Citation Nr: 0003038 Decision Date: 02/07/00 Archive Date: 02/10/00 DOCKET NO. 96-35 747 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Reno, Nevada THE ISSUE Whether new and material evidence has been received to reopen the claim for entitlement to service connection for a gastrointestinal disorder. REPRESENTATION Appellant represented by: Nancy E. Killeen, Attorney-at- Law WITNESS AT HEARINGS ON APPEAL Appellant ATTORNEY FOR THE BOARD K.L. Salas, Associate Counsel INTRODUCTION The veteran had World War II service from March 1942 to January 1946 and was a prisoner of war (POW) of the German government for about 19 months. This appeal originated from an August 1994 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In December 1997 the Board of Veterans' Appeals (Board) remanded the appeal so that relevant treatment records could be obtained and for scheduling of a VA examination. The ordered development has been substantially completed as directed and the case has been returned to the Board for final appellate review. The veteran perfected an appeal on the issue of entitlement to an increased evaluation for post traumatic stress disorder (PTSD). In March 1999 the RO granted a 100 percent evaluation effective back to the date of the veteran's claim. Therefore, as the maximum available benefit has been provided, the matter is resolved and is no longer before the Board on appeal. AB v. Brown, 6 Vet. App. 35, 38 (1993). FINDINGS OF FACT 1. The veteran did not submit a Notice of Disagreement (NOD) within one year after notification of the January 1992 rating decision wherein entitlement to service connection for a gastrointestinal disorder was denied. 2. The evidence submitted by the veteran after the January 1992 rating decision is neither duplicative nor cumulative and bears directly and substantially on the matter at issue. 3. The etiology of the veteran's fecal incontinence has only been possibly attributed to irritable bowel syndrome versus nervousness, both of which may be related to service. CONCLUSIONS OF LAW 1. The January 1992 rating decision became final according to the legal provisions in effect at the time. 38 U.S.C.A. § 7104 (b),(c) (West 1991); 38 C.F.R. §§ 20.302, 20.1103(1992). 2. New and material evidence has been submitted and the claim for entitlement to service connection for a gastrointestinal disorder is reopened. 38 U.S.C.A. § 5108 (West 1991); 38 C.F.R. § 3.156 (1999). 3. A gastrointestinal disorder was incurred as a result of the veteran's POW service or was incurred secondary to service connected PTSD. 38 U.S.C.A. §§ 1110, 5107 (West 1991); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309(c)(1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Factual Background Service medical records show no treatment of dysentery. There is a notation of mild malnutrition as a result of dietary deficiency. His discharge examination report noted that weight was regained and the digestive system was normal. When the veteran filed his original claim in 1948 he reported weight loss and periodic vomiting. He submitted affidavits in support of his contentions regarding conditions in service and regarding his claim of weight loss. A VA examination in April 1948 found no gastrointestinal disorder. On his next examination in June 1950 again there was no history of or finding of a gastrointestinal disorder to include dysentery. He was described as slender, a little underweight and undernourished. A repeat VA examination in August 1953 also showed no digestive or gastrointestinal disorder. Private medical reports from October and November 1977 indicated that the veteran was treated from December 1976 to March 1977 for intermittent colitis. A report from a private physician dated in November 1977 noted that on initial examination in May 1976 there were no abdominal complaints and an abdominal examination was normal. On a follow-up visit in June 1976, the veteran complained of explosive bowel movements. He showed some weight loss but eventually regained the weight as well as his appetite. He continued to report explosive stools after eating. A barium enema and sigmoidoscopy were normal. No diagnosis was made. When last seen, he was eating well and maintaining his weight and examination was essentially normal. Another November 1977 report noted a diagnosis of colitis in December 1976. A VA medical examination was performed in February 1978. At that time the veteran listed bowel irregularity as a present complaint. There did not appear to be any examination with respect to the complaint. When the veteran filed his original claim for entitlement to service connection for dysentery in February 1983, he reported that after his release as a POW he was hospitalized for bloody dysentery. He added that in 1976 he again began to suffer from chronic dysentery and noted that he currently continued to suffer from the same. The veteran submitted an affidavit from a fellow POW. This individual stated that during service the veteran had very frequent illness with frequent to chronic diarrhea and lost "more weight than was normal for the situation." VA examinations were provided in June 1983. The veteran reported bowel irregularity. A proctology examination noted external tags. Anoscope examination revealed cryptitis with no hemorrhoids. Sigmoidoscope examination was performed and resulted in an impression of normal sigmoid with cryptitis. A stool ova and parasites test noted watery and partially formed stool. On a report of POW history dated in July 1983, the veteran reported diarrhea during his captivity and stated that he acquired dysentery then. The former POW summary sheet did not list a diagnosis of colitis, dysentery or any other gastrointestinal disease. The examiner did take note of a history of chronic bowel problems with urgency. The veteran reported increasing symptoms over seven years. Gastrointestinal system review was negative. Examination was negative except as indicated on the sigmoidoscopy sheet. Entitlement to service connection for "residuals of dysentery" (claimed as dysentery or bowel problems) was denied in August 1983. The RO found that service medical records were silent for a complaint of dysentery. It was also noted that his initial claim filed in February 1948 made no mention of dysentery. Furthermore the RO found that "No digestive system disorder was diagnosed" on VA examination. The RO concluded that no residuals of dysentery were shown in service or currently. A notification letter was sent to the veteran regarding the rating decision. It is noted that the notification letter referred to other claims but made no reference to residuals of dysentery. In August 1991 the veteran sought to reopen his claim for entitlement to service connection for bowel problems. In a former POW medical history dated in July 1991 the veteran again reported that dysentery was acquired in service. He reported nausea, vomiting, and diarrhea in captivity. He stated that he currently had "unpredictable bowels." In a November 1991 statement the same former POW who submitted an affidavit in support of the veteran's claim in 1983 wrote that during service, the veteran was frequently ill and lost more weight than other POW's. He appeared unable to digest much of the food provided to him and had frequent attacks of diarrhea. The witness stated that the veteran had an unspecified long-term illness after service. The veteran underwent another series of VA examinations in October and November 1991. He reported weight loss of 10 pounds over six months and stated that for years he had had urgency of bowel movements on occasion. There was no evidence of a gastrointestinal disorder. No abnormality of the abdomen or rectum was noted. On a POW psychosocial survey, the veteran reported that he developed dysentery during captivity. In January 1992 the RO again denied the veteran's claim. It was noted that a VA examination showed an inguinal hernia but no additional disability of the digestive system was found to include any bowel problems. The veteran was informed of the denial by letter dated February 5, 1992. The RO informed the veteran that the evidence of record failed to identify a bowel problem and the previously denied claim for entitlement to service connection for dysentery residuals was continued. The veteran did not file an NOD within one year after the date of notification of the January 1992 rating decision. In March 1993 the veteran filed a claim for entitlement to service connection for bowel problems. He asserted that his bowel problems were due to stress and inadequate diet and treatment as a POW. The veteran was notified in June 1993 that the appeal period had expired and that the January 1992 rating decision had become final. He was informed that new and material evidence was required showing that a disorder was incurred in or aggravated by service and existed continuously since discharge. A VA POW protocol examination was provided in January and February 1994. On the summary sheet a diagnosis was made of diverticulosis. On an Annual History and Physical Examination sheet, the gastrointestinal system review was reportedly normal. Feces occult blood tests in January 1994 were normal. In August 1994 entitlement to service connection was denied for a gastrointestinal disorder. The RO noted that the VA examination contained a diagnosis of diverticulosis with no objective finding or evidence. The RO also noted that diverticulosis had not been associated with any in-service condition to include the veteran's POW experience. The RO notified the veteran of the determination by letter dated in August 1994. The veteran testified at a hearing at the RO in February 1996. The testimony focused on PTSD. There was no specific testimony on the issue of whether new and material evidence had been submitted to reopen the claim for entitlement to service connection for a gastrointestinal disorder. The veteran's representative did assert that gastrointestinal disorders may have been affected by PTSD or by psychiatric medications. The veteran testified before the Board in August 1997. He testified that he had complained about his bowel problems for a long time and added that that his symptoms had especially bothered him in the last 10 to 12 years. He stated that he would not have any warning of bowel movements and had lost 12 pairs of slacks in six years. He recounted a few occasions when he had accidents due to urgency. He denied any medication or treatment. In connection with the hearing the veteran submitted numerous records. Records pertaining to a gastrointestinal disorder were duplicates. The veteran submitted a statement of facts listing "problems" including bowel distress, diverticulitis, and gastritis. VA treatment records from 1997 show evaluation of bowel incontinence. The etiology was unknown. A barium enema reportedly showed scattered diverticula. In December 1998, the veteran underwent VA examinations. On a VA intestines examination he reported 12 episodes of involuntary defecation dating back to 1988 usually occurring shortly after eating. He added that he had had several episodes of near-involuntary defecation recently but was able to find facilities in time. He wore no special undergarments or pads and denied weight loss, significant nausea and vomiting. He did reportedly have some episodes of constipation that were not severe. A gastrointestinal workup including colonoscopy was performed. There was no evidence of malnutrition and no abdominal pain. Hemorrhoidal tags were noted. The only diagnosis was hemorrhoids. The examiner referred to the gastroenterology consult for additional diagnoses. A barium enema revealed spasm in the rectosigmoid colon as well as some diverticula. On a special gastroenterology examination the same month, the veteran reported worsening fecal incontinence with loss of bowel control for ten years. He denied blood in the stool, weight loss or loss of appetite. He reported that he had been extremely stressed. On examination, rectal and abdominal examination was normal. The impression was fecal incontinence, possibly secondary to irritable bowel syndrome versus nervousness. Appetite was found to be fairly controlled. Criteria A determination of the agency of original jurisdiction of which the claimant is properly notified is final if an appeal is not perfected as prescribed by law. 38 U.S.C.A. § 7105(c); 38 C.F.R. § 20.1103. The veteran or his representative must file an NOD from a determination of the agency of original jurisdiction within one year of the date of notification that determination. 38 C.F.R. § 20.302(a). a Substantive Appeal must be filed within 60 days from the date that the agency of original jurisdiction mails the statement of the case to the appellant, or within the remainder of the one-year period from the date of mailing of the notification of the determination being appealed, whichever period ends later. 38 C.F.R. § 20.302(b). The Board does not have jurisdiction to consider a previously adjudicated claim unless new and material evidence is presented. Barnett v. Brown, 83 F. 3d 1380, 1384 (Fed. Cir. 1996). A decision, though final as to conclusions based on the evidence of record at that time, may be reopened if new and material evidence is submitted. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156. The United States Court of Appeals for Veterans Claims (Court), in Elkins v. West, 12 Vet. App. 209 (1999), has held that the Board must perform a three-step analysis when the veteran seeks to reopen a claim. First, the Board must determine whether the appellant has presented new and material evidence. New and material evidence means evidence not previously submitted which bears directly and substantially upon the specific matter under consideration, which is neither cumulative nor redundant, and which by itself or in connection with evidence previously assembled is so significant that it must be considered in order to fairly decide the merits of the claim. 38 C.F.R. § 3.156(a). See also Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). In determining whether new and material evidence has been submitted, VA must accept proffered evidence as presumptively credible. Justus v. Principi, 3 Vet. App. 510 (1992). Prior to the decision in Hodge, the governing case law required, in order to reopen a finally denied claim, that there be a reasonable possibility that the new evidence presented, when viewed in the context of all the evidence, both old and new, would change the prior outcome. Manio v. Derwinski, 1 Vet. App. 140 (1991); Colvin v. Derwinski, 1 Vet. App. 171, 174 (1991). In Hodge, the Federal Circuit invalidated this standard on the grounds that it could impose a higher burden on a veteran than imposed by 38 C.F.R. § 3.156. The Federal Circuit, in Hodge, noted that 38 C.F.R. § 3.156 emphasizes the importance of a complete evidentiary record for the evaluation of the veteran's claim rather than the effect of new evidence on the outcome. Hodge, 155 F.3d at 1363. Moreover under the regulation, evidence could be material if it provided "a more complete picture of the circumstances surrounding the origin of a veteran's injury or disability, even where it will not eventually convince the Board to alter its rating decision." Id. The Court in Elkins, stated that Hodge effectively decoupled the existing relationship under the Court's case law between determinations of well-groundedness and of new and material evidence to reopen - i.e. that if there was new and material evidence to reopen under Colvin, the claim would necessarily also be well grounded. Hodge implicitly held that new and material evidence can be presented even though a claim is not well grounded. If the Board determines that the claimant has produced new and material evidence, the claim is reopened and the Board must determine whether, based upon all of the evidence of record in support of the claim, presuming its credibility, see Robinette v. Brown, 8 Vet. App. 69 (1995), the claim as reopened is well grounded pursuant to 38 U.S.C.A. § 5107(a). If the claim is well grounded, the Board may then proceed to evaluate the merits of the claim, but only after ensuring that the duty to assist under 38 U.S.C.A. § 5107(b) has been fulfilled. Winters v. West, 12 Vet. App. 203 (en banc). Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110. Service connection connotes many factors but basically it means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. This may be accomplished by affirmatively showing inception or aggravation during service or through the application of statutory presumptions. Each disabling condition shown by a veteran's service records, or for which service connection is sought, must be considered on the basis of the places, types and circumstances of the veteran's service as shown by service records, the official history of each organization in which the veteran served, medical records and all pertinent medical and lay evidence. Determinations as to service connection will be based on review of the entire evidence of record, with due consideration to the policy of VA to administer the law under a broad and liberal interpretation consistent with the facts in each individual case. 38 C.F.R. § 3.303(a)(1999). Service connection may 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. Presumptive periods are not intended to limit service connection to diseases so diagnosed when the evidence warrants direct service connection. The presumptive provisions of the statute and VA regulations implementing them are intended as liberalizations applicable when the evidence would not warrant service connection without their aid. 38 C.F.R. § 3.303(d) (1999). If a veteran is a former POW and as such was interned or detained for not less than 30 days certain listed diseases shall be service connected if manifested to a compensable degree of 10 percent or more at any time after service even though there is no record of the diseases in service. The listed gastrointestinal diseases include chronic dysentery and irritable bowel syndrome. 38 C.F.R. §§ 3.307, 3.309 (1999). Disability that is proximately due to or the result of a service-connected disease or injury shall be service connected. When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. 38 C.F.R. § 3.310 (1999). Moreover, when aggravation of a non-service- connected condition is proximately due to or the result of a service-connected condition, a veteran shall be compensated for the degree of disability (but only that degree) over and above the degree of disability that existed prior to the aggravation. Allen v. Brown, 7 Vet. App. 439, 448 (1995). Section 5107 of Title 38, United States Code unequivocally places an initial burden upon the claimant to produce evidence that his claim is well grounded; that is, that his claim is plausible. Grivois v. Brown, 6 Vet. App. 136, 139 (1994); Grottveit v. Brown, 5 Vet. App. 91, 92 (1993). For a claim for service connection to be well grounded, there must be competent evidence of a current disability in the form of a medical diagnosis, of incurrence or aggravation of disease or injury in service in the form of lay or medical evidence, and of a nexus between in service injury or disease and current disability in the form of medical evidence. Caluza v. Brown, 7 Vet. App. 498, 506 (1995). In addition, in the absence of proof of a present disability there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The second and third elements of the Caluza test can also be satisfied by evidence that a condition was "noted" in service or during an applicable presumptive period; evidence showing post service continuity of symptomatology; and medical or, in certain circumstances, lay evidence between the present disability and the post service symptomatology. Savage v. Gober, 10 Vet. App. 488 (1997). Where the determinative issue involves causation or a medical diagnosis, competent medical evidence to the effect that the claim is possible or plausible is required. Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990). The claimant does not meet this burden by merely presenting his lay opinion because he is not a medical health professional and does not constitute competent medical authority. Espiritu v. Derwinski, 2 Vet. App. 492 (1992). Lay assertions cannot constitute cognizable evidence, and as cognizable evidence is necessary for a well-grounded claim, Tirpak v. Derwinski, 2 Vet. App. 6-9, 611 (1992), a claim based only on the veteran's lay opinion is not well grounded. In determining whether a claim is well grounded, the claimant's evidentiary assertions are presumed true unless inherently incredible or when the fact asserted is beyond the competence of the person making the assertion. King v. Brown, 5 Vet. App. 19, 21 (1993). The Court has held that if the veteran fails to submit a well grounded claim, VA is under no duty to assist in any further development of the claim. 38 U.S.C.A. § 5107(a); Gilbert v. Brown, 5 Vet. App. 91, 93 (1993); Epps v. Gober, 126 F.3d 1464 (Fed. Cir. 1997); 38 C.F.R. § 3.159(a) (1998). In Morton v. West, 12 Vet. App. 477 (1999), the Court concluded that the Secretary, by regulation, Manual, and/or Compensation and Pension (C&P) policy cannot eliminate the condition precedent placed by Congress upon the inception of his duty to assist. Absent the submission and establishment of a well-grounded claim, the Court held that the Secretary cannot undertake to assist a veteran in developing facts pertinent to his or her claim. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When, after consideration of all of the evidence and material of record in an appropriate case before VA, there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b) (West 1991); 38 C.F.R. § 3.102. Analysis The veteran did not submit a timely NOD or substantive appeal in response to the January 1992 rating decision, wherein entitlement to service connection was denied for "POW presumptive conditions" (claimed as dysentery). Accordingly the claim became final under the laws and regulations at that time. 38 U.S.C.A. § 7104 (b),(c); 38 C.F.R. §§ 20.1103, 20.302. The first question is whether new and material evidence has been submitted to reopen the claim for entitlement to service connection for a gastrointestinal disorder as defined by statute, regulation and case law. The evidence submitted after the January 1992 rating decision consisted of a number of duplicate records. The veteran also made statements and contentions that were essentially cumulative of evidence submitted prior to the January 1992 rating decision. However, the evidence submitted after January 1992 was not wholly cumulative. Significantly, a VA examination contained a diagnosis of diverticulosis in February 1994 and a special gastroenterology in December 1998 resulted in an assessment that the veteran had fecal incontinence possibly secondary to irritable bowel syndrome versus nervousness. VA outpatient treatment records from 1997 show treatment of incontinence. This evidence is new and material. It bears substantially and directly on the questions at issue - whether the veteran has a chronic gastrointestinal disorder and the etiology of that disorder. The primary basis for the January 1992 rating decision was that (aside from an inguinal hernia) no disability of the digestive system, to include bowel problems, could be found on VA examination. Medical evidence submitted after January 1992 shows a current disabling condition, namely fecal incontinence. The medical opinion also establishes two possible etiologies (irritable bowel syndrome or nervousness), either of which could support a claim for entitlement to service connection (under 38 C.F.R. §§ 3.307 and 3.309(c) or 38 C.F.R. § 3.310 respectively) as discussed in more detail below. Accordingly, new and material evidence has been submitted and the claim for entitlement to service connection for a gastrointestinal disorder is reopened. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156. Having determined that the claim is reopened the Board must now determine whether the claim is well grounded based on the evidence of record. Upon review of the evidence in the claims folder the Board concludes that the veteran's claim is well grounded. The claim is well grounded because there is competent medical evidence - the opinion by the gastroenterologist who examined the veteran in December 1998 - that the possible etiology of the current fecal incontinence is attributable to irritable bowel syndrome. The Board notes that the veteran stated that he had diarrhea during his confinement in service and he has submitted lay affidavits from fellow soldiers to that effect. Explosive bowel movements diagnosed as colitis are shown to have been diagnosed and treated as early as 1976. Watery, partially formed stools were found on VA examination in 1983. The veteran has presented his lay testimony that he has continued to have bowel irregularity, and fecal urgency and incontinence, and medical records have shown current findings including diverticula and spasm of the rectosigmoid colon. Irritable bowel syndrome is presumed to be service connected if manifest to a compensable degree any time after service including incarceration as a POW for more than 30 days. 38 C.F.R. § 3.309(c). The veteran's POW status is confirmed and his period of incarceration is longer than 30 days. Irritable colon syndrome (spastic colitis, mucous colitis etc.) is evaluated as 10 percent disabling if moderate. According to VA rating criteria, a moderate case is indicated where there are frequent episodes of bowel disturbance with abdominal distress. 38 C.F.R. § 4.114, Diagnostic Code 7319 (1999). For service connection purposes only the Board concludes that the evidence has indicated a post-service case of moderate symptoms. Medical evidence shows that in December 1998 the veteran reported several near involuntary defecations recently. He also had 12 episodes of involuntary defecation in a 10 year period. The evidence shows persistent or frequent urgency with not only distress but periodic fecal incontinence. The Board notes that the claim is also well grounded under 38 C.F.R. § 3.310. There is competent medical evidence that, alternatively, fecal incontinence may be due to nervousness. The veteran is service connected for PTSD, evaluated as 100 percent disabling. The evidence therefore supports that the veteran's gastrointestinal problems may be proximately due to his service-connected psychiatric disorder. Giving this honorable POW the benefit of the doubt, considering his written contentions and hearing testimony, the affidavits submitted by fellow soldiers, and the medical evidence of record, the Board concludes that it is at least as likely as not that the veteran has a chronic gastrointestinal disorder that is etiologically related either to his wartime service directly, or, alternatively, is proximately due to his service- connected PTSD. Therefore as the preponderance of the evidence is not against the veteran's claim, his appeal is granted. 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309(c). ORDER Entitlement to a gastrointestinal disorder is granted. M. SABULSKY Member, Board of Veterans' Appeals