. The impression was normal neurologic examination, unable to explain current bowel incontinence, but most likely has a gastrointestinal origin. On VA medical examination in February 1999, it was noted that during the veteran's period of service in Vietnam, he was struck with severe watery diarrhea and fever and was diagnosed with probable shigellosis. The examiner noted that the veteran's symptoms improved and he was returned to duty six days later. The veteran reported that, since that time, he began developing uncontrolled bowel movements and currently had four to eight soft bowel movements daily, with rare incontinence. The examiner noted that the veteran was treated for episodes of acute gastroenteritis in November 1971, September 1976, and November 1980, and had been seen at a VA facility in December 1991 for a work up of his diarrhea. He noted that it was their impression that the veteran's diarrhea was not due to an infectious process, but rather was due to irritable bowel syndrome. It was also noted that the veteran had undergone colonoscopies in 1995 and 1996, with excisions of polyps. The impression of the examiner was irritable bowel syndrome. He concluded that the veteran's present condition did not have any relationship to the episode of shigellosis in service. He indicated that, "[a]s to whether it was precipitated by his general military experiences is unknown since the causes of irritable bowel syndrome are unknown." In May 1999, the veteran testified at a Board hearing in support of his claim. He indicated that he first developed diarrhea in service and that, since that time, his symptoms had persisted. He indicated that he had essentially self- treated by using antacids and other stomach medications. However, he indicated that his condition had become worse in the past two to three years. II. Law and Regulations Service connection may be granted for disability resulting from personal injury suffered or disease contracted in the line of duty or for aggravation of a pre-existing injury or disease in the line of duty. 38 U.S.C.A. § 1110 (West 1991); 38 C.F.R. §§ 3.303, 3.304, 3.306 (1999). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (1999). In general, in any claim for benefits, the initial question before the Board is whether the veteran has met his burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that his claim is well-grounded. 38 U.S.C.A. § 5107(a). The U.S. Court of Appeals for the Federal Circuit (Federal Circuit) has set forth the parameters of what constitutes a well-grounded claim, i.e., a plausible claim, one which is meritorious on its own or capable of substantiation. Such a claim need not be conclusive but only possible to satisfy the initial burden of section 5107(a). See Epps v. Gober, 126 F.3d 1464 (Fed. Cir. 1997). More specifically, the Federal Circuit has held that in order for a claim to be well grounded, there must be (1) a medical diagnosis of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between an in-service disease or injury and the current disability. Id. at 1468. III. Analysis In this case, the veteran contends that his current irritable bowel syndrome had its inception in service as a result of an infection for which he was hospitalized. He has testified that, since that time, he has experienced chronic, debilitating diarrhea. As set forth above, the veteran's service medical records confirm that in March 1970, he was hospitalized for eight days with symptoms of nausea, vomiting and diarrhea; his symptoms reportedly resolved with treatment and the diagnosis on discharge was diarrhea, probably due to shigellosis. The remaining service medical records, however, are negative for indications of chronic residuals of that episode, including notations of diarrhea or irritable bowel syndrome. Likewise, while the post-service medical evidence of record shows treatment in November 1971, July and December 1975, September 1976, November 1980, and December 1991 for episodes of acute gastroenteritis and/or chronic diarrhea, none of these records contains evidence of a nexus between the veteran's chronic diarrhea or irritable bowel syndrome and his military service or any incident therein. In fact, the only medical evidence of record which addresses that relationship is the February 1999 VA examination report, which indicates that the veteran's current irritable bowel syndrome is unrelated to his in-service episode of shigellosis. While the veteran himself opines that his current irritable bowel syndrome was incurred in service, as the record does not establish that he possesses a recognized degree of medical knowledge, his opinion as to causation is not competent. Thus, his lay statements are insufficient to establish a plausible claim. Espiritu v. Derwinski, 2 Vet. App. 492 (1992). Therefore, lacking competent medical evidence of a nexus between a current disability and the veteran's military service or any incident therein, the Board must conclude that the veteran's claim of service connection for irritable bowel syndrome is not well grounded. 38 U.S.C.A. § 5107(a); Epps, 126 F.3d at 1468. In reaching this determination, the Board has carefully considered the veteran's testimony to the effect that he has experienced continuous diarrhea since his separation from service. The U.S. Court of Appeals for Veterans Claims (Court) has held that, a claim based on chronicity may be well-grounded if (1) the chronic condition is observed during service, (2) continuity of symptomatology is demonstrated thereafter, and (3) competent evidence relates the present condition to that symptomatology. Savage v. Gober, 10 Vet. App. 488, 495-98 (1997). In this case, the Board finds that the veteran's statements regarding continuity of symptomatology are competent and credible. See Falzone v. Brown, 8 Vet. App. 398, 403 (1995) (holding that a lay person is competent to testify as to observable symptoms); King v. Brown, 5 Vet. App. 19, 21 (holding that a veteran's lay assertions are generally presumed to be true for purposes of determining whether a claim is well grounded). However, even assuming the competence and truthfulness of the veteran's statements regarding continuity of symptomatology, the Board must conclude that that claim of service connection for irritable bowel syndrome is not well grounded. While a layperson is competent to testify as to observable symptoms, he is not, however, competent to provide evidence that the observable symptoms are manifestations of chronic pathology or diagnosed disability. Savage, 10 Vet. App. at 495-98 In this case, there is no evidence in the service medical records (or otherwise) that the veteran's in-service episode of gastroenteritis or shigellosis resulted in chronic disability. Likewise, while the Board accepts as credible the veteran's statements of continuity of symptomatology since service, medical expertise is required relating those reported symptoms to a current disability. Because the record is devoid of any such evidence, the Board concludes that the veteran has not submitted evidence sufficient to well ground his claim. In sum, lacking competent medical evidence of a link between the veteran's current irritable bowel syndrome and his military service, any incident therein, or any continuous symptomatology, the claim of service connection for irritable bowel syndrome is not well grounded. 38 U.S.C.A. § 5107(a). In reaching this conclusion, the Board has considered the March 1999 request of the veteran's representative that this matter be remanded to afford the veteran a VA examination by a physician or gastrointestinal specialist. However. the Board notes that the Court has held that the duty to assist (the legal basis for directing the RO to conduct a VA examination) does not arise until the veteran has submitted a well grounded claim. 38 U.S.C.A. § 5107; Murphy v. Derwinski, 1 Vet. App. 78 (1990). Therefore, a remand to the RO to conduct a VA medical examination would not be appropriate in this case. See Roberts v. West, No. 97-1993 (U.S. Vet. App. Nov. 19, 1999); Grivois v. Brown, 6 Vet. App. 136, 140 (1994); Kelly v. Brown, 7 Vet. App. 471, 476 (1995) (Steinberg, J. concurring) (noting that grave questions of due process arise when the duty to assist is afforded some veterans with claims which are not well grounded, but denied to others); see also Falzone v. Brown, 8 Vet. App. 398, 404 (1995) (holding that examination of a claimant would not be necessary unless his claim was to be adjudicated on the merits). Since a well-grounded claim has not been submitted, the VA is not obligated by statute to assist the veteran in the development of facts pertinent to this claim. 38 U.S.C.A. 5107(a). Nonetheless, VA has an obligation to notify a veteran under section 5103(a) when the circumstances of the case put the Department on notice that relevant evidence may exist, or could be obtained, that, if true, would make the claim "plausible" and that such evidence had not been submitted with the application. McKnight v. Gober, 131 F.3d 1483, 1485 (Fed. Cir. 1997) (per curiam). In the instant case, however, the veteran has not identified any available evidence that has not been submitted or obtained, which would support a well-grounded claim. Thus, the VA has satisfied its duty to inform the veteran under 38 U.S.C.A. 5103(a). See Slater v. Brown, 9 Vet. App. 240, 244 (1996). ORDER Service connection for irritable bowel syndrome is denied. WAYNE M. BRAEUER Member, Board of Veterans' Appeals